[Federal Register Volume 74, Number 171 (Friday, September 4, 2009)]
[Proposed Rules]
[Pages 45906-45965]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-21017]
[[Page 45905]]
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Part II
Department of Labor
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Employment and Training Administration
20 CFR Part 655
Wage and Hour Division
29 CFR Part 501
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Temporary Agricultural Employment of H-2A Aliens in the United States;
Proposed Rule
Federal Register / Vol. 74 , No. 171 / Friday, September 4, 2009 /
Proposed Rules
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DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Part 655
Wage and Hour Division
29 CFR Part 501
RIN 1205-AB55
Temporary Agricultural Employment of H-2A Aliens in the United
States
AGENCY: Employment and Training Administration, and Wage and Hour
Division, Employment Standards Administration, Labor.
ACTION: Proposed rule; request for comments.
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SUMMARY: The Department of Labor (the Department or DOL) is proposing
to amend its regulations governing the certification of temporary
employment of nonimmigrant workers in temporary or seasonal
agricultural employment and the enforcement of the contractual
obligations applicable to employers of such nonimmigrant workers. This
Notice of Proposed Rulemaking (NPRM or Proposed Rule) reexamines the
process by which employers obtain a temporary labor certification from
the Department for use in petitioning the Department of Homeland
Security (DHS) to employ a nonimmigrant worker in H-2A status. The
Department also proposes to amend the regulations at 29 CFR part 501 to
provide for sufficient enforcement under the H-2A program so that
workers are appropriately protected when employers fail to meet the
requirements of the H-2A program.
DATES: Interested persons are invited to submit written comments on the
Proposed Rule on or before October 5, 2009. Interested persons are
invited to submit comments on the proposed form mentioned herein; such
comments must be received on or before November 3, 2009.
ADDRESSES: You may submit comments, identified by Regulatory
Information Number (RIN) 1205-AB55, by any one of the following
methods:
Federal e-Rulemaking Portal at www.regulations.gov: Follow
the Web site instructions for submitting comments.
Mail: Please submit all written comments (including disk
and CD-ROM submissions) to Thomas Dowd, Administrator, Office of Policy
Development and Research, Employment and Training Administration, U.S.
Department of Labor, 200 Constitution Avenue, NW., Room N-5641,
Washington, DC 20210.
Hand Delivery/Courier: Please submit all comments to
Thomas Dowd, Administrator, Office of Policy Development and Research,
Employment and Training Administration, U.S. Department of Labor, 200
Constitution Avenue, NW., Room N-5641, Washington, DC 20210.
Please submit your comments by only one method. Comments that are
received by the Department through means beyond those listed in this
Proposed Rule or that are received after the comment period has closed
will not be reviewed in consideration of the Final Rule. The Department
will post all comments received on http://www.regulations.gov without
making any change to the comments, including any personal information
provided. The http://www.regulations.gov Web site is the Federal e-
rulemaking portal and all comments posted there are available and
accessible to the public. The Department cautions commenters not to
include their personal information such as Social Security Numbers,
personal addresses, telephone numbers, and e-mail addresses in their
comments as such submitted information will become viewable by the
public on the http://www.regulations.gov Web site. It is the
commenter's responsibility to safeguard his or her information.
Comments submitted through http://www.regulations.gov will not include
the commenter's e-mail address unless the commenter chooses to include
that information as part of his or her comment.
Postal delivery in Washington, DC, may be delayed due to security
concerns. Therefore, the Department encourages the public to submit
comments via the http://www.regulations.gov Web site.
Docket: For access to the docket to read background documents or
comments received, go to the Federal e-Rulemaking portal at http://www.regulations.gov. The Department will also make all the comments it
receives available for public inspection during normal business hours
at the Employment and Training Administration (ETA) Office of Policy
Development and Research at the above address. If you need assistance
to review the comments, the Department will provide you with
appropriate aids such as readers or print magnifiers. The Department
will make copies of the rule available, upon request, in large print
and as electronic file on computer disk. The Department will consider
providing the Proposed Rule in other formats upon request. To schedule
an appointment to review the comments and/or obtain the rule in an
alternate format, contact the Office of Policy Development and Research
at (202) 693-3700 (VOICE) (this is not a toll-free number) or 1-877-
889-5627 (TTY/TDD).
FOR FURTHER INFORMATION CONTACT: For further information on 20 CFR part
655, contact William L. Carlson, PhD, Administrator, Office of Foreign
Labor Certification, ETA, U.S. Department of Labor, 200 Constitution
Avenue, NW., Room C-4312, Washington, DC 20210; Telephone (202) 693-
3010 (this is not a toll-free number). Individuals with hearing or
speech impairments may access the telephone number above via TTY by
calling the toll-free Federal Information Relay Service at 1-800-877-
8339.
For further information on 29 CFR part 501 contact James Kessler,
Farm Labor Branch Chief, Wage and Hour Division, Employment Standards
Administration, U.S. Department of Labor, 200 Constitution Avenue, NW.,
Room S-3510, Washington, DC 20210; Telephone (202) 693-0070 (this is
not a toll-free number). Individuals with hearing or speech impairments
may access the telephone number above via TTY by calling the toll-free
Federal Information Relay Service at 1-800-877-8339.
SUPPLEMENTARY INFORMATION:
I. Revisions to 20 CFR Part 655 Subpart B
A. Statutory Standard and Regulatory History
The H-2A nonimmigrant worker visa program enables United States
(U.S.) agricultural employers to employ foreign workers on a temporary
basis to perform agricultural labor or services in the absence of U.S.
labor. Section 101(a)(15)(H)(ii)(a) of the Immigration and Nationality
Act (INA or the Act) defines an H-2A nonimmigrant as one admitted to
the U.S. on a temporary or seasonal basis to perform agricultural labor
or services. 8 U.S.C. 1101(a)(15)(H)(ii)(a); see also 8 U.S.C.
1184(c)(1) and 1188. The H-2A class of admission is rooted in the
Immigration and Nationality Act of 1952, which created an H-2 visa for
nonimmigrant admission for all types of temporary labor. The
Immigration Reform and Control Act of 1986 (IRCA), three decades later,
amended the INA to establish a separate H-2A visa classification for
agricultural labor under INA sec. 101(a)(15)(H)(ii)(A). Public Law 99-
603, Title III, 100 Stat. 3359 (November 6, 1986).
[[Page 45907]]
The INA authorizes the Secretary of DHS to permit employers to
import foreign workers to perform temporary agricultural services or
labor of a seasonal or temporary nature if the Secretary of the United
States Department of Labor (Secretary) certifies that:
(A) There are not sufficient U.S. workers who are able, willing,
and qualified, and who will be available at the time and place
needed to perform the labor or services involved in the petition;
and
(B) The employment of the alien in such labor or services will
not adversely affect the wages and working conditions of workers in
the United States similarly employed.
8 U.S.C. 1188(a)(1).
The INA also sets out the conditions under which a certification
may not be granted, including:
(1) There is a strike or lockout in the course of a labor
dispute which, under the regulations, precludes such certification.
(2)(A) The employer during the previous two-year period employed
H-2A workers and the Secretary of Labor has determined, after notice
and opportunity for a hearing, that the employer at any time during
that period substantially violated a material term or condition of
the labor certification with respect to the employment of domestic
or nonimmigrant workers.
(B) No employer may be denied certification under subparagraph
(A) for more than three years for any violation described in such
subparagraph.
(3) The employer has not provided the Secretary with
satisfactory assurances that if the employment for which the
certification is sought is not covered by State workers'
compensation law, the employer will provide, at no cost to the
worker, insurance covering injury and disease arising out of and in
the course of the worker's employment which will provide benefits at
least equal to those provided under the State workers' compensation
law for comparable employment.
(4) The Secretary determines that the employer has not made
positive recruitment efforts within a multi-state region of
traditional or expected labor supply where the Secretary finds that
there are a significant number of qualified United States workers
who, if recruited, would be willing to make themselves available for
work at the time and place needed. Positive recruitment under this
paragraph is in addition to, and shall be conducted within the same
time period as, the circulation through the interstate employment
service system of the employer's job offer. The obligation to engage
in positive recruitment under this paragraph shall terminate on the
date the H-2A workers depart for the employer's place of employment.
8 U.S.C. 1188(b).
The Secretary has delegated these responsibilities, through the
Assistant Secretary, Employment and Training Administration (ETA), to
ETA's Office of Foreign Labor Certification (OFLC).
The statute applies strict timelines to the processing of requests
for certification. The Secretary may not require that such a request,
or Application for Temporary Labor Certification, be filed more than 45
days before the employer's date of need, and certification must occur
no later than 30 days before the date of need, provided that all the
criteria for certification are met. 8 U.S.C. 1188(c). If the
Application for Temporary Labor Certification fails to meet threshold
requirements for certification, notice must be provided to the employer
within 7 days of the date of filing, and a timely opportunity to cure
deficiencies must be provided to the employer.
To obtain a temporary labor certification, the employer must
demonstrate that the need for the services or labor is of a temporary
or seasonal nature. The employer must also establish that the job
opportunity for the temporary position is full-time. The statute also
institutes certain employment-related protections, including workers'
compensation insurance, recruitment, and housing, to which H-2A
employers must adhere. 8 U.S.C. 1188(c).
B. Current Regulatory Framework
The Department operated the H-2A program for more than two decades
under regulations promulgated in the wake of IRCA or earlier. For the
most part, the regulations at title 20 of the Code of Federal
Regulations (CFR) part 655 were published at 52 FR 20507, Jun. 1, 1987
(the 1987 Rule). On December 18, 2008, the Department published final
regulations revising these regulations and also revising the companion
regulations at 29 CFR part 501 governing the enforcement
responsibilities of the Department's Wage and Hour Division (WHD) under
the H-2A program (the 2008 Final Rule). Included in that rulemaking
were revisions to Fair Labor Standards Act (FLSA) regulations at 29 CFR
parts 780 and 788. 73 FR 77110, Dec. 18, 2008.
The 2008 Final Rule made several significant changes in the
processing of H-2A Application for Temporary Labor Certification
(Application). The 2008 Final Rule uses an attestation-based model,
unlike the previous rule, which mandated a fully-supervised labor
market test. Under the 2008 Final Rule, employers conduct the required
recruitment and, based upon the results of that effort, apply for a
number of needed foreign workers. Thereafter, employers attest that
they have undertaken the necessary activities and made the required
assurances to workers, rather than have such actual efforts reviewed by
a Federal or State official, as was the process in the 1987 Rule. The
2008 Final Rule relies largely on post-adjudication integrity measures
to review selected documentation from a percentage of employers to
compensate for a lack of hands-on review. It also reflects several
significant policy shifts; chief among these was the decision to base
the Adverse Effect Wage Rate (AEWR), which is the wage determined by
the Department to be the minimum below which adverse impact to domestic
workers would accrue, on the Occupational Employment Statistics (OES)
Wage Survey collected by the Department's Bureau of Labor Statistics
(BLS), rather than data compiled by the U.S. Department of Agriculture
(USDA), National Agriculture Statistics Service (NASS) in its quarterly
Farm Labor Survey Reports, which was what was relied upon in the 1987
Rule.
Following the issuance of the 2008 Final Rule, a lawsuit was filed
in the U.S. District Court for the District of Columbia challenging the
H-2A Final Rule. United Farm Workers, et al. v. Chao, et al., Civil No.
09-00062 RMU (D.D.C.). The plaintiffs asserted that in promulgating the
2008 Final Rule, the Department violated 8 U.S.C. 1188 and the
Administrative Procedures Act (APA). The plaintiffs requested a
temporary restraining order and preliminary injunction, along with a
permanent injunction that would prohibit DOL from implementing the 2008
Final Rule. The plaintiffs' requests for a temporary restraining order
and preliminary injunction were denied and the 2008 Final Rule went
into effect as scheduled on January 17, 2009.
The Administration, however, desired to review the policy decisions
emanating from the 2008 Final Rule, made by a prior Administration,
particularly on the role of the H-2A program in supplying foreign
workers in agricultural activities, and with specific review of the
protections afforded under that rule to all agricultural workers in
general and the domestic workforce in particular. This review was
believed to be particularly timely in light of the rising unemployment
among U.S. workers and their apparent increasing availability for these
jobs. Regardless, the Department upon review has determined the current
level of worker protections and incentives for U.S. workers to accept
employment in agriculture require expansion and are accordingly
addressed in this NPRM. The Department's concern is that our
agricultural economy should to the fullest extent feasible employ U.S.
workers and they be granted a level of worker safety and protection
[[Page 45908]]
characterized in other occupations and that the need for foreign labor
be when only there are demonstrably no available domestic workers for
these jobs.
Accordingly, the Department extended the transition period
contained in the 2008 Final Rule. In addition, the Department proposed
to suspend the 2008 Final Rule in a Notice of Proposed Suspension at 74
FR 11408, Mar. 17, 2009. After considering the comments submitted in
connection with the Notice of Proposed Suspension, the Department
suspended the 2008 Final Rule and reinstated the regulations in effect
prior to the 2008 Final Rule in order to effectuate a thorough review
of the regulatory activity undertaken and to determine whether a new
rulemaking effort was appropriate. 74 FR 25972, May 29, 2009. The
Department stated in the Final Suspension that it intended to reinstate
the former regulations for a 9-month period, after which time it would
revert to the suspended regulations, unless a new rulemaking was in
place. On June 29, 2009, the United States District Court for the
Middle District of North Carolina issued a preliminary injunction
enjoining the implementation of the Final Suspension. North Carolina
Growers' Association v. Solis, 1:09-cv-00411 (June 29, 2009). As a
result of that order, as of the date of publication of this Proposed
Rule, the 2008 Final Rule remains in effect.
C. Need for New Rulemaking
The Department has determined for a variety of reasons that a new
rulemaking effort is necessary for the H-2A program. The Department,
upon due consideration, believes that the policy underpinnings of the
2008 Final Rule, e.g. streamlining the H-2A regulatory process to defer
many determinations of program compliance until after an Application
has been fully adjudicated, do not provide an adequate level of
protection for either U.S. or foreign workers.
In addition, the usage of the program since January 2009 has
demonstrated that the policy goals of the 2008 Final Rule have not been
met. One of the clear goals of the 2008 Final Rule was to increase
usage of the H-2A program, to make usage easier for the average
employer, and more affordable. However, applications have actually
decreased since the implementation of the new program. Employers filed
3,176 applications in the first three and one half months of Fiscal
Year (FY) 2009, prior to the implementation of the 2008 Final Rule
(October 1, 2008-January 16, 2009). In the six and one half months from
January 17, 2009, to July 31, 2009, 4,214 applications were filed. When
compared to the previous year (FY 2008), in which 8,360 applications
were filed, employers are not increasing their usage of the program.
See Chart of Average Monthly H-2A Applications Received by OFLC, infra.
Not only has usage not increased under the program revisions, there has
actually been a reversal of an existing multi-year trend toward
increased program utilization. While factors other than the regulatory
changes may play a role in this decrease, without accomplishing the
prior rules' goal of increasing program usage, the Department can no
longer justify the significant decrease in worker protections.
The Department also feels that there are insufficient worker
protections in the attestation-based model in which employers merely
confirm, and do not actually demonstrate to the satisfaction of an
objective government observer, that they have performed an adequate
test of the U.S. labor market. Even in the first year of the
attestation model it has come to the Department's attention that
employers, either from a lack of understanding or otherwise, are
attesting to compliance with program obligations with which they have
not complied. Specific situations have been reported to the Department
of employers who have imposed obstacles in the way of U.S. workers
seeking employment. Examples of this have included the requirement of
interviewing in-person at remote interview sites that require payment
to access; multiple interview processes for job opportunities requiring
no skills or experience; test requirements that are not disclosed to
the applicants; contact information that is disconnected, is located
outside the U.S., or proves incorrect; farm labor contractors who
attest to a valid license who in fact have none; and contractors who
have not obtained surety bonds . This anecdotal evidence from different
geographical sectors, representative of both new filers and experienced
program users, has been obtained by the Department in the course of its
activities in processing cases (in responses to requests for
modifications), auditing certified cases, and in complaints from U.S.
workers since the effective date of the 2008 Final Rule. Such non-
compliance appears to be sufficiently substantial and widespread for
the Department to revisit the use of attestations, even with the use of
back-end integrity measures for demonstrated non-compliance.
The Department has also determined that the area in which
agricultural workers are most vulnerable--wages--has been adversely
impacted to a far more significant extent than anticipated by the 2008
Final Rule. As discussed further below, the shift from the AEWR as
calculated under the 1987 Rule to the recalibration of the prevailing
wage as the AEWR of the 2008 Final Rule resulted in a substantial
reduction of farmworker wages in a number of labor categories, and the
obvious effects of that reduction on the workers' and their families'
ability to meet necessary costs is an important concern to the current
Administration.
In order to adequately protect U.S. and H-2A workers, the
Department is proposing the changes further discussed in the
subsections below. The Department is engaging in new rulemaking to
provide the affected public with notice and opportunity to engage in
dialogue with the Department on the H-2A program. The Department took
into account both the regulations promulgated in 1987, as well as the
significant reworking of the regulations in the 2008 Final Rule, in
order to arrive at a Proposed Rule that balances the worker protections
of the 1987 Rule and the program integrity measures of the 2008 Final
Rule. Much of the 2008 Final Rule has been retained in format, as it
presents a more understandable regulatory roadmap; it has been used
when its provisions do not conflict with the policies proposed in this
NPRM. To the extent the 2008 Final Rule presents a conflict with the
policies underpinning this Proposed Rule, it has been rewritten or the
provisions of the 1987 Rule have been adopted. To the extent the 1987
Rule furthers the policies that underlie this rule, those provisions
have been retained. These changes are pointed out below.
D. Overview of Proposed Process
In the proposed model, an employer must initiate the request for H-
2A certification 60 to 75 days prior to the date of need by submitting
an Agricultural and Food Processing Clearance Order, Form ETA-790, to
the State Workforce Agency (SWA) in the area of intended employment to
be placed as an intrastate job order. Concurrent with submitting the
job order, the employer must request a housing inspection. The SWA will
review the proposed terms and conditions, ensure that the wage offered
meets the required wage, and commence required recruitment by placing
the job order into intrastate clearance. The housing inspection must be
completed prior to the issuance of the certification, since this is a
requirement to access to the interstate clearance system (see 20 CFR
653.501(d)(2)(xv) and 654.403(e)).
[[Page 45909]]
The SWA must keep the job order posted and continue to refer employment
applicants until 50 percent of the employer's contract period is
complete. See Sec. 655.135(d).
The employer must consider all U.S. worker applicants referred
throughout the recruitment period. The employer may reject candidates
only for lawful, job-related reasons. If the employer hires sufficient
able, willing, and qualified U.S. workers during this pre-filing
recruitment period to meet its needs, then the employer does not need
to file a labor certification application for foreign workers with the
Department's National Processing Center (NPC).
If the employer finds an insufficient number of U.S. workers
available to meet its needs, then it may seek H-2A workers by filing
with the NPC an Application, ETA Form 9142, along with a copy of the
ETA-790 form at least 45 days prior to the date of need and an initial
recruitment report. See Sec. 655.130(b). Associations, labor
contractors (known as H-2ALCs in this program), and agents have
specific additional requirements, outlined below. Upon review by the
NPC, the employer will either receive a Notice of Acceptance or a
Notice of Deficiency. If the employer receives the latter, it will have
no more than 12 days to modify the Application and return it to the
NPC.
Once the NPC accepts the Application, the employer will be required
to begin positive recruitment as specified in the Notice of Acceptance.
The employer will also be required to accept referrals not only from
the local SWA, but also SWAs that the NPC has designated as traditional
supply States and to which the local SWA has sent an interstate job
order. As part of this positive recruitment, the employer will be
required to place newspaper advertisements, which must comply with
Sec. 655.152.
By the deadline set by the NPC in the Letter of Acceptance, the
employer must complete a recruitment report and submit it to the NPC.
The employer continues positive recruitment until the H-2A workers
leave for the employer's place of business or the first date of need,
whichever is earlier. 8 U.S.C. 1188(b)(4).
During the first 50 percent of the contract period the employer
must accept any referral of U.S. workers from the SWA and continue to
update the recruitment report. At the end of the 50 percent period, the
employer finalizes the recruitment report and retains it along with
copies of the advertisements placed throughout the recruitment period
in case of an audit. The NPC issues either a Certification in
accordance with Sec. 655.161 or a Denial Letter in accordance with
Sec. 655.164. Extensions can be granted only in accordance with Sec.
655.170. Should the NPC deny the Application, the employer has the
right to appeal the decision to the Office of Administrative Law Judges
(ALJs). See Sec. 655.171.
Should any integrity measures, by which the Department means the
measures it uses to determine which employers have complied with their
worker protection obligations and what actions it takes against
employers who have failed to do so, such as audits, debarment, or
revocation, be instituted against the employer by the Department
(either by OFLC or by the WHD), the employer will have an opportunity
to respond. Once a decision has been rendered, the employer has the
right to appeal a negative decision to the Department's ALJ as
described in Sec. 655.171.
The following time sequence occurs generally in the proposed H-2A
program:
60-75 days from date of need: Employer commences process by
submitting job order for clearance.
60-75 days from date of need: SWA clears job order, employer begins
accepting referrals from SWA.
45-75 days from date of need: Employer accepts referrals, conducts
interviews, and begins to compile recruitment report.
45 days from date of need: Employer files Application.
38-44 days from date of need: Employer receives instructions from
CO, SWA commences interstate recruitment, employer conducts positive
recruitment, continues to compile recruitment report. Employer
continues positive recruitment until the H-2A workers leave for the
employer's place of business or the first date of need.
30-38 days from date of need: CO certifies or denies.
50 percent of contract period (past date of need): Employer
continues to accept referrals of U.S. worker applicants.
II. Discussion of 20 CFR 655 Subpart B
A. Introductory Sections
1. Sec. 655.100 Scope and Purpose of Subpart B
This provision informs the users of the regulatory part of the
authority of the H-2A labor certification process, drawn directly from
statute. It provides the statutory basis for the regulatory process for
receiving, reviewing and adjudicating an Application for H-2A job
opportunities.
2. Sec. 655.101 Authority of the Office of Foreign Labor Certification
(OFLC) Administrator
The OFLC is the office within ETA that exercises the Secretary's
authority for determining the availability of U.S. workers and where
there are not sufficient U.S. workers available, certifying that the
employment of H-2A nonimmigrant workers will not adversely effect the
wages and working conditions of similarly employed workers. Such
determinations are arrived at by the OFLC acting through its
Administrator. The Administrator, in turn, delegates to staff the
responsibility to make these determinations. Certifying Officers (COs)
in the Chicago National Processing Center (CNPC) are primarily
responsible for the activities of reviewing Applications and making
adjudicatory decisions.
3. Sec. 655.102 Special Procedures
Section 655.102 proposes the establishment, continuation, revision,
or revocation of special procedures. The H-2A regulations have, since
their creation, included a provision for special procedures for
variances from the process outlined in the regulation. These are
situations where the Department recognizes that variations from the
normal H-2A labor certification processes are appropriate to permit
access to the program for specific industries or occupations. These
include, for example, sheepherding, and occupations in range production
of livestock, as well as custom combine occupations. Accordingly, the
Department has always reserved the right to, in its discretion, develop
and implement special procedures for H-2A Applications relating to
specific occupations. Such special procedures supplement the procedures
described in subpart B for all H-2A Applications.
Historically, these special procedures have encompassed the
authority to establish monthly, weekly, or semi-monthly AEWR for
particular occupations. That process will continue under this proposal.
4. Sec. 655.103 Overview of This Subpart and Definition of Terms
Although the Department is proposing a number of changes to the
definitions section, most of the changes are to improve clarity and do
not substantively change the meaning of the term. Substantive changes
to definitions are discussed below.
The Department has retained the definition of ``employee'' from the
2008
[[Page 45910]]
Final Rule. This definition is based on the common law definition, as
set forth in the Supreme Court's holding in Nationwide Mutual Insurance
v. Darden, 503 U.S. 318, 322-324 (1992), which is more consistent with
the statute than the definition contained in the 1987 Rule. The
Department is proposing to modify the definition of ``employer'' from
that set forth in the 2008 rulemaking, in order to conform the
definition to that used in most other Department-administered programs.
The definition of ``successor in interest'' has been modified from that
in the 2008 Final Rule to make it clearer.
Under 8 U.S.C. 1101(a)(15)(h)(ii)(A) the H-2A program encompasses
agricultural services or labor defined by the Secretary to at least
include agricultural labor or services as defined in the Internal
Revenue Code (IRC) and the FLSA, and the pressing of apples for cider
on a farm. Before the 2008 Final Rule, the Department never exercised
its authority to expand the scope of the H-2A program beyond
agricultural employment as defined in IRC or FLSA.
In the 2008 Final Rule, the Department changed the regulatory
definition of ``agricultural labor or services'' to include work
activities of the type typically performed on a farm and incidental to
the agricultural labor or services for which an H-2A labor
certification was approved. Because the FLSA definition of agriculture
already encompasses incidental work (``and any practices * * *
performed by a farmer or on a farm as an incident to or in conjunction
with such farming operations''), the Department believes that inclusion
of a definition of incidental activities is duplicative. The Department
also views as duplicative the clarification, included in the 2008 Final
Rule that an activity that meets either the IRC or the FLSA definitions
of agriculture is considered agricultural labor or services for H-2A
program purposes. Therefore, the Department proposes to eliminate the
separate definition of incidental work and the duplicative
clarification.
The Department, however, is proposing to continue to include
``logging activities'' in the definition of ``agricultural labor or
services'' for the same reasons discussed in the 2008 Final Rule. Prior
to 1986, the Department had applied the same standards to logging
employment as it applied to traditional agricultural employment. In
1986, IRCA separated the H-2 visa category into agricultural work under
the H-2A visa and nonagricultural work under the H-2B visa. As
discussed above, the H-2A program was intended to cover agricultural
labor or services as defined by the Secretary, including but not
limited to agricultural labor or services as defined in the IRC and the
FLSA. The Department chose at that time not to expand the definition of
agriculture beyond the statutory minimum. Nevertheless, the Department
simultaneously continued the existing regulatory H-2A-like standards
for logging workers who were admitted under the H-2B program. Logging
employers, therefore, have been subject to a substantially similar set
of obligations and processes as H-2A employers, but their nonimmigrant
employees must enter on H-2B, rather than H-2A, visas.
In the 2008 Final Rule the Department determined that there was no
longer any reason to maintain two substantially similar yet slightly
divergent processes for agriculture and logging, and returned to our
1965-1986 practice of treating both activities alike. The types of
activities in which the employers in both fields engage--i.e.,
harvesting of agricultural and horticultural products--and the labor
certification requirements to which they are subject, are essentially
the same. This proposal contains the identical provision as the 2008
Final Rule. The Department has also added a definition of ``logging
operations'' consistent with that used by the Occupational Safety and
Health Administration (OSHA).
In addition, the Department is now proposing to also include
reforestation activities within the definition of ``agricultural labor
or services.'' For purposes of the H-2A program, ``reforestation
activities'' will be defined as predominately manual forestry work that
includes, but is not limited to, tree planting, brush clearing, pre-
commercial tree thinning, and forest fire fighting. Temporary foreign
workers engaged in reforestation activities are currently admitted
under the H-2B program.
Reforestation work is commonly performed by migrant crews and
overseen by labor contractors. The Department's experience has been
that contractor work performed by migrant crews, which carries these
similar characteristics to reforestation, is subject to a higher rate
of violations than that performed by work performed for fixed-site
workers. For this and other reasons, the Department has imposed
additional requirements and obligations on labor contractors, H-2ALCs,
under the H-2A program. These reforestation crews share the same
characteristics as traditional agricultural crews, and the
characteristics of most reforestation contractors are nearly identical
to the characteristics of farm labor contractors found in traditional
agriculture, and dissimilar than other occupations found in the H-2B
program. It is common for their work to be paid on a piece rate basis;
they work in locations typically with no access to public
transportation, and are often left to their own devices to secure
housing and food. These workers generally reside in remote locations
for short periods of time with little or no access to community or
government resources to assist them with work-related problems. The
2008 Final Rule included logging, a sub-industry of forestry, within
the scope of H-2A agricultural labor. Reforestation workers, another
sub-industry of forestry, who perform work in such remote locations and
for such short periods of time should have the benefit of the same
terms and conditions of employment as loggers as well as other
traditional migrant crews with whom they share characteristics of
employment. Being dependent on the crew leader combined with being in
remote locations, with little or no access to community or government
resources, increases the potential to be exploited by crew leaders. Due
to the isolated and often harsh nature of reforestation activities and
reforestation working conditions, and the similarities in the workforce
between reforestation and traditional agricultural activities, as well
as the potential for exploitation of such transient crews, the
Department is proposing to include reforestation activities in the
definition of ``agricultural labor or services.''
For like reasons, the Department is also proposing to include
``pine straw activities'' in its definitions. Crews engaged in the
raking, gathering, baling, and loading of pine straw, activities
typically performed manually with hand tools, share these same
characteristics of traditional agriculture crews. This is employment
typically controlled by labor contractors, and as discussed above, the
Department's experience has found a higher violation rate with labor
contractors as opposed to fixed-site employers. These crews work in
remote locations, often for short periods of time. These crews are
highly transient and are typically dependent on the crew leader for all
transportation, and typically in remote locations, are often left to
their own devices to secure housing. They are also typically paid on a
piece rate basis. Being so dependent on the crew leader combined with
being in such remote locations, with little or no access to community
or government resources, increases the potential to be exploited by
crew leaders. Due to the
[[Page 45911]]
nature and working conditions of these pine straw activities, and the
similarities in the workforce between pine straw and traditional
agricultural activities, as well as the heightened potential for
exploitation by crew leaders, the Department is proposing to include
pine straw activities in the definition of agricultural labor or
services.
The Department is proposing a simplified definition of a
``temporary or seasonal nature'', to track the definition found in the
DHS regulations at 8 CFR 214.2(h)(5)(iv)(A). Both the 1987 Rule and
2008 Final Rule used a definition derived from the Migrant and Seasonal
Agricultural Worker Protection Act (MSPA). Upon further consideration,
the Department has concluded that the MSPA definition, which is driven
by the circumstances of individual workers, is not compatible with the
needs of the H-2A program, which relates to the temporary/seasonal
needs of employers. This has led to confusion under the previous rules,
which the Department now seeks to rectify.
Also in the definitional provisions of the proposed regulations,
the Department proposes to define ``corresponding employment'' to more
accurately reflect the statutory requirement that, as a condition for
approval of H-2A petitions the Secretary certify that the employment of
the alien in such labor or services will not adversely affect the wages
and working conditions of workers in the U.S. similarly employed. To
ensure that similarly employed workers are not adversely affected by
the employment of H-2A workers, the Department makes certain that
workers engaged in corresponding employment are provided no less than
the same protections and benefits provided to H-2A workers.
``Corresponding employment'' is defined as the employment of
workers who are not H-2A workers by an employer whose H-2A Application
was approved by OFLC in any work included in the job order, or any
agricultural work performed by the H-2A workers. ``Corresponding
employment'' would include non-H-2A workers employed by an employer
whose Application was approved by ETA who are performing work included
in the job order or any other agricultural work performed by the
employer's H-2A workers as long as such work is performed during the
validity period of the job order. The definition includes both non-H-2A
workers hired during the recruitment period required under these
regulations and non-H-2A workers already working for the employer when
recruitment begins. In the 2008 Final Rule, only workers newly hired by
the H-2A employer were considered as engaged in corresponding
employment. However, in this NPRM the Department is proposing to define
corresponding employment more in keeping with the statutory language
mandating that the importation of H-2A workers not adversely impact the
wages and working conditions of workers similarly employed in the U.S.
Such adverse impact could include providing housing at no cost to H-2A
workers while housing domestic workers performing the same work in the
same housing with a housing charge or reducing wages of domestic
workers in order to have more available resources in order to import H-
2A workers. Some might argue that precluding domestic workers from
being paid the higher rate offered to H-2A workers is an adverse
impact.
B. Prefiling Requirements
1. Sec. 655.120 Offered Wage Rate
a. The Need for an Adverse Effect Wage Rate (AEWR)
The AEWR is the minimum wage rate that agricultural employers
seeking nonimmigrant alien workers must offer to and pay their U.S. and
alien workers, if prevailing wages and any Federal or State minimum
wage rates are below the AEWR. The AEWR is a wage floor, and the
existence of the AEWR does not prevent the worker from seeking a higher
wage or the employer from paying a higher wage.
The Department continues to believe that the justification for the
establishment of an AEWR cited in the final rule published in 1989
specifically on the AEWR methodology, remains valid:
Even though the evidence is not conclusive on the existence of
past adverse effect, DOL still believes that its statutory
responsibility to U.S. workers will be discharged best by the
adoption of an AEWR set at the USDA average agricultural wage in
order to protect against the possibility that the anticipated
expansion of the H-2A program will itself create wage depression or
stagnation.
(54 FR 28037, Jul. 5, 1989.)
The AEWR not only addresses the potential adverse effect that the
use of low-skilled foreign labor may have on the wages paid to native-
born agricultural workers, but also protects U.S. workers whose low
skills make them particularly vulnerable to wage deflation resulting
from the hiring of immigrant labor. This is true even in the event of
relatively mild, and thus very difficult to measure, wage deflation.
Additionally, an adverse effect wage rate will potentially result in
greater employment opportunities for U.S. workers, furthering statutory
intent.
The statute recognizes that U.S. agricultural workers need
protection from potential adverse effects of the use of foreign
temporary labor, because they generally comprise an especially
vulnerable population whose low educational attainment, low skills, low
rates of unionization and high rates of unemployment leave them with
few alternatives in the non-farm labor market. Consequently, their
ability to negotiate wages and working conditions with farm operators
or agriculture services employers is quite limited. The Department
therefore believes that its statutory mandate justifies returning to
the previous methodology as it better ensures U.S. workers are not
adversely affected. Additionally, it creates a floor below which wages
cannot be negotiated, thereby strengthening the ability of this
particularly vulnerable labor force to negotiate over wages with
growers who are in a stronger economic and financial position in
contractual negotiations for employment.
The Department has determined that the area in which agricultural
workers are most vulnerable--wages--has been adversely impacted to a
far more significant extent than anticipated by the 2008 Final Rule.
Experience with the 2008 Final Rule to date demonstrates, that on
average, required wages under the program have declined by
approximately $1.44 per hour.\1\ The 2008 Final Rule did not anticipate
such a precipitous drop in workers' wages and as a result, the
Department seeks to rectify this adverse effect on agricultural
workers.
---------------------------------------------------------------------------
\1\ See Preamble section IV A. Administrative Information,
Executive Order 12866.
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Furthermore, exclusive reliance on the traditional notion of the
prevailing wage (i.e., the wage paid for that occupation in area of
intended employment) is inappropriate to the unique circumstances of
the H-2A program. The other temporary foreign labor programs
administered by the Department are subject to statutory visa caps.
Historically, those programs have not involved the influx of large
numbers of foreign workers into a particular labor market. In these
other programs, it is realistic to conclude that payment of a
prevailing wage to the foreign workers will have no adverse effect on
U.S. workers. This assumption is not valid in the H-2A context. The
program is uncapped and experience indicates that it can involve large
numbers of foreign workers entering a specific labor market. Under
these circumstances employment
[[Page 45912]]
of foreign workers may produce wage stagnation in the local labor
market. Access to an unlimited number of foreign workers in a
particular labor market at the current prevailing wage would inevitably
keep the prevailing wage improperly low. The most effective way to
address this problem is to superimpose a wage floor based on a survey
that encompasses a wide enough geographic area so that the wage
depressing effect of the use of H-2A workers will be ameliorated if not
completely avoided.
b. Determining the Adverse Effect Wage Rate
In the 2008 Final Rule, the Department changed the data on which
the AEWR is based from the USDA Farm Labor Survey (FLS) to data from
the BLS OES. Additionally, the Department added a four-tiered set of
skill levels to permit wages to be set based on the relative complexity
of the job activities. As recognized in the 2008 rulemaking, the FLS
and the OES survey are the leading candidates among agricultural wage
surveys potentially available to the Department to set AEWRs. Although
the Department solicited comment on the potential for alternative wage
surveys in 2008, it received no ideas for useable alternative wage
surveys. However, the Department again seeks comment on whether there
are other approaches to calculating the AEWR that should be considered,
as well as on its decision to revert to what it considers to be, on
balance, a survey that provides more accurate and targeted data.
The OES wage survey is among the largest ongoing statistical survey
programs of the Federal Government. The OES program surveys
approximately 200,000 establishments every 6 months, and over 3 years
collects the full sample of 1.2 million establishments. The OES program
collects occupational employment and wage data in every State in the
U.S. and the data are published annually. The Department already uses
OES wage data to determine prevailing wages in other temporary worker
programs.
The OES agricultural wage data, however, has a number of
significant defects. Perhaps most significantly, BLS OES data do not
include wages paid by farm employers. Rather, the OES focuses on
establishments that support farm production, rather than engage in farm
production. Given that the employees of non-farm establishments
constitute a minority of the overall agricultural labor force, it can
be argued that these data are therefore not representative of the farm
labor supply, does not provide an appropriately representative sample
for the labor engaged by H-2A employers.
In contrast, the USDA FLS surveys between 11,000 and 13,000 farms
and ranches each quarter on multiple subjects, including the number of
hired farm workers, the gross wages paid to workers, and their total
hours worked. Only farms and ranches with value of sales of $1,000 or
more are included in the scope of the survey. Hired farm workers are
defined as ``anyone, other than an agricultural service worker, who was
paid for at least 1 hour of agricultural work on a farm or ranch.'' The
survey seeks data on four types of hired workers: field workers,
livestock workers, supervisors, and other workers.
USDA, through the National Association of State Departments of
Agriculture, uses four collection methods for the FLS: mail, CATI
(computer-assisted telephone interviews), personal visits (for larger
operations), and online (only about 2 percent of respondents). The FLS
sample is distributed across the entire country, with the geographic
detail covering 15 multistate regions and 3 stand-alone States. This
broader geographic scope makes the FLS more consistent with both the
nature of agricultural employment and the statutory intent of the H-2A
program. Because of the seasonal nature of agricultural work, much of
the labor force continues to follow a migratory pattern of employment
that often encompasses large regions of the country. Congress
recognized this unique characteristic of the agricultural labor market
with its statutory requirement that employers recruit for labor in
multistate regions as part of their labor market, prior to receiving a
labor certification for employing H-2A workers. The 2008 Final Rule did
not sufficiently account for this labor market attribute and the
Department believes that by returning to the FLS' regionally-based
methodology that inconsistency will be remedied.
USDA calculates and publishes average wage rates for four
categories of workers each quarter. Wage rates are not calculated and
published for supervisors or other workers, but are for field workers,
livestock workers, field and livestock workers combined, and total
hired workers. Within the FLS, the wage rates, or average hourly wage,
by category are defined as the ratio of gross wages to total hours
worked. To the extent workers receive incentive pay, the average wage
rate would exceed the workers actual wage rate. Because the ratio of
gross pay to hours worked may be greater than a workers' actual wage
rate, some statistics agencies refer to the ratio as average hourly
earnings, and not as hourly wages or wage rate.
The FLS-derived wage rate estimate for the four categories of
workers is published quarterly, and annual averages are published as
well. The Department has in the past used these annual averages to
arrive at the annual AEWR. Before the implementation of the 2008 Final
Rule, the Department used the regional annual average for the category
field and livestock workers combined as the annual AEWR for each State
within a given geographic region.
The FLS survey and publication schedule provides timely data for
purposes of calculating the relevant State AEWRs. The FLS is the only
source of data on farm worker earnings that is routinely available and
published within 1 month of the survey date. The quarterly gathering of
data ensures that the annual averages are more accurately reflective of
the fluctuations of farm labor patterns, which are by definition
seasonal and thus more subject to fluctuation than other occupations.
This is in contrast to the OES data which can lag in wage rate
reporting by up to 3 years and may be collected from surveys during
times of the year when agricultural workers are not present in a
specific geographic area, thus providing less precise calculations.
The FLS is the only annually available data source that actually
uses information sourced directly from farmers. The majority of farm
workers are hired directly by farm operators. The FLS reports for 2008,
for example, showed that 73.4 percent (730,800 per quarter on average)
of all hired workers on farms had been directly hired by farm
operators. The FLS also collects data on the number of workers and
wages of workers performing agricultural services on farms (i.e.,
workers supplied by services contractors) in California and Florida.
California and Florida account for the preponderance of agricultural
service contract labor provided to farms. In 2008, on average,
California accounted for 42.6 percent (112,750) of the estimated
national total 264,700 farm workers supplied under agricultural
services contracts.
The FLS is a scientifically-conducted quarterly survey of the wages
of farm and livestock workers and includes small farms not covered in
other surveys. The scope and frequency of the survey means that all
crops and activities covered by the H-2A program are included in the
survey data and that peak work periods are also covered. The Department
believes that the average hourly wage, based on the FLS data,
compensates for any wage depression or
[[Page 45913]]
stagnation resulting from the large numbers of undocumented workers in
the agricultural labor market. Using this methodology, regional AEWRs
will be calculated based on the previous year's annual combined average
hourly wage rate for field and livestock workers in each of 15
multistate regions and 3 stand-alone States, as compiled by the USDA
quarterly FLS Reports. In contrast, while the OES is an appropriate
wage survey for other industries, it was not designed for the purpose
of calculating an hourly wage for agricultural labor, does not survey
farms and therefore does not provide data in the agricultural sector
appropriate to what is needed to make the adverse effect wage
determinations as required under the H-2A program. Therefore, the
Department believes that the USDA FLS survey of farm and livestock
workers presents the most appropriate data for determining the adverse
effect wage in the agricultural sector for use in the H-2A program.
For these reasons, the Department proposes to return to its 1989
methodology for the formulation of the AEWR. The Department proposes to
annually publish for each State the AEWR based on the average combined
hourly wage for field and livestock workers for the four quarters of
the prior calendar year from the USDA's NASS FLS. The Department seeks
comments on this methodology.
The Department is also proposing to discontinue the process in the
2008 Final Rule of including within the AEWR four wage levels
reflecting differences based on required skill levels and levels of
responsibility. It is our experience that the majority of hired farm
labor, and the vast majority of labor for which H-2A certification is
sought, is in low-skilled positions where wage differences are not
driven by the level of skill required and responsibility required. Such
skill differences are difficult to discern and create opportunities for
error, either intentional or inadvertent. In addition, and perhaps most
important, to whatever extent such differences may exist, no wage data
is collected that could reasonably be used to identify them.
The Department is also proposing a new provision in this NPRM: if a
prevailing hourly wage or piece rate is announced by the Department as
increasing during the work contract to such an extent as it becomes
higher than the AEWR or the legal Federal or State minimum wage, the
employer must pay the new amount for the remaining duration of the
contract. This change in policy is intended to ensure workers are paid
throughout the life of their contracts at an appropriate wage
commensurate with the baseline of the market value of their services.
The Department expects that in these rare instances it will notify
employers of the new wage and allow a period of time to ensure
compliance.
2. Sec. 655.121 Job Orders
The INA requires employers to engage in recruitment through the
Employment Service job clearance system, administered by the SWAs. See
8 U.S.C. 1188(b)(4); see also 29 U.S.C. 49 et seq., and 20 CFR part
653, subpart F. This proposal requires the employer to place a job
order with the SWA serving the area of intended employment for
intrastate clearance in order to test the local labor market to confirm
the lack of U.S. workers prior to filing an Application. This process
is consistent with the 2008 Final Rule. This eliminates the needless
expenditure of limited government resources processing Applications
when U.S. workers are actually available. If the job opportunity is
located in more than one State within the same area of intended
employment, the employer may submit a job order to any one of the SWAs
having jurisdiction over the anticipated worksites to place the job
order, but that SWA must forward the job order to the companion SWAs to
have it placed in all locations simultaneously.
The employer must submit the job order to the SWA no more than 75
calendar days and no fewer than 60 calendar days before the date of
need. Upon clearance and placement of the job order in intrastate
clearance, the SWA must keep the job order on its active file until 50
percent of the H-2A contract period is reached, and must refer each
U.S. worker who applies (or on whose behalf an Application is made) for
the job opportunity during that time period. Any issue with respect to
whether a job order may be properly placed in the intrastate clearance
system that cannot be resolved with the applicable SWA must be first
brought to the attention of the CO in the NPC.
The placement of the job order in the intrastate clearance system
is typically a conditional access to the employment service system,
given the requirement that the employer provide housing that meets
applicable standards. 20 CFR 654.403(a). When the job order is placed
in intrastate clearance, the SWA must inspect the housing that is to be
provided to H-2A workers and those workers in corresponding employment
who are not reasonably able to return to their residence within the
same day. 20 CFR 654.403(e).
The Department has eliminated the requirement in the 2008 Final
Rule that SWAs must complete the employment eligibility verification
process (Form I-9 or Form I-9 plus E-Verify) for all workers referred
to the job order by the SWA. This is a reversion to the 1987 Rule,
under which workers in most States self-attested that they were
eligible to take up the employment, in other words that they met the
definition of a U.S. worker or were authorized to be employed in the
U.S. The Department has done so for several reasons. The Department,
upon reconsideration of the rationale for this practice after decades
of not requiring States to verify employment eligibility of referrals,
has decided to again place the responsibility for H-2A employment
eligibility verification back on the employer, where the statute places
it as a primacy. A referral is not an offer of employment--the
individual may not apply for and may reject the position, they may not
even be offered the position; regardless there are legal distinctions
between refer and hire which are again being separated with this
decision. While the Department does not desire that SWAs should refer
any undocumented workers to any H-2A job opportunities they assist, it
is also a resource (both financial and human) issue for States to
complete, update and maintain Forms I-9 for referrals. Most States rely
on an attestation for ensuring the eligibility of applicants who
utilize SWA resources other than H-2A job referrals (such as job skills
training), and by returning to this practice States will ensure that no
worker seeking services in the public workforce system is treated
disparately.
The operational benefits address two general categories of
difficulty with I-9 verification by SWAs: SWAs have been at best
inconsistent in operationalizing the requirement and have reported back
significant difficulties in doing so. SWAs offer decentralized services
but the H-2A job orders are often handled in a central (single)
location. Due to the necessity of physical inspection, more staff--some
of whom are not State merit staff--must be trained to perform document
inspection, especially in geographically large States. In addition,
States forwarding workforce referrals to other States (e.g.,
traditional labor supply States) carry a disproportionate share of
verification because of the higher number of referrals they are charged
with sending on; the receiving States cannot assist as the worker is
not physically present to present the documentation. Employment
verification is moreover seen as
[[Page 45914]]
discriminatory in that SWAs must verify eligibility of only those
referrals to H-2A job orders and are not required to verify referrals
for non-H-2A job orders; this is particularly an issue given the
typical ethnic makeup of migrant agricultural referrals. Further,
referrals are disparately impacted; individuals that show up (or are
sent) to the farm as so-called gate potential hires do not get the
benefit of employment verification by the SWA but must be verified by
the employer. Accordingly, workers will be handled by two processes--
the employer and the State referring the worker.
The 2008 Final Rule recommended use of E-Verify but did not (indeed
could not) require its use by States. States have been extremely slow
to use E-Verify, despite the efforts on the part of United States
Citizenship and Immigration Services (USCIS) to implement access to E-
Verify for SWAs and the training efforts of the Department to ensure
States are comfortable in using it. This is in part because USCIS
requires a State to apply equal use of E-Verify to all workers who are
referred, which given the mandate for H-2A job orders only, is
difficult to apply unless the State is required to (or agrees to)
verify all referrals to all job orders and not only those it is
required to do. In addition, the use of E-Verify requires the
completion of the Form I-9, and is an extra step requiring already
stretched resources.
The Department has accordingly determined that SWAs may choose to
complete employment eligibility verification on those individuals it
refers in accordance with USCIS regulatory procedures, but are not
required to do so. The Department believes that the administrative
burdens of this activity do not outweigh its benefits. The savings to
SWAs in time and human capital are more effectively directed at the
core functions of the nation's public workforce system, the effective
placement of U.S. workers in appropriate job opportunities.
3. Sec. 655.122 Contents of Job Offers
The job offer sets out the terms and conditions of employment
contained within the job order. The employer can give this information
to the workers by providing a copy of the job order or a separate work
contract. A written job offer is critical to inform potential workers
of the terms and conditions of employment and to demonstrate compliance
with all of the obligations of the H-2A program. For H-2A program
purposes, the job offer must contain, at a minimum, all of the worker
protections that apply to both domestic and foreign workers pursuant to
these regulations. The Department considers the job offer essential for
providing the workers sufficient information to make informed
employment decisions. The job order, which is the document representing
the terms and conditions of the job offer, must be provided with its
pertinent terms in a language the worker understands.
The Department is proposing to retain most of the 2008 Final Rule
requirements concerning job offers. As these requirements are familiar
to the regulated community, the Department's discussion below focuses
solely on the main differences between this section and the
corresponding section in the 2008 Final Rule as well as minor nuances
and clarifications.
a. Prohibition against preferential treatment (Sec. 655.122(a)).
The Department's statutory obligation in administering the H-2A
program dictates that the employer be required to extend a job offer
containing the same benefits, wages and working conditions for both
U.S. and foreign workers. An employer may not impose any additional
restrictions or obligations on U.S. workers. Under the proposed
regulations, the employer is also responsible for providing to the H-2A
workers at least the same minimum level of benefits, wages, and working
conditions that are being offered to U.S. workers. This additional
requirement levels the playing field so that employers offer H-2A and
U.S. workers the same minimum levels of benefits, wages, and working
conditions. It is consistent with the approach taken by the Department
in the 1987 Rule and is intended to provide parallel protections from
exploitation for H-2A workers.
b. Job qualifications and requirements (Sec. 655.122(b)).
The Department proposes to retain the same requirements as in the
2008 Final Rule that the job requirements be bona fide and consistent
with the normal and accepted qualifications required by employers that
do not use H-2A workers for the same or comparable occupations and
crops. In addition, the Department has made explicit that the CO or the
SWA has the discretion to require that the employer submit
documentation to justify the qualifications specified in the job order.
c. Minimum benefits, wages, working conditions (Sec. 655.122(c)).
The Department proposes to retain the identical provision from the
2008 Final Rule.
d. Housing (Sec. 655.122(d)).
The proposed regulation clarifies the employer's obligation to
provide housing both to H-2A workers and to workers in corresponding
employment who are not reasonably able to return to their residence
within the same day, for the entire duration of the contract period.
The employer's obligation to provide housing ends when the worker
departs, voluntarily abandons employment, or is terminated for cause.
The employer's obligations with respect to housing standards, rental or
public accommodations, open range housing, deposit charges, charges for
public housing, and family housing under the proposed regulations have
remained the same as under the 2008 Final Rule. With respect to
certified housing that becomes unavailable, the Department is retaining
most of the requirements of the 2008 Final Rule but is also proposing
to require the SWA to promptly notify the employer of its obligation to
cure deficiencies in the substituted housing, if the housing is found
to be or becomes out of compliance with applicable housing standards
after an inspection. To clarify the Department's available remedies,
the NPRM provides that the Department can deny a pending Application as
well as revoke an existing certification.
e. Workers' compensation (Sec. 655.122(e)).
The Department is proposing to retain the 2008 Final Rule
requirements regarding an employer's obligation to provide workers'
compensation insurance coverage in compliance with State law. To
reflect a policy change to a full adjudication model, the Department is
additionally requiring employers to provide the CO with proof of
workers' compensation insurance coverage, including the name of the
insurance carrier, the insurance policy number, and proof that the
coverage is in effect during the dates of need. This requirement is a
return to the requirements of the 1987 Rule.
f. Employer provided items (Sec. 655.122(f)).
It is proposed that this section on employer-provided items be
amended from the 2008 Final Rule to require employers to provide to the
worker, without charge, all tools, supplies and equipment necessary to
complete the job offered to them.
g. Meals (Sec. 655.122(g)).
The Department is proposing to retain identical requirements with
regard to an employer's obligation to provide meals to workers as those
outlined in the 2008 Final Rule.
h. Transportation; daily subsistence (Sec. 655.122(h)).
The Proposed Rule retains the 2008 Final Rule requirement for
transportation and daily subsistence
[[Page 45915]]
costs incurred by the worker when traveling to the employer's place of
employment. In addition, language has been added to place employers on
notice that they may be subject to the FLSA that operates independently
of the H-2A program and imposes requirements relating to deductions
from wages. In providing notice to employers of companion FLSA
requirements, the Department hopes to assure better protection of U.S.
and foreign workers. When it is the prevailing practice among non-H-2A
employers in the area of intended employment, or the employer offers
the benefit to foreign workers, the employer must advance the
transportation and subsistence costs to U.S. workers in corresponding
employment as well. At the end of the work contract or if the employee
is terminated without cause, the employer must also provide or pay for
transportation costs and daily subsistence from the place of employment
to the place from which the worker departed for work. In addition, the
Department proposes to eliminate the limitation in the 2008 Final Rule
on the employer's obligation to provide for travel expenses and
subsistence for foreign workers only to and from the place of
recruitment, i.e. the appropriate U.S. consulate or port of entry; this
Proposed Rule requires the employer to pay the costs of transportation
and subsistence from the worker's home to and from the place of
employment, as was required under the 1987 Rule.
(i) Transportation from place of employment. As noted above, the
Department is proposing to keep the 2008 Final Rule requirement for
employers to provide transportation from the place of employment for
workers who complete their work contract period. In addition, the
Department proposes to include a requirement from the 1987 Rule which
obligates either the initial or subsequent employer to cover the
transportation and subsistence fees for the travel between the initial
and subsequent worksite. The obligation to pay remains with the first
H-2A employer if the subsequent H-2A employer has not contractually
agreed to pay the travel expenses. In addition, this proposed paragraph
incorporates a 2008 Final Rule requirement concerning displaced H-2A
workers and places employers on notice that they are not relieved of
their obligation to provide or pay for return transportation and
subsistence if an H-2A worker is displaced as a result of an employer's
compliance with the 50 percent rule.
(ii) Employer-provided transportation. The 2008 Final Rule imposed
mandatory compliance with applicable Federal, State or local laws and
regulations regarding vehicle safety, driver licensure and vehicle
insurance on the transportation between the living quarters and the
worksite. The Department is now proposing to ensure this provision
reflects similar existing compliance requirements for all employer-
provided transportation. It is less an expansion however, of the
requirement as much as an acknowledgment that such compliance
requirements exist elsewhere, as these already exist in Federal, State
or local transportation laws and regulations. The Department is
ensuring that the requirement of compliance with these transportation
and safety laws is reflected in the affirmative obligations to the
workers. The Department anticipates that this will further ensure
worker safety.
i. Three-fourths guarantee (Sec. 655.122(i)).
The Department is proposing to retain the three-fourths guarantee
from the 2008 Final Rule clarifying that the guarantee is to offer the
worker employment for a total number of work hours equal to at least
three-fourths of the workdays of the contract period, beginning with
the first workday after the arrival of the worker at the place of
employment. The Department proposes to retain the provision addressing
displaced H-2A workers from the 2008 Final Rule, except that the
provision now refers to the reinstated 50 percent rule rather than the
30 day rule contained in the 2008 Final Rule.
j. Earnings records (Sec. 655.122(j)).
This proposed section mirrors the earning records requirements in
the 2008 Final Rule with one exception. Under the Proposed Rule, the
employer must keep the earning records for 5 instead of 3 years.
k. Hours and earnings statements (Sec. 655.122(k)).
Under the Proposed Rule, the employer would be required to provide
to each worker hours and earnings statements that consist of all
elements contained in the 2008 Final Rule plus two additional pieces of
information: the beginning and ending dates of the pay period, and the
employer's name, address and Federal Employment Identification Number.
l. Rate of pay (Sec. 655.122(l)).
The Department is proposing to keep the 2008 Final Rule
requirements regarding the rate of pay and is introducing an additional
requirement to the job offer (already contained in the assurances and
obligations of the 2008 Final Rule) that provides that the offered wage
may not be based on commission, bonuses, or other incentives, unless
the employer guarantees a wage paid on a weekly, semi-monthly or
monthly basis that equals or exceeds the AEWR, prevailing hourly wage
or piece rate, or the legal Federal or State minimum wage, whichever is
highest. The term semi-monthly replaces the term biweekly from the 2008
Final Rule's obligation.
Additionally, the Department proposes to retain the requirement of
the 2008 Final Rule that if the employer has a productivity standard
associated with a piece rate payment, the productivity standard must be
disclosed in the job offer. The Department also proposes to revive the
requirement of the 1987 Rule that the productivity standard must also
be no more than that required by the employer in 1977, or, if the
employer first filed an Application after 1977, the employer's
productivity standard when it first filed an Application. If the
productivity standard is higher than required by the employer in 1977
or when the employer first filed an Application, the productivity
standard must be approved by the OFLC Administrator.
m. Frequency of pay (Sec. 655.122(m)).
The Department is proposing to retain most of the 2008 Final Rule
requirements on pay frequency, requiring employers to pay wages at
least twice a month (semi-monthly) and state the pay frequency in the
job offer. However, the Department is proposing to add an option from
the 1987 Rule, whereby employers may set pay frequency according to the
prevailing practice in the area of intended employment, and proposes to
add a new requirement that they employers must pay wages when due.
n. Abandonment of employment or termination for cause (Sec.
655.122(n)).
The Department's proposal retains the requirements of the 2008
Final Rule on the abandonment of employment or termination for cause.
However, one key difference from the 2008 Final Rule is that the
Department has not included the express exception to abandonment or
abscondment of a short-term unexcused absence; the Department is using
a purely temporal (5 day) calculation to provide clarity.
o. Contract impossibility (Sec. 655.122(o)).
The Department proposes to retain the 2008 Final Rule requirements
regarding contract impossibility with one additional obligation, taken
from the 1987 Rule, under which an employer is required to make efforts
to transfer the worker to other comparable
[[Page 45916]]
employment acceptable to the worker in the event the employer is
prevented from fulfilling the requirements of the work contract.
p. Deductions (Sec. 655.122(p)).
Under the Proposed Rule, the employer must make all deductions
required by law and must specify all other reasonable deductions in its
job offer, just as under the 2008 Final Rule. In addition, subject to
an employer's compliance with applicable FLSA requirements, the
Department proposes to once again permit an employer to deduct the cost
of worker's inbound transportation and daily subsistence expenses to
the place of employment which were paid directly by the employer, but
only if the worker is reimbursed the full amount of such deduction when
he or she completes 50 percent of the work contract period. This
reimbursement must be inserted in the job order.
q. Disclosure of work contract (Sec. 655.122(q)).
Under this proposal, as under the 2008 Final Rule, the employer
must provide a copy of the work contract (or the job order in the
absence of the separate, written contract) to the worker no later than
on the day that work commences. As a new requirement under this NPRM,
this disclosure, as necessary and reasonable, must be written in a
language the worker understands. It is appropriate in a program
administered by the Department that we obligate an employer to provide
the terms and conditions of employment to a prospective worker in a
manner permitting the worker to understand the nature of the employment
being offered and the worker's commitment under that employment.
C. Application Filing Procedures
1. Sec. 655.130 Application Filing Requirements
This provision sets out the basic requirements with which employers
need to comply in order to file an Application. As discussed above, the
proposed process begins with the filing of an Agricultural and Food
Processing Clearance Order (Form ETA 790) with the SWA 60 to 75 days
before the date of need. As discussed above, this required preliminary
period permits the SWA, with its substantial knowledge of the local
labor market and farming activities, to evaluate the job's
requirements. As was the case in the 2008 Final Rule, a single
Application is filed with only the NPC. This eliminates the duplication
of effort that occurred under the 1987 regulations, in which OFLC and
the SWA both received an Application and both spent time reviewing it.
By requiring a submission of only one Application form with the NPC,
the proposed regulation segregates the process into those activities
best handled by each entity.
The proposed provision also establishes filing deadlines consistent
with the 2008 Final Rule. The Department is constrained by statute from
requiring employers to file an Application more than 45 days prior to
the date of need. 8 U.S.C. 1188(c)(1). The Department anticipates,
based on decades of program experience, that it will continue to
receive requests 45 days prior to the date of need, although
Applications may be voluntarily filed in advance of that date.
The Department proposes to continue to receive Applications filed
in the same paper format as currently filed until such time as an
electronic system can be fully implemented. The Department proposes to
use the Application for Temporary Employment Certification, Form ETA
9142, to collect the necessary information; the form's appendices will
be modified slightly to reflect changes from the 2008 Final Rule (such
as a change of tense to note the pre-recruitment filing of the
Application). The Department has begun efforts to establish an online
format for the submission of information, but as such a system depends
upon the resolution of issues in rulemaking, its implementation
necessitates a period during which paper Applications will continue to
be accepted. The Department contemplated in its 2008 rulemaking an
electronic submission process; until such is developed, it will
continue to accept paper Applications. This will assist employers
familiar with the program, who are currently filing paper Applications
and will thus have a less onerous transition.
The proposed provision also sets out the requirement for obtaining
signatures. As in the 2008 Final Rule, the Department is proposing to
require original forms and signatures. One departure from the 2008
Final Rule is the requirement that an association, filing not as an
association but as an agent for it members, obtain the signatures of
all its employer-members before submitting the Application to the
Department, to ensure that all members are fully aware of the
obligations of the Application to which each member must adhere.
The rule proposes that the employer will file the Application with
an initial recruitment report, outlining the results of its initial
recruitment attempts, including the results of referrals from its
intrastate job order placed with the SWA, and any other efforts in
which it has engaged. The employer will also file with the Application
a copy of its ETA 790 clearance order, so that the NPC may verify the
order placed with the SWA against the terms and conditions provided on
the Application.
2. Sec. 655.131 Association Filing Requirements
a. Associations (Sec. 655.131(a))
The Department has previously permitted associations to file on
behalf of their members. The proposed provision clarifies the role of
associations as filers, in order to assist both the employer-members
and the Department in assessing the obligations of each party. As in
the past, an association will identify in what capacity it is filing,
so there is no doubt as to whether the association is subject to the
obligations of an agent or an employer (whether individual or joint).
Both the 1987 and 2008 regulations required an association of
agricultural producers filing an Application to identify whether the
association is the sole employer, a joint employer with its employer-
members, or the agent of its employer-members.
b. Master Applications (Sec. 655.131(b))
Although the 1987 Rule did not specifically describe a master
application that can be filed by associations, they are clearly
contemplated by 8 U.S.C. 1188(d), and the Department has permitted
master applications to be filed as a matter of practice. See 52 FR
20496, 20498, Jun. 1, 1987 (cited in ETA Handbook No. 398). The 2008
Final Rule explicitly permitted their use. This Proposed Rule continues
to permit their use but narrows the scope of what constitutes an
acceptable master application. The Proposed Rule continues to require a
single date of need as a basic element for a master application. The
Department proposes to retain the long-standing requirement that a
master application may be filed only by an association acting as a
joint employer with its members; the Proposed Rule reiterates this
joint responsibility by requiring that the association identify all
employer-members that will employ H-2A workers. The Application must
demonstrate that each employer has agreed to the conditions of H-2A
eligibility.
The Department also proposes to revert to the long-established
practice of permitting a master application only for the same
occupation and comparable work within that occupation. However,
[[Page 45917]]
the Department proposes to modify that practice to limit such
Applications to a single State. Requiring comparable work on a master
application also reduces overstatement of need by employers and the
potential for idling of workers, both domestic and H-2A. Workers
applying to a job opportunity that is the subject of a master
application are thus provided a more accurate start date and can gauge
their own availability accordingly. The Department notes that similar
crop activities are far more likely to link to the single date of need
that is required.
3. Sec. 655.132 H-2A Labor Contractor (H-2ALC) Filing Requirements
The proposed regulation sets out additional filing requirements for
H-2A Labor Contractors (H-2ALCs), building upon those outlined as
attestations for H-2ALCs in the 2008 Final Rule. We are proposing that
H-2ALCs be required to provide certain basic information, such as the
names and locations of each fixed-site farm or agricultural operation
to which the H-2ALC has contracted to send the workers, as well as
information regarding crop activities the workers will be performing at
each site. The Department also proposes to require H-2ALCs to submit
copies of all contracts with each fixed-site entity identified in its
Application. In addition, the Department proposes to continue to
require the submission of the Farm Labor Contractor Certificate of
Registration, if MSPA requires the H-2ALC to have one.
The Department is proposing to continue its requirement that an H-
2ALC post a bond to demonstrate its ability to meet its financial
obligations to its employees. This permits the Department to ensure
labor contractors can meet their payroll and other obligations
contained in the terms of the job order and the H-2A program
obligations. Additionally, we are proposing that the H-2ALC be required
to submit documentation of its surety bond.
Finally, the Department is proposing to require that in situations
where the fixed-site farm with which the H-2ALC has a contractual
relationship is the entity that will be providing housing and/or
transportation, the H-2ALC must provide proof that the housing complies
with the applicable standards, and has been approved by the SWA, and
that transportation provided complies with all applicable laws and
regulations.
4. Sec. 655.133 Requirements for Agents
The Department has long accepted Applications in many of its
programs from agents. The Proposed Rule continues the long-standing
practice of allowing employers to utilize agents to file the
Application. However, in recognition of the unique relationship an
agent has with an employer it represents before the Department, the
proposed rule requires an agent to provide, as a part of the
Application, a copy of the agreement by which it undertakes the
representation--contract, agency agreement, or other proof of the
relationship and the authority of the agent to represent the employer.
In addition, the Department is requiring, for those agents who are
required under MSPA to register as a farm labor contractor, proof of
such registration.
5. Sec. 655.134 Emergency Situations
The Department proposes to retain from both the 2008 Final Rule and
its predecessor Rule the criteria for accepting and processing
Applications filed less than 45 days before date of need on an
emergency basis. The Department is proposing that emergency
Applications continue to be accepted for employers who did not use the
H-2A program in the previous year, or for any employer that has good
and substantial cause. The predicate for accepting an Application on an
emergency basis continues to be sufficient time for the employer to
undertake an expedited test of the labor market. To meet the good and
substantial cause test, the employer must provide to the CO detailed
information describing the reason(s) which led to the request. Such
cause is outlined in the regulation in a non-inclusive fashion,
including factors such as loss of U.S. workers from weather-related
conditions and unforeseen events affecting the work activities. The
discretion to determine good and substantial cause rests entirely with
the CO.
6. Sec. 655.135 Assurances and Obligations of H-2A Employers
In addition to commitments made to workers through the job order,
employers seeking H-2A workers must provide additional assurances
designed to ensure that the granting of the certification will not
adversely affect the wages and working conditions of workers similarly
employed in the U.S.
Under this Proposed Rule, the employer must assure that the job
opportunity is available to any qualified U.S. worker regardless of
race, color, national origin, age, sex, religion, handicap or
citizenship. Domestic applicants may only be rejected for lawful, job
related reasons. Additionally, the employer must assure that there is
no work stoppage or lockout at the worksite.
As under the 1987 Rule, we propose that employers continue to work
with the SWA(s) and accept referrals of all eligible U.S. workers who
apply for the job until the completion of 50 percent of the contract
period. In addition, the employers will have to conduct positive
recruitment until the actual date on which the H-2A workers depart for
the place of work, or 3 calendar days before the first date the
employer requires the services of workers.
In this NPRM the Department is proposing to reinstate the 50
percent rule, outlined in 8 U.S.C. 1188(c)(3)(B)(i). The 50 percent
rule is a creation of statute; it was added in IRCA to enhance domestic
worker access to job opportunities for which H-2A workers were
recruited. In short, the rule provided that the Department was to
require that an employer seeking H-2A certifications agree to accept
referrals through 50 percent of the contract period outlined on the job
order. The Department seeks to enhance protections for U.S. workers, to
the maximum extent possible, while balancing the potential costs to
employers. The Department acknowledges that such increased referral
activity imposes an additional cost on both employers and on SWAs. The
burden on SWAs, however, is already a core labor market exchange
function which they already provide to the nation's workforce pursuant
to the Wagner-Peyser Act (29 U.S.C. 49 et seq.). The cost on employers
is lessened, to large extent, by the ability to discharge the H-2A
worker upon the referral of a U.S. worker. In addition, the Department
proposes retaining from the 1987 Rule (and U.S.C. 1188(c)(3)(B)(ii))
the small farm exemption to the 50 percent rule to minimize the adverse
effect on those operations least able to absorb additional workers.
The proposed regulation at Sec. 655.135(e) requires employers to
assure that they will comply with all applicable Federal, State and
local laws and regulations, including health and safety laws, during
the period of employment that is the subject of the labor
certification. Among other obligations employers may be subject to the
provisions of the FLSA. This proposed requirement is intended to
emphasize the important policy objective of protecting both U.S. and
foreign workers and ensuring that both groups are afforded the
protections to which they are entitled.
Among other requirements, the Department is proposing to require
employers to offer only full-time temporary employment of at least 35
hours per work week, an increase from
[[Page 45918]]
the 30 hours per week in the 2008 Final Rule. The Department believes
that a 35-hour work week more accurately reflects the work patterns of
farm entities and strikes an appropriate balance between the employer's
needs and the employment and income needs of both U.S. and foreign
workers.
As in the 2008 Final Rule, an employer must guarantee that it has
not laid off and will not lay off any similarly employed U.S. worker in
the occupation in which the employer is seeking to hire H-2A workers
within 60 days of the date of need. If the employer has laid off U.S.
workers, the Department will require the employer to demonstrate that
it has offered the job opportunities created by the lay offs to those
laid-off U.S. workers(s) and the U.S. worker(s) either refused the job
opportunity or was rejected for lawful, job-related reasons. This
proposed requirement is intended to prevent the few unscrupulous
employers from firing U.S. workers, then hiring H-2A workers to perform
the same services under less advantageous working conditions, including
lower wages and benefits, resulting in savings for the employers.
Proposed Sec. 655.135(h) would prohibit employers from
intimidating, threatening, coercing, blacklisting, discharging or in
any manner discriminating against complaining workers or former workers
who file a complaint against the employer for violating 8 U.S.C. 1188
or who institute any proceeding against the employer or testify in any
proceeding against the employer, or consult with an employee of a legal
assistance program or an attorney on matters related to a proceeding
against the employer, or exercise or assert any right or protection
under the same section or under the Department's H-2A regulations.
The NPRM proposes to continue to require an employer to inform H-2A
workers that they are required to depart the U.S. at the end of the
certified work period, or if they become separated from the employer
before the end of that period. The requirement that the workers depart
applies to all H-2A workers who do not have a subsequent offer of
employment from another H-2A employer. This continues a standing
requirement in the program which parallels DHS regulations. Requiring
employers to notify H-2A workers of their obligation to depart will
help to ensure that the workers timely depart the U.S. without risking
negative immigration consequences for overstays of their temporary work
visas. This will enable workers to remain eligible to return the
following season and assist the same or different employers if there
are not sufficient qualified, able and willing U.S. workers. In
addition, the proposed requirement ensures that the employers are aware
that they may not offer employment to foreign workers which exceeds the
period certified by the Department (and that approved by DHS) without
violating their obligations under the program.
As in the 2008 Final Rule and in conjunction with similar DHS
regulations, the Department proposes to prohibit employers from passing
on fees associated with the recruitment of workers recruited under 8
U.S.C. 1188 to those workers, such as referral fees, retention fees,
transfer fees, or similar charges. The Department proposes to define
payment as monetary payments, wage concessions (including deductions
from wages, salary or benefits), kickbacks, bribes, tributes, in-kind
payments, and free labor. The Department believes that requiring
employers to bear costs associated with the recruitment of foreign and
domestic workers will incentivize employers to offer the terms and
conditions that would most likely attract U.S. workers who are
qualified, willing and able to perform the work. In addition, this
prohibition protects the workers from becoming heavily indebted when
applying for the job opportunities and vulnerable to exploitation by
unscrupulous employers. As before, this provision does not prohibit
employers or their agents from receiving reimbursement for costs that
are the responsibility of the worker, such as government required
passport fees. The Department has also removed visa fees, border
inspection, and other government-mandated or authorized fees from
consideration as an acceptable fee attributable to the worker. A visa
fee for an H-2A visa is one directly attributable to the employer's
need for the worker to enter the U.S. to work for the employer; as such
it is not reimbursable from the employee to the employer.
In addition to prohibiting employers and their agents from
collecting or soliciting fees from H-2A workers for the cost of
recruitment, the proposed regulations require those employers to
contractually forbid any foreign labor contractor or recruiter, or
agent of such foreign labor contractor or recruiter, engaged in the
international recruitment of H-2A workers from seeking or receiving
payments, whether directly or indirectly, from prospective employees.
This provision is also intended to ensure that the employer's
contractual obligations do not permit the passing of recruitment fees
to foreign employees.
As an additional element of worker protection, the Department
proposes to require that employers post and maintain in conspicuous
locations at the worksite a poster provided by the Department in
English, and, to the extent necessary, language common to a significant
portion of the workers if they are not fluent in English, which
describes the rights and protections for workers employed pursuant to 8
U.S.C. 1188. Providing such notification to workers through a poster at
the worksite of their rights is consistent with other programs
administered and enforced by the Department. Such a posting requirement
is even more meaningful at remote worksites where agricultural workers
are often employed. The posting requirement ensures that both H-2A and
corresponding workers are aware of their rights and are provided with
resources (in the form of phone numbers or contact information) which
they may use to notify the Department of any issues at the worksite or
report employers who fail to meet their obligations under the program.
D. Processing of Applications
1. Sec. 655.140 Review of Applications
Under the Department's proposed regulations, upon receipt of each
Application, job order, and other required documentation, the CO at the
NPC will promptly conduct a comprehensive review of all documentation
provided by the employer to ensure that the employer has complied with
all applicable requirements and obligations. The timing of the review
process is defined primarily in the INA, and therefore the Department's
procedures remain largely unchanged. The Proposed Rule, however, now
requires that the Application be accompanied by required documentation
supporting employer assurances. Additionally, the CO will have a
greater role in substantively reviewing the Application for compliance
with the requirements.
2. Sec. 655.141 Notice of Acceptance
The Proposed Rule partially incorporates the requirements of the
1987 Rule with respect to the process of accepting an Application.
Under the proposal, the Notice of Acceptance from the CO grants
conditional access to the interstate clearance system and directs the
SWA to circulate a copy of the job order to the States the CO
determines to be potential sources of U.S. workers. The Notice of
Acceptance also directs the employer to engage in positive recruitment
of U.S. workers during the same time period. Finally, each Notice
[[Page 45919]]
of Acceptance informs the employer that the Department will adjudicate
the certification request no later than 30 calendar days before the
date of need, except in the case of modified Applications.
Under the proposed regulations, the CO will review each employer's
Application to determine whether the employer has established the need
for agricultural services or labor to be performed on a temporary or
seasonal basis by temporary H-2A workers and met all the requirements
and obligations required by these regulations. The CO will ensure that
the employer has submitted the Application no less than 45 days from
the date of need and that it has previously submitted a copy of the job
order to the SWA serving the area of intended employment for intrastate
clearance. Further, the CO will look for a complete and appropriate job
description, a full number of job openings and the appropriate dates of
need. Most significantly, the CO will ensure that the employer is
offering prospective workers an adequate offered wage rate. While
conducting its review of the employer's Application, the CO will also
determine whether the employer has included complete housing
information, proof of workers' compensation coverage, the guarantee to
provide to the workers travel reimbursement and meals/cooking
facilities, and a promise to provide tools or items required for the
position, as appropriate. The CO will ensure that the employer has
agreed to offer to workers a total number of work hours equal to at
least three-fourths of the workdays of the total contract period.
3. Sec. 655.142 Electronic Job Registry
The Department proposes to post employers' H-2A job orders,
including modifications approved by the CO, into a national and
publicly accessible electronic job registry. The job registry will be
created and maintained by the Department and will serve as a public
repository of H-2A job orders for the duration of 50 percent of the
work contract. The job orders will be posted in the registry by a CO
upon the acceptance of each submission. The posting of the job orders
will not require any additional effort on the part of the SWAs or H-2A
employers.
The Department intends that this new national job registry will
serve as an effective, user-friendly tool for informing and attracting
U.S. workers to agricultural jobs for which H-2A workers are being
recruited. In addition, the Department anticipates that the job
registry will contribute to increased transparency in the H-2A labor
certification approval process. The Department will inform all
stakeholders of the creation of the job registry through a notice in
the Federal Register and provide access through the Department's
resources, including its One-Stop Career Centers, as well as through a
link to the job registry on the OFLC's Web site http://www.foreignlaborcert.doleta.gov/.
4. Sec. Sec. 655.143 and 655.144 Notice of Deficiency and Submission
of Modified Applications
As in the 2008 Final Rule, the Department proposes that if the CO
determines that the Application or job order is incomplete, contains
errors or inaccuracies, or fails to meet necessary regulatory
requirements, the CO must notify each employer within 7 days that the
Application does not meet standards for approval. This Notice of
Deficiency will include the reason(s) why the Application is deficient
and provide the employer with an opportunity to resubmit a modified
Application. It will also identify the type of modification that is
necessary in order for the CO to issue a Notice of Acceptance. In
addition, the Notice of Deficiency must inform the employer that the CO
will grant or deny the certification within 30 days of the date of need
as long as the employer submits a modified application within 5
business days.
The Notice of Deficiency will also give an employer the opportunity
to request expedited administrative review or a de novo administrative
hearing before an ALJ and provide instructions on filing a written
request for a hearing with the ALJ. Finally, the Notice of Deficiency
will inform the employer that failing to act within 5 business days to
either modify the Application or request an administrative hearing or
review will result in the denial of that employer's Application.
The employer may submit a modified application within 5 business
days of receiving a Notice of Deficiency. If an employer timely submits
a modified application that meets conditions for acceptance, the CO
will issue a Notice of Acceptance. For each day over the 5-day window,
the CO may take up to one additional day to issue a Final Determination
on the Application, up to a maximum of an additional 5 days. The
Application will be considered to be abandoned if the employer does not
submit a modified Application within 12 calendar days (allowing for two
periods of 5 business days each) after the Notice of Deficiency was
issued. The 12 days, which is more time than was allotted under the
2008 Final Rule, is a reasonable maximum period, given the statute's
concern for prompt processing of Applications and the time needed to
obtain visas and bring in the workers by the date of need.
5. Sec. 655.145 Amendments to Applications for Temporary Employment
Certification
As in the 2008 Final Rule, the Department proposes that amendments
to a request for labor certification for H-2A workers are permitted in
two limited instances--where an employer desires to increase the number
of workers requested, and where the employer makes minor changes to the
period of employment. DHS regulations at 8 CFR 214.2(h)(5)(x) provide
for a limited maximum of 2-week extension in emergent circumstances
(the temporary labor cert will be deemed to be approved for up to 2
weeks under such emergent circumstances (upon DHS approval of the 2-
week extension request)). As proposed, an employer will be able to
amend its Application with the Department at any time before the final
determination without an obligation to submit a new Application (and
conduct additional recruitment), to increase the number of workers
requested by not more than 20 percent (50 percent for employers
requesting 10 workers or less). Requests for increases above these
percentages will be approved by the CO only in limited circumstances
when the employer can satisfy DOL that the need could not have been
foreseen and the crops or commodities would be in jeopardy before the
expiration of any additional recruitment period.
For amendments to the period of employment, the Department proposes
that the employer seek written approval in advance from the CO. The
employer's request must be justified, taking into account the effect of
the change of the period of employment on the adequacy of the labor
market test. An employer must demonstrate that the change to the period
of employment could not have been foreseen, and the crops or
commodities will be in jeopardy prior to the commencement of an
additional recruitment period. In addition, if the change involves a
delay in the date of need, the employer must offer assurances that
workers who have already departed for the employer's job site will be
provided with housing and subsistence without cost to the workers until
they begin working.
E. Positive Recruitment and Post-Acceptance Requirements
The Department proposes, under new Sec. Sec. 655.150-655.159, that
employers be required to conduct the majority of their
[[Page 45920]]
recruitment after filing their Application at the direction of the NPC.
The proposed post-acceptance recruitment is similar to the process used
in the 1987 Rule. The Department has determined that this oversight of
recruitment is preferable to ensure the validity and adequacy of the
labor market test in which the employer will engage. However, because
the proposal retains the audit system introduced in the 2008 Final
Rule, employers must maintain all resumes and applications filed by the
U.S. workers. U.S. worker recruitment will continue to use the steps
that program experience has shown are the most appropriate for
agricultural employment. These include the involvement of the SWAs,
placement of two newspaper advertisements, contact with former U.S.
employees, advertising in traditional or expected labor supply States,
and as appropriate, contacting local unions.
1. Sec. 655.150 Interstate Clearance of Job Order
The Department proposes to require the employer to test the labor
market before filing the Application by submitting a job order to the
SWA in the area of intended employment. As discussed previously, the
SWA will place this order only in the intrastate job clearance system.
If enough U.S. workers apply for the positions available and are
qualified, able, and willing to perform the duties, then the employer
cannot file with the Department for a labor certification. However, if
the employer still has a need for foreign workers, then the employer
files an Application with the NPC. Once the CO issues the Notice of
Acceptance, the NPC will instruct the SWA to post the Job Clearance
Order on its interstate job clearance system. Likewise, the NPC will
inform the SWA of the traditional or expected labor supply States and
the SWA will send the SWAs in those States the Job Clearance Order.
2. Sec. 655.151 Newspaper Advertisements
Newspapers remain a potential recruitment source for U.S. workers
likely to be affected by the introduction of H-2A labor. As in the 2008
Final Rule, the Department proposes to require two print advertisements
in the State of intended employment. The newspaper advertisements can
be on two consecutive days, but one of which must be on a Sunday or the
day of the week with the largest circulation if there is no Sunday
edition. Employers will be required to list the specifics of the
newspaper advertisement on the Application but will not be required to
submit tear sheets or other documentary evidence of that recruitment
when the recruitment report is submitted. However, the employer will be
required to maintain documentation of the actual advertisement(s)
published in the event of an audit or other review. The Department is
not requiring advertising in ethnic newspapers, but allows for this
option if, in the discretion of the CO, it is normal and customary in
the area of intended employment.
3. Sec. 655.152 Advertising Requirements
Proposed Sec. 655.152 retains the requirements of the 2008 Final
Rule for the information that must be contained in the advertisements.
However, the Proposed Rule requires the advertisements to be placed at
the direction of the CO after the Application has been accepted. It
also proposes to require employers with remote worksites to provide
physical space or other assistance for the interviewing of U.S. workers
in a place other than the worksite that is readily accessible to the
population that is most likely to apply to the job opportunity.
4. Sec. 655.153 Contact with Former U.S. Employees
The NPRM proposes to continue to require employers to contact
former U.S. employees as included in the 2008 Final Rule. These
contacts must occur during the pre-filing recruitment period. Contact
with previous employees will be documented by maintaining copies of
correspondence with such employees (or records of attempts to contact
former employees). The recruitment report must contain a description of
the outcome of those contacts, including the lawful, job-related
reasons for not rehiring a former employee. This will increase the
likelihood that former U.S. workers of the employer will receive
advance notice of available job opportunities, as well as provide them
with additional information on available positions.
5. Sec. 655.154 Additional Positive Recruitment
The statute requires the Secretary to deny a petition if the
employer has not made positive recruitment efforts within a multistate
region of traditional or expected labor supply States and the Secretary
finds that there are a significant number of qualified U.S. workers
who, if recruited, would be willing to make themselves available for
work at the time and place needed. Positive recruitment is in addition
to and occurs within the same time period as the circulation of the job
order through the interstate employment service system. The NPRM
proposes that the Notice of Acceptance will instruct the employer how
to conduct positive recruitment. If such traditional or expected labor
supply States exist for an area of intended employment, the Notice of
Acceptance will designate such States and the employer will be required
to perform additional positive recruitment in those States. The type of
recruitment that will be required of the employer is left to the
discretion of the CO, but will be no less than the normal recruitment
efforts of non-H-2A agricultural employers of comparable or smaller
size in the area of intended employment. Such recruitment may include
radio advertising, additional newspaper advertisements, and other
targeted efforts.
6. Sec. 655.155 Referrals of U.S. Workers
The NPRM proposes to return to the 1987 Rule standard which
required the SWAs to refer only those individuals who have been
apprised of all the material terms and conditions of employment. Under
those provisions, only those individuals who had indicated that they
were able and willing to perform such duties, qualified and eligible to
take such a job and available at the time and place required in the job
order were referred.
7. Sec. 655.156 Recruitment Report
The reporting of recruitment results has always been an element of
the H-2 program. Under the 1987 Rule, if the employer did not hire a
referred worker, the employer was required to inform the SWA of the
lawful employment-related reason(s) for not hiring the worker. The 2008
Final Rule formalized this process and required the preparation of a
recruitment report, but the report was not sent to either the SWA or
the NPC; instead the employer maintained the recruitment report in its
records. The NPRM proposes to require that employers begin the
recruitment report before they file their Application and continue to
supplement it as referrals and applicants come in. The employer will be
required to submit the initial recruitment report at the time of filing
the Application with the NPC and to file an updated report by a date
certain specified in the Notice of Acceptance. Finally, the employer
will be required to continue to update the recruitment report until 50
percent of the contract period has expired at which time the SWA will
cease referring U.S. workers. The complete recruitment report and all
supporting documentation must be maintained by the employer for 5
years.
[[Page 45921]]
8. Sec. 655.157 Withholding of U.S. Workers Prohibited
The statute prohibits willfully and knowingly withholding domestic
workers until the arrival of H-2A workers in order to force the hiring
of domestic workers under the 50 percent rule. Both previous rules
implemented the statutory prohibition by describing the procedure for
filing complaints in such instances. Because the Department has now
centralized many of the functions formerly performed by the SWAs, the
NPRM proposes to have such complaints filed directly with the CO rather
than first going through the SWA and having the SWA refer complaints to
the CO.
F. Labor Certification Determinations
1. Sec. 655.160 Determinations
This NPRM proposes to continue to implement the Secretary's
statutory mandate to make determinations on Applications no later than
30 days prior to the date of need.
2. Sec. 655.161 Criteria for Certification
The NPRM sets out the criteria by which the CO will determine the
availability of U.S. workers. As in the 2008 Final Rule, the CO will
count as available those individuals who are rejected by the employer
for any reason other than a lawful, job-related reason, or who are
rejected and are not provided by the employer with a lawful, job-
related reason for the rejection.
3. Sec. 655.162 Approved Certification
The Department is proposing to continue the requirement from the
2008 Final Rule that the CO will send the certified Application to the
employer by means assuring next-day delivery. This is to ensure
employers receive expeditious handling of their certifications.
4. Sec. 655.163 Certification Fee
The Proposed Rule continues to require, as outlined in the statute,
that each employer of H-2A workers under the Application (except joint
employer associations, which may not be assessed a fee in addition to
the fees assessed to the members of the association) must pay to the
Department the appropriate certification fee. These processing fees are
authorized by statute and set by regulations originally published at 52
FR 20507, Jun. 1, 1987. The Department is updating the fees to an
amount that more nearly approaches the reasonable costs of
administering the H-2A program.
The fee for each employer receiving a temporary agricultural labor
certification will continue to be $100 plus $10 for each H-2A worker
certified under the Application. The fee to an employer for an
individual Application will be continue to be capped at $1000,
regardless of the number of H-2A workers that are certified. Non-
payment or untimely payment of fees may be considered a violation
subject to the procedures under Sec. 655.182.
5. Sec. 655.164 Denied Certification
The Proposed Rule retains the general provisions for denying
certifications from the 2008 Final Rule. The final determination letter
will state the reasons that the certification was denied and cite the
relevant regulatory provisions and/or special procedures that govern.
The Department will continue to provide the applicant an opportunity to
appeal the determination.
6. Sec. 655.165 Partial Certification
The Proposed Rule retains in large part the 2008 Final Rule
provision explicitly providing that the CO may issue a partial
certification, reducing either the period of need or the number of H-2A
workers requested or both. The ability to issue a partial certification
is necessary where the Department receives an Application with respect
to which eligible and qualified U.S. workers have been successfully
recruited prior to certification. A partial certification is issued by
subtracting the number of available U.S. workers from the total number
of workers requested. In addition an employer will have the ability to
request administrative review.
7. Sec. 655.167 Document Retention Requirements
The Proposed Rule retains a provision from the 2008 Final Rule
requiring the retention of certain documentation demonstrating
compliance with the program's requirements, but increases the period of
retention. Documents must be retained in hard copy for a period of 5
years from the date of adjudication of the Application, up from the
2008 Final Rule's 3-year requirement. Document retention is a necessary
component of the H-2A certification process to respond to an audit or
other investigation.
G. Post-Certification Activities
Proposed Sec. Sec. 655.170 through 655.173 concern various actions
an employer may take after its H-2A Application has been adjudicated,
including making a request for extension of certification, appealing a
decision of the CO, withdrawing an Application, and petitioning for
higher meal charges. Section 655.174 proposes a new publicly-accessible
electronic database of employers who have applied for H-2A
certification that the Department will maintain.
1. Sec. 655.170 Extensions
Proposed Sec. 655.170 contains the provisions governing an
employer's request for an extension of the time period for which an
Application has been certified. Aside from two substantive changes, the
provisions of this proposed section are the same as the provisions
under the 2008 Final Rule, which were themselves similar to the
provisions of the 1987 Rule.
The substantive changes in the proposed section would permit the CO
to notify an employer through means other than writing if time does not
permit, or in writing if time permits, of the CO's decision to grant or
deny an extension of certification. This would enable COs to provide a
decision in the fastest manner possible, when a delay for a formal
writing would otherwise hamper the ability of the employer to act on
the decision. The proposed regulation also would not allow an employer
to appeal a denial of an extension. Under this Proposed Rule, there is
no right to appeal a denied extension request. While the Department, in
its discretion, allowed for appeals of denied extensions in the 2008
Final Rule, the Department does not see sufficient justification to
continue this practice.
2. Sec. 655.171 Appeals
This section sets out the procedures for ALJ review of a decision
of a CO. The substance of this section has remained the same since
1987, except that this proposed section allows an ALJ to remand a case
to the CO, in addition to the ALJ's existing ability to affirm,
reverse, or modify a CO's decision.
The proposed section reorganizes the text in the corresponding
sections of previous rules to enhance clarity and readability. The
proposed section does not list the various CO decisions that may be
appealed, such as a denial of certification, a decision to decline to
accept an Application for consideration, or a denial of an amendment of
an Application. Rather, the Proposed Rule is structured so that the
right to appeal a particular decision of the CO is discussed in the
sections of the rule that discuss the CO's authority and procedure for
making that particular decision.
[[Page 45922]]
3. Sec. 655.172 Withdrawal of Job Order and Application for Temporary
Employment Certification
Proposed Sec. 655.172 discusses the withdrawal of Applications. An
employer may withdraw a job order from intrastate posting if the
employer no longer plans to file an H-2A Application. However,
withdrawal of a job order does not nullify the obligations the employer
has to any workers recruited in connection with the placement of the
job order before it was withdrawn.
An employer may also seek to withdraw an Application after it has
been accepted by the NPC. However, the employer is still obligated to
comply with the terms and conditions of employment contained in the
Application for workers recruited in connection with that Application.
4. Sec. 655.173 Setting Meal Charges; Petition for Higher Meal Charges
The text of proposed Sec. 655.173 is substantively the same as the
text of the section governing meal charges in the 2008 Final Rule. The
proposed section contains some minor changes to the description of an
employer's right to appeal a denial of a petition for higher meal
charges, primarily to refer to current appeal procedures.
5. Sec. 655.174 Public Disclosure
This proposed section describes a new initiative of the Department:
DOL will maintain an electronic database accessible to the public
containing information on all employers who apply for H-2A labor
certifications. The database will include information such as the
number of workers the employer requests on an Application, the date an
Application is filed, and the final disposition of an Application.
H. Integrity Measures
Proposed Sec. Sec. 655.180 through 655.185 have been grouped
together under the heading Integrity Measures, describing those actions
the Department may take to ensure that Applications filed with the
Department are in fact compliant with the requirements of this subpart.
1. Sec. 655.180 Audit
This section proposes how the Department will conduct audits of
applications for which certifications have been granted. The regulatory
text is substantively the same as the text of the audit section of the
2008 Final Rule, with minor changes to improve organization and
readability. Like the 2008 Final Rule, the proposed section states that
the Department has the discretion to choose which labor certification
requests will be audited. When an Application is selected for audit,
the CO will send a letter to the employer (and its attorney or agent)
listing the documentation the employer must submit and the date by
which the documentation must be received by the CO.
An employer's failure to comply with the audit process may result
in the revocation of certification or debarment, under proposed
Sec. Sec. 655.181 and 655.182. A CO may provide any findings made or
documents received in the course of the audit to the WHD, DHS or other
enforcement agency. The CO will refer any findings that an employer
discriminated against an eligible U.S. worker to the Department of
Justice, Civil Rights Division, Office of Special Counsel for Unfair
Immigration Related Employment Practices.
2. Sec. 655.181 Revocation
This proposed section describes the Department's power to revoke an
H-2A labor certification. The proposed section expands the grounds upon
which the Department may revoke from those specified in the revocation
(Sec. 655.117) in the 2008 Final Rule. Under the proposed section, the
CO may revoke certification if the CO finds that it was not justified
based on the requirements of the INA. This will allow the CO to correct
situations where she finds that the labor certification should never
have been granted. The CO may also revoke if the CO finds that the
employer substantially violated a material term or condition of the
approved labor certification. The definition of substantial violation
is in the debarment section of these proposed regulations, at proposed
Sec. 655.182(d). Finally, the CO may revoke if she finds that the
employer failed to cooperate with a DOL investigation, inspection,
audit, or law enforcement function, or if she finds that the employer
failed to comply with any sanction(s), remedy(ies), or order(s) of the
Department.
The proposed procedures for revocation are largely the same as the
revocation procedures in the 2008 Final Rule. They have been revised
for clarity and to provide that in the event of a revocation, the
employer may either take advantage of the opportunity to submit
rebuttal evidence to the CO, or the employer may file an administrative
appeal under proposed Sec. 655.171.
The revocation procedure begins with the CO sending the employer a
Notice of Revocation if the CO determines that certification should be
revoked. Upon receiving the Notice of Revocation, the employer has two
options: It may submit rebuttal evidence to the CO or the employer may
appeal the revocation under the procedures in proposed Sec. 655.171.
The employer must submit rebuttal evidence or appeal within 14 days of
the Notice of Revocation, or the Notice will be deemed the final
decision of the Secretary, and the revocation will take effect
immediately at the end of the 14-day period.
If the employer chooses to file rebuttal evidence, and the employer
timely files that evidence, the CO will review it and inform the
employer of her final determination on revocation within 14 calendar
days of receiving the rebuttal evidence. If the CO determines that the
certification should be revoked, the CO will inform the employer of its
right to appeal under proposed Sec. 655.171. The employer must file
the appeal of the CO's final determination within 10 calendar days, or
the CO's determination becomes the final decision of the Secretary and
takes effect immediately after the 10-day period.
If the employer chooses to appeal either in lieu of submitting
rebuttal evidence, or after the CO makes a determination on the
rebuttal evidence, the appeal will be conducted under the procedures
contained in proposed Sec. 655.171. The timely filing of either
rebuttal evidence or an administrative appeal stays the revocation
pending the outcome of those proceedings. If labor certification is
ultimately revoked, the CO will notify DHS and the Department of State.
Proposed Sec. 655.181(c) lists an employer's continuing
obligations if the employer's H-2A certification is revoked. These
obligations are the same as those listed in Sec. 655.117(d) of the
2008 Final Rule.
3. Sec. 655.182 Debarment
Proposed Sec. 655.182 describes the Department's debarment
authority and procedures, pursuant to 8 U.S.C. 1188(b)(2). Sections
655.182(a-c) are substantively the same as Sec. 655.118(a) -(c) of the
Debarment section of the 2008 Final Rule; they have been revised to
provide clarity. Section 655.182(a) states that the OFLC Administrator
may debar an employer if the Administrator finds that the employer has
committed a substantial violation. Section 655.182(b) states that the
OFLC Administrator may debar an agent or attorney if the Administrator
finds that the agent or attorney participated in, had knowledge of, or
reason to know of an employer's substantial violation. The OFLC
Administrator will not issue a future labor certification to any
employer represented by a debarred agent or attorney. Under paragraph
(b),
[[Page 45923]]
the agent or attorney is the subject of the debarment; the OFLC
Administrator may issue labor certifications to the same employer(s) if
they are not represented by the debarred agent or attorney (unless of
course the employer itself is also debarred). The Administrator may not
commence debarment proceedings against an employer, attorney, or agent
any later than 2 years after the substantial violation occurred. The
Administrator may not debar an employer, attorney, or agent for longer
than 3 years from the date of the Department's final debarment
decision.
The statute at 8 U.S.C. 1188(b)(2) directs the Secretary to debar
any employer who the Secretary determines has committed a substantial
violation. Proposed Sec. Sec. 655.182(d) and 655.182(e) work together
to describe the violations that the CO may determine are so substantial
as to merit debarment. Proposed Sec. 655.182(d) defines a violation
for purposes of debarment. The text of this section is similar to the
text of Sec. 655.118(d) of the 2008 Final Rule, with the following
changes:
The proposed text of paragraph (d)(1) makes clear that
there need only be one act of commission or omission that fits the
criteria listed in paragraphs (d)(1)(i) through (x) to constitute a
substantial violation; this replaces the 2008 Final Rule's requirement
of a pattern or practice of acts.
Proposed paragraph (d)(1)(iii) is changed to say failure
to comply with recruitment obligations rather than willful failure.
A new proposed paragraph (d)(iv) was added. Under the
Proposed Rule, an employer's improper layoff or displacement of U.S.
workers or workers in corresponding employment may be a debarrable
violation.
A new proposed paragraph (d)(vii) is added. Under the
Proposed Rule, employing an H-2A worker outside the area of intended
employment, in an activity/activities not listed in the job order, or
outside the validity period of employment of the job order, including
any approved extension of the job order may be a debarrable violation.
A new proposed paragraph (d)(viii) is added. This will
permit debarments based on violations of Sec. 655.135(j) & (k) which
address employer fee shifting and related matters.
A new proposed paragraph (d)(ix) is added. Under the
Proposed Rule, a violation of any of the anti-discrimination provisions
listed in 29 CFR 501.4(a) may be a debarrable violation.
Proposed Sec. 655.182(e) adds a description of the factors a CO
may consider when determining when a violation is substantial for
purposes of determining whether the violation merits debarment. This
list of factors is not exclusive, but it offers some guidance to
employers, attorneys, and agents as to what a CO commonly considers
when determining whether a substantial violation has occurred. The
factors are the same as those factors used by the WHD to determine
whether to assess civil money penalties under 29 CFR 501.19 or whether
to debar under 29 CFR 501.20.
The independent debarment authority of the WHD is a new feature of
the Proposed Rule. See proposed language at 29 CFR 501.20 and the
corresponding preamble. Because both OFLC and the WHD have concurrent
debarment jurisdiction, some changes have been added to the OFLC
debarment procedures in the Proposed Rule to ensure that the procedures
are consistent with the WHD debarment procedures.
Proposed Sec. 655.182(f) describes the procedures that will be
followed in the event of an OFLC debarment. These procedures are the
same as the debarment procedures contained in the 2008 Final Rule, but
these procedures would eliminate the Notice of Intent to Debar and the
employer's option to submit rebuttal evidence. Instead, the debarment
procedures will begin with the OFLC Administrator sending a Notice of
Debarment, and the same appeal opportunities as in the 2008 Final Rule
will follow.
The Department believes that the provision for the employer to
submit rebuttal evidence in response to an OFLC Notice of Debarment is
unnecessary because of the reality of debarment under these proposed
regulations: Most often, debarment will actually be done by the WHD.
Because the WHD has more extensive investigation authority than the
OFLC, any WHD debarment will come only after the WHD has conducted an
extensive investigation in which the employer has many opportunities to
submit evidence and otherwise communicate with the WHD official.
Further, it is highly unlikely that any OFLC debarment would occur
without the OFLC Administrator conducting an audit of the employer
under proposed Sec. 655.180, so the employer will have had opportunity
to submit evidence before the Notice of Debarment occurs. Because of
this, the Department does not believe that the employer would need an
additional opportunity to submit further evidence. Also, because the
employer will have already had opportunities to submit evidence to the
Department, and debarment will only be conducted if the OFLC
Administrator believes that the employer has committed a serious,
substantial violation, the Department believes that giving the employer
an additional option to submit rebuttal evidence would cause
inappropriate delay in the debarment proceedings.
Another minor change was made in proposed Sec. 655.182(f)(3),
describing the ALJ's decision after a debarment hearing; it adds that
the ALJ will prepare the decision within 60 days after completion of
the hearing and closing of the record. This time constraint is
consistent with the newly-proposed debarment hearing procedures of the
WHD.
Proposed Sec. 655.182(g) clarifies that while the WHD and OFLC
will now have concurrent debarment jurisdiction, the two agencies may
coordinate their activities so that a specific violation for which
debarment is imposed will be cited in a single debarment proceeding.
Proposed Sec. 655.182(h-j) state the impact a determination to
debar a member of an agricultural association has on the rest of the
association or its individual members, the impact that a debarment of
an agricultural association acting as a joint employer has on the
association's individual members, or the impact a debarment of an
agricultural association acting as a sole employer has on the
association. The text of these provisions is substantively the same as
the text of Sec. 655.118(f-h) of the 2008 Final Rule. The one
substantive change is in proposed paragraph (i), which states that a
debarment of an agricultural association acting as a joint employer
with its members will apply only to that association and not to any
individual employer-member of the association, unless the OFLC
Administrator determines that an employer-member participated in, had
knowledge of, or had reason to know of the violation. Unlike the 2008
Final Rule, an employer-member's knowledge of or reason to know of the
association's debarrable violation may give rise to debarment of that
member, in addition to the member's participation in the violation.
4. Sec. 655.183 Less Than Substantial Violations
Proposed Sec. 655.183 describes the CO's actions if she determines
that a less than substantial violation has occurred. The text of this
section is the same as the text of the 1987 Rule, with a few non-
substantive editorial changes. If the OFLC Administrator believes that
a less than substantial violation may have had or will continue to have
a chilling or
[[Page 45924]]
otherwise negative effect on the recruitment, employment, and retention
of U.S. workers, the OFLC Administrator may require the employer to
follow special procedures before and after the temporary labor
certification determination.
The OFLC Administrator will notify the employer (or agent or
attorney) in writing of the special procedures which will be required
in the coming year. The employer may request review of these special
procedures according to the procedures of proposed Sec. 655.171. If
the OFLC Administrator determines that the employer has failed to
comply with the special procedures, the Administrator will send a
written notice to the employer, stating that the employer's otherwise
affirmative H-2A certification determination will be reduced by 25
percent of the total number of H-2A workers requested (which cannot be
more than those requested in the previous year) for a period of 1 year.
Notice of such a reduction in the number of workers requested will be
conveyed to the employer by the OFLC Administrator in the written
certification determination. We have and will continue to provide for
prompt notification to DHS and the Department of State (DOS) of any
such determination. The employer may appeal the reduction in the number
of workers according to the procedures in Sec. 655.171. If the ALJ
affirms the OFLC Administrator's determination that the employer has
failed to comply with the required special procedures, the number of
workers requested will be reduced.
5. Sec. 655.184 Applications Involving Fraud or Willful
Misrepresentation
Proposed Sec. 655.184(a) is the same as Sec. 655.113(a) in the
2008 Final Rule, discussing investigation of fraud and willful
misrepresentation. The section states that if a CO discovers possible
fraud or willful misrepresentation concerning an Application, the CO
may refer the matter for investigation to the WHD, DHS, or to the
Department's Office of Inspector General.
Proposed Sec. 655.184(b) revises Sec. 655.113(b) of the 2008
Final Rule to more accurately describe the ramifications of a
determination of fraud or willful misrepresentation concerning an
Application. If the WHD, a court, or the DHS determines that there was
fraud or willful misrepresentation involving an Application, and the CO
had granted certification of the fraudulent Application, the finding of
fraud or misrepresentation will be grounds for the CO to revoke that
certification. The finding may also merit debarment according to
proposed Sec. 655.182.
6. Sec. 655.185 Job Service Complaint System; Enforcement of Work
Contracts
Proposed Sec. 655.185(a) contains the same provisions about
complaints filed through the Job Service Complaint System as were in
the 1987 Rule and the 2008 Final Rule, with one addition. Proposed
Sec. 655.185(b) states that complaints alleging that an employer
discriminated against eligible U.S. workers may be referred to the U.S.
Department of Justice, Civil Rights Division, Office of Special Counsel
for Unfair Immigration Related Employment Practices and was also
included in the 2008 Final Rule.
The Department has added a provision permitting allegations of
fraud that are part of a complaint through the Job Service Complaint
System to be brought to the CO. This will permit the CO to take any
such actions as necessary to determine whether such allegations have
any validity, such as an audit, and if such further inquiry has yielded
information so as to call a certification into question, to determine
whether there are any actions (revocation and/or debarment) that can be
taken as a result.
III. Revisions to 29 CFR Part 501
Section 218(g)(2) of the INA authorizes the Secretary to take such
actions, including imposing appropriate penalties and seeking
appropriate injunctive relief and specific performance of contractual
obligations, as may be necessary to ensure compliance with terms and
conditions of employment under this section of the statute. The
Secretary determined that enforcement of the contractual obligations of
employers under the H-2A program is the responsibility of the WHD.
Regulations at 29 CFR part 501 were issued to implement the WHD's
responsibilities under the H-2A program; amendment of these regulations
is part of this proposed rulemaking.
Concurrent with the Department's proposed regulations in 20 CFR
part 655, subpart B amending the certification of temporary employment
of nonimmigrant H-2A workers, the Department proposes to amend its
regulations at 29 CFR part 501 on enforcement under the H-2A program.
Changes are proposed for enhanced enforcement to complement the
certification process so that workers are appropriately protected when
employers fail to meet the requirements of the H-2A program. Since this
NPRM would make changes to the existing regulations in 29 CFR part 501,
we have included the entire text of the regulation and not just the
sections with proposed changes.
A. General Provisions and Definitions
Proposed Sec. 501.2 has been broadened to allow broader
information sharing and coordination between agencies both within and
outside of DOL. Both WHD and OFLC will now have the express authority
to share information for enforcement purposes, both with each other and
with other agencies such as DHS and DOS which play a role in
immigration enforcement. In addition, because ETA and WHD will have
concurrent debarment authority under the proposal, the new regulation
provides that a specific violation for which debarment is imposed will
be cited in a single debarment proceeding, and that OFLC and the WHD
may coordinate their activities to accomplish this result. It also
provides that copies of final debarment decisions will be forwarded to
DHS so that it can take appropriate action.
Section 501.3 of the proposed regulations sets forth the
definitions used in part 501, most of which are carried forward from
Sec. 501.10 of the 2008 Final Rule. As in the 2008 Final Rule,
proposed Sec. 501.3 sets forth the same definitions in 20 CFR part
655, subpart B that pertain to 29 CFR part 501. The discussion of
definitions that are common to both 20 CFR 655.103 and 501.3 can be
found in the preamble for 20 CFR part 655, subpart B above.
The Department is proposing to modify language used in the 2008
Final Rule that defined ``corresponding employment'' as including only
U.S. workers who are newly hired by the employer in the occupations and
during the period of time set forth in the Application and thereby
excluding U.S. workers who were already employed by the H-2A employer
at the time the Application was filed. The Department is proposing to
define ``corresponding employment'' more in keeping with the statutory
language mandating that the importation of H-2A workers not adversely
impact the wages and working conditions of workers similarly employed
in the U.S. Corresponding employment would include non-H-2A workers
employed by an employer whose Application was approved by ETA who are
performing work included in the job order or any other agricultural
work performed by the employer's H-2A workers as long as such work is
performed during the validity period of the job order. The definition
includes both non-H-2A workers hired during the recruitment period
required under these regulations and non-H-2A
[[Page 45925]]
workers already working for the employer when recruitment begins.
In defining an H-2A worker, the INA gives the Secretary the
authority to define in regulations the term ``agricultural labor or
services,'' with the requirement that the definition include
agricultural labor or services as defined in the IRC, the FLSA, and the
pressing of apples for cider on a farm. The work must also be of a
temporary or seasonal nature. See 8 U.S.C. 1101(a)(15)(h)(ii)(A). The
activity of ``pressing apples for cider on a farm'' was added to the
statute by Public Law 109-90, (October 18, 2005). As in the 2008 Final
Rule, the Department again proposes that the regulatory definition
reflect the 2005 amendment, and the proposal adds an explanation of the
term.
The Department is also proposing to expand the regulatory
definition of ``agricultural labor or services'' to include certain
reforestation activities and also pine straw activities. In addition,
the Department proposes to retain the addition of logging employment
that was included in the 2008 Final Rule and seeks to clarify which
logging employment activities qualify for H-2A status. Finally, the
proposal deletes the 2008 Final Rule's inclusion of minor and
incidental work not listed on the Application and the handling,
packing, processing, etc. of any agricultural or horticultural
commodity. These changes are more fully discussed in the preamble for
20 CFR part 655, subpart B above. Section 501.6 (formerly Sec. 501.5)
has been substantially shortened and revised for clarity and to
eliminate duplication. Section 501.7 (former Sec. 501.6) is proposed
to be broadened to require cooperation with any Federal official
investigating, inspecting, or enforcing compliance with the statute or
regulations. Section 501.8 has been renumbered from Sec. 501.7 but is
otherwise unchanged.
B. Surety Bonds for H-2ALCs
The number of Farm Labor Contractors (FLCs) applying for labor
certifications enabling them to hire and employ H-2A workers has risen
in recent years and is expected to continue to increase. The WHD's
enforcement experience demonstrates that FLCs are generally more likely
to violate applicable requirements than fixed-site agricultural
employers. To address this higher violation rate of FLCs and given the
transient nature of FLCs, as well as to ensure compliance with H-2A
obligations and to protect the safety and security of workers, WHD
proposes to continue the 2008 Final Rule's requirement that FLCs
(called H-2ALCs in this Proposed Rule) must obtain and maintain a
surety bond, based on the number of workers employed as listed on the
Application, throughout the period the temporary labor certification is
in effect, including any extensions thereof. WHD will have authority to
make a claim against the surety bond to secure unpaid wages or other
benefits due to workers employed under the labor certification.
The proposed text of this section is similar to the text of the
2008 Final Rule discussing the bonding requirement; however, in
addition to the surety bond amounts specified in the 2008 Final Rule,
the Department proposes to add larger bonding requirements applicable
to H-2ALCs with larger crews. Under this proposal, H-2ALCs seeking to
employ 75 to 99 workers will be required to obtain a surety bond in the
amount of $50,000, and H-2ALCs seeking to employ 100 or more workers
will be required to obtain a surety bond in the amount of $75,000.
Hypothetically, the proposed increased amount would address 2 weeks
where no wages have been paid for crews of 100 (40 hours x 2) x 9.25
(assumed AEWR) x 100 workers = $74,000. The Department specifically
requests comments addressing the implications for H-2ALCs who may be
subject to this requirement.
The Department also proposes to change the requirement that H-2ALCs
provide written notice to the WHD Administrator of cancellation or
termination of the surety bonds from a 30-day to a 45-day notice
period. Finally, the proposal clarifies that the bond must remain in
effect for at least 2 years. However, if WHD has commenced any
enforcement proceedings by that date, the bond must remain in effect
until the conclusion of those proceedings and any appeals.
The Department has not created a form specific to this bonding
requirement, but instead proposes that documentation from the bond
issuer be provided with the Application, identifying the name, address,
phone number, and contact person for the surety, as well as providing
the amount of the bond, date of its issuance and expiration and any
identifying designation utilized by the surety for the bond. This
requirement can be met by the applicant attaching a copy of the signed
and dated document issued from the surety that shows the information
required. This request for information is in keeping with the
information that was required in the appendix for the ETA 9142 in the
2008 Final Rule.
C. Enforcement Provisions
In order to deter significant violations of the H-2A worker
protection provisions, a number of changes and clarifications are
proposed in the sanctions and remedies available under part 501 as
discussed below. Most of these changes are consistent with those in the
2008 Final Rule.
Proposed Sec. 501.16 has been amended to provide WHD with express
authority to pursue reinstatement and make-whole relief in cases of
discrimination, or in cases in which U.S. workers have been improperly
rejected, laid off, or displaced. In addition, the proposal would allow
WHD to pursue recovery of recruiter fees or other costs improperly
deducted or paid in violation of regulations forbidding such payments,
including where the employer has not properly contractually prohibited
its recruiter and agents from seeking or receiving such payments,
directly or indirectly, as set forth in proposed 20 CFR 655.135(j) and
(k). Proposed Sec. 501.17 has been changed to clarify the differing
roles and responsibilities of OFLC and WHD, and to note that both
agencies have concurrent jurisdiction to impose debarment. However, as
explained above, Sec. 501.2 is designed to protect an employer from
being debarred twice for a single violation.
Proposed Sec. 501.18 has been changed to conform to the statute,
which provides for administrative appeals, but does not grant the
Secretary independent litigating authority in civil litigation.
Proposed Sec. 501.19 is amended to increase the maximum civil
money penalty (CMP) amount from $1,000 to $1,500 for each violation, in
most cases. This amount has not been adjusted since 1987. The CMP of up
to $5,000 for failure to meet a condition of the work contract, or for
discrimination against a U.S. or H-2A worker who, in connection with
the INA or these regulations has filed a complaint, has testified or is
about to testify, has exercised or asserted a protected right, has been
retained from the 2008 Final Rule. The Proposed Rule increases the
penalty amount to no more than $15,000 for a failure to meet a
condition of the work contract that results in displacing a U.S. worker
employed by the employer during the period of employment on the
employer's Application, or during the period of 60 days preceding such
period of employment. The Proposed Rule adds a penalty of an amount up
to $15,000 for improperly rejecting a U.S. worker who has made
application for employment.
[[Page 45926]]
These proposed penalties for violators who disregard their
obligations would provide the Department with an effective tool to
discourage potential abuse of the program. Such penalties will deter
violations, discrimination and interference with investigations, and
strengthen necessary enforcement of laws that protect workers who may
be unlikely to approach government agencies to intercede on their
behalf. The increase in certain penalties demonstrates the Department's
commitment to protecting workers.
Further, if a violation of an applicable housing or transportation
safety and health provision of the work contract causes the death or
serious injury of any worker, the Department proposes a penalty of up
to $50,000 per worker. Where the violation of safety and health
provision involving death or serious injury is repeated or willful, the
Department proposes to increase the maximum penalty to up to $100,000
per worker.
The proposed penalties for such violations of applicable safety and
health provisions would provide a meaningful assurance that
participants meet their obligation to see that housing and/or
transportation provided to the workers meets all applicable safety and
health requirements and that housing and/or vehicles used in connection
with employment do not endanger workers.
The assessment of the maximum penalties available under proposed
Sec. 501.19 would not be mandatory, but rather would be based on
regulatory guidelines found in paragraph (b) of this section and the
facts of each individual case.
D. Debarment by the WHD
The current regulations provide OFLC the authority to deny access
to future certifications (i.e., debarment) and require the WHD to
report findings in order to make a recommendation to OFLC to deny
future certifications. Under proposed Sec. 501.20, OFLC and WHD would
have concurrent debarment authority, with WHD primarily concerned with
issues arising from WHD investigations, while OFLC would focus on
issues arising out of the application process. Both agencies may
coordinate their activities whenever debarment is considered. The
proposed standards for debarment within the WHD's purview are identical
to those proposed by OFLC for debarment actions under 20 CFR part 655,
thus ensuring consistency in Application. This change will allow
administrative hearings and appeals relating to back wages or other
relief to employees or CMP's assessed by the WHD to be consolidated
with the debarment actions that arise from the same facts. This will
not affect OFLC's ability to institute its own debarment proceedings on
issues that arise from the Application or OFLC's proposed audits.
Conforming changes are proposed to other sections in part 501 to
reflect the proposed WHD debarment authority.
The Department proposes to modify the criteria for debarment to
eliminate the multiple thresholds in the 2008 Final Rule, which
required a pattern and practice of a violation that also must be
significant. The proposed criteria require a substantial violation that
includes a significant failure to comply with one or more of the
provisions of the H-2A program. The criteria found in Sec. 501.19(b)
will be used in determining if a violation is substantial.
Section 501.20 (j) and (k) are proposed to conform to the proposed
changes in 20 CFR part 655, which provide OFLC the authority to revoke
an existing certification, by allowing the WHD to recommend revocation
to OFLC based upon the WHD's investigative determinations.
E. Administrative Proceedings
The NPRM proposes few changes to the administrative proceedings set
forth in Sec. Sec. 501.30-501.47 of the 2008 Final Rule. Because the
NPRM proposes to authorize the WHD to pursue debarment proceedings,
rather than simply recommending debarment to OFLC, the NPRM adds
references to debarment in Sec. Sec. 501.30, 501.31, 501.32(a), and
501.41(d). Those sections of the proposal also specify that these
procedures will govern any hearing on an increase in the amount of a
surety bond pursuant to proposed Sec. 501.9(c). Finally, those
sections of the proposal replace the term unpaid wages with the term
monetary relief to reflect the fact that WHD may seek to recover other
types of relief, such as if an employer fails to provide housing or
meet the three-fourths guarantee.
Proposed Sec. 501.33 would permit hearing requests to be filed by
overnight delivery, as well as by certified mail, and would reiterate
that surety bonds must remain in force throughout any stay pending
appeal. Section 501.34(b) provides discretion to the ALJ to ensure the
production of relevant and probative evidence while excluding evidence
that is immaterial, irrelevant or unduly repetitive without resort to
the formal strictures of the Federal Rules of Evidence. This section
conforms H-2A procedures to those used in the H-1B program.
Other than very minor editorial changes or corrections of
typographical errors, the NPRM proposes no other changes to Sec. Sec.
501.30-501.47.
IV. Administrative Information
A. Executive Order 12866
Under Executive Order (E.O.) 12866, the Department must determine
whether a regulatory action is significant and therefore, subject to
the requirements of the E.O. and subject to review by the Office of
Management and Budget (OMB). Section 3(f) of the E.O. defines a
``significant regulatory action'' as an action that is likely to result
in a rule that: (1) Has an annual effect on the economy of $100 million
or more or adversely and materially affects a sector of the economy,
productivity, competition, jobs, the environment, public health or
safety, or State, local or Tribal governments or communities (also
referred to as ``economically significant''); (2) creates serious
inconsistency or otherwise interferes with an action taken or planned
by another agency; (3) materially alters the budgetary impacts of
entitlement grants, user fees, or loan programs or the rights and
obligations of recipients thereof; or (4) raises novel legal or policy
issues arising out of legal mandates, the President's priorities, or
the principles set forth in the E.O.
The Department has determined that this NPRM is not an economically
significant regulatory action under sec. 3(f)(1) of E.O. 12866. The
time frames and procedures for fixed-site agricultural employers, H-
2ALCs, or an association of agricultural producer-members to file a job
offer and Application, prepare supporting documentation, and satisfy
the required assurances and obligations under the H-2A visa category,
proposed under this regulation, are substantially similar to those
under the 2008 Final Rule and would not have an annual economic impact
of $100 million or more. The proposed regulation would not adversely
affect the economy or any sector thereof, productivity, competition,
jobs, the environment, nor public health or safety in a material way.
In fact, this NPRM is intended to provide to agricultural employers
clear and consistent guidance on the requirements for participation in
the H-2A temporary agricultural worker program. The Department,
however, has determined that this NPRM is a significant regulatory
action under sec. 3(f)(4) of the E.O. and accordingly OMB has reviewed
this NPRM.
The Department anticipates that the changes in this NPRM would have
[[Page 45927]]
limited net direct impact on employers, above and beyond the baseline
of the current costs required by the program as it is currently
implemented. Further, the Department does not anticipate that this NPRM
would result in significant processing delays on its part or the SWAs,
as the Department continues to operate under the statutory mandate to
make a determination of whether or not the Application meets the
threshold requirements for certification within 7 days of filing. The
Department is requesting comment on the benefits and costs of these
policies, with the goal of ensuring a thorough consideration and
discussion at the Final Rule stage.
1. Need for Regulation
The Department has determined that there are significant defects in
the 2008 Final Rule that necessitate new rulemaking. First, the
Department has determined that there are insufficient worker
protections in the attestation-based model in which employers do not
actually demonstrate that they have performed an adequate test of the
U.S. labor market. Even in the first year of the attestation model it
has come to the Department's attention that employers, either from a
lack of understanding or otherwise, are attesting to compliance with
program obligations with which they have not complied. This anecdotal
evidence appears to be sufficiently substantial and widespread for the
Department to revisit the use of attestations, even with the use of
back-end integrity measures for demonstrated non-compliance.
The Department has also determined that the area in which
agricultural workers are most vulnerable--wages--has been adversely
impacted to a far more significant extent than anticipated by the 2008
Final Rule. As discussed further below, the shift from the AEWR as
calculated under the 1987 Rule to the recalibration of the prevailing
wage as the AEWR of the 2008 Final Rule resulted in a reduction of
farmworker wages in a number of labor categories, and an increase in a
few others.
The 2008 Final H-2A Rule based the estimation of the AEWR on the
OES Wage Survey collected by BLS. This NPRM changes the methodology for
estimating the AEWR to the USDA survey.
Using data from the OES Wage Survey for the States with the top-ten
largest numbers of H-2A workers in the job classification of
farmworkers and crop laborers (SOC-OES Code 45-2092.02), the Department
estimates a weighted average hourly wage rate of $7.92. Using data from
the USDA's NASS FLS for the same States, the Department estimates a
weighted average hourly wage rate of $9.36. Thus, the 2008 Final Rule
is associated with a lower average hourly wages of approximately $1.44,
equivalent to an 18 percent decrease.
The table below displays the hourly wage rates under the two wage
methodologies for the top 10 agricultural states based on the total
workers certified. The estimated wage rates for each of the top ten
States would be higher under the NPRM where the Department proposes to
base the methodology for calculating the AEWR on the USDA's NASS FL
survey.
----------------------------------------------------------------------------------------------------------------
2008 Final Proposed NPRM Differential
rule Average average hourly wage decrease
hourly wage wage from 2009 for workers
from OES AEWR USDA under 2008
survey survey final rule
----------------------------------------------------------------------------------------------------------------
North Carolina.................................................. $7.57 $9.34 -$1.77
Kentucky........................................................ 7.39 9.41 -2.02
Georgia......................................................... 7.44 8.77 -1.33
Louisiana....................................................... 8.07 8.92 -0.85
Tennessee....................................................... 7.54 9.41 -1.87
Virginia........................................................ 7.46 9.34 -1.88
South Carolina.................................................. 7.33 8.77 -1.44
New York........................................................ 9.37 10.20 -0.83
California...................................................... 9.37 10.16 -0.79
Colorado........................................................ 8.72 9.88 -1.16
----------------------------------------------------------------------------------------------------------------
The graph below displays program participation in the H-2A program
for FY 2006, 2007, and 2008, as well as FY 2009 before and after
implementation of the 2008 Final Rule (through the end of June 2009).
As shown in the graph, the H-2A program experienced increased
participation from approximately 560 Applications per month on average
in FY 2006 to 903 Applications per month immediately prior to the
implementation of the 2008 Final Rule. After the implementation of the
2008 Final Rule, agricultural employer participation in the H-2A
program decreased to approximately 773 Applications per month.\2\ The
Department is not certain of the source of this decrease, noting it has
multiple origins, including economic weaknesses, including the
relatively high rate of unemployment at that time; the presence of
enhanced worker protections in the 2008 Final Rule that may have
disincentivized employers from participation, the litigation to which
the 2008 Final Rule was subject since prior to its implementation; and
simple confusion on the part of potential program participants stemming
from the new requirements.
---------------------------------------------------------------------------
\2\ Source: H-2A Case Management System. Data extracted on July
10, 2009.
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[[Page 45928]]
[GRAPHIC] [TIFF OMITTED] TP04SE09.000
To adequately protect U.S. and H-2A workers, the Department is
proposing the changes discussed in the subsections below. The
Department is engaging in new rulemaking to provide the affected public
with notice and opportunity to engage in dialogue with the Department
on the H-2A program. The Department took into account both the
regulations promulgated in 1987, as well as the substantive reworking
of the regulations in the 2008 Final Rule, in order to arrive at an
NPRM that balances the worker protections of the 1987 Rule and the
program integrity measures of the 2008 Final Rule.
Much of the 2008 Final Rule has been retained in format, as it
presents a more understandable regulatory roadmap; it has been used
when its provisions do not conflict with the policies proposed in this
NPRM. To the extent the 2008 Final Rule presents a conflict with the
policies underpinning this NPRM, it has been rewritten or the
provisions of the 1987 Rule have been adopted. To the extent the 1987
Rule furthers the policies that underlie this rule, those provisions
have been retained. These changes are pointed out below.
2. Alternatives
The Department has considered three alternatives: (1) To make the
policy changes contained in this NPRM; (2) to take no action, that is,
to leave the 2008 Final Rule intact; and (3) to revert to the 1987
Rule. The Department believes that the first alternative--the policies
contained in this NPRM--represents retention of the best features of
both the 1987 Rule and 2008 Final Rule. The Department has, for the
reasons enunciated above, chosen not to retain the 2008 Final Rule. It
has also rejected the reversion to the 1987 Rule as inefficient and
ineffective given societal and economic changes that have occurred
since its promulgation.
The Department is requesting comment on other possible alternatives
to consider, including alternatives on the specific provisions
contained in this NPRM with the goal of ensuring a thorough
consideration and discussion at the Final Rule stage.
3. Analysis Considerations
The economic analysis presented below covers the following economic
sectors: crop production; animal production; activities for agriculture
and forestry; logging; reforestation; and fishing, hunting, and
trapping. In 2007, there were over 2.2 million farms of which 78
percent had annual sales of less than $50,000, 17 percent had annual
sales of $50,000 to $499,999, and the remaining 5 percent had annual
sales in excess of $500,000.\3\
---------------------------------------------------------------------------
\3\ Source: 2007 Census of Agriculture, United States Department
of Agriculture.
---------------------------------------------------------------------------
The Department derives its estimates by comparing the baseline,
that is, the program benefits and costs under the 2008 Final Rule,
against the benefits and costs associated with implementation of
provisions contained in this NPRM. For a proper evaluation of the
benefits and costs of the NPRM, we explain how the required actions of
workers, employers, government agencies, and other related entities
under the NPRM are linked to the expected benefits and costs. We also
consider, where appropriate, the unintended consequences of the
provisions introduced by the NPRM.
The Department makes every effort, where feasible, to quantify and
monetize the benefits and costs of the NPRM. Where we are unable to
quantify them--for example, due to data limitations--we describe the
benefits and costs qualitatively. Following OMB Circular A-4 and
consistent with the Department's practice in previous labor
certification rulemaking, this analysis focuses on benefits and costs
that accrue to citizens and residents of the U.S. The analysis covers
10 years to ensure it captures all major benefits and costs.\4\ In
addition, the Department provides a qualitative assessment of transfer
payments associated with the increased wages and protections of U.S.
workers. Transfer payments are payments from one group to another that
do not affect total resources available to society. When summarizing
the benefits or costs of specific provisions of the NPRM, we present
the 10-year averages to represent the typical annual effect or 10-year
discounted totals to represent the overall effects.
---------------------------------------------------------------------------
\4\ For the purposes of the cost-benefit analysis, the 10-year
period starts in the next fiscal year on October 1, 2009.
---------------------------------------------------------------------------
4. Subject-by-Subject Analysis
The Department's analysis below covers expected impacts of the
following proposed provisions of the NPRM against the baseline: New
methodology for estimating the AEWR, an enhanced U.S. worker referral
period for employers after certification, increased costs to the
Department for developing and maintaining an Electronic Job Registry,
changes in administrative burdens placed on SWAs by increased time
frames for recruitment and benefits from eliminating employment
verification requirements, enhanced worker protections through
compliance certification, enhanced
[[Page 45929]]
coverage of transportation expenses to and from the worker's place of
residence, and changes in the requirement for housing inspections.
a. New Methodology for Estimating the AEWR
The 2008 Final Rule based the estimation of the AEWR on the OES
Wage Survey collected by BLS, rather than data compiled by the USDA,
NASS, which was what was relied upon in the 1987 Rule. This NPRM
changes the methodology for estimating the AEWR to the USDA survey. As
explained above, the wage survey methodology proposed in this NPRM is
associated with an hourly wage that is $1.44 higher than that under the
2008 Final Rule.
1. Benefits to U.S. Workers
The higher wages for workers associated with the new methodology
for estimating the AEWR represents a direct benefit to workers
improving their ability to meet costs of living and spend money in
local communities in which they are employed, and important concern to
the current Administration and a key aspect of the Department's mandate
to ensure the wages and working conditions of similarly employed U.S.
workers are not adversely affected.
Labor market research indicates that as agricultural wages for U.S.
workers increase, a larger number of U.S. workers decide it is
economically feasible or desirable to participate in the agricultural
labor force. Some of these workers would otherwise remain unemployed or
out of the labor force entirely, earning no salary. This effect is
captured by the so-called wage elasticity of the U.S. agricultural
labor supply. A recent study finds that this elasticity is 0.43, that
is, for each 1 percent increase in wages, there is a 0.43 percent
increase in labor supply by U.S. agricultural workers.\5\ Another study
finds that the elasticity is 0.36.\6\ Although the increase in wages
for documented workers in agriculture will lead to complex, hard-to-
quantify labor market dynamics involving both labor supply and demand,
the Department believes that the net effect may be increased employment
opportunities for U.S. workers, which represent a U.S. societal benefit
by engaging U.S. human resources in productive activity that may not
otherwise occur. This impact is also a transfer in the sense the U.S.
workers may displace temporary foreign workers in providing
agricultural services or labor to employers.
---------------------------------------------------------------------------
\5\ See Julie L. Hotchkiss and Myriam Quispe-Agnoli, ``Employer
Monopsony Power in the Labor Market for Undocumented Workers,''
Federal Reserve Bank of Atlanta, Working Paper 2009-14a, June 2009.
\6\ See Source: Duffield, J.A. and R. Coltrane, 1992, ``Testing
for Disequilibrium in the Hired Farm Labor Market,'' American
Journal of Agricultural Economics, 74: 412-20.
---------------------------------------------------------------------------
2. Transfers
Transfer payments are payments from one group to another that do
not affect total resources available to society. The increase in the
wage rates for some workers also represents an important transfer from
agricultural employers to H-2A and corresponding U.S. workers. As noted
previously, the higher wages for workers associated with the new
methodology for estimating the AEWR represents an improved ability on
the part of workers and their families to meet costs of living and
spend money in local communities. On the other hand, higher wages
represent an increase in costs of production from the perspective of
employers which on the margin creates a disincentive to hire H-2A and
corresponding U.S. workers. There may also be a transfer resulting from
a reduction in unemployment expenditures. Some previously unemployed
individuals who were not willing to accept a job at the lower wage may
now be willing to accept the job and would not need to seek new or
continued unemployment insurance benefits. The Department, however, is
not able to quantify these transfer payments with a high degree of
precision. The factors that make the calculation uncertain include the
actual entries of H-2A workers, the unknown quantity of corresponding
U.S. workers, the types of occupations to be included in future
filings; the ranges of wages in the areas of actual employment; and the
point at which any occupation in any given area is subject to the
prevailing wage (hourly or piece rate) or Federal or State minimum wage
rather than the application of the OES or FLS survey to the calculation
of the AEWR. The Department cannot assume the number of workers will
remain constant for any given entity for its wage transfer.
3. Costs
In standard models of supply and demand an increase in the wage
rate will lead to a reduction in the demand for agricultural labor.
This is a loss in profits for agricultural employers that is not gained
by anyone and is known as a deadweight loss. The deadweight loss is
essentially the profits that employers were getting from being able to
hire more workers at a lower wage. When the wage is reduced they will
hire fewer workers overall and the benefit that those workers had
produced will be lost to society. In order to estimate that lost
benefit we would have to calculate the estimated reduction in
employment assuming an elasticity of labor demand--the extent to which
employers respond to an increase in wages by lowering employment. Using
standard estimates of this elasticity the deadweight loss is not
projected to be large.\7\
---------------------------------------------------------------------------
\7\ A recent study finds that the wage elasticity of labor
demand in U.S. agriculture is -0.42. This indicates that for each 1
percent increase in wages for U.S. workers, the demand for their
labor decreases by 0.42 percent. See Orachos Napasintuwong and
Robert D. Emerson, ``Induced Innovations and Foreign Workers in
U.S.,'' Institute of Food and Agricultural Sciences, University of
Florida, Working Paper 05-03, March 2005. It is possible that this
elasticity over-estimates the potential reduction in demand for U.S.
workers as a result of the new methodology for estimating the AEWR
because, in the context of the H-2A program, there are legal
constraints (and associated potential penalties) for agricultural
employers who would turn to undocumented workers as a result of the
wage increase. The Department estimates that average wages will
increase by 18.2 percent for U.S. workers.
---------------------------------------------------------------------------
b. Enhanced U.S. Worker Referral Period
Although the recruitment requirements of employers will not change
substantively, this NPRM requires employers to accept referrals of
qualified U.S. workers for temporary agricultural opportunities for a
longer period of time after the job begins than the current regulation.
Specifically, during the same time period as the employer places the
advertisements, the NPRM requires SWAs to extend their job advertising
efforts, on behalf of employers, to keep the job order on active status
through 50 percent of the period of employment, as opposed to 30
calendar days after the date of need under the current regulation.
1. Benefits to U.S. Workers
The enhanced referral period for employers after certification
represents a benefit to society by expanding the period in which
agricultural jobs are available to U.S. workers and, therefore,
improving their employment opportunities. Here again, this is a U.S.
societal benefit because it represents engaging U.S. human resources in
productive activity that may not otherwise occur.
2. Costs
The extension of the referral period imposed by the NPRM will
result in increased SWA staff time to maintain job orders for the new
U.S. worker referrals. SWAs will need to maintain additional job orders
for the new applicants to the H-2A program in the
[[Page 45930]]
States in which temporary workers are expected to perform work and for
all applicants to the H-2A program in the States designated as States
of traditional or expected labor supply. The Department estimates the
average annual cost associated with this activity to be $0.4
million.\8\
---------------------------------------------------------------------------
\8\ The Department assumes that it takes SWA staff 30 additional
minutes per application to maintain a job order. We assume that a
State employee with a job title of ``Compensation, Benefits, and Job
Analysis Specialists'' conducts this activity. Their median hourly
wage is $21.69, which we increased by 1.53 to account for employee
benefits (source: Bureau of Labor Statistics).
---------------------------------------------------------------------------
The Department recognizes a cost to employers is the requirement
that they accept more referrals through a longer time period of the
contract. The Department does not, however, have sufficient data on the
number of average additional referrals (and the ensuing additional cost
in terms of contractual obligations to a greater number of workers) to
accurately monetize such a cost to employers, and invites comment from
employers who may have such data. The Department recognizes however
that the cost to employers of additional work-related expenses may be
offset to a certain extent by increased productivity.
The expansion of DOL oversight of the H-2A program will result in
increased time for the Department to review Applications. We estimate
this cost by multiplying the total number of new Applications by the
time required for Department staff to review each Application, and then
by the average hourly compensation of this staff. The Department
estimates the average annual cost associated with this activity to be
$0.6 million.\9\
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\9\ The Department assumes that Department staff (GS-12, step 5)
spend one additional hour to review each application. The hourly
salary for a GS-12, step 5 staff was multiplied by an index of 1.69
to account for employee benefits and proportional operating costs,
resulting in an hourly rate of $52.96. The 1.69 index is derived by
using the Bureau of Labor Statistics' index for salary and benefits
plus the Department's analysis of overhead costs averaged over all
employees of the Department's Office of Foreign Labor Certification.
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The NPRM proposes to require that employers maintain a complete
recruitment report and all supporting documentation for 5 years (rather
than 3 years under the 2008 Final Rule. The Department assumes that
this will require all H-2A employers to purchase additional file
storage in the first year of the Proposed Rule.\10\ After the first
year, the Department assumes that only new applicants to the H-2A
program will be required to purchase additional storage. The Department
estimates average annual costs of increased storage to be approximately
$0.06 million.
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\10\ The Department assumes that one additional file drawer will
be required per employer.
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3. Transfers
In addition, U.S. workers hired who were previously unemployed will
no longer need to seek new or continued unemployment insurance
benefits.\11\ Other things constant, we expect the States to experience
a reduction in unemployment insurance expenditures as a consequence of
U.S. workers being hired. The Department, however, is not able to
quantify these transfer payments due to a lack of adequate data.
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\11\ A benefit to U.S. workers could still exist even if these
workers were employed elsewhere: Their departure from their old jobs
will open up new employment opportunities for other U.S. workers.
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c. New Electronic Job Registry
Under the NPRM, the Department will create and maintain an
electronic job registry. The Department will post and maintain
employers' H-2A job orders, including modifications approved by the CO,
in a national and publicly accessible electronic job registry. The job
registry will serve as a public repository of H-2A job orders for the
duration of the enhanced U.S. worker referral period: 50 percent of the
certified period of employment. The job orders will be posted in the
registry by a CO upon the acceptance of each submission. The posting of
the job orders will not require any additional effort on the part of
the SWAs or H-2A employers.
1. Benefits
The job registry will improve the visibility of agricultural jobs
to U.S. workers. Thus, the job registry represents a benefit to U.S.
society by expanding the period in which agricultural jobs are
available to U.S. workers and, therefore, improving their employment
opportunities. In addition, the establishment of a job registry will
provide greater transparency with respect to the Department's
administration of the H-2A program to the public, members of Congress,
and other related stakeholders. Transferring these agricultural job
orders (Form ETA 790 and attachments) into electronic records for the
job registry will eliminate unnecessary paper records currently being
maintained by the CO and result in a better and more complete record of
jobs petitioned for H-2A labor certification. Finally, since the Form
ETA 790 and attachments are some of the most commonly requested
documents by members of the public, Congress, and other stakeholders,
the Department anticipates some reduction in FOIA requests for these
agricultural job orders thereby saving staff time and resources.
2. Costs
The establishment of an electronic job registry in the NPRM imposes
several costs directly on the Department: The increased costs for
developing business requirements and design documentation outlining the
functional components of the job registry; increased costs for
application programming, testing, and implementation of the Electronic
Job Registry into a production environment; increased costs to maintain
and continuously improve the Electronic Job Registry; and additional
staff time to maintain job orders placed on the registry. The
Department expects that the majority of costs to develop and implement
the new Electronic Job Registry will occur within the first 12 months
of implementing the regulation. Out-year costs will include maintenance
and additional staff time to maintain job orders on the registry. The
Department estimates average annual costs of maintaining an electronic
job registry to be approximately $0.5 million.\12\
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\12\ The Department assumes the following first-year
development, testing, and implementation staff time for the
following labor categories: Project Manager II--1,253 hours,
Computer Systems Analyst II--1,253 hours, Computer Systems Analyst
III--2,037 hours, Computer Programmer III--3,995 hours, Computer
Programmer IV--3,995 hours. For out-year maintenance costs, the
Department assumes that 376 hours will be required for the following
labor categories: Program Manager, Computer Systems Analyst II &
III, Computer Programmer III & IV, Computer Programmer Manager, Data
Architect, Web Designer, Database Analyst, Technical Writer II, Help
Desk Support Analyst, and Production Support Manager. Finally, the
Department uses the following loaded rates based on an Independent
Government Cost Estimate (ICGE) produced by OFLC and inclusive of
direct labor and overhead costs for each labor category: Program
Manager--$138.34, Project Manager II--$106.90, Computer Systems
Analyst II--$92.14, Computer Systems Analyst III--$109.84, Computer
Programmer III--$89.63, Computer Programmer IV--$107.72, Computer
Programmer Manager--$123.88, Data Architect--$104.99, Web Designer--
$124.76, Database Analyst--$77.80, Technical Writer II--$84.81, Help
Desk Support Analyst--$55.28, Production Support Manager--$125.76.
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d. Reduced SWA Administrative Burden by Eliminating Employment
Verification
Under this NPRM, SWA's will no longer be responsible for conducting
employment eligibility verification activities. These activities
include the completion of the Form I-9 and the vetting of Application
documents by SWA personnel. There will, however, be additional costs to
employers as they resume the function of their own employment
eligibility verification for all employees, not only those for whom a
certification is received from the SWA.
[[Page 45931]]
1. Benefits
Under the 2008 Final Rule, SWAs are required to complete Form I-9
for agricultural job orders and inspect and verify the employment
eligibility documents furnished by the applicants.\13\ Under the NPRM,
SWAs will no longer be required to complete this process, resulting in
cost savings. To estimate the avoided costs of employment eligibility
verification activities, the Department multiplies the estimated number
of U.S. farm workers that are referred to H-2A jobs through One-Stop
Career Centers by the cost per Application.\14\ The Department
estimates average annual avoided costs of employment eligibility
verification activities to be $ 0.03 million.
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\13\ The cost estimate assumes the use of the Form I-9 rather
than the E-Verify system. The most recent count indicates that only
four SWAs are using E-Verify.
\14\ To estimate the cost per application, the Department sums
the time for the SWA staff to complete the Form I-9, the time
required to review employment eligibility documents, and the time to
file the completed form in a systematic manner. The Department then
divides this result by 60 to approximate the fraction of an hour
required to process each application and multiplies this fraction by
the hourly compensation of an SWA Compensation, Benefits, and Job
Analysis Specialist scaled by 1.52 to account for employee benefits.
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After the adjudication of employment eligibility, SWAs issue
certifications for eligible workers. Under the NPRM, SWAs will no
longer be required to issue such certifications. The avoided costs
include the staff time to prepare and print the certification form as
well as the costs of paper, envelopes, and postage. The Department
estimates average annual avoided costs of certification issuance to be
$0.02 million.\15\
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\15\ The Department estimates the cost of staff time by
multiplying the number of U.S. farm workers who are referred to H-2A
jobs through One-Stop Career Centers by the time required to print
the form (5 minutes) and the hourly labor compensation of an SWA
Compensation, Benefits, and Job Analysis Specialist scaled by 1.52
to account for employee benefits. The Department then adds the cost
per application by the number of U.S. farm workers who are referred
to H-2A jobs through One-Stop Career Centers by the cost per
application, assuming that the cost of a sheet of paper, cost of an
envelope, and cost of postage per envelope are $0.02, $0.04, and
$0.42, respectively.
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SWAs are also required to retain records for the employment
eligibility decisions. Under the NPRM, SWAs will no longer be required
to retain the records. The avoided costs include the staff time to
copy, organize, and store all relevant documents as well as the
material costs of paper and photocopy machine use. The Department
estimates average annual avoided costs equal to approximately $0.02
million.\16\
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\16\ The Department estimates the cost of staff time by
multiplying the total number of H-2A workers requested by the time
required to copy, organize, and store all relevant documents (5
minutes) and the hourly labor compensation of an SWA Compensation,
Benefits, and Job Analysis Specialist scaled by 1.52 to account for
employee benefits. The Department then adds the cost per record by
multiplying the total number of H-2A workers by the cost per record,
assuming the number of sheets photocopied is 5 and cost per
photocopy is $0.12.
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The employment eligibility verification activities currently in
place require the training of SWA to properly complete the process.
Under the NPRM, SWAs will no longer incur the costs of this training.
These costs include the staff time to attend training courses, the
staff time to teach training courses, and the material costs of
producing training manuals. The Department estimates average annual
avoided costs of SWA staff training equal to approximately $0.4
million.\17\
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\17\ The Department estimates the avoided costs of attending
training courses by multiplying the number of One-Stop Career
Centers (1,794) by the number of workers trained per center (2), the
length of training (3 hours), and the hourly labor compensation of
an SWA Compensation, Benefits, and Job Analysis Specialist scaled by
1.52 to account for employee benefits. The Department estimates the
avoided costs of trainer workload by multiplying the number of
trainers (1 per 5 One-Stop Career Centers, or 359 trainers) by the
length of training (3 hours) and the hourly labor compensation of an
SWA Compensation, Benefits, and Job Analysis Specialist scaled by
1.52 to account for employee benefits. The Department estimates the
avoided cost of producing training manuals by multiplying the number
of One-Stop Career Centers (1,794) by the number of workers trained
per center (2), the pages per training manual (30) and the cost per
photocopy ($0.12).
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2. Costs
The Department acknowledges the increase in cost faced by employers
to perform employment eligibility verification on referred employees
who will, under this NPRM, no longer be verified by SWAs. The cost to
employers is, however, not a corresponding number to the number
representing the benefit to SWAs, as employers are not required to also
complete the certification required of SWAs.
e. Enhancing Worker Protections through Compliance Certification
The 2008 Final Rule uses an attestation-based model, unlike the
1987 Rule, which mandated a fully-supervised labor market test and
required the submission of important documentation, such as workers'
compensation, housing certification issued by the SWA, and proof of
registration and surety bond for H-2ALCs. Employers conduct the
required recruitment in advance of Application filing and, based upon
the results of that effort, apply for certification from the Department
for a number of needed foreign workers. That is, under the 2008 Final
Rule, employers attest that they have undertaken the necessary
activities and made the required assurances to workers rather than have
such actual efforts or documentation reviewed by a Federal or State
official to ensure compliance. The Department has determined that there
are insufficient worker protections in the attestation-based model in
which employers merely confirm, and do not actually demonstrate, that
they have performed an adequate test of the U.S. labor market.
1. Costs
The certification of compliance will represent some costs to
employers because they will need to submit copies of recruitment
activities, details of job offers, workers' compensation documentation,
and for H-2ALCs, registration, surety bond, and work contracts, rather
than attesting that they have complied with the required elements of
the H-2A program. Under the 2008 Final Rule, employers are already
required to obtain and retain these documents and the NPRM simply
requires the submission of those documents, particularly workers'
compensation and housing inspections, to the Department in order to
satisfy the underlying statutory assurances. The Department estimates
the cost by multiplying the total number of Applications by the
difference in time to prepare the new H-2A Application as compared to
that under the 2008 Final Rule. We then multiply this product by the
average compensation of a human resources manager at an agricultural
business. Because the H-2A Application in the Proposed Rule requires
more to be submitted than the application under the 2008 Final Rule, we
add the incremental costs of photocopying the additional pages and the
postage required to ship them to the DOL.\18\ This calculation yields
an average annual cost to employers of $0.7 million.\19\
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\18\ The Department estimates that 150 additional pages will
need to be photocopied at a cost of $0.12 per photocopy. The
additional pages weigh approximately 17.6 ounces and require $0.80
in postage per application. This cost estimate is based on mailing
the additional 150 pages via Priority Mail (2-day delivery) from
Topeka, Kansas to the NPC in Chicago (source: http://postcalc.usps.gov).
\19\ The Department projects the annual number of applications
to be approximately 9,785 in 2009 and increase to 26,427 by 2018, of
which approximately 3,262 and 2,787 of the applications submitted in
2009 and 2018, respectively, would not have been previously
submitted. For applications that would not have been previously
submitted, the Department assumes that preparing an application
using the certification application process, as compared to the
attestation process, will result in increased agricultural employer
staff time of 30 minutes per application. For applications that
would have been previously submitted under the H-2A program, the
Department assumes there will be a 20-minute increased in staff time
using the certification application process. The Department
estimates that the median hourly wage for a human resources manager
is $42.15 (as published by the Department's OES survey, O*Net
Online), which we increased by 1.43 to account for employee benefits
(source: Bureau of Labor Statistics).
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[[Page 45932]]
f. Changes in the Requirement for Housing Inspections
The NPRM retains most of the 2008 Final Rule provisions governing
housing inspections. The employer's obligations with respect to housing
standards, rental or public accommodations, open range housing, deposit
charges, charges for public housing, and family housing under the
proposed regulations have remained the same as under the 2008 Final
Rule. One notable difference, however, is the timeframe in which an
inspection of the employer's housing must occur.
In the NPRM, when an employer places an Agricultural and Food
Processing Clearance Order (Form ETA 790) with the SWA serving the area
of intended employment 60 to 75 days before the date of need, the
employer is required to disclose the location and type of housing to be
provided to domestic and H-2A workers. Upon receipt of the Form ETA
790, the SWA will schedule and conduct an inspection of the employer's
housing. Unlike the 2008 Final Rule, this NPRM requires that the pre-
occupancy inspection of the employer's housing be completed prior to
the issuance of a temporary labor certification, which is 30 days
before the date of need.\20\
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\20\ The Department also notes that such inspection is mandated
by other regulations governing the H-2A program. Pursuant to 20 CFR
654.400, SWAs must deny intrastate and interstate recruitment
services unless, among other things, a preoccupancy inspection has
been conducted (with conditional access permitted for H-2A employers
for a limited time period). These regulations govern all migrant
seasonal worker housing inspections.
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The Department expects that this change in timing will have a
minimal economic impact on employers. Because employers are required to
place the job order with the SWA between 60 and 75 days prior to the
date of need, the SWA will have between 30 and 55 days to schedule and
conduct a timely inspection of the housing. The Department believes
that this enhanced recruitment time frame will also provide a
sufficient amount of time for SWAs to conduct the required pre-
occupancy housing inspection. Prior to the 2008 Final Rule, the
Department's experience is that most employers who routinely utilize
the H-2A program prepare their housing in advance of inspection and/or
communicate with SWA staff with respect to changes in the location(s)
or type(s) of housing before Application filing occurred at 45 days
prior to the date of need. This past practice was necessary,
particularly among large grower associations, in allowing SWAs to
schedule and conduct pre-occupancy housing inspections in a timely
manner, thereby minimizing any negative impacts on employers' ability
to obtain labor certification, petition for workers at USCIS, obtain
visas through the U.S. consulate, and bring foreign workers to the
worksite by the certified date of need.
The Department examined program activity data for FY 2007 and 2008
to determine if the NPRM's change requiring completion of a pre-
occupancy housing inspection prior to the issuance of a temporary labor
certification would have a significant negative impact on employers.
For employer Applications certified in FY 2007 and 2008, the Department
issued determinations, on average, approximately 27 calendar days
before the employer's certified start date of need; the median in both
years was 29 calendar days before the employer's certified start date
of need. This processing timeframe provided employers with sufficient
time to petition USCIS and obtain visas from the U.S. consulate in
order to bring foreign workers from their place of residence to the
worksite by the certified start date of need. Any downstream delays in
processing at either the USCIS or U.S. consulate, such as scheduling
and conducting interviews for foreign workers, cannot be attributed to
the Department's processing of the temporary labor certification.
The Department also examined the percentage of H-2A labor
certifications that were issued during FY 2007 and 2008 beyond the
statutory 30 days timeframe such that the issuance of the determination
would have negatively impacted the employer's ability to obtain foreign
workers by the certified start date of need. To do this, the Department
assumed that employers, following issuance of the temporary labor
certification, would receive the labor certification within 2 days,
file an I-129 petition for non-premium processing and receive approval
from the USCIS within 5 days, file appropriate Applications with DOS
and obtain visas within 5 days, and transport foreign workers from the
place of residence to the worksite in the U.S over the course of 3
days. Using these assumptions, the Department determined that any labor
certification issued later than 15 days before the employer's certified
start date of need would have negatively impacted the employer's
ability to obtain foreign workers.
For FY 2007, approximately 6 percent of the H-2A labor
certification Applications approved between October 1, 2006 and
September 30, 2007 (273 out of 4,526 certifications), for employers and
associations of employer producers were issued by the Department later
than 15 days before the certified start date of need. For FY 2008,
approximately 5.4 percent of the H-2A labor certification Applications
approved between October 1, 2007 and September 30, 2008 (271 out of
5,014 certifications), for employers and associations of employer
producers were issued by the Department later than 15 days before the
certified start date of need, thus having a potential adverse impact.
Some percentage of this number was as a result of delays in the housing
inspection; the Department cannot quantify how many were delayed for
this reason alone, as other reasons exist independent of housing
inspections (for example, a failure of the employer to provide the
Department with evidence of the coverage of workers by workers'
compensation). Even if the entire group of such Applications were
delayed solely for the lack of a valid housing certificate, the
Department's program experience has demonstrated that the change
contemplated in the NPRM requiring a pre-occupancy housing prior to
issuance of a temporary labor certification has not and will not have a
significant impact on employers' ability to obtain foreign workers by
the certified start date of need.
Because of data limitations, we were not able to monetize the costs
and benefits associated with this provision. While the Department
believes such costs will be minimal, it invited interested parties to
comment on the costs associated with this change.
g. Enhanced Coverage of Transportation Expenses
Under the 2008 Final Rule, the employer provides for travel
expenses and subsistence for foreign workers only to and from the place
of recruitment, i.e. the appropriate U.S. consulate or port of entry.
Under the NPRM, the employer is required to pay the costs of
transportation from the worker's home to and from the place of
employment. The Department examined the increase in the costs to
employers from the current costs of travel from the appropriate U.S.
consulate to the place of employment, adding to that cost the
[[Page 45933]]
cost of travel from the home to the consulate city. The Department
estimates average annual costs of these additional transportation
expenditures to be approximately $10.8 million.\21\
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\21\ The Department estimates these costs by multiplying the
total number of H-2A workers certified by the cost of bus fare from
the worker's home to the consulate and back. The Department assumes
one-way cost of bus fare of $31.50 based on the cost of a bus trip
from Oaxaca to Mexico City. Source: http://www.ticketbus.com.mx.
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h. Other
During the first year that this NPRM would be in effect, all
employers would need to learn about the new application process and how
compliance will be judged. We estimate this cost by multiplying the
number of applications submitted by employers by the time required to
read the new rule and any educational and outreach materials that
explain the H-2A application process under this NPRM by the average
compensation of a human resources manager at an agricultural business.
The Department estimates this one-time cost to employers at $0.5
million.\22\
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\22\ The Department estimates that employers will spend 1 hour
to read the new rule and outreach and educational materials
explaining the program. In addition, the Department estimates that
the median hourly wage for a human resources manager is $42.15 (as
published by the Department's OES survey, O*Net Online), which we
increased by 1.43 to account for employee benefits (source: Bureau
of Labor Statistics).
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This NPRM requires that contracts be translated into the languages
of employees who do not speak English. Employers are already required
to provide contract translation for Spanish workers. The Department
multiplies the percent of H-2A workers who do not speak English or
Spanish by the total number of H-2A Applications to estimate the number
of contract translations required.\23\ The Department then multiplies
the resulting value by the average number of pages per contract and the
cost per page for translation.\24\ The Department estimates average
annual costs of contract translation at $0.1 million.
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\23\ Approximately 0.6 percent of H-2A workers do not speak
English or Spanish. Source: http://www.dhs.gov/xlibrary/assets/statistics/yearbook/2008/table32d.xls.
\24\ The Department assumes that the average number of pages per
contract is 50, and the cost per page for translation is $19.50.
Source: http://www.languagescape.com.
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This NPRM also requires that H-2ALCs submit photocopies of
contracts with fixed agricultural sites as well as documentation of
surety bonds. To estimate the number of H-2ALCs that will be subject to
this requirement, the Department multiplies the total number of H-2A
Applications by the percent of H-2A employers who are foreign labor
contractors.\25\ To estimate the cost of submitting photocopies of
contracts, the Department multiplies the resulting value by the average
number of pages per employer contract and the cost per photocopy,
resulting in average annual costs of contract submission of $0.02
million. To estimate the cost of documenting the surety bond, the
Department multiplies the number of H-2ALCs that will be subject to
this requirement by the average number of pages per surety bond and the
cost per photocopy, resulting in average annual costs of surety bond
documentation of $0.002 million.\26\
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\25\ The Department estimates that approximately 20 percent of
H-2A employers are foreign labor contractors.
\26\ The Department estimates that the average number of pages
per employer contract is 50, the average number of pages per surety
bond is 5, and the cost per photocopy is $0.12.
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To inform the public about this NPRM, the Department will produce
and deliver outreach and education materials to employers in order to
explain the new application process and how compliance will be judged.
We estimate this cost by multiplying the hours required to develop,
maintain, and distribute such materials by the average compensation of
Department staff and find average annual cost to the Department equal
to $0.06 million.\27\
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\27\ The Department estimates that Department staff (GS-12 step
5) will spend 160 hours during the first year of the program to
develop educational and outreach materials. For every subsequent
year, the Department estimates that staff will spend 40 hours to
review and update educational materials, as appropriate. The hourly
salary for Department staff was multiplied by an index of 1.69 to
account for employee benefits and proportional operating costs,
resulting in an hourly rate of $52.96 for a GS-12, step 5 and $74.43
for GS-14, step 5.
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5. Summary of Cost-Benefit Analysis
Exhibit 1 presents a summary of the cost-benefit analysis of this
NPRM. The monetized costs and benefits displayed are the yearly
summations of the calculations described above. In some cases, the
totals for 1 year are less than the totals of the annual averages
described above. For example, the annual average cost of enhanced
transportation expenses--the largest cost component of this NPRM--is
$10.8 million across the 10-year time horizon, but the individual
yearly values range from $7.6 million in 2009 to $14.6 million in 2018.
This is due to increased program participation across the time horizon
of the cost-benefit analysis. The monetized costs exceed the monetized
benefits both at a 7 percent and a 3 percent discount rate. The size of
the net benefits, the absolute difference between the projected
benefits and costs, is negative.
Exhibit 1--Summary of Monetized Benefits and Costs
------------------------------------------------------------------------
Monetized benefits Monetized costs
Year ($millions/year) ($millions/year)
------------------------------------------------------------------------
1. 2009......................... 0.47 10.56
2. 2010......................... 0.47 9.75
3. 2011......................... 0.47 10.52
4. 2012......................... 0.47 11.35
5. 2013......................... 0.47 12.25
6. 2014......................... 0.47 13.23
7. 2015......................... 0.47 14.30
8. 2016......................... 0.47 15.45
9. 2017......................... 0.47 16.70
10. 2018........................ 0.47 18.07
---------------------------------------
Undiscounted total.......... 4.68 132.17
Total with 7% discounting... 3.29 89.34
Total with 3% discounting... 3.99 110.86
------------------------------------------------------------------------
Totals may not add because of rounding.
[[Page 45934]]
Due to lack of adequate data, however, the Department is not able
to provide monetary estimates of several important benefits to society,
including the increased employment opportunities for U.S. workers and
the enhancement of worker protections for U.S. and H-2A workers. In
addition, this NPRM has distributional effects that improve the ability
of the part of workers and their families to meet the basic costs of
living.
The Department has concluded that after consideration of both the
quantitative and qualitative impacts of this NPRM, the societal
benefits of the NPRM justify the societal costs.
B. Regulatory Flexibility Analysis
The Regulatory Flexibility Act (RFA) at 5 U.S.C. 603 requires
agencies to prepare a regulatory flexibility analysis to determine
whether a regulation will have a significant economic impact on a
substantial number of small entities. Section 605 of the RFA allows an
agency to certify a rule in lieu of preparing an analysis if the
regulation is not expected to have a significant economic impact on a
substantial number of small entities. Further, under the Small Business
Regulatory Enforcement Fairness Act of 1996, 5 U.S.C 801 (SBREFA), an
agency is required to produce a compliance guidance for small entities
if the rule has a significant economic impact. The Assistant Secretary
of ETA has notified the Chief Counsel for Advocacy, Small Business
Administration (SBA), under the RFA at 5 U.S.C. 605(b), and certified
that this rule will not have a significant economic impact on a
substantial number of small entities.
The Department is requesting comment on the costs of these proposed
policies on small entities, with the goal of ensuring a thorough
consideration and discussion at the Final Rule stage.
1. Definition of a Small Business
A small entity is one that is ``independently owned and operated
and which is not dominant in its field of operation.'' The definition
of small business varies from industry to industry to the extent
necessary to properly reflect industry size differences. An agency must
either use the SBA definition for a small entity, or, establish an
alternative definition for the agricultural industry. The Department
has adopted the SBA definition, which is an establishment with annual
revenues of less than $0.75 million. The SBA also defines a
reforestation small business as one that has annual revenues of less
than $7.0 million. The Department has also adopted that definition for
its reforestation and pine straw activity establishments.
2. Impact on Small Businesses
The Department has estimated the incremental costs for small
businesses from the 2008 Final Rule (the baseline) to this NPRM. We
have estimated the costs of reading and reviewing the new Application
and compliance processes, the enhanced coverage of transportation
expenses, the enhanced worker protections through compliance
certification, the changes in the requirement for housing inspections,
and the enhanced U.S. worker referral period.\28\
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\28\ The analysis in this section does not include the impact of
the higher wages for U.S. workers because they represent a transfer
rather than an economic cost from a societal perspective. Transfer
payments are payments from one group to another that do not affect
total resources available to society. The increase in the wage rates
for U.S. workers represents an important transfer from agricultural
employers to U.S. workers. The higher wages for U.S. workers
associated with the new methodology for estimating the AEWR
represent an improved ability on the part of workers and their
families to meet the costs of living, an important concern to the
current Administration and a key aspect of the Department's mandate
to ensure the wages and working conditions of similarly employed
U.S. workers are not adversely affected.
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Approximately 98 percent of U.S. farms have revenues of less than
$0.75 million and, therefore, fall within the SBA's definition of small
entity. The Department estimates that by 2018 there will be
approximately 26,427 Applications (not necessarily applicants) to the
H-2A program. Even if all 26,427 Applications are filed by unique small
farms, the percentage of small farms applying for temporary
agricultural worker certification will be only 1.4 percent of the total
number of small U.S. farms.\29\
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\29\ Based on the number of farms in 2007 and assuming that the
number of farms will decline at the same average annual rate as it
has in the past 10 years, the Department estimates that in 2018
there will be approximately 1,917,300 farms.
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To examine the impact of the proposed rule on small entities, the
Department evaluates the impact of the incremental costs on the average
small entity, which is assumed to apply for 12 temporary workers. The
Department estimates that these farms have annual revenues of about
$367,000.\30\
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\30\ Based on the average duration of temporary agricultural
workers' stay, the Department estimates that these workers work, on
average, 198 days. As already discussed, temporary agricultural
workers will be paid, on average, $9.36 per hour. Given this hourly
rate and 1,584 working hours per year, a small entity hiring 12
temporary workers incurs hired farm labor costs of $130,395. Based
on the 2002 Census of Agriculture, hired farm labor costs account,
on average, for 41.2 percent of total farm costs while total costs
represent, on average, 86.3 percent of total revenues. Applying
these rates to the estimated hired labor costs, we estimate that a
small farm employing 12 temporary agricultural workers would have
total production expenses of $316,777, revenues of $366,936, and net
farm income (i.e., revenues minus production expenses) of $50,159
per year.
---------------------------------------------------------------------------
The Department recognizes that transfers constitute an increase in
wage costs in order to comply with this rule for small businesses
choosing to participate in the H-2A program. While we lack the data to
know how many H-2A participants are small entities, the Department does
not believe, based on program experience, that it constitutes a
significant number of small entities. The Department seeks comments on
these costs, and the number of small entities involved, so it can gauge
this cost and thus the effect on these businesses.
a. Reading and Reviewing the New Application and Compliance Processes
During the first year that this proposed rule would be in effect,
employers would need to learn about the new application process and how
compliance will be determined. We estimate this cost by multiplying the
time required to read the new rule and any educational and outreach
materials that explain the H-2A application process under this NPRM by
the average compensation of a human resources manager at an
agricultural business. In the first year of the proposed rule, the
Department estimates that the average small farm will spend
approximately 1 hour of staff time to read and review the new
application and compliance processes, which amounts to approximately
$60.27 in labor costs.\31\
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\31\ The Department estimates that employers will spend 1 hour
to read the new rule and outreach and educational materials
explaining the program. In addition, the Department estimates that
the median hourly wage for a human resources manager is $42.15 (as
published by the Department's OES survey, O*Net Online), which we
increased by 1.43 to account for private-sector employee benefits
(source: Bureau of Labor Statistics).
---------------------------------------------------------------------------
b. Enhanced Coverage of Transportation Expenses
Under the 2008 Final Rule, the employer provides for travel
expenses and subsistence for foreign workers only to and from the place
of recruitment, i.e. the appropriate U.S. consulate or port of entry.
Under the proposed rule, the employer is required to pay the costs of
transportation from the worker's home to and from the place of
employment. The Department estimates that the average small farm would
incur costs of $63.00 per worker related the enhanced coverage of
transportation expenses.\32\
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\32\ The Department estimates these costs by multiplying the
total number of H-2A workers certified by the cost of bus fare from
the worker's home to the consulate and back. The Department assumes
one-way cost of bus fare of $31.50.
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[[Page 45935]]
c. Enhancing Worker Protections Through Compliance Certification
The certification of compliance will represent minimal costs to
employers because they will need to submit copies of recruitment
activities, details of job offers, workers' compensation documentation,
and for H-2ALCs, registration, surety bond, and work contracts, rather
than attesting that they have complied with the required elements of
the H-2A program. Under the 2008 Final Rule, employers are already
required to obtain and retain these documents and the proposed rule
simply requires the submission of those existing documents,
particularly workers' compensation and housing inspections, to the
Department in order to satisfy the program's underlying statutory
assurances. The Department estimates this cost by multiplying the
difference in time to prepare the new H-2A Application as compared to
that under the 2008 Final Rule for both new H-2A applicants and
previous applicants. We then multiply these products by the average
compensation of a human resources manager at an agricultural business.
For small employers applying to the program for the first time, the
Department estimates that the Application will take approximately one-
half hour more to complete. This results in additional labor costs
equal to $30.14. For applicants familiar with the process, the
Department estimates that the Application will require approximately 20
additional minutes to complete. The result is additional labor costs of
$20.09 for applicants familiar with the program. Because the
Application will be longer, the Department adds the costs of
photocopying additional pages and additional postage required to the
labor costs above.\33\ In total, the Department estimates that the
average small farm that is a new H-2A applicant would incur costs of
$48.94, and the average small farm that is a previous H-2A applicant
would incur costs of $38.89.
---------------------------------------------------------------------------
\33\ The Department estimates that an average of 150 additional
pages will need to be photocopied at a cost of $0.12 per photocopy.
The additional pages weigh approximately 17.6 ounces and require
$0.80 in postage per application.
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This NPRM also requires that contracts be translated into the
languages of employees who do not speak English. Employers are already
required to provide contract translations for employees who speak
Spanish. We multiply the percent of H-2A workers who do not speak
English or Spanish by the average number of pages per contract and the
cost per page for translation.\34\ The Department estimates the average
small farm would incur costs of contract translation of $5.96.
---------------------------------------------------------------------------
\34\ Approximately 0.6 percent of H-2A workers do not speak
English or Spanish. Source: http://www.dhs.gov/xlibrary/assets/statistics/yearbook/2008/table32d.xls. The Department assumes that
the average number of pages per contract is 50, and the cost per
page for translation is $19.50. Source: http://www.languagescape.com
---------------------------------------------------------------------------
d. Changes in the Requirement for Housing Inspections
The proposed rule retains most of the 2008 Final Rule provisions
governing housing inspections. The employer's obligations with respect
to housing standards, rental or public accommodations, open range
housing, deposit charges, charges for public housing, and family
housing under the proposed regulations have remained the same as under
the 2008 Final Rule.
One notable difference, however, is the timeframe in which an
inspection of the employer's housing must occur. Unlike the 2008 Final
Rule, this NPRM requires that the pre-occupancy inspection of the
employer's housing be completed prior to the issuance of a temporary
labor certification, which is 30 days before the date of need for the
workers.
The Department expects that this change in timing will have a
minimal economic impact on employers. Prior to the effective date of
the 2008 Final Rule, the Department's experience was that the majority
of employers who routinely utilized the H-2A program prepared their
housing in advance of inspection and/or communicated with SWA staff
with respect to changes in the location(s) or type(s) of housing before
Application filing occurred at 45 days prior to the date of need.
Because of data limitations, we were not able to monetize the costs and
benefits associated with this provision.
e. Enhanced U.S. Worker Referral Period
The NPRM proposes to require that employers maintain a complete
recruitment report and all supporting documentation for 5 years (rather
than 3 years as required by the 2008 Final Rule). The Department
estimates that the additional record retention requirements will add
costs equal to $21.99 to the average small farm for the retention of
the Application and supporting documents.\35\
---------------------------------------------------------------------------
\35\ We assume that the average small farm will purchase one
additional file drawer for document storage.
---------------------------------------------------------------------------
f. Additional Costs for Small Employers Who are H-2ALCs
Employers who are H-2ALCs will incur additional costs related to
the submission of contracts and the documentation of the surety bond.
For both categories, we estimate the cost by multiplying the additional
photocopies required by the cost per photocopy. The Department
estimates that the average small H-2ALC will incur costs of $6.00 for
the submission of contract photocopies and $0.60 for the documentation
of the surety bond.\36\
---------------------------------------------------------------------------
\36\ We assume that the average number of pages per contract is
50, the number of pages per surety bond is 5, and the cost per
photocopy is $0.12.
---------------------------------------------------------------------------
g. Reforestation and Pine Straw Activity
The Department has proposed to include reforestation crews and pine
straw gathering activities in the categories of agricultural activities
for which H-2A visas would be appropriate.\37\ The Department
acknowledges that the transfer of reforestation and pine straw
gathering industries from H-2B to H-2A will impose additional costs on
such employers, such as housing, transportation, meals, and the three-
fourths guarantee. The Department is, however, unable to quantify these
costs as it is unknown how many of the employers who currently apply
for H-2B visa status for their workers actually provide such benefits
already as a condition of employment. As mentioned above, the
Department believes that some percentage of employers in these
industries already provide some, if not all, of these benefits, and
thus is unable to estimate the cost to those employers who do not. The
Department invites comment from reforestation and pine straw employers
and others on the benefits currently provided in those industries, so
it can gauge this cost and thus the effect on these businesses.
---------------------------------------------------------------------------
\37\ The Department received applications from 173 employers in
reforestation activities, including pine straw gathering, in the
Department's H-2B program in FY 2008.
---------------------------------------------------------------------------
h. Other Issues
The Department does not anticipate that the increased SWA activity
under this Proposed Rule will result in significant processing delays,
as the Department continues to operate under the statutory mandate to
make a determination of whether or not the Application meets the
threshold requirements for certification within 7 days of filing. The
Department's analysis pursuant to E.O. 12866, supra., contains an
analysis of potential delays for all employers, including small
employers, incurred for all reasons, not just for the reason of delays
that may happen as a result of increased SWA activity. The conclusion
that the Department has drawn from this
[[Page 45936]]
analysis is that the increased SWA activity, which the department
believes is required by statute, will not result in increased delays to
employers. The Department invites comment on this issue.
3. Total Cost Burden for Small Entities
The Department's calculations indicate that the total average
annual cost of this NPRM is $911 for the average small entity applying
to the program for the first time and $901 for the average small entity
that has previous program familiarity. Both of these costs represent
less than 0.3 percent of annual revenues.
For small entities that apply for 1 worker instead of 12
(representing the smallest of the small farms that hire workers), the
Department estimates that the total average annual cost of the rule
ranges from $143 (for those that have previous program familiarity) to
$153 (for small entities new to the program). These values represent
approximately 0.5 percent of annual revenues for these very small
farms.
Therefore, the Department believes that this NPRM is expected to
have a limited net direct cost impact on small farm employers, above
and beyond the baseline of the current costs required by the program as
it is currently implemented under the 2008 Final Regulation.
C. Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C.
1531) directs agencies to assess the effects of Federal regulatory
actions on State, local, and Tribal governments, and the private
sector. This Proposed Rule has no Federal mandate, which is defined in
2 U.S.C. 658(6) to include either a ``Federal intergovernmental
mandate'' or a ``Federal private sector mandate.'' A Federal mandate is
any provision in a regulation that imposes an enforceable duty upon
State, local, or Tribal governments, or imposes a duty upon the private
sector which is not voluntary. A decision by a private entity to obtain
an H-2A worker is purely voluntary and is, therefore, excluded from any
reporting requirement under the Act.
The SWAs are mandated to perform certain activities for the Federal
Government under this program, and are compensated for the resources
used in performing these activities. While the SWA role was altered
under the 2008 Final Rule, before that time employers filed
Applications for H-2A labor certifications concurrently with the
Department and the SWA having jurisdiction over the area of intended
employment. The SWA and the Department through the NPCs both receive
the Application and review the terms of the job offer. The SWA then
placed the job order to initiate local recruitment. The SWA directly
supervised and assisted employer recruitment, and the making of
referrals of U.S. workers. The NPC directed the SWA to place job orders
into intrastate/interstate clearance ensuring employers meet
advertising and recruitment requirements. The SWA was responsible for
processing the employer's certification request for H-2A labor
certification, overseeing the recruitment and directing referrals to
the employer. SWAs coordinated all activities regarding the processing
of H-2A Applications directly with the appropriate NPC for their
jurisdiction, including transmittal to the NPC of housing inspection
results, prevailing wage surveys, prevailing practice surveys or any
other material bearing on the Application. Once the Application was
reviewed by the SWA and after the employer demonstrated that it
conducted its required recruitment, the SWA then sent the complete
Application to the appropriate NPC for final certification or denial.
This NPRM proposes to return to a more active SWA role in the
application process as had been in place from 1987-2008. SWA activities
under the H-2A program are currently funded by the Department through
grants provided under the Wagner-Peyser Act. 29 U.S.C. 49 et seq. The
Department anticipates continuing funding under the Wagner-Peyser Act.
As a result of this NPRM and the publication of a final regulation, the
Department will analyze the amounts of such grants made available to
each State to fund the activities of the SWAs.
D. Small Business Regulatory Enforcement Fairness Act of 1996
The Department has determined that this rulemaking did not impose a
significant impact on a substantial number of small entities under the
RFA; therefore, the Department is not required to produce any
Compliance Guides for Small Entities as mandated by the SBREFA. The
Department has similarly concluded that this Proposed Rule is not a
major rule requiring review by the Congress under the SBREFA because it
will not likely result in: (1) An annual effect on the economy of $100
million or more; (2) a major increase in costs or prices for consumers,
individual industries, Federal, State or local Government agencies, or
geographic regions; or (3) significant adverse effects on competition,
employment, investment, productivity, innovation, or on the ability of
U.S.-based enterprises to compete with foreign-based enterprises in
domestic or export markets.
E. Executive Order 13132--Federalism
The Department has reviewed this Proposed Rule in accordance with
E.O. 13132 regarding federalism and has determined that it does not
have federalism implications. The Proposed Rule does not have
substantial direct effects on States, on the relationship between the
States, or on the distribution of power and responsibilities among the
various levels of Government as described by E.O. 13132. Therefore, the
Department has determined that this Proposed Rule will not have a
sufficient federalism implication to warrant the preparation of a
summary impact statement.
F. Executive Order 13175--Indian Tribal Governments
This rule was reviewed under the terms of E.O. 13175 and determined
not to have Tribal implications. The rule does not have substantial
direct effects on one or more Indian Tribes, on the relationship
between the Federal Government and Indian Tribes, or on the
distribution of power and responsibilities between the Federal
Government and Indian Tribes. As a result, no Tribal summary impact
statement has been prepared.
G. Assessment of Federal Regulations and Policies on Families
Section 654 of the Treasury and General Government Appropriations
Act, enacted as part of the Omnibus Consolidated and Emergency
Supplemental Appropriations Act of 1999 (Pub. L. 105-277, 112 Stat.
2681) requires the Department to assess the impact of this Proposed
Rule on family well-being. A rule that is determined to have a negative
effect on families must be supported with an adequate rationale.
The Department has assessed this Proposed Rule and determines that
it will not have a negative effect on families.
H. Executive Order 12630--Government Actions and Interference With
Constitutionally Protected Property Rights
This Proposed Rule is not subject to E.O. 12630, Governmental
Actions and Interference with Constitutionally Protected Property
Rights, because it does not involve implementation of a policy with
takings implications.
[[Page 45937]]
I. Executive Order 12988--Civil Justice
This regulation has been drafted and reviewed in accordance with
E.O. 12988, Civil Justice Reform, and will not unduly burden the
Federal court system. The regulation has been written to minimize
litigation and provide a clear legal standard for affected conduct, and
has been reviewed carefully to eliminate drafting errors and
ambiguities.
J. Plain Language
The Department drafted this NPRM in plain language.
K. Executive Order 13211--Energy Supply
This rule is not subject to E.O. 13211. It will not have a
significant adverse effect on the supply, distribution, or use of
energy.
L. Paperwork Reduction Act
As part of its continuing effort to reduce paperwork and respondent
burden, DOL conducts a preclearance consultation program to provide the
general public and Federal agencies with an opportunity to comment on
proposed and continuing collections of information in accordance with
the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)).
This helps to ensure that the public understands the Department's
collection instructions; respondents can provide the requested data in
the desired format, reporting burden (time and financial resources) is
minimized, collection instruments are clearly understood, and the
Department can properly assess the impact of collection requirements on
respondents.
The PRA requires all Federal agencies to analyze proposed
regulations for potential time burdens on the regulated community
created by provisions in the proposed regulations, which require the
submission of information. The information collection requirements must
be submitted to the OMB for approval. Persons are not required to
respond to a collection of information unless it displays a currently
valid OMB control number as required in 5 CFR 1320.11(l) or is exempt
from the PRA.
The majority of the information collection (IC) requirements for
the current H-2A program are approved under two OMB control numbers--
OMB Control Number 1205-0466 (which includes ETA Form 9142) and OMB
Control Number 1205-0134 (which includes Form ETA 790). The IC for
1205-0466 will need to be modified to account for sections of the
proposed regulation that are similar to the current regulation, but
were not accounted for previously. The IC for 1205-0134 was recently
modified as part of the regular extension process, which is still
pending with OMB at the time of this publication. Many other provisions
under this Proposed Rule are either exempt from a burden analysis or
have been accounted for by other OMB control numbers. Below is a
section by section analysis of the PRA burden. Any necessary
adjustments to the burden calculations have been submitted to OMB for
review under section 3507(d) of the PRA. For an additional explanation
of how the Department calculated the burden hours and related costs,
the PRA package for information collection 1205-0466 may be obtained by
contacting the PRA addressee shown below or at http://www.RegInfo.gov.
PRA Addressee: Sherril Hurd, Office of Policy Development and
Research, U.S. Department of Labor, Employment & Training
Administration, 200 Constitution Avenue, NW., Room N-5641, Washington,
DC 20210. Telephone: 202-693-3700 (this is not a toll-free number).
Comments should be sent to (1) the Office of Information and
Regulatory Affairs, Office of Management and Budget, Room 10235, New
Executive Office Building, Washington, DC 20503; Attention: Desk
Officer for the Employee Benefits Security Administration; and a copy
to (2) Office of Foreign Labor Certification, Room C-4312, 200
Constitution Ave., NW., Washington, DC 20210 or fax: 202-693-2768.
Comments to OMB may be submitted by using the Federal e-Rulemaking
portal at http://www.regulations.gov (follow instructions for
submission of comments) or by fax: 202-395-5806. OMB requests that
comments be received within 60 days of publication of the Proposed Rule
to ensure their consideration. Please note that comments submitted to
OMB are a matter of public record.
When submitting comments on the information collections, your
comments should address one or more of the following four points.
Evaluate whether the proposed collection of information is
necessary for the proper performance of the functions of the agency,
including whether the information will have practical utility;
Evaluate the accuracy of the agency's estimate of the
burden of the proposed collection of information, including the
validity of the methodology and assumptions used;
Enhance the quality, utility, and clarity of the
information to be collected; and
Minimize the burden of the collection of information on
those who are to respond, including through the use of appropriate
automated, electronic, mechanical, or other technological collection
techniques or other forms of information technology, e.g., permitting
electronic submissions of responses.
Summary
The IC is required by secs. 214(c) and 218 of the INA (8 U.S.C.
1184(c), and 1188) and 8 CFR 214.2(h)(1), (2), and (5). The INA
requires employers who wish to hire foreign labor to receive a
certification from the Secretary that there are not sufficient U.S.
workers for the job opportunity and that hiring the foreign worker will
not adversely affect wages and working conditions of U.S. workers
similarly employed. This Proposed Rule is designed to obtain the
necessary information for the Secretary to make an informed decision in
meeting her statutory obligation. The IC will be used, among other
things, to inform U.S. workers of the job opportunity thereby testing
the labor market, to determine whether or not the employer is offering
the proper wage to all employees, to ensure that the employers, agents,
or associations are qualified to receive foreign workers, to have
written assurances from the employer of its intent to comply with
program requirements, and to ensure program integrity.
Hourly Burden
--------------------------------------------------------------------------------------------------------------------------------------------------------
Covered
NPRM Section IC Action Obligation to respond under OMB Total No. Hourly burden Total
\38\ No. resp. hours
--------------------------------------------------------------------------------------------------------------------------------------------------------
655.130, 131, & 132................... Fill out 9142........... M........................ 1205-0466 8,356 1 hour................ 8,356
655.130, 131, & 132................... Send in 790............. M........................ 1205-0134 8,356 1 hour................ 8,356
655.132(b)(1)......................... List of fixed site M........................ 1205-0466 559 30 min................ 280
employers (FSE).
655.132(b)(2)......................... Submit FLC certificate.. M........................ 1205-0466 559 5 min................. 47
655.132(b)(3)......................... Submit proof of bond.... M........................ 1205-0466 559 5 min................. 47
[[Page 45938]]
655.132(b)(4)......................... Submit contracts with M........................ 1205-0466 559 30 min................ 280
FSE.
655.132(b)(5)(i)...................... Submit housing approval. M........................ 1205-0466 559 5 min................. 47
655.132(b)(5)(ii)..................... Drivers' licenses & Auto M........................ 1205-0466 559 5 min................. 47
Insurance.
655.133(a)............................ Letter of Representation M........................ 1205-0466 4,574 30 min................ 2,287
655.133(b)............................ Agent's FLC certificate. M........................ 1205-0466 309 5 min................. 26
655.134(b)............................ Request waiver of 45-day R........................ 1205-0466 151 30 min................ 76
filing.
655.135(i)............................ Notify of duty to depart M........................ 1205-0466 8,356 2 min................. 278
655.135(j) & (k)...................... Inform of fee M........................ 1205-0466 8,356 5 min................. 696
prohibition.
655.135(l)............................ Workers' rights poster.. M........................ \39\ Exempt
655.144............................... Modify application...... R........................ 1205-0466 1,151 30 min................ 576
655.145............................... Amend application....... R........................ 1205-0466 668 30 min................ 334
655.150............................... SWA posts & refers...... M........................ 1205-0134 8,356 25 min................ 3,482
655.151 & 152......................... Advertising............. R........................ \40\ Exempt
655.153............................... Contact old employees... R........................ 1205-0466 8,356 1 hour................ 8,356
655.154............................... Proof of recruitment.... M........................ \41\
Exempt
655.156............................... Recruitment report...... R........................ 1205-0466 8,356 1 hour................ 8,356
655.157............................... Withholding workers V........................ 1205-0466 0 30 min................ 0
complaints.
655.167............................... Document retention...... M........................ 1205-0466 8,356 10 min................ 1,393
655.170............................... Extension application... R........................ 1205-0466 418 30 min................ 209
655.171............................... Notice of Appeal........ R........................ 1205-0466 70 20 min................ 23
655.172............................... Request withdrawal...... R........................ 1205-0466 226 10 min................ 38
655.173............................... Petition to increase R........................ 1205-0466 84 1 hour................ 84
meal charges.
655.180,181, & 182.................... Audit, revocation, R........................ \42\ Exempt
debarment.
655.185 & 501.2....................... Job service complaint V........................ 1205-0039
system.
655.185............................... DOJ complaints.......... V........................ (\43\)
501.4(b) & 501.6(c)................... Filing complaints....... V........................ 1215-0001
--------------------------------------------------------------------------------------------------------------------------------------------------------
Annual Hourly Burden
In order to estimate the potential hourly burden of the information
required to apply for a labor certification as described in this
Proposed Rule, the Department used program experience and program data
from fiscal year 2008. Based on information on program usage from FY
2008 the Department received 8,356 Applications requesting more than
100,000 foreign workers. This is an increase over the 7,725
Applications received in previous years used to calculate the burden in
1205-0466 originally. This is also more than the 4,600 responses
accounted for in the 1205-0134 IC approved in 2006. The current
extension request has adjusted the burden calculation.
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\38\ Obligation to respond to this information collection is
mandatory (M), required for benefit (R), or voluntary (V).
\39\ See 5 CFR 1320.3.
\40\ See 5 CFR 1320.3(b).
\41\ See 29 CFR 1602.14 (OMB 3046-0040); 29 CFR 1627.3(b)(3)
(OMB 3046-0018); 29 CFR 1627.3(b)(3).
\42\ See 5 CFR 1320.3(h)(6) & (9); 5 CFR 1320.4(a)(2).
\43\ Complaints can be filed on DOJ's ``Charge Complaint'' form,
which has no OMB control number or called in to the Office of
Special Counsel.
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For the number of appeals, modifications, requests for waivers of
the filing time, extensions, and other program components requiring
information collection under the PRA, the Department also used program
experience to determine annual hourly burdens described in the chart
above.
The total annual hourly burdens for the two ICs requiring
adjustments due to this NPRM have been calculated as follows:
------------------------------------------------------------------------
Hours
------------------------------------------------------------------------
1205-0466............................................... 31,833
1205-0134............................................... 10,688
------------------------------------------------------------------------
Monetized Hourly Burden
Employers filing Applications for temporary alien employment
certification may be from a wide variety of industries. Salaries for
employers and/or their employees who perform the reporting and
recordkeeping functions required by this regulation may range from
several hundred dollars to several hundred thousand dollars where the
corporate executive office of a large company performs some or all of
these functions themselves. However, the Department believes that in
most companies a Human Resources Manager will perform these activities.
In estimating employer staff time costs, the Department used the hourly
wage rate for a Human Resources Manager ($39.50), as published by the
DOL's OES OnLine,\44\ and increased by a factor of 1.43 to account for
employee benefits and other compensation for a total hourly cost of
$56.50. The SWA employees required to help employers with reviewing and
translating the Form ETA 790 and referring workers to the employer are
based on a Labor Relations Specialists ($23.70) as published by the
DOL's OES OnLine and increased by a factor of 1.52 to account for
employee benefits and other compensation for a total hourly cost of
$36.02. Total annual respondent hour costs for the two main information
collections are estimated as follows:
---------------------------------------------------------------------------
\44\ Source: Bureau of Labor Statistics 2009 OES wage data.
1205-0466......................... 33,256 hours x $56.09 = $1,865,329
1205-0134......................... 8,356 hours x $56.09 = $468,688
3,482 hours x $36.02 = $125,422
[[Page 45939]]
Cost Burden to Respondents
The Proposed Rule stipulates that the applicant who receives an
approved labor certification must pay $150 plus $15 for each foreign
worker requested with an overall cap of $2,000 per Application.
Assuming a 95 percent approval rate and the same amount of approved
foreign workers as in previous years at 94,445, the Department
estimates the maximum cost to employers will be $2,607,405 [(8,356
applicants x .95 x $150) + (94,445 foreign workers x $15)].
Affected Public: Farms, business or other for-profit; not-for-
profit institutions, and State governments.
Estimated Number of Respondents: 8,408 (8,356 employers and 52
SWAs).
Estimated Number of Responses: 77,853.
Frequency of Response: Annually; occasionally.
Estimated Annual Burden Hours: 43,674.
Estimated Annual Hourly Burden Cost: $2,459.
Estimated Annual Cost Burden: $2,607,405.
List of Subjects in 20 CFR Part 655
Administrative practice and procedure, Foreign workers, Employment,
Employment and training, Enforcement, Forest and forest products,
Fraud, Health professions, Immigration, Labor, Passports and visas,
Penalties, Reporting and recordkeeping requirements, Unemployment,
Wages, Working conditions.
List of Subjects in 29 CFR Part 501
Administrative practice and procedure, Agriculture, Aliens,
Employment, Housing, Housing standards, Immigration, Labor, Migrant
labor, Penalties, Transportation, Wages.
For the reasons stated in the preamble, the Department of Labor
proposes that 20 CFR part 655 and 29 CFR part 501 be amended as
follows:
TITLE 20--EMPLOYEES' BENEFITS
PART 655--TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED
STATES
1. Revise the authority citation for part 655 to read as follows:
Authority: Section 655.0 issued under 8 U.S.C.
1101(a)(15)(E)(iii), 1101(a)(15)(H)(i) and (ii), 1182(m), (n) and
(t), 1184(c), (g), and (j), 1188, and 1288(c) and (d); sec. 3(c)(1),
Pub. L. 101-238, 103 Stat. 2099, 2102 (8 U.S.C. 1182 note); sec.
221(a), Pub. L. 101-649, 104 Stat. 4978, 5027 (8 U.S.C. 1184 note);
sec. 303(a)(8), Pub. L. 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1101
note); sec. 323(c), Pub. L. 103-206, 107 Stat. 2428; sec. 412(e),
Pub. L. 105-277, 112 Stat. 2681 (8 U.S.C. 1182 note); sec. 2(d),
Pub. L. 106-95, 113 Stat. 1312, 1316 (8 U.S.C. 1182 note); Pub. L.
109-423, 120 Stat. 2900; and 8 CFR 214.2(h)(4)(i).
Section 655.00 issued under 8 U.S.C. 1101(a)(15)(H)(ii),
1184(c), and 1188; and 8 CFR 214.2(h).
Subparts A and C issued under 8 CFR 214.2(h).
Subpart B issued under 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c),
and 1188; and 8 CFR 214.2(h).
Subparts D and E authority repealed.
Subparts F and G issued under 8 U.S.C. 1288(c) and (d); and sec.
323(c), Pub. L. 103-206, 107 Stat. 2428.
Subparts H and I issued under 8 U.S.C. 1101(a)(15)(H)(i)(b) and
(b)(1), 1182(n) and (t), and 1184(g) and (j); sec. 303(a)(8), Pub.
L. 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 412(e),
Pub. L. 105-277, 112 Stat. 2681; and 8 CFR 214.2(h).
Subparts J and K authority repealed.
Subparts L and M issued under 8 U.S.C. 1101(a)(15)(H)(i)(c) and
1182(m); sec. 2(d), Pub. L. 106-95, 113 Stat. 1312, 1316 (8 U.S.C.
1182 note); Pub. L. 109-423, 120 Stat. 2900; and 8 CFR 214.2(h).
2. Revise the heading of part 655 to read as set forth above.
3. Revise Sec. 655.1 to read as follows:
Sec. 655.1 Purpose and scope of Subpart A.
This subpart sets forth the procedures governing the labor
certification process for the temporary employment of nonimmigrant
foreign workers in the United States (U.S.) in occupations other than
agriculture or registered nursing.
4. Revise subpart B to read as follows:
Subpart B--Labor Certification Process for Temporary Agricultural
Employment in the United States (H-2A Workers)
Sec.
655.100 Scope and purpose of Subpart B.
655.101 Authority of the Office of Foreign Labor Certification
(OFLC) Administrator.
655.102 Special procedures.
655.103 Overview of this Subpart and definition of terms.
Prefiling Procedures
655.120 Offered wage rate.
655.121 Job orders.
655.122 Contents of job offers.
Application for Temporary Employment Certification Filing Procedures
655.130 Application filing requirements.
655.131 Association filing requirements
655.132 H-2A Labor contractor (H-2ALC) filing requirements.
655.133 Requirements for agents.
655.134 Emergency situations.
655.135 Assurances and obligations of H-2A employers.
Processing of Application for Temporary Employment Certification
655.140 Review of applications.
655.141 Notice of acceptance.
655.142 Electronic job registry.
655.143 Notice of deficiency.
655.144 Submission of modified application.
655.145 Amendments to applications for temporary employment
certification.
Post-Acceptance Requirements
655.150 Interstate clearance of job order.
655.151 Newspaper advertisements.
655.152 Advertising requirements.
655.153 Contact with former U.S. employees.
655.154 Additional positive recruitment.
655.155 Referrals of U.S. workers.
655.156 Recruitment report.
655.157 Withholding of U.S. workers prohibited.
655.158 Duration of positive recruitment.
Labor Certification Determinations
655.160 Determinations.
655.161 Criteria for certification.
655.162 Approved certification.
655.163 Certification fee.
655.164 Denied certification.
655.165 Partial certification.
655.166 Appeal procedures.
655.167 Document retention requirements.
Post Certification
655.170 Extensions.
655.171 Appeals.
655.172 Withdrawal of job order and application for temporary
employment certification.
655.173 Setting meal charges; petition for higher meal charges.
655.174 Public disclosure.
Integrity Measures
655.180 Audit.
655.181 Revocation.
655.182 Debarment.
655.183 Less than substantial violations.
655.184 Applications involving fraud or willful misrepresentation.
655.185 Job service complaint system; enforcement of work contracts.
Sec. 655.100 Scope and purpose of Subpart B.
This subpart sets out the procedures established by the Secretary
of the United States Department of Labor (the Secretary) under the
authority given in 8 U.S.C. 1188 to acquire information sufficient to
make factual determinations of:
(a) Whether there are sufficient able, willing, and qualified
United States (U.S.) workers available to perform the temporary and
seasonal agricultural employment for which an employer desires to
import nonimmigrant foreign workers (H-2A workers); and
(b) Whether the employment of H-2A workers will adversely affect
the wages and working conditions of workers in the U.S. similarly
employed.
[[Page 45940]]
Sec. 655.101 Authority of the Office of Foreign Labor Certification
(OFLC) Administrator.
The Secretary has delegated her authority to make determinations
under 8 U.S.C. 1188 to the Assistant Secretary for the Employment and
Training Administration (ETA), who in turn has delegated that authority
to the Office of Foreign Labor Certification (OFLC). The determinations
are made by the OFLC Administrator who, in turn, may delegate this
responsibility to designated staff members; e.g., a Certifying Officer
(CO).
Sec. 655.102 Special procedures.
To provide for a limited degree of flexibility in carrying out the
Secretary's responsibilities under the Immigration and Nationality Act
(INA), while not deviating from statutory requirements, the OFLC
Administrator has the authority to establish, continue, revise, or
revoke special procedures for processing certain H-2A Application for
Temporary Employment Certification. Employers must demonstrate upon
written application to the OFLC Administrator that special procedures
are necessary. These include special procedures currently in effect for
the handling of applications for sheepherders in the Western States
(and adaptation of such procedures to occupations in the range
production of other livestock), and for custom combine harvesting
crews. Similarly, for work in occupations characterized by other than a
reasonably regular workday or workweek, such as the range production of
sheep or other livestock, the OFLC Administrator has the authority to
establish monthly, weekly, or semi-monthly adverse effect wage rates
(AEWR) for those occupations for a statewide or other geographical
area. Prior to making determinations under this section, the OFLC
Administrator may consult with affected employer and worker
representatives.
Sec. 655.103 Overview of this Subpart and definition of terms.
(a) Overview. In order to bring nonimmigrant workers to the U.S. to
perform agricultural work, an employer must first demonstrate to the
Secretary that there are not sufficient U.S. workers able, willing, and
qualified to perform the work in the area of intended employment at the
time needed and that the employment of foreign workers will not
adversely affect the wages and working condition of U.S. workers
similarly employed. This rule describes a process by which the
Department of Labor (Department or DOL) makes such a determination and
certifies her determination to the Department of Homeland Security
(DHS).
(b) Definitions.
Administrative Law Judge (ALJ). A person within the Department's
Office of Administrative Law Judges appointed pursuant to 5 U.S.C.
3105.
Adverse effect wage rate (AEWR). The annual weighted average hourly
wage for field and livestock workers (combined) in the States or
regions as published annually by the U.S. Department of Agriculture
(USDA) based on its quarterly wage survey.
Agent. A legal entity or person, such as an association of
agricultural employers, or an attorney for an association, that:
(1) Is authorized to act on behalf of the employer for temporary
agricultural labor certification purposes;
(2) Is not itself an employer, or a joint employer, as defined in
this subpart with respect to a specific application; and
(3) Is not under suspension, debarment, expulsion, or disbarment
from practice before any court, the Department, the Executive Office
for Immigration Review, or DHS under 8 CFR 292.3 or 1003.101.
Agricultural association. Any nonprofit or cooperative association
of farmers, growers, or ranchers (including but not limited to
processing establishments, canneries, gins, packing sheds, nurseries,
or other similar fixed-site agricultural employers), incorporated or
qualified under applicable State law, that recruits, solicits, hires,
employs, furnishes, houses, or transports any worker that is subject to
8 U.S.C. 1188. An agricultural association may act as the agent of an
employer, or may act as the sole or joint employer of any worker
subject to 8 U.S.C. 1188.
Area of intended employment. The geographic area within normal
commuting distance of the place of the job opportunity for which the
certification is sought. There is no rigid measure of distance that
constitutes a normal commuting distance or normal commuting area,
because there may be widely varying factual circumstances among
different areas (e.g., average commuting times, barriers to reaching
the worksite, quality of the regional transportation network). If the
place of intended employment is within a Metropolitan Statistical Area
(MSA), including a multistate MSA, any place within the MSA is deemed
to be within normal commuting distance of the place of intended
employment. The borders of MSAs are not controlling in the
identification of the normal commuting area; a location outside of an
MSA may be within normal commuting distance of a location that is
inside (e.g., near the border of) the MSA.
Attorney. Any person who is a member in good standing of the bar of
the highest court of any State, possession, territory, or commonwealth
of the U.S., or the District of Columbia. Such a person is also
permitted to act as an agent under this subpart. No attorney who is
under suspension, debarment, expulsion, or disbarment from practice
before any court, the Department, the Executive Office for Immigration
Review under 8 CFR 1003.101, or DHS under 8 CFR 292.3 may represent an
employer under this subpart
Certifying Officer (CO). The person who makes determination on an
Application for Temporary Labor Certification filed under the H-2A
program. The OFLC Administrator is the national CO. Other COs may be
designated by the OFLC Administrator to also make the determinations
required under this subpart.
Corresponding employment. The employment of workers who are not H-
2A workers by an employer who has an approved H-2A Application for
Temporary Labor Certification in any work included in the job order, or
in any agricultural work performed by the H-2A workers. To qualify as
corresponding employment the work must be performed during the validity
period of the job order, including any approved extension thereof.
Date of need. The first date the employer requires the services of
H-2A workers as indicated in the Application for Temporary Labor
Certification.
Employee. A person who is engaged to perform work for an employer,
as defined under the general common law of agency. Some of the factors
relevant to the determination of employee status include: The hiring
party's right to control the manner and means by which the work is
accomplished; the skill required to perform the work; the source of the
instrumentalities and tools for accomplishing the work; the location of
the work; the hiring party's discretion over when and how long to work;
and whether the work is part of the regular business of the hiring
party. Other applicable factors may be considered and no one factor is
dispositive.
Employer. A person (including any individual, partnership,
association, corporation, cooperative, firm, joint stock company,
trust, or other organization with legal rights and duties) that:
(1) Has a place of business (physical location) in the U.S. and a
means by
[[Page 45941]]
which it may be contacted for employment;
(2) Has an employer relationship (such as the ability to hire, pay,
fire, supervise or otherwise control the work of employee) with respect
to an H-2A worker or a worker in corresponding employment; and
(3) Possesses, for purposes of filing an Application for Temporary
Employment Certification, a valid Federal Employer Identification
Number (FEIN).
Federal holiday. Legal public holiday as defined at 5 U.S.C. 6103.
Fixed-site employer. Any person engaged in agriculture who meets
the definition of an employer, as those terms are defined in this
subpart, who owns or operates a farm, ranch, processing establishment,
cannery, gin, packing shed, nursery, or other similar fixed-site
location where agricultural activities are performed and who recruits,
solicits, hires, employs, houses, or transports any worker subject to 8
U.S.C. 1188, 29 CFR part 501, or this subpart as incident to or in
conjunction with the owner's or operator's own agricultural operation.
H-2A Labor Contractor (H-2ALC). Any person who meets the definition
of employer under this subpart and is not a fixed-site employer, an
agricultural association, or an employee of a fixed-site employer or
agricultural association, as those terms are used in this part, who
recruits, solicits, hires, employs, furnishes, houses, or transports
any worker subject to 8 U.S.C. 1188, 29 CFR part 501, or this subpart.
H-2A worker. Any temporary foreign worker who is lawfully present
in the U.S. and authorized by DHS to perform agricultural labor or
services of a temporary or seasonal nature pursuant to 8 U.S.C.
1101(a)(15)(H)(ii)(a), as amended.
Job offer. The offer made by an employer or potential employer of
H-2A workers to both U.S. and H-2A workers describing all the material
terms and conditions of employment, including those relating to wages,
working conditions, and other benefits.
Job opportunity. Full-time employment at a place in the U.S. to
which U.S. workers can be referred.
Job Order. The document containing the terms and conditions of
employment that is posted by the State Workforce Agency (SWA) on its
inter- and intra-State job clearance systems based on the employer's
Form ETA-790, as submitted to the SWA.
Joint employment. Where two or more employers each have sufficient
definitional indicia of being an employer to be considered the employer
of a worker, those employers will be considered to jointly employ that
worker. Each employer in a joint employment relationship to a worker is
considered a joint employer of that worker.
Master application. An Application for Temporary Labor
Certification filed by an association of agricultural producers as a
joint employer with its employer-members. A master application must
cover the same occupations and comparable agricultural employment; the
same start date of need for all employer-members listed on the
Application for Temporary Employment Certification; and may cover
multiple areas of intended employment within a single State.
National Processing Center (NPC). The office within OFLC in which
the COs operate and which are charged with the adjudication of
Applications for Temporary Employment Certification.
Office of Foreign Labor Certification (OFLC). OFLC means the
organizational component of the ETA that provides national leadership
and policy guidance and develops regulations and procedures to carry
out the responsibilities of the Secretary under the INA concerning the
admission of foreign workers to the U.S. to perform work described in 8
U.S.C. 1101(a)(15)(H)(ii)(a).
OFLC Administrator. The primary official of the Office of Foreign
Labor Certification (OFLC), or the OFLC Administrator's designee.
Positive recruitment. The active participation of an employer or
its authorized hiring agent, performed under the auspices and direction
of the OFLC, in recruiting and interviewing individuals in the area
where the employer's job opportunity is located and any other State
designated by the Secretary as an area of traditional or expected labor
supply with respect to the area where the employer's job opportunity is
located, in an effort to fill specific job openings with U.S. workers.
Prevailing practice. A practice engaged in by employers, that:
(1) Fifty percent or more of employers in an area and for an
occupation engage in the practice or offer the benefit; and
(2) This 50 percent or more of employers also employs 50 percent or
more of U.S. workers in the occupation and area (including H-2A and
non-H-2A employers) for purposes of determinations concerning the
provision of family housing, and frequency of wage payments, but non-H-
2A employers only for determinations concerning the provision of
advance transportation and the utilization of labor contractors.
Prevailing wage. Wage established pursuant to 20 CFR 653.501(d)(4).
State Workforce Agency (SWA). State government agency that receives
funds pursuant to the Wagner-Peyser Act (29 U.S.C. 49 et seq.) to
administer the State's public labor exchange activities.
Strike. A concerted stoppage of work by employees as a result of a
labor dispute, or any concerted slowdown or other concerted
interruption of operation (including stoppage by reason of the
expiration of a collective bargaining agreement).
Successor in interest. Where an employer has violated 8 U.S.C.
1188, 29 CFR part 501, or these regulations, and has ceased doing
business or cannot be located for purposes of enforcement, a successor
in interest to that employer may be held liable for the duties and
obligations of the violating employer in certain circumstances. The
following factors, as used under Title VII of the Civil Rights Act and
the Vietnam Era Veterans' Readjustment Assistance Act, may be
considered in determining whether an employer is a successor in
interest; no one factor is dispositive, but all of the circumstances
will be considered as a whole:
(1) Substantial continuity of the same business operations;
(2) Use of the same facilities;
(3) Continuity of the work force;
(4) Similarity of jobs and working conditions;
(5) Similarity of supervisory personnel;
(6) Whether the former management or owner retains a direct or
indirect interest in the new enterprise;
(7) Similarity in machinery, equipment, and production methods;
(8) Similarity of products and services; and
(9) The ability of the predecessor to provide relief.
For purposes of debarment only, the primary consideration will be
the personal involvement of the firm's ownership, management,
supervisors, and others associated with the firm in the violation(s) at
issue.
Temporary agricultural labor certification. Certification made by
the OFLC Administrator with respect to an employer seeking to file with
DHS a visa petition to employ one or more foreign nationals as an H-2A
worker, pursuant to 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(a) and (c),
and 1188.
United States (U.S.). The continental U.S., Alaska, Hawaii, the
Commonwealth of Puerto Rico, and the territories of Guam, the Virgin
Islands, and, as of the transition program effective date, as defined
in the Consolidated Natural Resources Act of
[[Page 45942]]
2008, Pub. L. 110-229, Title VII, the Commonwealth of the Northern
Mariana Islands.
United States worker (U.S. worker). A worker who is:
(1) A citizen or national of the U.S.; or
(2) An alien who is lawfully admitted for permanent residence in
the U.S., is admitted as a refugee under 8 U.S.C. 1157, is granted
asylum under 8 U.S.C. 1158, or is an immigrant otherwise authorized (by
the INA or by DHS) to be employed in the U.S.; or
(3) An individual who is an authorized alien (as defined in 8
U.S.C. 1324a(h)(3)) with respect to the employment in which the worker
is engaging.
Wages. All forms of cash remuneration to a worker by an employer in
payment for personal services.
Work contract. All the material terms and conditions of employment
relating to wages, hours, working conditions, and other benefits,
including those required by 8 U.S.C. 1188, 29 CFR part 501, or this
subpart. The contract between the employer and the worker may be in the
form of a separate written document. In the absence of a separate
written work contract incorporating the required terms and conditions
of employment, agreed to by both the employer and the worker, the work
contract at a minimum will be the terms of the job order and any
obligations required under 8 U.S.C. 1188, 28 CFR part 501, or this
subpart.
(c) Definition of agricultural labor or services. For the purposes
of this subpart, agricultural labor or services, pursuant to 8 U.S.C.
1101(a)(15)(H)(ii)(a), is defined as: agricultural labor as defined and
applied in sec. 3121(g) of the Internal Revenue Code of 1986 at 26
U.S.C. 3121(g); agriculture as defined and applied in sec. 3(f) of the
Fair Labor Standards Act of 1938 (FLSA) at 29 U.S.C. 203(f); the
pressing of apples for cider on a farm; logging employment;
reforestation activities; or pine straw activities.
(1) Agricultural labor for the purpose of paragraph (c) of this
section means all service performed:
(i) On a farm, in the employ of any person, in connection with
cultivating the soil, or in connection with raising or harvesting any
agricultural or horticultural commodity, including the raising,
shearing, feeding, caring for, training, and management of livestock,
bees, poultry, and fur-bearing animals and wildlife;
(ii) In the employ of the owner or tenant or other operator of a
farm, in connection with the operation, management, conservation,
improvement, or maintenance of such farm and its tools and equipment,
or in salvaging timber or clearing land of brush and other debris left
by a hurricane, if the major part of such service is performed on a
farm;
(iii) In connection with the production or harvesting of any
commodity defined as an agricultural commodity in section 15(g) of the
Agricultural Marketing Act, as amended (12 U.S.C. 1141j), or in
connection with the ginning of cotton, or in connection with the
operation or maintenance of ditches, canals, reservoirs, or waterways,
not owned or operated for profit, used exclusively for supplying and
storing water for farming purposes;
(iv) In the employ of the operator of a farm in handling, planting,
drying, packing, packaging, processing, freezing, grading, storing, or
delivering to storage or to market or to a carrier for transportation
to market, in its unmanufactured state, any agricultural or
horticultural commodity; but only if such operator produced more than
one-half of the commodity with respect to which such service is
performed;
(v) In the employ of a group of operators of farms (other than a
cooperative organization) in the performance of service described in
paragraph (c)(1)(iv) but only if such operators produced all of the
commodity with respect to which such service is performed. For purposes
of this paragraph, any unincorporated group of operators shall be
deemed a cooperative organization if the number of operators comprising
such group is more than 20 at any time during the calendar year in
which such service is performed;
(vi) The provisions of paragraphs (c)(1)(iv) and (c)(1)(v) shall
not be deemed to be applicable with respect to service performed in
connection with commercial canning or commercial freezing or in
connection with any agricultural or horticultural commodity after its
delivery to a terminal market for distribution for consumption; or
(vii) On a farm operated for profit if such service is not in the
course of the employer's trade or business or is domestic service in a
private home of the employer.
As used in this section, the term farm includes stock, dairy,
poultry, fruit, fur-bearing animal, and truck farms, plantations,
ranches, nurseries, ranges, greenhouses or other similar structures
used primarily for the raising of agricultural or horticultural
commodities, and orchards.
(2) Agriculture. For purposes of paragraph (c) of this section,
agriculture means farming in all its branches and among other things
includes the cultivation and tillage of the soil, dairying, the
production, cultivation, growing, and harvesting of any agricultural or
horticultural commodities (including commodities defined as
agricultural commodities in 1141j(g) of title 12, the raising of
livestock, bees, fur-bearing animals, or poultry, and any practices
(including any forestry or lumbering operations) performed by a farmer
or on a farm as an incident to or in conjunction with such farming
operations, including preparation for market, delivery to storage or to
market or to carriers for transportation to market. See sec. 29 U.S.C.
203(f), as amended (sec. 3(f) of the FLSA, as codified). Under 12
U.S.C. 1141j(g) agricultural commodities include, in addition to other
agricultural commodities, crude gum (oleoresin) from a living tree, and
the following products as processed by the original producer of the
crude gum (oleoresin) from which derived: gum spirits of turpentine and
gum rosin. In addition as defined in 7 U.S.C. 92, gum spirits of
turpentine means spirits of turpentine made from gum (oleoresin) from a
living tree and gum rosin means rosin remaining after the distillation
of gum spirits of turpentine.
(3) Apple pressing for cider. The pressing of apples for cider on a
farm, as the term farm is defined and applied in sec. 3121(g) of the
Internal Revenue Code at 26 U.S.C. 3121(g) or as applied in sec. 3(f)
of the FLSA at 29 U.S.C. 203(f), pursuant to 29 CFR Part 780.
(4) Logging employment. Operations associated with felling and
moving trees and logs from the stump to the point of delivery, such as,
but not limited to, marking danger trees and trees/logs to be cut to
length, felling, limbing, bucking, debarking, chipping, yarding,
loading, unloading, storing, and transporting machines, equipment and
personnel to, from and between logging sites.
(5) Reforestation activities. Predominately manual forestry work
that includes, but is not limited to, tree planting, brush clearing and
pre-commercial tree thinning.
(6) Pine straw activities. Certain activities predominately
performed using hand tools, including but not limited to the raking,
gathering, baling, and loading of pine straw that is a product of pine
trees that are managed using agricultural or horticultural/
silvicultural techniques.
(d) Definition of a temporary or seasonal nature. For the purposes
of
[[Page 45943]]
this subpart, employment is of a seasonal nature where it is tied to a
certain time of year by an event or pattern, such as a short annual
growing cycle or a specific aspect of a longer cycle, and requires
labor levels far above those necessary for ongoing operations.
Employment is of a temporary nature where the employer's need to fill
the position with a temporary worker will, except in extraordinary
circumstances, last no longer than 1 year.
Prefiling Procedures
Sec. 655.120 Offered wage rate.
(a) To comply with its obligation under Sec. 655.122 (l), an
employer must offer, advertise in its recruitment, and pay a wage that
is the highest of the AEWR, the prevailing hourly wage or piece rate,
or the Federal or State minimum wage, except where a special procedure
is approved for an occupation or specific class of agricultural
employment.
(b) If the prevailing hourly wage rate or piece rate is adjusted
during a work contract, and is higher than the highest of the AEWR, the
prevailing wage, or the Federal or State minimum wage, the employer
must pay that higher prevailing wage or piece rate, upon notice to the
employer by the Department.
(c) The OFLC Administrator will publish, at least once in each
calendar year, on a date to be determined by the OFLC Administrator,
the AEWRs for each State as a notice in the Federal Register.
Sec. 655.121 Job orders.
(a) Area of intended employment.
(1) Prior to filing an Application for Temporary Employment
Certification, the employer must submit a job order to the SWA serving
the area of intended employment for intrastate clearance, identifying
it as a job order to be placed in connection with a future Application
for Temporary Labor Certification for H-2A workers. The employer must
submit this job order no more than 75 calendar days and no fewer than
60 calendar days before the date of need. If the job opportunity is
located in more than one State within the same area of intended
employment, the employer may submit a job order to any one of the SWAs
having jurisdiction over the anticipated worksites.
(2) Where the job order is being placed in connection with a future
master application to be filed by an association of agricultural
employers as a joint employer, the association may submit a single job
order to be placed in the name of the association on behalf of all
employers that will be duly named on the Application for Temporary
Employment Certification.
(3) The job order submitted to the SWA must satisfy the
requirements for agricultural clearance orders in 20 CFR part 653,
subpart F and the requirements set forth in Sec. 655.122.
(b) SWA review. The SWA will review the contents of the job order
for compliance with the requirements specified in 20 CFR part 653,
subpart F and this subpart and work with the employer to address any
noted deficiencies. Any issue with respect to whether a job order may
properly be placed in the job order system that cannot be resolved with
the applicable SWA must be first brought to the attention of the CO(s)
in the NPC and, if necessary, the OFLC Administrator who may direct
that the job order be placed following a written determination that the
applicable program requirement(s) has been met. If the Department
concludes that the job order is not acceptable, it will so inform the
employer using the procedures applicable to a denial of certification
set forth in Sec. 655.164.
(c) Intrastate clearance. Upon its clearance of the job order, the
SWA must promptly place the job order in intrastate clearance and
commence recruitment of U.S. workers.
(d) Duration of job order posting. The SWA must keep the job order
on its active file until the end of the recruitment period, as set
forth in Sec. 655.135(d), and must refer each U.S. worker who applies
(or on whose behalf an Application for Temporary Labor Certification is
made) for the job opportunity.
(e) Modifications to the job order.
(1) Prior to the issuance of the final determination, the CO may
require modifications to the job order when the CO determines that the
offer of employment does not contain all the minimum benefits, wages,
and working condition provisions. If any such modifications are
required after a Notice of Acceptance has been issued by the CO as
described in Sec. 655.141 of this subpart, the modifications must be
made or certification will be denied pursuant to Sec. 655.164 of this
subpart; however, the certification determination will not be delayed
beyond 30 calendar days prior to the date of need as a result of such
modification.
(2) The employer may request a modification of the job order prior
to the submission of an Application for Temporary Employment
Certification. However, the employer may not reject referrals against
the job order based upon a failure on the part of the applicant to meet
the amended criteria, if such referral was made prior to the amendment
of the job order. The employer may not amend the job order on or after
the date of filing an Application for Temporary Employment
Certification.
Sec. 655.122 Contents of job offers.
(a) Prohibition against preferential treatment of aliens. The
employer's job offer must offer to U.S. workers no less than the same
benefits, wages, and working conditions that the employer is offering,
intends to offer, or will provide to H-2A workers. Job offers may not
impose on U.S. workers any restrictions or obligations that will not be
imposed on the employer's H-2A workers. This does not relieve the
employer from providing to H-2A workers at least the same minimum level
of benefits, wages, and working conditions which are being offered to
U.S. workers consistent with this section.
(b) Job qualifications and requirements. Each job qualification and
requirement listed in the job offer must be bona fide and consistent
with the normal and accepted qualifications required by employers that
do not use H-2A workers in the same or comparable occupations and
crops. Either the CO or the SWA may require the employer to submit
documentation to substantiate the appropriateness of any job
qualification specified in the job offer.
(c) Minimum benefits, wages, and working conditions. Every job
offer accompanying an Application for Temporary Employment
Certification must include each of the minimum benefit, wage, and
working condition provisions listed in paragraphs (d) through (p) of
this section.
(d) Housing.
(1) Obligation to provide housing. The employer must provide
housing at no cost to the H-2A workers and those workers in
corresponding employment who are not reasonably able to return to their
residence within the same day. Housing must be provided through one of
the following means:
(i) Employer-provided housing. Employer-provided housing must meet
the full set of DOL Occupational Safety and Health Administration
(OSHA) standards set forth at 29 CFR 1910.142, or the full set of
standards at Sec. Sec. 654.404 through 654.417 of this chapter,
whichever are applicable under Sec. 654.401 of this chapter. Requests
by employers whose housing does not meet the applicable standards for
conditional access to the interstate clearance system, will be
processed under the procedures set forth at Sec. 654.403 of this
chapter; or
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(ii) Rental and/or public accommodations. Rental or public
accommodations or other substantially similar class of habitation must
meet local standards for such housing. In the absence of applicable
local standards, State standards will apply. In the absence of
applicable local or State standards, DOL OSHA standards at 29 CFR
1910.142 will apply. Any charges for rental housing must be paid
directly by the employer to the owner or operator of the housing. The
employer must document to the satisfaction of the CO that the housing
complies with the local, State, or Federal housing standards.
(2) Standards for range housing. Housing for workers principally
engaged in the range production of livestock must meet standards of DOL
OSHA for such housing. In the absence of such standards, range housing
for sheepherders and other workers engaged in the range production of
livestock must meet guidelines issued by OFLC.
(3) Deposit charges. Charges in the form of deposits for bedding or
other similar incidentals related to housing must not be levied upon
workers. However, employers may require workers to reimburse them for
damage caused to housing by the individual worker(s) found to have been
responsible for damage which is not the result of normal wear and tear
related to habitation.
(4) Charges for public housing. If public housing provided for
migrant agricultural workers under the auspices of a local, county, or
State government is secured by the employer, the employer must pay any
charges normally required for use of the public housing units directly
to the housing's management.
(5) Family housing. When it is the prevailing practice in the area
of intended employment and the occupation to provide family housing, it
must be provided to workers with families who request it.
(6) Certified housing that becomes unavailable. If after a request
to certify housing, such housing becomes unavailable for reasons
outside the employer's control, the employer may substitute other
rental or public accommodation housing that is in compliance with the
local, State, or Federal housing standards applicable under this
section. The employer must promptly notify the SWA in writing of the
change in accommodations and the reason(s) for such change and provide
the SWA evidence of compliance with the applicable local, State or
Federal safety and health standards, in accordance with the
requirements of this section. If, upon inspection, the SWA determines
the substituted housing does not meet the applicable housing standards,
the SWA must promptly provide written notification to the employer to
cure the deficiencies with a copy to the CO. An employer's failure to
comply with the applicable standards will result in either a denial of
a pending Application for Temporary Employment Certification or
revocation of the temporary labor certification under this subpart.
(e) Workers' compensation.
(1) The employer must provide workers' compensation insurance
coverage in compliance with State law covering injury and disease
arising out of and in the course of the worker's employment. If the
type of employment for which the certification is sought is not covered
by or is exempt from the State's workers' compensation law, the
employer must provide, at no cost to the worker, insurance covering
injury and disease arising out of and in the course of the worker's
employment that will provide benefits at least equal to those provided
under the State workers' compensation law for other comparable
employment.
(2) Prior to issuance of the temporary labor certification, the
employer must provide the CO with proof of workers' compensation
insurance coverage meeting the requirements of this paragraph,
including the name of the insurance carrier, the insurance policy
number, and proof of insurance for the dates of need, or, if
appropriate, proof of State law coverage.
(f) Employer-provided items. The employer must provide to the
worker, without charge or deposit charge, all tools, supplies, and
equipment required to perform the duties assigned.
(g) Meals. The employer either must provide each worker with three
meals a day or must furnish free and convenient cooking and kitchen
facilities to the workers that will enable the workers to prepare their
own meals. Where the employer provides the meals, the job offer must
state the charge, if any, to the worker for such meals. The amount of
meal charges is governed by Sec. 655.173.
(h) Transportation; daily subsistence.
(1) Transportation to place of employment. If the employer has not
previously advanced such transportation and subsistence costs to the
worker or otherwise provided such transportation or subsistence
directly to the worker by other means and if the worker completes 50
percent of the work contract period, the employer must pay the worker
for reasonable costs incurred by the worker for transportation and
daily subsistence from the place from which the worker has come to work
for the employer, whether in the U.S. or abroad to the place of
employment. When it is the prevailing practice of non-H-2A agricultural
employers in the occupation in the area to do so, or when the employer
extends such benefits to similarly situated H-2A workers, the employer
must advance the required transportation and subsistence costs (or
otherwise provide them) to workers in corresponding employment who are
traveling to the employer's worksite. The amount of the transportation
payment must be no less (and is not required to be more) than the most
economical and reasonable common carrier transportation charges for the
distances involved. The amount of the daily subsistence payment must be
at least as much as the employer would charge the worker for providing
the worker with three meals a day during employment (if applicable),
but in no event less than the amount permitted under paragraph (f) of
this section. Note that the FLSA applies independently of the H-2A
requirements and imposes obligations on employers regarding payment of
wages.
(2) Transportation from place of employment. If the worker
completes the work contract period, or if the employee is terminated
without cause, and the worker has no immediate subsequent H-2A
employment, the employer must provide or pay for the worker's
transportation and daily subsistence from the place of employment to
the place from which the worker, disregarding intervening employment,
departed to work for the employer. If the worker has contracted with a
subsequent employer who has not agreed in such work contract to provide
or pay for the worker's transportation and daily subsistence expenses
from the employer's worksite to such subsequent employer's worksite,
the employer must provide or pay for such expenses. If the worker has
contracted with a subsequent employer who has agreed in such work
contract to provide or pay for the worker's transportation and daily
subsistence expenses from the employer's worksite to such subsequent
employer's worksite, the subsequent employer must provide or pay for
such expenses. The employer is not relieved of its obligation to
provide or pay for return transportation and subsistence if an H-2A
worker is displaced as a result of the employer's compliance with the
50 percent rule as described in Sec. 655.135(d) of this subpart
[[Page 45945]]
with respect to the referrals made after the employer's date of need.
(3) Transportation between living quarters and worksite. The
employer must provide transportation between housing provided or
secured by the employer and the employer's worksite at no cost to the
worker.
(4) Employer-provided transportation. All employer-provided
transportation must comply with all applicable Federal, State or local
laws and regulations, and must provide, at a minimum, the same
transportation safety standards, driver licensure, and vehicle
insurance as required under 29 U.S.C. 1841 and 29 CFR 500.105 and 29
CFR 500.120 to 500.128. If workers' compensation is used to cover
transportation, in lieu of vehicle insurance, the employer must either
ensure that the workers' compensation covers all travel or that vehicle
insurance exists to provide coverage for travel not covered by workers'
compensation and they must have property damage insurance.
(i) Three-fourths guarantee.
(1) Offer to worker. The employer must guarantee to offer the
worker employment for a total number of work hours equal to at least
three-fourths of the workdays of the total period beginning with the
first workday after the arrival of the worker at the place of
employment or the advertised contractual first date of need, whichever
is later, and ending on the expiration date specified in the work
contract or in its extensions, if any.
(i) For purposes of this paragraph a workday means the number of
hours in a workday as stated in the job order and excludes the worker's
Sabbath and Federal holidays. The employer must offer a total number of
hours to ensure the provision of sufficient work to reach the three-
fourths guarantee. The work hours must be offered during the work
period specified in the work contract, or during any modified work
contract period to which the worker and employer have mutually agreed
and that has been approved by the CO.
(ii) The work contract period can be shortened by agreement of the
parties only with the approval of the CO. In the event the worker
begins working later than the specified beginning date of the contract,
the guarantee period begins with the first workday after the arrival of
the worker at the place of employment, and continues until the last day
during which the work contract and all extensions thereof are in
effect.
(iii) Therefore, if, for example, a work contract is for a 10-week
period, during which a normal workweek is specified as 6 days a week, 8
hours per day, the worker would have to be guaranteed employment for at
least 360 hours (10 weeks x 48 hours/week = 480 hours x 75 percent =
360). If a Federal holiday occurred during the 10-week span, the 8
hours would be deducted from the total hours for the work contract,
before the guarantee is calculated. Continuing with the above example,
the worker would have to be guaranteed employment for 354 hours (10
weeks x 48 hours/week = 480 hours -8 hours (Federal holiday) x 75
percent = 354 hours).
(iv) A worker may be offered more than the specified hours of work
on a single workday. For purposes of meeting the guarantee, however,
the worker will not be required to work for more than the number of
hours specified in the job order for a workday, or on the worker's
Sabbath or Federal holidays. However, all hours of work actually
performed may be counted by the employer in calculating whether the
period of guaranteed employment has been met. If during the total work
contract period the employer affords the U.S. or H-2A worker less
employment than that required under this paragraph, the employer must
pay such worker the amount the worker would have earned had the worker,
in fact, worked for the guaranteed number of days. An employer will not
be considered to have met the work guarantee if the employer has merely
offered work on three-fourths of the workdays if each workday did not
consist of a full number of hours of work time as specified in the job
order.
(2) Guarantee for piece rate paid worker. If the worker is paid on
a piece rate basis, the employer must use the worker's average hourly
piece rate earnings or the AEWR, whichever is higher, to calculate the
amount due under the guarantee.
(3) Failure to work. Any hours the worker fails to work, up to a
maximum of the number of hours specified in the job order for a
workday, when the worker has been offered an opportunity to work in
accordance with paragraph (i)(1) of this section, and all hours of work
actually performed (including voluntary work over 8 hours in a workday
or on the worker's Sabbath or Federal holidays), may be counted by the
employer in calculating whether the period of guaranteed employment has
been met. An employer seeking to calculate whether the number of hours
has been met must maintain the payroll records in accordance with this
subpart.
(4) Displaced H-2A worker. The employer is not liable for payment
of the three-fourths guarantee to an H-2A worker whom the CO certifies
is displaced because of the employer's compliance with the 50 percent
rule described in Sec. 655.35(d) with respect to referrals made during
that period.
(5) Obligation to provide housing and meals. Notwithstanding the
three-fourths guarantee contained in this section, employers are
obligated to provide housing and meals in accordance with paragraphs
(d) and (g) of this section for each day of the contract period up
until the day the workers depart for other H-2A employment, depart to
the place outside of the U.S. from which the worker came, or, if the
worker voluntarily abandons employment or is terminated for cause, the
day of such abandonment or termination.
(j) Earnings records.
(1) The employer must keep accurate and adequate records with
respect to the workers' earnings, including but not limited to field
tally records, supporting summary payroll records, and records showing
the nature and amount of the work performed; the number of hours of
work offered each day by the employer (broken out by hours offered both
in accordance with and over and above the three-fourths guarantee at
paragraph (i)(3) of this section); the hours actually worked each day
by the worker; the time the worker began and ended each workday; the
rate of pay (both piece rate and hourly, if applicable); the worker's
earnings per pay period; the worker's home address; and the amount of
and reasons for any and all deductions taken from the worker's wages.
(2) Each employer must keep the records required by this part,
including field tally records and supporting summary payroll records,
safe and accessible at the place or places of employment, or at one or
more established central recordkeeping offices where such records are
customarily maintained. All records must be available for inspection
and transcription by the Secretary or a duly authorized and designated
representative, and by the worker and representatives designated by the
worker as evidenced by appropriate documentation (an Entry of
Appearance as Attorney or Representative, Form G-28, signed by the
worker, or an affidavit signed by the worker confirming such
representation). Where the records are maintained at a central
recordkeeping office, other than in the place or places of employment,
such records must be made available for inspection and copying within
72 hours following notice from the Secretary, or a duly authorized and
designated representative, and by the worker and
[[Page 45946]]
designated representatives as described in this paragraph.
(3) To assist in determining whether the three-fourths guarantee in
paragraph (i) of this section has been met, if the number of hours
worked by the worker on a day during the work contract period is less
than the number of hours offered, as specified in the job offer, the
records must state the reason or reasons therefor.
(4) The employer must retain the records for not less than 5 years
after the date of the certification.
(k) Hours and earnings statements. The employer must furnish to the
worker on or before each payday in one or more written statements the
following information:
(1) The worker's total earnings for the pay period;
(2) The worker's hourly rate and/or piece rate of pay;
(3) The hours of employment offered to the worker (showing offers
in accordance with the three-fourths guarantee as determined in
paragraph (i) of this section, separate from any hours offered over and
above the guarantee);
(4) The hours actually worked by the worker;
(5) An itemization of all deductions made from the worker's wages;
(6) If piece rates are used, the units produced daily;
(7) Beginning and ending dates of the pay period; and
(8) The employer's name, address and FEIN.
(l) Rates of pay. If the worker is paid by the hour, the employer
must pay the worker at least the AEWR in effect at the time work is
performed, the prevailing hourly wage rate, the prevailing piece rate,
or the Federal or State minimum wage rate, whichever is highest, for
every hour or portion thereof worked during a pay period.
(1) The offered wage may not be based on commission, bonuses, or
other incentives, unless the employer guarantees a wage paid on a
weekly, semi-monthly, or monthly basis that equals or exceeds the AEWR,
prevailing hourly wage or piece rate, or the legal Federal or State
minimum wage, whichever is highest; or
(2) If the worker is paid on a piece rate basis and at the end of
the pay period the piece rate does not result in average hourly piece
rate earnings during the pay period at least equal to the amount the
worker would have earned had the worker been paid at the appropriate
hourly rate:
(i) The worker's pay must be supplemented at that time so that the
worker's earnings are at least as much as the worker would have earned
during the pay period if the worker had instead been paid at the
appropriate hourly wage rate for each hour worked;
(ii) The piece rate must be no less than the piece rate prevailing
for the activity in the area of intended employment; and
(iii) If the employer who pays by the piece rate requires one or
more minimum productivity standards of workers as a condition of job
retention, such standards must be specified in the job offer and be no
more than those required by the employer in 1977, unless the OFLC
Administrator approves a higher minimum, or, if the employer first
applied for H-2A temporary labor certification after 1977, such
standards must be no more than those normally required (at the time of
the first Application for Temporary Labor Certification) by other
employers for the activity in the area of intended employment.
(m) Frequency of pay. The employer must state in the job offer the
frequency with which the worker will be paid, which must be at least
twice monthly or according to the prevailing practice in the area of
intended employment, whichever is more frequent. Employers must pay
wages when due.
(n) Abandonment of employment or termination for cause. If the
worker voluntarily abandons employment before the end of the contract
period, or is terminated for cause, and the employer notifies the NPC,
and DHS in the case of an H-2A worker, in writing or by any other
method specified by the Department or DHS in a manner specified in a
notice published in the Federal Register not later than 2 working days
after such abandonment occurs, the employer will not be responsible for
providing or paying for the subsequent transportation and subsistence
expenses of that H-2A worker under this section, and that worker is not
entitled to the three-fourths guarantee described in paragraph (i) of
this section. Abandonment will be deemed to begin after an H-2A worker
fails to report for work at the regularly scheduled time for 5
consecutive working days without the consent of the employer.
(o) Contract impossibility. If, before the expiration date
specified in the work contract, the services of the worker are no
longer required for reasons beyond the control of the employer due to
fire, weather, or other Act of God that makes the fulfillment of the
contract impossible, the employer may terminate the work contract.
Whether such an event constitutes a contract impossibility will be
determined by the CO. In the event of such termination of a contract,
the employer must fulfill a three-fourths guarantee for the time that
has elapsed from the start of the work contract to the time of its
termination, as described in paragraph (i)(1) of this section. The
employer must make efforts to transfer the worker to other comparable
employment acceptable to the worker, consistent with existing
immigration law, as applicable. If such transfer is not affected, the
employer must:
(1) Return the worker, at the employer's expense, to the place from
which the worker (disregarding intervening employment) came to work for
the employer, or transport the worker to the worker's next certified H-
2A employer (but only if the worker can provide documentation that
would be acceptable for Form I-9 purposes supporting such employment as
being authorized pursuant to 8 CFR 274a.12(b)(21) upon transfer),
whichever the worker prefers;
(2) Reimburse the worker the full amount of any deductions made
from the worker's pay by the employer for transportation and
subsistence expenses to the place of employment; and
(3) Pay the worker for any costs incurred by the worker for
transportation and daily subsistence to that employer's place of
employment. Daily subsistence must be computed as set forth in
paragraph (h) of this section. The amount of the transportation payment
must not be less (and is not required to be more) than the most
economical and reasonable common carrier transportation charges for the
distances involved.
(p) Deductions. The employer must make all deductions from the
worker's paycheck required by law. The job offer must specify all
deductions not required by law which the employer will make from the
worker's paycheck. All deductions must be reasonable. The employer may
deduct the cost of the worker's transportation and daily subsistence
expenses to the place of employment which were borne directly by the
employer. In such circumstances, the job offer must state that the
worker will be reimbursed the full amount of such deduction upon the
worker's completion of 50 percent of the work contract period. However,
an employer subject to the FLSA may not make deductions that would
violate the FLSA.
(q) Disclosure of work contract. The employer must provide to the
worker, no later then on the day the work commences, a copy of the work
contract between the employer and the worker in a language understood
by the worker as necessary or reasonable. At a minimum, the work
contract must contain all of the
[[Page 45947]]
provisions required by this section. In the absence of a separate,
written work contract entered into between the employer and the worker,
the required terms of the job order and the certified Application for
Temporary Employment Certification will be the work contract.
Application for Temporary Employment Certification Filing Procedures
Sec. 655.130 Application filing requirements.
All agricultural employers who desire to hire H-2A foreign
agricultural workers must apply for a certification from the Secretary
by filing an Application for Temporary Employment Certification with
the NPC designated by the OFLC Administrator. The following section
provides the procedures employers must follow when filing.
(a) What to file. An employer, whether individual, association, or
H-2ALC, that desires to apply for temporary employment certification of
one or more nonimmigrant foreign workers must file a completed
Application for Temporary Employment Certification form and, unless a
specific exemption applies, a copy of the DOL Agricultural and Food
Processing Clearance Order form submitted to the SWA serving the area
of intended employment, as set forth in Sec. 655.121(a).
(b) Timeliness. A completed Application for Temporary Employment
Certification must be filed no less than 45 calendar days before the
employer's date of need.
(c) Location and method of filing. The employer may send the
Application for Temporary Employment Certification and all required
supporting documentation by U.S. Mail or private mail courier to the
NPC. The Department will publish a Notice in the Federal Register
identifying the address(es), and any future address changes, to which
Applications for Temporary Labor Certification must be mailed, and will
also post these addresses on the OFLC Internet Web site at http://www.foreignlaborcert.doleta.gov/. The Department may also require
Applications for Temporary Labor Certification, at a future date, to be
filed electronically in addition to or instead of by mail, notice of
which will be published in the Federal Register.
(d) Original signature. The Application for Temporary Employment
Certification must bear the original signature of the employer (and
that of the employer's authorized attorney or agent if the employer is
represented by an attorney or agent). An association filing a master
application as a joint employer may sign on behalf of its employer
members. An association filing as an agent may not sign on behalf of
its members but must obtain each member's signature on each Application
for Temporary Labor Certification prior to filing.
(e) Information received in the course of processing Applications
for Temporary Labor Certification and program integrity measures such
as audits may be forwarded from OFLC to Wage and Hour Division (WHD)
for enforcement purposes.
Sec. 655.131 Association filing requirements.
If an association files an Application for Temporary Labor
Certification, in addition to complying with all the assurances,
guarantees, and other requirements contained in this subpart and in
part 653, subpart F, of this chapter, the following requirements also
apply.
(a) Individual applications. Associations of agricultural employers
may file an Application for Temporary Employment Certification for H-2A
workers as a sole employer, a joint employer, or agent. The association
must identify in the Application for Temporary Employment Certification
in what capacity it is filing. The association must retain
documentation substantiating the employer or agency status of the
association and be prepared to submit such documentation in response to
a Notice of Deficiency from the CO prior to issuing a Final
Determination, or in the event of an audit.
(b) Master applications. An association may file a master
application on behalf of its employer-members. The master application
is available only when the association is filing as a joint employer.
An association of agricultural producers may submit a master
application covering the same occupation and comparable work available
with a number of its employer-members in multiple areas of intended
employment, just as though all of the covered employers were in fact a
single employer, as long as a single date of need is provided for all
workers requested by the Application for Temporary Labor Certification
and all employer-members are located in the same State. The association
must identify on the Application for Temporary Employment Certification
by name, address, total number of workers needed, and the crops and
agricultural work to be performed, each employer that will employ H-2A
workers. The association, as appropriate, will receive a certified
Application for Temporary Employment Certification that can be copied
and sent to the United States Citizenship and Immigration Services
(USCIS) with each employer-member's petition.
Sec. 655.132 H-2A Labor contractor (H-2ALC) filing requirements.
If an H-2ALC intends to file an Application for Temporary
Employment Certification, the H-2ALC must meet all of the requirements
of the definition of employer in Sec. 655.100(b), and comply with all
the assurances, guarantees, and other requirements contained in this
part, including Assurances and Obligations of H-2A Employers, and in
part 653, subpart F, of this chapter.
(a) Scope of H-2ALC Applications. An Application for Temporary
Employment Certification filed by an H-2ALC must be limited to a single
area of intended employment in which the fixed-site employer(s) to whom
the H-2ALC is furnishing employees will be utilizing the employees.
(b) Required information and submissions. In filing the Application
for Temporary Employment Certification, the H-2ALC must include the
following:
(1) Identify on the Application for Temporary Employment
Certification and job offer the name and location of each fixed-site
agricultural business to which the H-2ALC expects to provide H-2A
workers, the expected beginning and ending dates when the H-2ALC will
be providing the workers to each fixed-site, and a description of the
crops and activities the workers are expected to perform at such fixed-
site.
(2) Provide a copy of the Migrant and Seasonal Agricultural Worker
Protection Act (MSPA) Farm Labor Contractor (FLC) Certificate of
Registration, if required under MSPA at 29 U.S.C. 1801 et seq.,
identifying the specific farm labor contracting activities the H-2ALC
is authorized to perform as an FLC.
(3) Provide proof of its ability to discharge financial obligations
under the H-2A program through a surety bond as required by 29 CFR
501.9, with documentation from the issuer identifying the name,
address, phone number, and contact person for the surety, and providing
the amount of the bond (as calculated pursuant to 29 CFR 501.9) and any
identifying designation utilized by the surety for the bond.
(4) Provide copies of the fully-executed work contracts with each
fixed-site agricultural business identified under paragraph (b)(1) of
this section.
(5) Where the fixed-site agricultural business will provide housing
or
[[Page 45948]]
transportation to the workers, provide proof that:
(i) All housing used by workers and owned, operated or secured by
the fixed-site agricultural business complies with the applicable
standards as set forth in Sec. 655.122(d) and certified by the SWA;
and
(ii) All transportation between the worksite and the workers'
living quarters that is provided by the fixed-site agricultural
business complies with all applicable Federal, State, or local laws and
regulations and must provide, at a minimum, the same vehicle safety
standards, driver licensure, and vehicle insurance as required under 29
U.S.C. 1841 and 29 CFR 500.105 and 500.120 to 500.128, except where
workers' compensation is used to cover such transportation as described
in Sec. 655.125(h).
Sec. 655.133 Requirements for agents.
(a) An agent filing an Application for Temporary Employment
Certification on behalf of an employer must provide a copy of the agent
agreement or other document demonstrating the agent's authority to
represent the employer.
(b) In addition the agent must provide a copy of the MSPA FLC
Certificate of Registration, if required under MSPA at 29 U.S.C. 1801
et seq., identifying the specific farm labor contracting activities the
agent is authorized to perform.
Sec. 655.134 Emergency situations.
(a) Waiver of time period. The CO may waive the time period for
filing for employers who did not make use of temporary alien
agricultural workers during the prior year's agricultural season or for
any employer that has other good and substantial cause (which may
include unforeseen changes in market conditions), provided that the CO
has sufficient time to test the domestic labor market on an expedited
basis to make the determinations required by Sec. 655.100.
(b) Employer requirements. The employer requesting a waiver of the
required time period must concurrently submit to NPC and to the SWA
serving the area of intended employment a completed Application for
Temporary Employment Certification, a completed job offer on the
Agricultural and Food Processing Clearance Order form, and a statement
justifying the request for a waiver of the time period requirement. The
statement must indicate whether the waiver request is due to the fact
that the employer did not use H-2A workers during the prior
agricultural season or whether the request is for good and substantial
cause. If the waiver is requested for good and substantial cause, the
employer's statement must also include detailed information describing
the good and substantial cause which has necessitated the waiver
request. Good and substantial cause may include, but is not limited to,
such things as the substantial loss of U.S. workers due to weather-
related activities or other reasons, unforeseen events affecting the
work activities to be performed, pandemic health issues, or similar
conditions.
(c) Processing of emergency applications. The CO will process
emergency Applications for Temporary Labor Certification in a manner
consistent with the provisions set forth in Sec. Sec. 655.140-145 and
make a determination on the Application for Temporary Employment
Certification in accordance with Sec. Sec. 655.160-167. The CO may
advise the employer in writing that the certification cannot be granted
because, pursuant to paragraph (a) of this section, the request for
emergency filing was not justified and there is not sufficient time to
test the availability of U.S. workers such that the CO can make a
determination on the Application for Temporary Labor Certification in
accordance with Sec. 655.161. Such notification will so inform the
employer using the procedures applicable to a denial of certification
set forth in Sec. 655.164.
Sec. 655.135 Assurances and obligations of H-2A employers.
An employer seeking to employ H-2A workers must agree as part of
the Application for Temporary Employment Certification and job offer
that it will abide by the requirements of this subpart and make each of
the following additional assurances:
(a) Non-discriminatory hiring practices. The job opportunity is,
and through the recruitment period must continue to be, open to any
qualified U.S. worker regardless of race, color, national origin, age,
sex, religion, handicap, or citizenship. Rejections of any U.S. workers
who applied or apply for the job must be only for lawful, job related
reasons, and those not rejected on this basis have been or will be
hired. In addition, the employer has and will continue to retain
records of all hires and rejections as required by Sec. 655.167.
(b) No strike or lockout. The worksite for which the employer is
requesting H-2A certification does not currently have workers on strike
or being locked out in the course of a labor dispute.
(c) Recruitment requirements. The employer has and will continue to
cooperate with the SWA by accepting referrals of all eligible U.S.
workers who apply (or on whose behalf an Application for Temporary
Employment Certification is made) for the job opportunity until the end
of the recruitment period as specified in paragraph (d) and must
independently conduct the positive recruitment activities, as specified
in Sec. 655.154, until the actual date on which the H-2A workers
depart for the place of work, or 3 calendar days prior to the first
date the employer requires the services of the H-2A workers, whichever
occurs first.
(d) Fifty percent rule. From the time the foreign workers depart
for the employer's place of employment, the employer must provide
employment to any qualified, eligible U.S. worker who applies to the
employer until 50 percent of the period of the work contract has
elapsed. Start of the work contract timeline is calculated from the
first date of need stated on the Application for Temporary Employment
Certification, under which the foreign worker who is in the job was
hired. This provision will not apply to any employer who certifies to
the CO in the Application for Temporary Employment Certification that
the employer:
(1) Did not, during any calendar quarter during the preceding
calendar year, use more than 500 man-days of agricultural labor, as
defined in sec. 203(u) of Title 29;
(2) Is not a member of an association which has petitioned for
certification under this subpart for its members; and
(3) Has not otherwise associated with other employers who are
petitioning for temporary foreign workers under this subpart.
(e) Comply with applicable laws. During the period of employment
that is the subject of the Application for Temporary Employment
Certification, the employer must comply with all applicable Federal,
State and local laws and regulations, including health and safety laws.
H-2A employers may also be subject to the FLSA. The FLSA operates
independently of the H-2A program and has specific requirements that
address payment of wages, including deductions from wages, the payment
of Federal minimum wage and payment of overtime.
(f) Job opportunity is full-time. The job opportunity is a full-
time temporary position, calculated to be at least 35 hours per work
week.
(g) No recent or future layoffs. The employer has not laid off and
will not lay off any similarly employed U.S. worker in the occupation
that is the subject of the Application for Temporary Employment
Certification in the area of intended employment except for lawful, job
related reasons within 60 days of the date of need, or if the
[[Page 45949]]
employer has laid off such workers, it has offered the job opportunity
that is the subject of the Application for Temporary Labor
Certification to those laid-off U.S. worker(s) and the U.S. worker(s)
either refused the job opportunity or was rejected for the job
opportunity for lawful, job-related reasons.
(h) No unfair treatment. The employer has not and will not
intimidate, threaten, restrain, coerce, blacklist, discharge or in any
manner discriminate against, and has not and will not cause any person
to intimidate, threaten, restrain, coerce, blacklist, or in any manner
discriminate against, any person who has:
(1) Filed a complaint under or related to 8 U.S.C. 1188, or this
subpart or any other Department regulation promulgated thereunder;
(2) Instituted or caused to be instituted any proceeding under or
related to 8 U.S.C. 1188 or this subpart or any other Department
regulation promulgated thereunder;
(3) Testified or is about to testify in any proceeding under or
related to 8 U.S.C. 1188 or this subpart or any other Department
regulation promulgated thereunder;
(4) Consulted with an employee of a legal assistance program or an
attorney on matters related to 8 U.S.C. 1188 or this subpart or any
other Department regulation promulgated thereunder; or
(5) Exercised or asserted on behalf of himself/herself or others
any right or protection afforded by 8 U.S.C. 1188 or this subpart or
any other Department regulation promulgated thereunder.
(i) Notify workers of duty to leave United States.
(1) The employer must inform H-2A workers of the requirement that
they leave the U.S. at the end of the period certified by the
Department or separation from the employer, whichever is earlier, as
required under paragraph (2) below, unless the H-2A worker is being
sponsored by another subsequent H-2A employer.
(2) As defined further in DHS regulations, a temporary labor
certification limits the validity period of an H-2A petition, and
therefore, the authorized period of stay for an H-2A worker. See 8 CFR
214.2(h)(5)(vii). A foreign worker may not remain beyond his or her
authorized period of stay, as established by DHS, which is based upon
the validity period of the labor certification under which the H-2A
worker is employed, nor beyond separation from employment prior to
completion of the H-2A contract, absent an extension or change of such
worker's status under DHS regulations. See 8 CFR 214.2(h)(5)(viii)(B).
(j) Comply with the prohibition against employees paying fees. The
employer and its agents have not sought or received payment of any kind
from any employee subject to 8 U.S.C. 1188 for any activity related to
obtaining H-2A labor certification, including payment of the employer's
attorneys' fees, application fees, or recruitment costs. For purposes
of this paragraph, payment includes, but is not limited to, monetary
payments, wage concessions (including deductions from wages, salary, or
benefits), kickbacks, bribes, tributes, in-kind payments, and free
labor. Subject to the provisions of the FLSA, this provision does not
prohibit employers or their agents from receiving reimbursement for
costs that are the responsibility of the worker, such as government-
required passport fees.
(k) Contracts with third parties comply with prohibitions. The
employer has contractually forbidden any foreign labor contractor or
recruiter (or any agent of such foreign labor contractor or recruiter)
whom the employer engages, either directly or indirectly, in
international recruitment of H-2A workers to seek or receive payments
or other compensation from prospective employees, except as provided
for in DHS regulations at 8 CFR 214.2(h)(5)(xi)(A). This documentation
is available upon request by the CO or another Federal party.
(l) Notice of worker rights. The employer must post and maintain in
a conspicuous location at the place of employment, a poster provided by
the Secretary in English, and, to the extent necessary, language common
to a significant portion of the workers if they are not fluent in
English, which sets out the rights and protections for workers employed
pursuant to 8 U.S.C. 1188.
Processing of Applications for Temporary Employment Certification
Sec. 655.140 Review of applications.
(a) NPC review. The CO will promptly review the Application for
Temporary Employment Certification and job order for compliance with
all applicable program requirements, including compliance with the
requirements set forth in this subpart.
(b) Mailing and postmark requirements. Any notice or request sent
by the CO(s) to an employer requiring a response will be sent using the
provided address via traditional methods to assure next day delivery.
The employer's response to such a notice or request must be filed using
traditional methods to assure next day delivery and be sent by the date
due or the next business day if the due date falls on a Sunday or
Federal Holiday.
Sec. 655.141 Notice of acceptance.
(a) Notification timeline. When the CO determines the Application
for Temporary Labor Certification and job order are complete and meet
the requirements set forth in this subpart, the CO will notify the
employer within 7 calendar days of the CO's receipt of the Application
for Temporary Labor Certification. A copy will be sent to the SWA
serving the area of intended employment.
(b) Notice content. The notice must:
(1) Authorize conditional access to the interstate clearance system
and direct the SWA to circulate a copy of the job order to other such
States the CO determines to be potential sources of U.S. workers;
(2) Direct the employer to engage in positive recruitment of U.S.
workers in a manner consistent with Sec. 655.154 and to submit a
report of its positive recruitment efforts as specified in Sec.
655.156 prior to making a Final Determination on the Application for
Temporary Employment Certification;
(3) State that positive recruitment is in addition to and will
occur during the period of time that the job order is being circulated
by the SWA(s) for interstate clearance under Sec. 655.150 of this
subpart and will terminate on the actual date on which the H-2A workers
depart for the place of work, or 3 calendar days prior to the first
date the employer requires the services of the H-2A workers, whichever
occurs first;
(4) State that the CO will make a determination either to grant or
deny the Application for Temporary Employment Certification no later
than 30 calendar days before the date of need, except as provided for
under Sec. 655.144 for modified Applications for Temporary Labor
Certification; and
(5) Will specify the time frames when positive recruitment must
occur, including newspaper advertisements.
Sec. 655.142 Electronic job registry.
(a) Location of and placement in the electronic job registry. Upon
acceptance of the Application for Temporary Labor Certification under
Sec. 655.141, the CO will promptly place for public examination a copy
of the job order on an electronic job registry maintained by the
Department, including any required modifications approved by the CO, as
specified in Sec. 655.144.
(b) Length of posting on electronic job registry. Unless otherwise
noted, the Department must keep the job order posted on the Electronic
Job Registry
[[Page 45950]]
until the end of 50 percent of the contract period as set forth in
Sec. 655.135(d).
Sec. 655.143 Notice of deficiency.
(a) Notification timeline. When the CO determines the Application
for Temporary Labor Certification and job order are incomplete, contain
errors or inaccuracies, or do not meet the requirements set forth in
this subpart, the CO will notify the employer within 7 calendar days of
the CO's receipt of the Application for Temporary Employment
Certification. A copy of this notification will be sent to the SWA
serving the area of intended employment.
(b) Notice content. The notice will:
(1) State the reason(s) why the Application for Temporary
Employment Certification or job order fails to meet the criteria for
acceptance, citing the relevant regulatory standard(s);
(2) Offer the employer an opportunity to submit a modified
Application for Temporary Employment Certification within 5 business
days from date of receipt stating the modification that is needed for
the CO to issue the Notice of Acceptance;
(3) Except as provided for under the expedited review or de novo
administrative hearing provisions of this section, state that the CO's
determination on whether to grant or deny the Application for Temporary
Employment Certification will be made no later than 30 calendar days
before the date of need, provided that the employer submits the
requested modification to the Application for Temporary Employment
Certification within 5 business days and in a manner specified by the
CO;
(4) Offer the employer an opportunity to request an expedited
administrative review or a de novo administrative hearing before an
Administrative Law Judge (ALJ), of the Notice of Deficiency. The notice
will state that in order to obtain such a review or hearing, the
employer, within 5 business days of the receipt of the notice, must
file by facsimile or other means normally assuring next day delivery a
written request to the Chief ALJ of DOL and simultaneously serve a copy
on the CO. The notice will also state that the employer may submit any
legal arguments that the employer believes will rebut the basis of the
CO's action; and
(5) State that if the employer does not comply with the
requirements under this section or request an expedited administrative
judicial review or a de novo hearing before an ALJ within the 5
business days the CO will deny the Application for Temporary Employment
Certification in accordance with the labor certification determination
provisions in Sec. 655.164.
(c) Appeal from notices of deficiency. The employer may timely
request an expedited administrative review or de novo hearing before an
ALJ by following the procedures set forth in Sec. 655.171.
Sec. 655.144 Submission of modified applications.
(a) Submission requirements and certification delays. If the
employer chooses to submit a modified Application for Temporary
Employment Certification, the CO's Final Determination will be
postponed by 1 calendar day for each day that passes beyond the 5
business-day period allowed under Sec. 655.143(b) to submit a modified
Application for Temporary Labor Certification, up to maximum of 5 days.
The Application for Temporary Employment Certification will be deemed
abandoned if the employer does not submit a modified Application for
Temporary Labor Certification within 12 calendar days after the notice
of deficiency was issued.
(b) Provisions for denial of modified Application for Temporary
Employment Certification. If the modified Application for Temporary
Employment Certification is not approved, the CO will deny the
Application for Temporary Labor Certification in accordance with the
labor certification determination provisions in Sec. 655.164.
(c) Appeal from denial of modified Application for Temporary
Employment Certification. The procedures for appealing a denial of a
modified Application for Temporary Labor Certification are the same as
for a non-modified Application for Temporary Labor Certification as
long as the employer timely requests an expedited administrative review
or de novo hearing before an ALJ by following the procedures set forth
in Sec. 655.171.
Sec. 655.145 Amendments to applications for temporary employment
certification.
(a) Increases in number of workers. Application for Temporary Labor
Certification may be amended at any time before the CO's certification
determination to increase the number of workers requested in the
initial Application for Temporary Labor Certification by not more than
20 percent (50 percent for employers requesting less than 10 workers)
without requiring an additional recruitment period for U.S. workers.
Requests for increases above the percent prescribed, without additional
recruitment, may be approved by the CO only when the request is
submitted in writing, and the employer demonstrates that the need for
additional workers could not have been foreseen, and the crops or
commodities will be in jeopardy prior to the expiration of an
additional recruitment period.
(b) Minor changes to the period of employment. Applications for
Temporary Labor Certification may be amended to make minor changes in
the total period of employment. Changes may not be effected until
submitted in written form to the CO and the employer receives approval
from the CO. In considering whether to approve the request, the CO will
review the reason(s) for the request, determine whether the reason(s)
are on the whole justified, and take into account the effect any
change(s) would have on the adequacy of the underlying test of the
domestic labor market for the job opportunity. An employer must
demonstrate that the change to the period of employment could not have
been foreseen, and the crops or commodities will be in jeopardy prior
to the expiration of an additional recruitment period. If the request
is for a delay in the start date and is made after workers have
departed for the employer's place of work, the CO may only approve the
change if the employer includes with the request a written assurance
signed and dated by the employer that all workers who are already
traveling to the job site will be provided housing and subsistence,
without cost to the workers, until work commences. Upon acceptance of
an amendment, the CO will submit to the SWA any necessary modification
to the job order.
Post-Acceptance Requirements
Sec. 655.150 Interstate clearance of job order.
(a) SWA posts in interstate clearance system. The SWA, on behalf of
the employer, must promptly place the job order in interstate clearance
to all States designated by the CO. At a minimum, the CO will instruct
the SWA to transmit a copy of its active job order to all States listed
in the job order as anticipated worksites covering the area of intended
employment.
(b) Duration of posting. Each of the SWAs to which the job order
was transmitted must keep the job order on its active file until 50
percent of the contract term has elapsed, and must refer each U.S.
worker who applies (or on whose behalf an Application for Temporary
Labor Certification is made) for the job opportunity.
Sec. 655.151 Newspaper advertisements.
(a) How to place advertisements.
[[Page 45951]]
(1) The employer must place an advertisement (in a language other
than English, where the CO determines appropriate) on 2 separate days,
which may be consecutive, one of which must be a Sunday (except as
provided in paragraph (b) of this section), in a newspaper of general
circulation serving the area of intended employment that has a
reasonable distribution and is appropriate to the occupation and the
workers likely to apply for the job opportunity. Newspaper
advertisements must satisfy the requirements set forth in Sec.
655.152.
(2) If the job opportunity is located in a rural area that does not
have a newspaper with a Sunday edition, the CO may direct the employer,
in place of a Sunday edition, to advertise in the regularly published
daily edition with the widest circulation in the area of intended
employment.
(b) When to place advertisements. The employer's obligation to
place newspaper advertisements must occur during the period of time
that the job order is being circulated by the SWA(s) for interstate
clearance under Sec. 655.150.
Sec. 655.152 Advertising requirements.
All advertising conducted to satisfy the required recruitment
activities under Sec. 655.151 must meet the requirements set forth in
this section and must contain terms and conditions of employment which
are not less favorable than those offered to the H-2A workers. All
advertising must contain the following information:
(a) The employer's name, or in the event that a master application
will be filed by an association, a statement indicating that the name
and location of each member of the association can be obtained from the
SWA of the State in which the advertisement is run;
(b) The geographic area of intended employment with enough
specificity to apprise applicants of any travel requirements and where
applicants will likely have to reside to perform the services or labor;
(c) A description of the job opportunity for which certification is
sought with sufficient information to apprise U.S. workers of services
or labor to be performed and the anticipated start and end dates of
employment of the job opportunity;
(d) The wage offer, or in the event that there are multiple wage
offers (such as where a master application will be filed by an
association and/or where there are multiple crop activities for a
single employer), the range of applicable wage offers and, where a
master application will be filed by an association, a statement
indicating that the rate(s) applicable to each employer can be obtained
from the SWA of the State in which the advertisement is run;
(e) The three-fourths guarantee specified in Sec. 655.122(i);
(f) If applicable, a statement that work tools, supplies, and
equipment will be provided at no cost to the worker;
(g) A statement that housing will be made available at no cost to
workers, including U.S. workers who cannot reasonably return to their
permanent residence at the end of each working day;
(h) If applicable, a statement that transportation and subsistence
expenses to the worksite will be provided by the employer or paid by
the employer upon completion of 50 percent of the work contract, or
earlier, if appropriate;
(i) A statement that the position is temporary and a specification
of the total number of job openings the employer intends to fill;
(j) A statement directing applicants to report or apply for the job
opportunity at the nearest office of the SWA of the State in which the
advertisement; and if the worksite is remote relative to the population
that is most likely to apply to the job opportunity, a alternative
accessible to that population where an employer may conduct interviews;
and
(k) Contact information for the applicable SWA and, if available,
the job order number.
Sec. 655.153 Contact with former U.S. employees.
The employer must contact by mail or other effective means its
former U.S. workers (except those who were dismissed for cause or
abandoned the worksite) employed by the employer in the occupation at
the place of employment during the previous year and solicit their
return to the job. This contact must occur during the period of time
that the job order is being circulated by the SWA(s) for interstate
clearance and documentation maintained in the event of an audit.
Sec. 655.154 Additional positive recruitment.
(a) Where to conduct additional recruitment. The employer must
conduct positive recruitment within a multistate region of traditional
or expected labor supply where the CO finds that there are a
significant number of qualified U.S. workers who, if recruited, would
be willing to make themselves available for work at the time and place
needed.
(b) Additional requirements should be comparable to non-H-2A
employers in the area. The CO will ensure that the effort, including
the location(s) and method(s) of the positive recruitment required of
the potential H-2A employer must be no less than the normal recruitment
efforts of non-H-2A agricultural employers of comparable or smaller
size in the area of intended employment, and the kind and degree of
recruitment efforts which the potential H-2A employer made to obtain
foreign workers.
(c) CO discretion to order additional positive recruitment. The CO
may require such additional recruitment as determined necessary.
(d) Proof of recruitment. The CO will specify the documentation or
other supporting evidence that must be maintained by the employer as
proof that the positive recruitment requirements were met.
Sec. 655.155 Referrals of U.S. workers.
SWAs may only refer for employment individuals who have been
apprised of all the material terms and conditions of employment and
have indicated, by accepting referral to the job opportunity, that he
or she is qualified, able, willing, and available for employment.
Sec. 655.156 Recruitment report.
(a) Requirements of a recruitment report. The employer must
prepare, sign, and date a written recruitment report. The recruitment
report must be submitted on a date specified by the CO in the Notice of
Acceptance set forth in Sec. 655.141 and contain the following
information:
(1) Identify the name of each recruitment source;
(2) State the name and contact information of each U.S. worker who
applied or was referred to the job opportunity up to the date of the
preparation of the recruitment report, and the disposition of each
worker;
(3) Confirm that former U.S. employees were contacted and by what
means; and
(4) If applicable, for each U.S. worker who applied for the
position but was not hired, explain the lawful job-related reason(s)
for not hiring the U.S. worker.
(b) Duty to update recruitment report. The employer must continue
to maintain the recruitment report throughout the recruitment period
including the 50 percent period. The updated report is not
automatically submitted to the Department, but must be made available
in the event of a post-certification audit or upon request by
authorized representatives of the Secretary.
Sec. 655.157 Withholding of U.S. workers prohibited.
(a) Filing a complaint. Any employer who has reason to believe that
a person
[[Page 45952]]
or entity has willfully and knowingly withheld U.S. workers prior to
the arrival at the worksite of H-2A workers in order to force the
hiring of U.S. workers during the recruitment period, as set forth in
Sec. 655.135(d), may submit a written complaint to the CO. The
complaint must clearly identify the person or entity who the employer
believes has withheld the U.S. workers, and must specify sufficient
facts to support the allegation (e.g., dates, places, numbers and names
of U.S. workers) which will permit an investigation to be conducted by
the CO.
(b) Duty to investigate. Upon receipt, the CO must immediately
investigate the complaint. The investigation must include interviews
with the employer who has submitted the complaint, the person or entity
named as responsible for withholding the U.S. workers, and the
individual U.S. workers whose availability has purportedly been
withheld.
(c) Duty to suspend the recruitment period. Where the CO
determines, after conducting the interviews required by paragraph (b),
that the employer's complaint is valid and justified, the CO will
immediately suspend the Application for Temporary Labor Certification
of the recruitment period, as set forth in Sec. 655.135(d), to the
employer. The CO's determination is the final decision of the
Secretary.
Sec. 655.158 Duration of positive recruitment.
Except as otherwise noted, the obligation to engage in positive
recruitment described in Sec. Sec. 655.150-655.154 shall terminate on
the date H-2A workers depart for the employer's place of work.
Labor Certification Determinations
Sec. 655.160 Determination.
Except as otherwise noted in this paragraph, the CO will make a
determination either to grant or deny the Application for Temporary
Employment Certification no later than 30 calendar days before the date
of need identified in the Application for Temporary Labor
Certification. An Application for Temporary Employment Certification
that are modified under Sec. 655.144 or that otherwise does not meet
the requirements for certification in this subpart are is not subject
to the 30-day timeframe for certification.
Sec. 655.161 Criteria for certification.
(a) The criteria for certification include whether the employer has
established the need for the agricultural services or labor to be
performed on a temporary or seasonal basis; complied with the
requirements of parts 653 and 654 of this chapter; complied with all of
this subpart, including but not limited to the timeliness requirements
in Sec. 655.130(b); complied with the offered wage rate criteria in
Sec. 655.120; made all the assurances in Sec. 655.135; and met all
the recruitment obligations required by Sec. 655.121 and Sec.
655.152.
(b) In making a determination as to whether there are insufficient
U.S. workers to fill the employer's job opportunity, the CO will count
as available any U.S. worker referred by the SWA or any U.S. worker who
applied (or on whose behalf an Application for Temporary Employment
Certification is made) directly to the employer, but who was rejected
by the employer for other than a lawful job-related reason or who has
not been provided with a lawful job-related reason for rejection by the
employer.
Sec. 655.162 Approved certification.
If temporary labor certification is granted, the CO will send the
certified Application for Temporary Employment Certification and a
Final Determination letter to the employer by means normally assuring
next-day delivery and a copy, if appropriate, to the employer's agent
or attorney.
Sec. 655.163 Certification fee.
A determination by the CO to grant an Application for Temporary
Employment Certification in whole or in part will include a bill for
the required certification fees. Each employer of H-2A workers under
the Application for Temporary Employment Certification (except joint
employer associations, which may not be assessed a fee in addition to
the fees assessed to the members of the association) must pay in a
timely manner a non-refundable fee upon issuance of the certification
granting the Application for Temporary Employment Certification (in
whole or in part), as follows:
(a) Amount. The Application for Temporary Employment Certification
fee for each employer receiving a temporary agricultural labor
certification is $100 plus $10 for each H-2A worker certified under the
Application for Temporary Labor Certification, provided that the fee to
an employer for each temporary agricultural labor certification
received will be no greater than $1,000. There is no additional fee to
the association filing the Application for Temporary Employment
Certification. The fees must be paid by check or money order made
payable to United States Department of Labor. In the case of an
agricultural association acting as a joint employer applying on behalf
of its H-2A employer members, the aggregate fees for all employers of
H-2A workers under the Application for Temporary Employment
Certification must be paid by one check or money order.
(b) Timeliness. Fees must be received by the CO no more than 30
days after the date of the certification. Non-payment or untimely
payment may be considered a substantial violation subject to the
procedures in Sec. 655.182.
Sec. 655.164 Denied certification.
If temporary labor certification is denied, the Final Determination
letter will be sent to the employer by means normally assuring next-day
delivery and a copy, if appropriate, to the employer's agent or
attorney. The Final Determination Letter will:
(a) State the reason(s) certification is denied, citing the
relevant regulatory standards and/or special procedures;
(b) Offer the applicant an opportunity to request an expedited
administrative review, or a de novo administrative hearing before an
ALJ, of the denial. The notice must state that in order to obtain such
a review or hearing, the employer, within 7 calendar days of the date
of the notice, must file by facsimile (fax), or other means normally
assuring next day delivery, a written request to the Chief ALJ of DOL
(giving the address) and simultaneously serve a copy on the CO. The
notice will also state that the employer may submit any legal arguments
which the employer believes will rebut the basis of the CO's action;
and
(c) State that if the employer does not request an expedited
administrative judicial review or a de novo hearing before an ALJ
within the 7 calendar days, the denial is final and the Department will
not further consider that Application for Temporary Employment
Certification.
Sec. 655.165 Partial certification.
The CO may issue a partial certification, reducing either the
period of need or the number of H-2A workers being requested or both
for certification, based upon information the CO receives during the
course of processing the Application for Temporary Employment
Certification, an audit, or otherwise. The number of workers certified
will be reduced by one for each referred U.S. worker who is able,
willing, and qualified, and who will be available at the time and place
needed and has not been rejected for lawful job-related reasons, to
perform the services or labor. If a partial labor certification is
issued, the Final Determination letter will:
(a) State the reason(s) why either the period of need and/or the
number of H-
[[Page 45953]]
2A workers requested has been reduced, citing the relevant regulatory
standards and/or special procedures;
(b) Offer the applicant an opportunity to request an expedited
administrative review, or a de novo administrative hearing before an
ALJ, of the decision. The notice will state that in order to obtain
such a review or hearing, the employer, within 7 calendar days of the
date of the notice, will file by facsimile or other means normally
assuring next day delivery a written request to the Chief ALJ of DOL
(giving the address) and simultaneously serve a copy on the CO. The
notice will also state that the employer may submit any legal arguments
which the employer believes will rebut the basis of the CO's action;
and
(c) State that if the employer does not request an expedited
administrative judicial review or a de novo hearing before an ALJ
within the 7 calendar days, the partial certification is final and the
Department will not further consider that Application for Temporary
Employment Certification.
Sec. 655.166 Appeal procedures.
If the employer timely requests an expedited administrative review
or de novo hearing before an ALJ under Sec. 655.165(c), the procedures
at Sec. 655.171 will be followed.
Sec. 655.167 Document retention requirements.
(a) Entities required to retain documents. All employers filing an
Application for Temporary Employment Certification requesting H-2A
agricultural workers under this subpart are required to retain the
documents and records proving compliance with this subpart.
(b) Period of required retention. Records and documents must be
retained for a period of 5 years from the date of certification of the
Application for Temporary Employment Certification or from the date of
determination if the Application for Temporary Labor Certification is
denied or withdrawn.
(c) Documents and records to be retained by all applicants.
(1) Proof of recruitment efforts, including:
(i) Job order placement as specified in Sec. 655.121;
(ii) Advertising as specified in Sec. 655.152, or, if used,
professional, trade, or ethnic publications;
(iii) Contact with former U.S. workers as specified in Sec.
655.153; or
(iv) Additional positive recruitment efforts (as specified in Sec.
655.154).
(2) Substantiation of information submitted in the recruitment
report prepared in accordance with Sec. 655.156, such as evidence of
nonapplicability of contact of former employees as specified in Sec.
655.153.
(3) The final recruitment report and any supporting resumes and
contact information as specified in Sec. 655.156(b).
(4) Proof of workers' compensation insurance or State law coverage
as specified in Sec. 655.122(e).
(5) Records of each worker's earnings as specified in Sec.
655.122(j).
(6) The work contract or a copy of the Application for Temporary
Employment Certification as defined in 29 CFR 501.10 and specified in
Sec. 655.122(q).
(d) Additional retention requirement for associations filing
Application for Temporary Employment Certification. In addition to the
documents specified in paragraph (c) above, Associations must retain
documentation substantiating their status as an employer or agent, as
specified in Sec. 655.131.
Post Certification
Sec. 655.170 Extensions.
An employer may apply for extensions of the period of employment in
the following circumstances.
(a) Short-term extension. Employers seeking extensions of 2 weeks
or less of the certified Application for Temporary Employment
Certification must apply directly to DHS for approval. If granted, the
Application for Temporary Employment Certification will be deemed
extended for such period as is approved by DHS.
(b) Long-term extension. Employers seeking extensions of more than
2 weeks may apply to the CO. Such requests must be related to weather
conditions or other factors beyond the control of the employer (which
may include unforeseen changes in market conditions). Such requests
must be supported in writing, with documentation showing that the
extension is needed and that the need could not have been reasonably
foreseen by the employer. The CO will notify the employer of the
decision in writing if time allows, or will otherwise notify the
employer of the decision. The CO will not grant an extension where the
total work contract period under that Application for Temporary
Employment Certification and extensions would be 12 months or more,
except in extraordinary circumstances. The employer may not appeal a
denial of a request for an extension.
Sec. 655.171 Appeals.
Where authorized in this subpart, employers may request an
administrative review or de novo hearing before an ALJ of a decision by
the CO. In such cases, the CO will send a copy of the OFLC
administrative file to the Chief ALJ by means normally assuring next-
day delivery. The Chief ALJ will immediately assign an ALJ (which may
be a panel of such persons designated by the Chief ALJ from the Board
of Alien Labor Certification Appeals (BALCA).
(a) Administrative review. Where the employer has requested
administrative review, within 5 business days after receipt of the ETA
administrative file the ALJ will, on the basis of the written record
and after due consideration of any written submissions (which may not
include new evidence) from the parties involved or amici curiae, either
affirm, reverse, or modify the CO's decision, or remand to the CO for
further action. The decision of the ALJ must specify the reasons for
the action taken and must be immediately provided to the employer, the
CO, the OFLC Administrator and DHS by means normally assuring next-day
delivery. The ALJ's decision is the final decision of the Secretary.
(b) De novo hearing.
(1) Conduct of hearing. Where the employer has requested a de novo
hearing the procedures in 29 CFR part 18 apply to such hearings, except
that:
(i) The appeal will not be considered to be a complaint to which an
answer is required;
(ii) The ALJ will ensure that the hearing is scheduled to take
place within 5 calendar days after the ALJ's receipt of the OFLC
administrative file, if the employer so requests, and will allow for
the introduction of new evidence; and
(iii) The ALJ's decision must be rendered within 10 calendar days
after the hearing.
(2) Decision. After a de novo hearing, the ALJ must affirm,
reverse, or modify the CO's determination, or remand to the CO for
further action. The decision of the ALJ must specify the reasons for
the action taken and must be immediately provided to the employer, CO,
OFLC Administrator and DHS by means normally assuring next-day
delivery. The ALJ's decision is the final decision of the Secretary.
Sec. 655.172 Withdrawal of job order and application for temporary
employment certification.
(a) Employers may withdraw a job order from intrastate posting if
the employer no longer plans to file an H-2A Application for Temporary
Labor Certification. However, a withdrawal of a job order does not
nullify existing obligations to those workers recruited in
[[Page 45954]]
connection with the placement of a job order pursuant to this subpart
or the filing of an Application for Temporary Employment Certification.
(b) Employers may withdraw an Application for Temporary Labor
Certification once it has been formally accepted by the NPC. However,
the employer is still obligated to comply with the terms and conditions
of employment contained in the Application for Temporary Labor
Certification with respect to workers recruited in connection with that
application.
Sec. 655.173 Setting meal charges; petition for higher meal charges.
(a) Meal charges. Until a new amount is set under this paragraph,
an employer may charge workers up to $9.90 for providing them with
three meals per day. The maximum charge allowed by this paragraph (a)
will be changed annually by the same percentage as the 12 month
percentage change for the Consumer Price Index for all Urban Consumers
for Food between December of the year just concluded and December of
the year prior to that. The annual adjustments will be effective on the
date of their publication by the OFLC Administrator as a Notice in the
Federal Register. When a charge or deduction for the cost of meals
would bring the employee's wage below the minimum wage set by the FLSA
at 29 U.S.C. 206 the charge or deduction must meet the requirements of
29 U.S.C. 203(m) of the FLSA, including the recordkeeping requirements
found at 29 CFR 516.27.
(b) Filing petitions for higher meal charges. The employer may file
a petition with the CO to charge more than the applicable amount for
meal charges if the employer justifies the charges and submits to the
CO the documentation required by paragraph (b)(1) of this section.
(1) Documentation submitted must include the cost of goods and
services directly related to the preparation and serving of meals, the
number of workers fed, the number of meals served and the number of
days meals were provided. The cost of the following items may be
included: Food; kitchen supplies other than food, such as lunch bags
and soap; labor costs that have a direct relation to food service
operations, such as wages of cooks and dining hall supervisors; fuel,
water, electricity, and other utilities used for the food service
operation; and other costs directly related to the food service
operation. Charges for transportation, depreciation, overhead and
similar charges may not be included. Receipts and other cost records
for a representative pay period must be retained and must be available
for inspection by the CO for a period of 1 year.
(2) The employer may begin charging the higher rate upon receipt of
a favorable decision from the CO unless the CO sets a later effective
date in the decision.
(c) Appeal rights. In the event the employer's petition for a
higher meal charge is denied in whole or in part, the employer may
appeal the denial. Appeals will be filed with the Chief ALJ, pursuant
to Sec. 655.171.
Sec. 655.174 Public disclosure.
The Department will maintain an electronic file accessible to the
public with information on all employers applying for temporary
agricultural labor certifications. The database will include such
information as the number of workers requested, the date filed, the
date decided, and the final disposition.
Integrity Measures
Sec. 655.180 Audit.
The Department will conduct audits of Application for Temporary
Employment Certification for which certifications have been granted.
(a) Discretion. The Application for Temporary Employment
Certification selected for audit will be chosen within the sole
discretion of the Department.
(b) Audit letter. Where an Application for Temporary Employment
Certification is selected for audit, the CO will issue an audit letter
to the employer and a copy, if appropriate, to the employer's agent or
attorney. The audit letter will:
(1) State the documentation that must be submitted by the employer;
(2) Specify a date no more than 30 days from the date of the audit
letter by which the required documentation must be received by the CO;
and
(3) Advise that failure to comply with the audit process may result
in the revocation of the certification or program debarment.
(c) Supplemental information request. During the course of the
audit examination, the CO may request supplemental information and/or
documentation from the employer in order to complete the audit.
(d) Potential referrals. In addition to steps in this subpart, the
CO may determine to provide the audit findings and underlying
documentation to DHS or another appropriate enforcement agency. The CO
will refer any findings that an employer discouraged an eligible U.S.
worker from applying, or failed to hire, discharged, or otherwise
discriminated against an eligible U.S. worker, to the Department of
Justice, Civil Rights Division, Office of Special Counsel for Unfair
Immigration Related Employment Practices.
Sec. 655.181 Revocation.
(a) Basis for DOL revocation. The CO, in consultation with the OFLC
Administrator, may revoke a temporary agricultural labor certification
approved under this subpart, if the CO finds:
(1) The issuance of the temporary agricultural labor certification
was not justified based on criteria set forth under 8 U.S.C. 1188;
(2) The employer substantially violated a material term or
condition of the approved temporary agricultural labor certification,
as defined in Sec. 655.182(d);
(3) The employer failed to cooperate with a DOL investigation or
with a DOL official performing an investigation, inspection, audit (as
discussed in Sec. 655.180), or law enforcement function under 8 U.S.C.
1188, 29 CFR part 501, or this subpart; or
(4) The employer failed to comply with one or more sanctions or
remedies imposed by the WHD, or with one or more decisions or orders of
the Secretary or a court order secured by the Secretary under 8 U.S.C.
1188, 29 CFR part 501, or this subpart.
(b) DOL procedures for revocation.
(1) Notice of Revocation. If the CO makes a determination to revoke
an employer's temporary labor certification, the CO will send to the
employer (and its attorney or agent) a Notice of Revocation. The Notice
will contain a detailed statement of the grounds for the revocation,
and it will inform the employer of its right to submit rebuttal
evidence or to appeal. If the employer does not file rebuttal evidence
or an appeal within 14 days of the date of the Notice of Revocation,
the Notice is the final decision of the Secretary and will take effect
immediately at the end of the 14-day period.
(2) Rebuttal. The employer may submit evidence to rebut the grounds
stated in the Notice of Revocation within 14 calendar days of the date
the Notice is issued. If rebuttal evidence is timely filed by the
employer, the CO will inform the employer of the CO's final
determination on the revocation within 14 calendar days of receiving
the rebuttal evidence. If the CO determines that the certification
should be revoked, the CO will inform the employer of its right to
appeal according to the procedures of Sec. 655.171. The employer must
file the appeal within 10 calendar days after the CO's final
determination, or the CO's determination is the final
[[Page 45955]]
decision of the Secretary and will take effect immediately at the end
of the 10-day period.
(3) Appeal. An employer may appeal a Notice of Revocation, or a
final determination of the CO after the review of rebuttal evidence,
according to the appeal procedures of Sec. 655.171. The ALJ's decision
is the final decision of the Secretary.
(4) Stay. The timely filing of rebuttal evidence or an
administrative appeal will stay the revocation pending the outcome of
those proceedings.
(5) Decision. If the temporary agricultural labor certification is
revoked, the CO will send a copy of the final decision of the Secretary
to DHS and the Department of State (DOS).
(c) Employer's obligations in the event of revocation. If an
employer's temporary agricultural labor certification is revoked
pursuant to this section, the employer is responsible for:
(1) Reimbursement of actual inbound transportation and subsistence
expenses, as if the worker meets the requirements for payment under
Sec. 655.122(h)(1);
(2) The worker's outbound transportation expenses, as if the worker
meets the requirements for payment under Sec. 655.122(h)(2);
(3) Payment to the worker of the amount due under the three-fourths
guarantee as required by Sec. 655.122(i); and
(4) Any other wages, benefits, and working conditions due or owing
to the worker under this subpart.
Sec. 655.182 Debarment.
(a) Debarment of an employer. The OFLC Administrator may debar an
employer or any successor in interest to that employer from receiving
future labor certifications under this subpart, subject to the time
limits set forth in paragraph (c) of this section, if the OFLC
Administrator finds that the employer substantially violated a material
term or condition of its temporary labor certification, with respect to
H-2A workers, workers in corresponding employment, or U.S. workers
improperly rejected for employment, or improperly laid off or
displaced.
(b) Debarment of an agent or attorney. The OFLC Administrator may
debar an agent or attorney from participating in any action under 8
U.S.C. 1188, this subpart, or 29 CFR part 501, if the OFLC
Administrator finds that the agent or attorney participated in, had
knowledge of, or had reason to know of, an employer's substantial
violation. The OFLC Administrator may not issue future labor
certifications under this subpart to any employer represented by a
debarred agent or attorney, subject to the time limits set forth in
paragraph (c) of this section.
(c) Statute of Limitations and Period of Debarment.
(1) The OFLC Administrator must issue any Notice of Debarment no
later than 2 years after the occurrence of the violation.
(2) No employer, attorney, or agent may be debarred under this
subpart for more than 3 years from the date of the final agency
decision.
(d) Definition of violation. For the purposes of this section, a
violation includes:
(1) One or more acts of commission or omission on the part of the
employer or the employer's agent which involve:
(i) Failure to pay or provide the required wages, benefits or
working conditions to the employer's H-2A workers and/or workers in
corresponding employment;
(ii) Failure, except for lawful, job-related reasons, to offer
employment to qualified U.S. workers who applied for the job
opportunity for which certification was sought;
(iii) Failure to comply with the employer's obligations to recruit
U.S. workers;
(iv) Improper layoff or displacement of U.S. workers or workers in
corresponding employment;
(v) Failure to comply with one or more sanctions or remedies
imposed by the WHD Administrator for violation(s) of contractual or
other H-2A obligations, or with one or more decisions or orders of the
Secretary or a court under 8 U.S.C. 1188, 29 CFR part 501, or this
subpart;
(vi) Impeding an investigation of an employer under 8 U.S.C. 1188
or 29 CFR part 501, or an audit under Sec. 655.180 of this subpart;
(vii) Employing an H-2A worker outside the area of intended
employment, in an activity/activities not listed in the job order, or
outside the validity period of employment of the job order, including
any approved extension thereof;
(viii) A violation of the requirements of Sec. 655.135(j) and (k);
(ix) A violation of any of the provisions listed in 29 CFR
501.4(a); or
(x) A single heinous act showing such flagrant disregard for the
law that future compliance with program requirements cannot reasonably
be expected;
(2) The employer's failure to pay a necessary fee in a timely
manner;
(3) Fraud involving the Application for Temporary Employment
Certification; or
(4) The employer making a material misrepresentation of fact during
the application process.
(e) Determining whether a violation is substantial. In determining
whether a violation is so substantial so as to merit debarment, the
factors the CO may consider include, but are not limited to, the
following:
(1) Previous history of violation(s) of 8 U.S.C. 1188, 29 CFR part
501, or this subpart;
(2) The number of H-2A workers, workers in corresponding
employment, or U.S. workers who were and/or are affected by the
violation(s);
(3) The gravity of the violation(s);
(4) Efforts made in good faith to comply with 8 U.S.C. 1188, 29 CFR
part 501, and this subpart;
(5) Explanation from the person charged with the violation(s);
(6) Commitment to future compliance, taking into account the public
health, interest, or safety, and whether the person has previously
violated 8 U.S.C. 1188;
(7) The extent to which the violator achieved a financial gain due
to the violation(s), or the potential financial loss or potential
injury to the worker(s).
(f) Debarment procedure.
(1) Notice of Debarment. If the CO makes a determination to debar
an employer, attorney, or agent, the CO will send that person a Notice
of Debarment. The Notice will state the reason for the debarment
finding, including a detailed explanation of the grounds for and the
duration of the debarment, and the Notice will state the person's
opportunity to request a debarment hearing. The Notice will state that,
to obtain such a hearing, the debarred party must, within 30 calendar
days of the date of the Notice, file a written request to the Chief
Administrative Law Judge, United States Department of Labor, 800 K
Street, NW., Suite 400-N, Washington, DC 20001-8002, and simultaneously
serve a copy to the Administrator, OFLC. The debarment will take effect
30 days from the date the Notice of Debarment is issued, unless a
request for review is properly filed within 30 days from the issuance
of the Notice of Debarment. The timely filing of an administrative
appeal stays the debarment pending the outcome of the appeal.
(2) Hearing. Within 10 days of receipt of the request for a
hearing, the OFLC Administrator will send a certified copy of the ETA
case file to the Chief ALJ by means normally assuring next-day
delivery. The Chief ALJ will immediately assign an ALJ to conduct the
hearing. The procedures in 29 CFR part 18 apply to such hearings,
except that the request for a hearing will not be
[[Page 45956]]
considered to be a complaint to which an answer is required.
(3) Decision. After the hearing, the ALJ must affirm, reverse, or
modify the OFLC Administrator's determination. The ALJ will prepare the
decision within 60 days after completion of the hearing and closing of
the record. The ALJ's decision will be provided immediately to the
employer, OFLC Administrator, DHS, and DOS by means normally assuring
next-day delivery. The ALJ's decision is the final decision of the
Secretary, unless either party, within 30 calendar days of the ALJ's
decision, seeks review of the decision with the Administrative Review
Board (ARB).
(4) Review by the ARB.
(i) Any party wishing review of the decision of an ALJ must, within
30 days of the decision of the ALJ, petition the ARB to review the
decision. Copies of the petition must be served on all parties and on
the ALJ. The ARB will decide whether to accept the petition within 30
days of receipt. If the ARB declines to accept the petition, or if the
ARB does not issue a notice accepting a petition within 30 days after
the receipt of a timely filing of the petition, the decision of the ALJ
will be deemed the final agency action. If a petition for review is
accepted, the decision of the ALJ will be stayed unless and until the
ARB issues an order affirming the decision. The ARB must serve notice
of its decision to accept or not to accept the petition upon the ALJ
and upon all parties to the proceeding in person or by certified mail.
(ii) Upon receipt of the ARB's notice to accept the petition, the
Office of Administrative Law Judges will promptly forward a copy of the
complete hearing record to the ARB.
(iii) Where the ARB has determined to review such decision and
order, the ARB will notify each party of the issue(s) raised, the form
in which submissions must be made (e.g., briefs or oral argument), and
the time within which such presentation must be submitted.
(5) ARB Decision. The ARB's final decision must be issued within 90
days from the notice granting the petition and served upon all parties
and the ALJ, in person or by certified mail. If the ARB fails to
provide a decision within 90 days from the notice granting the
petition, the ALJ's decision will be the final decision of the
Secretary.
(g) Concurrent debarment jurisdiction. OFLC and the WHD have
concurrent jurisdiction to impose a debarment remedy under this section
or under 29 CFR 501.20. When considering debarment, OFLC and the WHD
may inform one another and may coordinate their activities, so that a
specific violation for which debarment is imposed is cited in a single
debarment proceeding. Copies of final debarment decisions will be
forwarded to DHS promptly.
(h) Debarment involving members of associations. If the OFLC
Administrator determines that an individual employer-member of a joint
employer association has committed a substantial violation, the
debarment determination will apply only to that member unless the OFLC
Administrator determines that the association or another association
member participated in the violation, in which case the debarment will
be invoked against the association or other complicit association
member(s) as well.
(i) Debarment involving associations acting as joint employers. If
the OFLC Administrator determines that an association acting as a joint
employer with its members has committed a substantial violation, the
debarment determination will apply only to the association, and will
not be applied to any individual employer-member of the association.
However, if the OFLC Administrator determines that the member
participated in, had knowledge of, or had reason to know of the
violation, the debarment may be invoked against the complicit
association member as well. An association debarred from the H-2A
temporary labor certification program will not be permitted to continue
to file as a joint employer with its members during the period of the
debarment.
(j) Debarment involving associations acting as sole employers. If
the OFLC Administrator determines that an association acting as a sole
employer has committed a substantial violation, the debarment
determination will apply only to the association and any successor in
interest to the debarred association.
Sec. 655.183 Less than substantial violations.
(a) Requirement of special procedures. If the OFLC Administrator
determines that a less than substantial violation has occurred, but the
OFLC Administrator has reason to believe that past actions on the part
of the employer (or agent or attorney) may have had and may continue to
have a chilling or otherwise negative effect on the recruitment,
employment, and retention of U.S. workers, the OFLC Administrator may
require the employer to conform to special procedures before and after
the temporary labor certification determination. These special
procedures may include special on-site positive recruitment and
streamlined interviewing and referral techniques. The special
procedures are designed to enhance U.S. worker recruitment and
retention in the next year as a condition for receiving a temporary
agricultural labor certification. Such requirements will be reasonable;
will not require the employer to offer better wages, working
conditions, and benefits than those specified in Sec. 655.122; and
will be no more than deemed necessary to assure employer compliance
with the test of U.S. worker availability and adverse effect criteria
of this subpart.
(b) Notification of required special procedures. The OFLC
Administrator will notify the employer (or agent or attorney) in
writing of the special procedures that will be required in the coming
year. The notification will state the reasons for the imposition of the
requirements, state that the employer's agreement to accept the
conditions will constitute inclusion of them as bona fide conditions
and terms of a temporary agricultural labor certification, and will
offer the employer an opportunity to request an administrative review
or a de novo hearing before an ALJ. If an administrative review or de
novo hearing is requested, the procedures prescribed in Sec. 655.171
will apply.
(c) Failure to comply with special procedures. If the OFLC
Administrator determines that the employer has failed to comply with
special procedures required pursuant to paragraph (a) of this section,
the OFLC Administrator will send a written notice to the employer,
stating that the employer's otherwise affirmative H-2A certification
determination will be reduced by 25 percent of the total number of H-2A
workers requested (which cannot be more than those requested in the
previous year) for a period of 1 year. Notice of such a reduction in
the number of workers requested will be conveyed to the employer by the
OFLC Administrator in the OFLC Administrator's written certification
determination. The notice will offer the employer an opportunity to
request administrative review or a de novo hearing before an ALJ. If
administrative review or a de novo hearing is requested, the procedures
prescribed in Sec. 655.171 will apply, provided that if the ALJ
affirms the OFLC Administrator's determination that the employer has
failed to comply with special procedures required by paragraph (a) of
this section, the reduction in the number of workers requested will be
25 percent of the total number of H-2A workers requested (which cannot
be more than those
[[Page 45957]]
requested in the previous year) for a period of 1 year.
Sec. 655.184 Applications involving fraud or willful
misrepresentation.
(a) Referral for investigation. If the CO discovers possible fraud
or willful misrepresentation involving an Application for Temporary
Labor Certification, the CO may refer the matter to the DHS and the
Department's Office of the Inspector General for investigation.
(b) Sanctions. If the WHD, a court or the DHS determines that there
was fraud or willful misrepresentation involving an Application for
Temporary Labor Certification and certification has been granted, a
finding under this paragraph will be cause to revoke the certification.
The finding of fraud or willful misrepresentation may also constitute a
debarrable violation under Sec. 655.182.
Sec. 655.185 Job service complaint system; enforcement of work
contracts.
(a) Filing with DOL. Complaints arising under this subpart must be
filed through the Job Service Complaint System, as described in 20 CFR
part 658, subpart E. Complaints involving allegations of fraud or
misrepresentation must be referred by the SWA to the CO for appropriate
handling and resolution. Complaints that involve worker contracts must
be referred by the SWA to the WHD for appropriate handling and
resolution, as described in 29 CFR part 501. As part of this process,
the WHD may report the results of its investigation to the OFLC
Administrator for consideration of employer penalties or such other
action as may be appropriate.
(b) Filing with the Department of Justice. Complaints alleging that
an employer discouraged an eligible U.S. worker from applying, failed
to hire, discharged, or otherwise discriminated against an eligible
U.S. worker, or discovered violations involving the same, will be
referred to the U.S. Department of Justice, Civil Rights Division,
Office of Special Counsel for Unfair Immigration Related Employment
Practices (OSC), in addition to any activity, investigation, and/or
enforcement action taken by ETA or a SWA. Likewise, if OSC becomes
aware of a violation of these regulations, it may provide such
information to the appropriate SWA and the CO.
TITLE 29--LABOR
Revise part 501 to read as follows:
PART 501--ENFORCEMENT OF CONTRACTUAL OBLIGATIONS FOR TEMPORARY
ALIEN AGRICULTURAL WORKERS ADMITTED UNDER SECTION 218 OF THE
IMMIGRATION AND NATIONALITY ACT
Subpart A--General Provisions
Sec.
501.0 Introduction.
501.1 Purpose and scope.
501.2 Coordination between Federal agencies.
501.3 Definitions.
501.4 Discrimination prohibited.
501.5 Waiver of rights prohibited.
501.6 Investigation authority of Secretary.
501.7 Cooperation with Federal officials.
501.8 Accuracy of information, statements, data.
501.9 Surety bond.
Subpart B--Enforcement
501.15 Enforcement.
501.16 Sanctions and remedies--general.
501.17 Concurrent actions.
501.18 Representation of the secretary.
501.19 Civil money penalty assessment.
501.20 Debarment and revocation.
501.21 Failure to cooperate with investigations.
501.22 Civil money penalties--payment and pollection.
Subpart C--Administrative Proceedings
501.30 Applicability of procedures and rules.
Procedures Relating to Hearing
501.31 Written notice of determination required.
501.32 Contents of notice.
501.33 Request for hearing.
Rules of Practice
501.34 General.
501.35 Commencement of proceeding.
501.36 Caption of proceeding.
Referral for Hearing
501.37 Referral to Administrative Law Judge.
501.38 Notice of docketing.
501.39 Service upon attorneys for the Department of Labor--number of
copies.
Procedures Before Administrative Law Judge
501.40 Consent findings and order.
Post-Hearing Procedures
501.41 Decision and order of Administrative Law judge.
Review of Administrative Law Judge's Decision
501.42 Procedures for initiating and undertaking review.
501.43 Responsibility of the Office of Administrative Law Judges
(OALJ).
501.44 Additional information, if required.
501.45 Final decision of the Administrative Review Board.
Record
501.46 Retention of official record.
501.47 Certification.
Authority: 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c), and 1188.
Subpart A--General Provisions
Sec. 501.0 Introduction.
These regulations cover the enforcement of all contractual
obligations, including requirements under 8 U.S.C. 1188 and 20 CFR part
655, subpart B applicable to the employment of H-2A workers and workers
in corresponding employment, including obligations to offer employment
to eligible United States (U.S.) workers and to not lay off or displace
U.S. workers in a manner prohibited by these regulations or 20 CFR part
655, subpart B.
Sec. 501.1 Purpose and scope.
(a) Statutory standards. 8 U.S.C. 1188 provides that:
(1) A petition to import an alien as an H-2A worker (as defined at
8 U.S.C. 1188) may not be approved by the Secretary of the Department
of Homeland Security (DHS) unless the petitioner has applied to the
U.S. Secretary of Labor (Secretary) for a certification that:
(i) There are not sufficient workers who are able, willing, and
qualified, and who will be available at the time and place needed, to
perform the labor or services involved in the petition, and
(ii) The employment of the alien in such labor or services will not
adversely affect the wages and working conditions of workers in the
U.S. similarly employed.
(2) The Secretary is authorized to take actions that assure
compliance with the terms and conditions of employment under 8 U.S.C.
1188, the regulations at 20 CFR part 655, subpart B, or these
regulations, including imposing appropriate penalties, and seeking
injunctive relief and specific performance of contractual obligations.
See 8 U.S.C. 1188(g)(2).
(b) Role of the Employment and Training Administration (ETA). The
issuance and denial of labor certification under 8 U.S.C. 1188 has been
delegated by the Secretary to ETA, an agency within the U.S. Department
of Labor (the Department or DOL), who in turn has delegated that
authority to the Office of Foreign Labor Certification (OFLC). In
general, matters concerning the obligations of an employer of H-2A
workers related to the labor certification process are administered by
OFLC, including obligations and assurances made by employers,
overseeing employer recruitment and assuring program integrity. The
regulations pertaining to the issuance, denial, and
[[Page 45958]]
revocation of labor certification for temporary foreign workers by the
OFLC are found in 20 CFR part 655, subpart B.
(c) Role of the Employment Standards Administration (ESA), Wage and
Hour Division (WHD). Certain investigatory, inspection, and law
enforcement functions to carry out the provisions under 8 U.S.C. 1188
have been delegated by the Secretary to the WHD. In general, matters
concerning the obligations under a work contract between an employer of
H-2A workers and the H-2A workers and workers in corresponding
employment are enforced by WHD, including whether employment was
offered to U.S. workers as required under 8 U.S.C. 1188 or 20 CFR part
655, subpart B, or whether U.S. workers were laid off or displaced in
violation of program requirements. Included within the enforcement
responsibility of WHD are such matters as the payment of required
wages, transportation, meals, and housing provided during the
employment. The WHD has the responsibility to carry out investigations,
inspections, and law enforcement functions and in appropriate instances
to impose penalties, to debar from future certifications, to recommend
revocation of existing certification(s), and to seek injunctive relief
and specific performance of contractual obligations, including recovery
of unpaid wages and reinstatement of laid off or displaced U.S.
workers.
(d) Effect of regulations. The enforcement functions carried out by
the WHD under 8 U.S.C. 1188, 20 CFR part 655, subpart B, and these
regulations apply to the employment of any H-2A worker and any other
worker in corresponding employment as the result of any Application for
Temporary Employment Certification filed with the Department on and
after the effective date of these regulations.
Sec. 501.2 Coordination between Federal agencies.
(a) Complaints received by ETA or any State Workforce Agency (SWA)
regarding contractual H-2A labor standards between the employer and the
employee will be immediately forwarded to the appropriate WHD office
for appropriate action under these regulations.
(b) Information received in the course of processing applications,
program integrity measures, or enforcement actions may be shared
between OFLC and WHD, or other agencies as appropriate, including the
Department of State (DOS) and DHS, for enforcement purposes.
(c) A specific violation for which debarment is imposed will be
cited in a single debarment proceeding. OFLC and the WHD may coordinate
their activities to achieve this result. Copies of final debarment
decisions will be forwarded to the DHS promptly.
Sec. 501.3 Definitions.
(a) Definitions of terms used in this part.
Administrative Law Judge (ALJ). A person within the Department's
Office of Administrative Law Judges appointed pursuant to 5 U.S.C.
3105.
Adverse effect wage rate (AEWR). The annual weighted average hourly
wage for field and livestock workers (combined) in the States or
regions as published annually by the U.S. Department of Agriculture
(USDA) based on its quarterly wage survey.
Agent. A legal entity or person, such as an association of
agricultural employers, or an attorney for an association, that:
(1) Is authorized to act on behalf of the employer for temporary
agricultural labor certification purposes;
(2) Is not itself an employer, or a joint employer, as defined in
this section with respect to a specific Application for Temporary Labor
Certification; and
(3) Is not under suspension, debarment, expulsion, or disbarment
from practice before any court, the Department, the Executive Office
for Immigration Review, or DHS under 8 CFR 292.3 or 1003.101.
Agricultural association. Any nonprofit or cooperative association
of farmers, growers, or ranchers (including but not limited to
processing establishments, canneries, gins, packing sheds, nurseries,
or other similar fixed-site agricultural employers), incorporated or
qualified under applicable State law, that recruits, solicits, hires,
employs, furnishes, houses, or transports any worker that is subject to
8 U.S.C. 1188, 20 CFR part 655, subpart B, or this part. An
agricultural association may act as the agent of an employer, or may
act as the sole or joint employer of any worker subject to 8 U.S.C.
1188.
Area of intended employment. The geographic area within normal
commuting distance of the place of the job opportunity for which the
certification is sought. There is no rigid measure of distance that
constitutes a normal commuting distance or normal commuting area,
because there may be widely varying factual circumstances among
different areas (e.g., average commuting times, barriers to reaching
the worksite, quality of the regional transportation network). If the
place of intended employment is within a Metropolitan Statistical Area
(MSA), including a multistate MSA, any place within the MSA is deemed
to be within normal commuting distance of the place of intended
employment. The borders of MSAs are not controlling in the
identification of the normal commuting area; a location outside of an
MSA may be within normal commuting distance of a location that is
inside (e.g., near the border of) the MSA.
Corresponding employment. The employment of workers who are not H-
2A workers by an employer who has an approved H-2A Application for
Temporary Labor Certification in any work included in the job order, or
in any agricultural work performed by the H-2A workers. To qualify as
corresponding employment the work must be performed during the validity
period of the job order, including any approved extension thereof.
Date of need. The first date the employer requires the services of
H-2A workers as indicated in the Application for Temporary Employment
Certification.
Employee. A person who is engaged to perform work for an employer,
as defined under the general common law of agency. Some of the factors
relevant to the determination of employee status include: The hiring
party's right to control the manner and means by which the work is
accomplished; the skill required to perform the work; the source of the
instrumentalities and tools for accomplishing the work; the location of
the work; the hiring party's discretion over when and how long to work;
and whether the work is part of the regular business of the hiring
party. Other applicable factors may be considered and no one factor is
dispositive.
Employer. A person (including any individual, partnership,
association, corporation, cooperative, firm, joint stock company,
trust, or other organization with legal rights and duties) that:
(1) Has a place of business (physical location) in the U.S. and a
means by which it may be contacted for employment;
(2) Has an employer relationship (such as the ability to hire, pay,
fire, supervise or otherwise control the work of employee) with respect
to an H-2A worker or a worker in corresponding employment; and
(3) Possesses, for purposes of filing an Application for Temporary
Employment Certification, a valid Federal Employer Identification
Number (FEIN).
Federal holiday. Legal public holiday as defined at 5 U.S.C. 6103.
[[Page 45959]]
Fixed-site employer. Any person engaged in agriculture who meets
the definition of an employer, as those terms are defined in this part,
who owns or operates a farm, ranch, processing establishment, cannery,
gin, packing shed, nursery, or other similar fixed-site location where
agricultural activities are performed and who recruits, solicits,
hires, employs, houses, or transports any worker subject to 8 U.S.C.
1188, 20 CFR part 655, subpart B or this part, as incident to or in
conjunction with the owner's or operator's own agricultural operation.
H-2A Labor Contractor (H-2ALC). Any person who meets the definition
of employer under this part and is not a fixed-site employer, an
agricultural association, or an employee of a fixed-site employer or
agricultural association, as those terms are used in this part, who
recruits, solicits, hires, employs, furnishes, houses, or transports
any worker subject to 8 U.S.C. 1188, 20 CFR part 655, subpart B or this
part.
H-2A worker. Any temporary foreign worker who is lawfully present
in the U.S. and authorized by DHS to perform agricultural labor or
services of a temporary or seasonal nature pursuant to 8 U.S.C.
1101(a)(15)(H)(ii)(a).
Job offer. The offer made by an employer or potential employer of
H-2A workers to both U.S. and H-2A workers describing all the material
terms and conditions of employment, including those relating to wages,
working conditions, and other benefits.
Job opportunity. Full-time employment at a place in the U.S. to
which U.S. workers can be referred.
Job order. The document containing the terms and conditions of
employment that is posted by the SWA on its inter- and intra-state job
clearance systems based on the employer's Form ETA-790, as submitted to
the SWA.
Joint employment. Where two or more employers each have sufficient
definitional indicia of an employer to be considered the employer of a
worker, those employers will be considered to jointly employ that
worker. Each employer in a joint employment relationship to a worker is
considered a joint employer of that worker.
Prevailing wage. Wage established pursuant to 20 CFR 653.501(d)(4).
State Workforce Agency (SWA). State government agency that receives
funds pursuant to the Wagner-Peyser Act (29 U.S.C. 49 et seq.) to
administer the State's public labor exchange activities.
Successor in interest. Where an employer has violated 8 U.S.C.
1188, 20 CFR part 655, subpart B, or these regulations, and has ceased
doing business or cannot be located for purposes of enforcement, a
successor in interest to that employer may be held liable for the
duties and obligations of the violating employer in certain
circumstances. The following factors, as used under Title VII of the
Civil Rights Act and the Vietnam Era Veterans' Readjustment Assistance
Act, may be considered in determining whether an employer is a
successor in interest; no one factor is dispositive, but all of the
circumstances will be considered as a whole:
(1) Substantial continuity of the same business operations;
(2) Use of the same facilities;
(3) Continuity of the work force;
(4) Similarity of jobs and working conditions;
(5) Similarity of supervisory personnel;
(6) Whether the former management or owner retains a direct or indirect
interest in the new enterprise;
(7) Similarity in machinery, equipment, and production methods;
(8) Similarity of products and services; and
(9) The ability of the predecessor to provide relief.
For purposes of debarment only, the primary consideration will be
the personal involvement of the firm's ownership, management,
supervisors, and others associated with the firm in the violations at
issue.
Temporary agricultural labor certification. Certification made by
the OFLC Administrator with respect to an employer seeking to file with
DHS a visa petition to employ one or more foreign nationals as an H-2A
worker, pursuant to 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(a) and (c),
and 1188.
United States (U.S.). The continental U.S., Alaska, Hawaii, the
Commonwealth of Puerto Rico, and the territories of Guam, the Virgin
Islands, and, as of the transition program effective date, as defined
in the Consolidated Natural Resources Act of 2008, Public Law 110-229,
Title VII, the Commonwealth of the Northern Mariana Islands.
United States worker (U.S. worker). A worker who is:
(1) A citizen or national of the U.S.; or
(2) An alien who is lawfully admitted for permanent residence in
the U.S., is admitted as a refugee under 8 U.S.C. 1157, is granted
asylum under 8 U.S.C. 1158, or is an immigrant otherwise authorized (by
the INA or by DHS) to be employed in the U.S.; or
(3) An individual who is an authorized alien (as defined in 8
U.S.C. 1324a(h)(3)) with respect to the employment in which the worker
is engaging.
WHD Administrator. The Administrator of the Wage and Hour Division
(WHD), and such authorized representatives as may be designated to
perform any of the functions of the WHD Administrator under this part.
Wages. All forms of cash remuneration to a worker by an employer in
payment for personal services.
Work contract. All the material terms and conditions of employment
relating to wages, hours, working conditions, and other benefits,
including those required by 8 U.S.C. 1188, 20 CFR part 655, subpart B,
or this part. The contract between the employer and the worker may be
in the form of a separate written document. In the absence of a
separate written work contract incorporating the required terms and
conditions of employment, agreed to by both the employer and the
worker, the work contract at a minimum will be the terms of the job
order and any obligations required under 8 U.S.C. 1188, 20 CFR part
655, subpart B or this part.
(b) Definition of agricultural labor or services. For the purposes
of this part, agricultural labor or services, pursuant to 8 U.S.C.
1101(a)(15)(H)(ii)(a), is defined as: agricultural labor as defined and
applied in sec. 3121(g) of the Internal Revenue Code of 1986 at 26
U.S.C. 3121(g); agriculture as defined and applied in sec. 3(f) of the
Fair Labor Standards Act of 1938 (FLSA) at 29 U.S.C. 203(f); the
pressing of apples for cider on a farm; logging employment;
reforestation activities; or pine straw activities.
(1) Agricultural labor for the purpose of paragraph (b) of this
section means all service performed:
(i) On a farm, in the employ of any person, in connection with
cultivating the soil, or in connection with raising or harvesting any
agricultural or horticultural commodity, including the raising,
shearing, feeding, caring for, training, and management of livestock,
bees, poultry, and fur-bearing animals and wildlife;
(ii) In the employ of the owner or tenant or other operator of a
farm, in connection with the operation, management, conservation,
improvement, or maintenance of such farm and its tools and equipment,
or in salvaging timber or clearing land of brush and other debris left
by a hurricane, if the major part of such service is performed on a
farm;
(iii) In connection with the production or harvesting of any
commodity defined as an agricultural commodity in section 15(g) of the
[[Page 45960]]
Agricultural Marketing Act, as amended (12 U.S.C. 1141j), or in
connection with the ginning of cotton, or in connection with the
operation or maintenance of ditches, canals, reservoirs, or waterways,
not owned or operated for profit, used exclusively for supplying and
storing water for farming purposes;
(iv) In the employ of the operator of a farm in handling, planting,
drying, packing, packaging, processing, freezing, grading, storing, or
delivering to storage or to market or to a carrier for transportation
to market, in its unmanufactured state, any agricultural or
horticultural commodity; but only if such operator produced more than
one-half of the commodity with respect to which such service is
performed;
(v) In the employ of a group of operators of farms (other than a
cooperative organization) in the performance of service described in
paragraph (b)(1)(iv) but only if such operators produced all of the
commodity with respect to which such service is performed. For purposes
of this paragraph, any unincorporated group of operators shall be
deemed a cooperative organization if the number of operators comprising
such group is more than 20 at any time during the calendar year in
which such service is performed;
(vi) The provisions of paragraphs (b)(1)(iv) and (b)(1)(v) shall
not be deemed to be applicable with respect to service performed in
connection with commercial canning or commercial freezing or in
connection with any agricultural or horticultural commodity after its
delivery to a terminal market for distribution for consumption; or
(vii) On a farm operated for profit if such service is not in the
course of the employer's trade or business or is domestic service in a
private home of the employer.
As used in this section, the term farm includes stock, dairy,
poultry, fruit, fur-bearing animal, and truck farms, plantations,
ranches, nurseries, ranges, greenhouses or other similar structures
used primarily for the raising of agricultural or horticultural
commodities, and orchards.
(2) Agriculture. For purposes of paragraph (b) of this section,
agriculture means farming in all its branches and among other things
includes the cultivation and tillage of the soil, dairying, the
production, cultivation, growing, and harvesting of any agricultural or
horticultural commodities (including commodities defined as
agricultural commodities in 1141j(g) of title 12, the raising of
livestock, bees, fur-bearing animals, or poultry, and any practices
(including any forestry or lumbering operations) performed by a farmer
or on a farm as an incident to or in conjunction with such farming
operations, including preparation for market, delivery to storage or to
market or to carriers for transportation to market. See sec. 29 U.S.C.
203(f), as amended (sec. 3(f) of the FLSA, as codified). Under 12
U.S.C. 1141j(g) agricultural commodities include, in addition to other
agricultural commodities, crude gum (oleoresin) from a living tree, and
the following products as processed by the original producer of the
crude gum (oleoresin) from which derived: gum spirits of turpentine and
gum rosin. In addition as defined in 7 U.S.C. 92, gum spirits of
turpentine means spirits of turpentine made from gum (oleoresin) from a
living tree and gum rosin means rosin remaining after the distillation
of gum spirits of turpentine.
(3) Apple pressing for cider. The pressing of apples for cider on a
farm, as the term farm is defined and applied in sec. 3121(g) of the
Internal Revenue Code at 26 U.S.C. 3121(g) or as applied in sec. 3(f)
of FLSA at 29 U.S.C. 203(f), pursuant to 29 CFR part 780.
(4) Logging employment. Operations associated with felling and
moving trees and logs from the stump to the point of delivery, such as,
but not limited to, marking danger trees and trees/logs to be cut to
length, felling, limbing, bucking, debarking, chipping, yarding,
loading, unloading, storing, and transporting machines, equipment and
personnel to, from and between logging sites.
(5) Reforestation activities. Predominately manual forestry work
that includes, but is not limited to, tree planting, brush clearing and
pre-commercial tree thinning.
(6) Pine straw activities. Certain activities predominately
performed using hand tools, including but not limited to the raking,
gathering, baling, and loading of pine straw that is a product of pine
trees that are managed using agricultural or horticultural/
silvicultural techniques.
(c) Definition of a temporary or seasonal nature. For the purposes
of this part, employment is of a seasonal nature where it is tied to a
certain time of year by an event or pattern, such as a short annual
growing cycle or a specific aspect of a longer cycle, and requires
labor levels far above those necessary for ongoing operations.
Employment is of a temporary nature where the employer's need to fill
the position with a temporary worker will, except in extraordinary
circumstances, last no longer than 1 year.
Sec. 501.4 Discrimination prohibited.
(a) A person may not intimidate, threaten, restrain, coerce,
blacklist, discharge, or in any manner discriminate against any person
who has:
(1) Filed a complaint under or related to 8 U.S.C. 1188 or these
regulations;
(2) Instituted or caused to be instituted any proceedings related
to 8 U.S.C. 1188 or these regulations;
(3) Testified or is about to testify in any proceeding under or
related to 8 U.S.C. 1188 or these regulations;
(4) Consulted with an employee of a legal assistance program or an
attorney on matters related to 8 U.S.C. 1188, or to this subpart or any
other Department regulation promulgated pursuant to 8 U.S.C. 1188; or
(5) Exercised or asserted on behalf of himself or others any right
or protection afforded by 8 U.S.C. 1188 or these regulations.
(b) Allegations of discrimination against any person under
paragraph (a) of this section will be investigated by the WHD. Where
the WHD has determined through investigation that such allegations have
been substantiated, appropriate remedies may be sought. The WHD may
assess civil money penalties, seek injunctive relief, and/or seek
additional remedies necessary to make the employee whole as a result of
the discrimination, as appropriate, initiate debarment proceedings, and
recommend to OFLC revocation of any such violator's current labor
certification. Complaints alleging discrimination against workers or
immigrants based on citizenship or immigration status may also be
forwarded by the WHD to the Department of Justice, Civil Rights
Division, Office of Special Counsel for Immigration-Related Unfair
Employment Practices.
Sec. 501.5 Waiver of rights prohibited.
A person may not seek to have an H-2A worker, a worker in
corresponding employment, or a U.S. worker improperly rejected for
employment or improperly laid off or displaced waive any rights
conferred under 8 U.S.C. 1188, 20 CFR part 655, subpart B, or these
regulations. Any agreement by an employee purporting to waive or modify
any rights given to said person under these provisions shall be void as
contrary to public policy except as follows:
(1) Waivers or modifications of rights or obligations hereunder in
favor of the Secretary shall be valid for purposes of enforcement; and
(2) Agreements in settlement of private litigation are permitted.
[[Page 45961]]
Sec. 501.6 Investigation authority of Secretary.
(a) General. The Secretary, through the WHD, may investigate to
determine compliance with obligations under 8 U.S.C. 1188, 20 CFR part
655, subpart B, or these regulations, either pursuant to a complaint or
otherwise, as may be appropriate. In connection with such an
investigation, WHD may enter and inspect any premises, land, property,
housing, vehicles, and records (and make transcriptions thereof),
question any person and gather any information as may be appropriate.
(b) Confidential investigation. The WHD shall conduct
investigations in a manner that protects the confidentiality of any
complainant or other person who provides information to the Secretary
in good faith.
(c) Report of violations. Any person may report a violation of the
obligations imposed by 8 U.S.C. 1188, 20 CFR part 655, subpart B, or
these regulations to the Secretary by advising any local office of the
SWA, ETA, WHD or any other authorized representative of the Secretary.
The office or person receiving such a report shall refer it to the
appropriate office of WHD for the geographic area in which the reported
violation is alleged to have occurred.
Sec. 501.7 Cooperation with Federal officials.
All persons must cooperate with any Federal officials assigned to
perform an investigation, inspection, or law enforcement function
pursuant to 8 U.S.C. 1188 and these regulations during the performance
of such duties. The WHD will take such action as it deems appropriate,
including initiating debarment proceedings, seeking an injunction to
bar any failure to cooperate with an investigation and/or assessing a
civil money penalty therefor. In addition, the WHD will report the
matter to OFLC, and may recommend to OFLC that the person's existing
labor certification be revoked. In addition, Federal statutes
prohibiting persons from interfering with a Federal officer in the
course of official duties are found at 18 U.S.C. 111 and 18 U.S.C. 114.
Sec. 501.8 Accuracy of information, statements, data.
Information, statements and data submitted in compliance with 8
U.S.C. 1188 or these regulations are subject to 18 U.S.C. 1001, which
provides, with regard to statements or entries generally, that whoever,
in any matter within the jurisdiction of any department or agency of
the U.S., knowingly and willfully falsifies, conceals, or covers up a
material fact by any trick, scheme, or device, or makes any false,
fictitious, or fraudulent statements or representations, or makes or
uses any false writing or document knowing the same to contain any
false, fictitious, or fraudulent statement or entry, shall be fined not
more than $10,000 or imprisoned not more than 5 years, or both.
Sec. 501.9 Surety bond.
(a) Every H-2ALC must obtain a surety bond demonstrating its
ability to discharge financial obligations under the H-2A program.
Documentation from the issuer must be provided with the Application for
Temporary Employment Certification identifying the name, address, phone
number, and contact person for the surety, and providing the amount of
the bond (as calculated in this section), date of its issuance and
expiration and any identifying designation utilized by the surety for
the bond.
(b) The bond must be payable to the Administrator, Wage and Hour
Division, United States Department of Labor, 200 Constitution Avenue,
NW., Room S-3502, Washington, DC 20210. It will obligate the surety to
pay any sums to the WHD Administrator for wages and benefits owed to an
H-2A worker or to a worker in corresponding employment, or to a U.S.
worker improperly rejected or improperly laid off or displaced, based
on a final decision finding a violation or violations of this part or
20 CFR part 655, subpart B relating to the labor certification the bond
is intended to cover. The aggregate liability of the surety shall not
exceed the face amount of the bond. The bond must be written to cover
liability incurred during the term of the period listed in the
Application for Temporary Employment Certification for labor
certification made by the H-2ALC, and shall be amended to cover any
extensions of the labor certification requested by the H-2ALC.
(c) The bond must be in the amount of $5,000 for a labor
certification for which a H-2ALC will employ fewer than 25 workers;
$10,000 for a labor certification for which a H-2ALC will employ 25 to
49 workers; $20,000 for a labor certification for which a H-2ALC will
employ 50 to 74 workers; $50,000 for a labor certification for which a
H-2ALC will employ 75 to 99 workers; and $75,000 for a labor
certification for which a H-2ALC will employ 100 or more workers. The
amount of the bond may be increased by the WHD Administrator after
notice and an opportunity for hearing when it is shown based on
objective criteria that the amount of the bond is insufficient to meet
potential liabilities.
(d) The bond must remain in force for a period of no less than 2
years from the date on which the labor certification expires. If the
WHD has commenced any enforcement action under these regulations
against the employer or any successor in interest by that date, the
bond shall remain in force until the conclusion of such action and any
appeal or related litigation. Surety bonds may not be canceled or
terminated unless 45 days' notice is provided by the surety in writing
to the WHD Administrator, at the address set forth in paragraph (b).
Subpart B--Enforcement
Sec. 501.15 Enforcement.
The investigation, inspection, and law enforcement functions to
carry out the provisions of 8 U.S.C. 1188, 20 CFR part 655, subpart B,
or these regulations, as provided in these regulations for enforcement
by the WHD, pertain to the employment of any H-2A worker, any worker in
corresponding employment, or any U.S. worker improperly rejected for
employment or improperly laid off or displaced. Such enforcement
includes the work contract provisions as defined in Sec. 501.3(a).
Sec. 501.16 Sanctions and remedies--general.
Whenever the WHD Administrator believes that 8 U.S.C. 1188, 20 CFR
part 655, subpart B, or these regulations have been violated, such
action shall be taken and such proceedings instituted as deemed
appropriate, including (but not limited to) the following:
(a)(1) Institute appropriate administrative proceedings, including:
The recovery of unpaid wages (including recovery of recruitment fees
paid in the absence of required contract clauses (see 20 CFR
655.135(k)); the enforcement of provisions of the work contract, 8
U.S.C. 1188, 20 CFR part 655, subpart B, or these regulations; the
assessment of a civil money penalty; make whole relief for any person
who has been discriminated against; reinstatement and make-whole relief
for any U.S. worker who has been improperly rejected for employment,
laid off or displaced; or debarment for up to 3 years.
(2) The remedies referenced in paragraph (1) will be sought either
directly from the employer, or from its successor in interest, as
appropriate. In the case of an H-2ALC, the remedies will be sought from
the H-2ALC directly and/or monetary relief (other than civil money
penalties) from the insurer who issued the surety bond to the H-2ALC,
as required by 20 CFR part
[[Page 45962]]
655, subpart B and section 501.9 of this part.
(b) Petition any appropriate District Court of the U.S. for
temporary or permanent injunctive relief, including to prohibit the
withholding of unpaid wages and/or for reinstatement, or to restrain
violation of 8 U.S.C. 1188, 20 CFR part 655, subpart B, or these
regulations, by any person.
(c) Petition any appropriate District Court of the U.S. for an
order directing specific performance of covered contractual
obligations.
Sec. 501.17 Concurrent actions.
OFLC has primary responsibility to make all determinations
regarding the issuance, denial, or revocation of a labor certification
as described in Sec. 501.1(b) of this part and in 20 CFR part 655,
subpart B. The WHD has primary responsibility to make all
determinations regarding the enforcement functions as described in
Sec. 501.1(c) of this part. The taking of any one of the actions
referred to above shall not be a bar to the concurrent taking of any
other action authorized by 8 U.S.C. 1188, 20 CFR part 655, subpart B,
or these regulations. OFLC and the WHD have concurrent jurisdiction to
impose a debarment remedy under 20 CFR 655.182 or under Sec. 501.20 of
these regulations.
Sec. 501.18 Representation of the Secretary.
The Solicitor of Labor, through authorized representatives, shall
represent the WHD Administrator and the Secretary in all administrative
hearings under 8 U.S.C. 1188 and these regulations.
Sec. 501.19 Civil money penalty assessment.
(a) A civil money penalty may be assessed by the WHD Administrator
for each violation of the work contract, or the obligations imposed by
8 U.S.C. 1188, 20 CFR part 655, subpart B, or these regulations. Each
failure to pay an individual worker properly or to honor the terms or
conditions of a worker's employment required by 8 U.S.C. 1188, 20 CFR
part 655, subpart B, or these regulations constitutes a separate
violation.
(b) In determining the amount of penalty to be assessed for each
violation, the WHD Administrator shall consider the type of violation
committed and other relevant factors. The factors that may be
considered include, but are not limited to, the following:
(1) Previous history of violation(s) of 8 U.S.C. 1188, 20 CFR part
655, subpart B, or these regulations;
(2) The number of H-2A workers, workers in corresponding
employment, or U.S. workers who were and/or are affected by the
violation(s);
(3) The gravity of the violation(s);
(4) Efforts made in good faith to comply with 8 U.S.C. 1188, 20 CFR
part 655, subpart B, and these regulations;
(5) Explanation from the person charged with the violation(s);
(6) Commitment to future compliance, taking into account the public
health, interest or safety, and whether the person has previously
violated 8 U.S.C. 1188;
(7) The extent to which the violator achieved a financial gain due
to the violation, or the potential financial loss or potential injury
to the workers.
(c) A civil money penalty for each violation of the work contract
or a requirement of 8 U.S.C. 1188, 20 CFR part 655, subpart B, or these
regulations will not exceed $1,500 per violation, with the following
exceptions:
(1) A civil money penalty for each willful violation of the work
contract, or of 8 U.S.C. 1188, 20 CFR part 655, subpart B, or these
regulations, or for each act of discrimination prohibited by Sec.
501.4 shall not exceed $5,000;
(2) A civil money penalty for a violation of a housing or
transportation safety and health provision of the work contract, or any
obligation under 8 U.S.C. 1188, 20 CFR part 655, subpart B, or these
regulations, that proximately causes the death or serious injury of any
worker shall not exceed $50,000 per worker;
(3) For purposes of this section, the term serious injury includes,
but is not limited to:
(i) Permanent loss or substantial impairment of one of the senses
(sight, hearing, taste, smell, tactile sensation);
(ii) Permanent loss or substantial impairment of the function of a
bodily member, organ or mental faculty, including the loss of all or
part of an arm, leg, foot, hand or other body part; or
(iii) Permanent paralysis or substantial impairment that causes
loss of movement or mobility of an arm, leg, foot, hand or other body
part.
(4) A civil money penalty for a repeat or willful violation of a
housing or transportation safety and health provision of the work
contract, or any obligation under 8 U.S.C. 1188, 20 CFR part 655,
subpart B, or these regulations, that proximately causes the death or
serious injury of any worker, shall not exceed $100,000 per worker.
(d) A civil money penalty for failure to cooperate with a WHD
investigation shall not exceed $5,000 per investigation.
(e) A civil money penalty for laying off or displacing any U.S.
worker employed in work or activities that are encompassed by the
approved Application for Temporary Labor Certification for H-2A workers
in the area of intended employment either within 60 days preceding the
date of need or during the validity period of the job order, including
any approved extension thereof, other than for a lawful, job-related
reason, shall not exceed $15,000 per violation per worker. Such layoff
shall be permitted where all H-2A workers were laid off first.
(f) A civil money penalty for improperly rejecting a U.S. worker
who is an applicant for employment, in violation of 8 U.S.C. 1188, 20
CFR part 655, subpart B, or these regulations, shall not exceed $15,000
per violation per worker.
Sec. 501.20 Debarment and revocation.
(a) Debarment of an employer. The WHD Administrator may debar an
employer or any successor in interest to that employer from receiving
future labor certifications under 20 CFR part 655, subpart B, subject
to the time limits set forth in paragraph (c) of this section, if: The
WHD Administrator finds that the employer substantially violated a
material term or condition of its temporary labor certification, with
respect to H-2A workers, workers in corresponding employment, or U.S.
workers improperly rejected for employment, or improperly laid off or
displaced, by issuing a Notice of Debarment.
(b) Debarment of an agent or an attorney. The WHD Administrator may
debar an agent or attorney from participating in any action under 8
U.S.C. 1188, 20 CFR part 655, subpart B or 29 CFR part 501, if the WHD
Administrator finds that the agent or attorney participated in, had
knowledge of, or had reason to know of, an employer's substantial
violation, by issuing a Notice of Debarment. The OFLC Administrator may
not issue future labor certifications to any employer represented by a
debarred agent or attorney, subject to the time limits set forth in
paragraph (c) of this section.
(c) Statute of Limitations and Period of Debarment.
(1) The WHD Administrator must issue any Notice of Debarment no
later than 2 years after the occurrence of the violation.
(2) No employer, attorney, or agent may be debarred under this
subpart for more than 3 years from the date of the final agency
decision.
[[Page 45963]]
(d) Definition of violation. For the purposes of this section, a
violation includes:
(1) One or more acts of commission or omission on the part of the
employer or the employer's agent which involve:
(i) Failure to pay or provide the required wages, benefits or
working conditions to the employer's H-2A workers and/or workers in
corresponding employment;
(ii) Failure, except for lawful, job-related reasons, to offer
employment to qualified U.S. workers who applied for the job
opportunity for which certification was sought;
(iii) Failure to comply with the employer's obligations to recruit
U.S. workers;
(iv) Improper layoff or displacement of U.S. workers or workers in
corresponding employment;
(v) Failure to comply with one or more sanctions or remedies
imposed by the WHD Administrator for violation(s) of contractual or
other H-2A obligations, or with one or more decisions or orders of the
Secretary or a court under 8 U.S.C. 1188, 20 CFR part 655, subpart B,
or these regulations;
(vi) Impeding an investigation of an employer under 8 U.S.C. 1188,
20 CFR part 655, Subpart B, or these regulations;
(vii) Employing an H-2A worker outside the area of intended
employment, or in an activity/activities not listed in the job order,
or outside the validity period of employment of the job order,
including any approved extension thereof;
(viii) A violation of the requirements of Sec. 655.135(j) and (k);
(ix) A violation of any of the provisions listed in Sec. 501.4(a)
of this subpart; or
(x) A single heinous act showing such flagrant disregard for the
law that future compliance with program requirements cannot reasonably
be expected.
(2) In determining whether a violation is so substantial as to
merit debarment, the factors set forth in Sec. 501.19(b) shall be
considered.
(e) Procedural Requirements. The Notice of Debarment must be in
writing, must state the reason for the debarment finding, including a
detailed explanation of the grounds for and the duration of the
debarment, must identify appeal opportunities under Sec. 501.33 and a
time frame under which such rights must be exercised and must comply
with Sec. 501.32. The debarment will take effect 30 days from the date
the Notice of Debarment is issued, unless a request for review is
properly filed within 30 days from the issuance of the Notice of
Debarment. The timely filing of an administrative appeal stays the
debarment pending the outcome of the appeal as provided in Sec.
501.33(d).
(f) Debarment involving members of associations. If, after
investigation, the WHD Administrator determines that an individual
employer-member of a joint employer association has committed a
substantial violation, the debarment determination will apply only to
that member unless the WHD Administrator determines that the
association or another association member participated in the
violation, in which case the debarment will be invoked against the
association or other complicit association member(s) as well.
(g) Debarment involving associations acting as sole employers. If,
after investigation, the WHD Administrator determines that an
association acting as a sole employer has committed a substantial
violation, the debarment determination will apply only to the
association and any successor in interest to the debarred association.
(h) Debarment involving associations acting as joint employers. If,
after investigation, the WHD Administrator determines that an
association acting as a joint employer with its members has committed a
substantial violation, the debarment determination will apply only to
the association, and will not be applied to any individual employer-
member of the association. However, if the WHD Administrator determines
that the member participated in, had knowledge of, or had reason to
know of the violation, the debarment may be invoked against the
complicit association member as well. An association debarred from the
H-2A temporary labor certification program will not be permitted to
continue to file as a joint employer with its members during the period
of the debarment.
(i) Revocation. The WHD may recommend to the OFLC Administrator the
revocation of a temporary agricultural labor certification if the WHD
finds that the employer:
(1) Substantially violated a material term or condition of the
approved temporary labor certification;
(2) Failed to cooperate with a DOL investigation or with a DOL
official performing an investigation, inspection, or law enforcement
function under 8 U.S.C. 1188, 20 CFR part 655, subpart B, or this part;
or
(3) Failed to comply with one or more sanctions or remedies imposed
by the WHD, or with one or more decisions or orders of the Secretary or
a court order secured by the Secretary under 8 U.S.C. 1188, 20 CFR part
655, subpart B, or this part.
(j) Res Judicata. In considering a recommendation made by the WHD
to revoke a temporary agricultural labor certification, the OFLC
Administrator shall treat a final agency determination that the
employer has committed a violation as res judicata and shall not
reconsider such a determination.
Sec. 501.21 Failure to cooperate with investigations.
(a) No person shall refuse to cooperate with any employee of the
Secretary who is exercising or attempting to exercise this
investigative or enforcement authority.
(b) Where an employer (or employer's agent or attorney) does not
cooperate with an investigation concerning the employment of an H-2A
worker, a worker in corresponding employment, or a U.S. worker who has
been improperly rejected for employment or improperly laid off or
displaced, WHD may make such information available to OFLC and may
recommend that OFLC revoke the existing certification that is the basis
for the employment of the H-2A workers giving rise to the
investigation. In addition, WHD may take such action as appropriate,
including initiating proceedings for the debarment of the employer from
future certification for up to 3 years, seeking an injunction, and/or
assessing civil money penalties against any person who has failed to
cooperate with a WHD investigation. The taking of any one action shall
not bar the taking of any additional action.
Sec. 501.22 Civil money penalties--payment and collection.
Where a civil money penalty assessment is directed in a final order
by the WHD Administrator, by an ALJ, or by the Administrative Review
Board (ARB), the amount of the penalty is due within 30 days and
payable to the United States Department of Labor. The person assessed
such penalty shall remit promptly the amount thereof as finally
determined, to the WHD Administrator by certified check or by money
order, made payable to the order of Wage and Hour Division, United
States Department of Labor. The remittance shall be delivered or mailed
to the WHD Regional Office for the area in which the violations
occurred.
Subpart C--Administrative Proceedings
Sec. 501.30 Applicability of procedures and rules.
The procedures and rules contained herein prescribe the
administrative process that will be applied with respect to a
determination to assess civil money
[[Page 45964]]
penalties, to debar, or to increase the amount of a surety bond and
which may be applied to the enforcement of provisions of the work
contract, or obligations under 8 U.S.C. 1188, 20 CFR part 655, subpart
B, or these regulations, or to the collection of monetary relief due as
a result of any violation. Except with respect to the imposition of
civil money penalties, debarment, or an increase in the amount of a
surety bond, the Secretary may, in the Secretary's discretion, seek
enforcement action in Federal court without resort to any
administrative proceedings.
Procedures Relating to Hearing
Sec. 501.31 Written notice of determination required.
Whenever the WHD Administrator decides to assess a civil money
penalty, to debar, to increase a surety bond, or to proceed
administratively to enforce contractual obligations, or obligations
under 8 U.S.C. 1188, 20 CFR part 655, subpart B, or these regulations,
including for the recovery of the monetary relief, the person against
whom such action is taken shall be notified in writing of such
determination.
Sec. 501.32 Contents of notice.
The notice required by Sec. 501.31 shall:
(a) Set forth the determination of the WHD Administrator including
the amount of any monetary relief due or actions necessary to fulfill a
contractual obligation or obligations under 8 U.S.C. 1188, 20 CFR part
655, subpart B, or these regulations, the amount of any civil money
penalty assessment, whether debarment is sought and the term, and any
change in the amount of the surety bond, and the reason or reasons
therefor.
(b) Set forth the right to request a hearing on such determination.
(c) Inform any affected person or persons that in the absence of a
timely request for a hearing, the determination of the WHD
Administrator shall become final and unappealable.
(d) Set forth the time and method for requesting a hearing, and the
procedures relating thereto, as set forth in Sec. 501.33.
Sec. 501.33 Request for hearing.
(a) Any person desiring review of a determination referred to in
Sec. 501.32, including judicial review, shall make a written request
for an administrative hearing to the official who issued the
determination at the WHD address appearing on the determination notice,
no later than 30 days after issuance of the notice referred to in Sec.
501.32.
(b) No particular form is prescribed for any request for hearing
permitted by this part. However, any such request shall:
(1) Be typewritten or legibly written;
(2) Specify the issue or issues stated in the notice of
determination giving rise to such request;
(3) State the specific reason or reasons why the person requesting
the hearing believes such determination is in error;
(4) Be signed by the person making the request or by an authorized
representative of such person; and
(5) Include the address at which such person or authorized
representative desires to receive further communications relating
thereto.
(c) The request for such hearing must be received by the official
who issued the determination, at the WHD address appearing on the
determination notice, within the time set forth in paragraph (a) of
this section. Requests may be made by certified mail or by means
normally assuring overnight delivery.
(d) The determination shall take effect on the start date
identified in the written notice of determination, unless an
administrative appeal is properly filed. The timely filing of an
administrative appeal stays the determination pending the outcome of
the appeal proceedings, provided that any surety bond remains in effect
until the conclusion of any such proceedings.
Rules of Practice
Sec. 501.34 General.
(a) Except as specifically provided in these regulations, the Rules
of Practice and Procedure for Administrative Hearings Before the Office
of Administrative Law Judges established by the Secretary at 29 CFR
part 18 shall apply to administrative proceedings described in this
part.
(b) As provided in the Administrative Procedure Act, 5 U.S.C. 556,
any oral or documentary evidence may be received in proceedings under
this part. The Federal Rules of Evidence and subpart B of the Rules of
Practice and Procedure for Administrative Hearings Before the Office of
Administrative Law Judges (29 CFR part 18, subpart B) will not apply,
but principles designed to ensure production of relevant and probative
evidence shall guide the admission of evidence. The ALJ may exclude
evidence which is immaterial, irrelevant, or unduly repetitive.
Sec. 501.35 Commencement of proceeding.
Each administrative proceeding permitted under 8 U.S.C. 1188 and
these regulations shall be commenced upon receipt of a timely request
for hearing filed in accordance with Sec. 501.33.
Sec. 501.36 Caption of proceeding.
(a) Each administrative proceeding instituted under 8 U.S.C. 1188
and these regulations shall be captioned in the name of the person
requesting such hearing, and shall be styled as follows:
In the Matter of ------------, Respondent.
(b) For the purposes of such administrative proceedings the WHD
Administrator shall be identified as plaintiff and the person
requesting such hearing shall be named as respondent.
Referral for Hearing
Sec. 501.37 Referral to Administrative Law Judge.
(a) Upon receipt of a timely request for a hearing filed pursuant
to and in accordance with Sec. 501.33, the WHD Administrator, by the
Associate Solicitor for the Division of Fair Labor Standards or by the
Regional Solicitor for the Region in which the action arose, will, by
Order of Reference, promptly refer a copy of the notice of
administrative determination complained of, and the original or a
duplicate copy of the request for hearing signed by the person
requesting such hearing or by the authorized representative of such
person, to the Chief ALJ, for a determination in an administrative
proceeding as provided herein. The notice of administrative
determination and request for hearing shall be filed of record in the
Office of the Chief Administrative Law Judge and shall, respectively,
be given the effect of a complaint and answer thereto for purposes of
the administrative proceeding, subject to any amendment that may be
permitted under these regulations or 29 CFR part 18.
(b) A copy of the Order of Reference, together with a copy of these
regulations, shall be served by counsel for the WHD Administrator upon
the person requesting the hearing, in the manner provided in 29 CFR
18.3.
Sec. 501.38 Notice of docketing.
Upon receipt of an Order of Reference, the Chief ALJ shall appoint
an ALJ to hear the case. The ALJ shall promptly notify all interested
parties of the docketing of the matter and shall set the time and place
of the hearing. The date of the hearing shall be not more than 60 days
from the date on which the Order of Reference was filed.
Sec. 501.39 Service upon attorneys for the Department of Labor--
number of copies.
Two copies of all pleadings and other documents required for any
administrative proceeding provided herein shall be served on the
attorneys for the DOL. One copy shall be served on the Associate
Solicitor, Division of
[[Page 45965]]
Fair Labor Standards, Office of the Solicitor, U.S. Department of
Labor, 200 Constitution Avenue, NW., Washington, DC 20210, and one copy
on the Attorney representing the Department in the proceeding.
Procedures Before Administrative Law Judge
Sec. 501.40 Consent findings and order.
(a) General. At any time after the commencement of a proceeding
under this part, but prior to the reception of evidence in any such
proceeding, a party may move to deter the receipt of any evidence for a
reasonable time to permit negotiation of an agreement containing
consent findings and an order disposing of the whole or any part of the
proceeding. The allowance of such deferment and the duration thereof
shall be at the discretion of the ALJ, after consideration of the
nature of the proceeding, the requirements of the public interest, the
representations of the parties, and the probability of an agreement
being reached which will result in a just disposition of the issues
involved.
(b) Content. Any agreement containing consent findings and an order
disposing of a proceeding or any part thereof shall also provide:
(1) That the order shall have the same force and effect as an order
made after full hearing;
(2) That the entire record on which any order may be based shall
consist solely of the notice of administrative determination (or
amended notice, if one is filed), and the agreement;
(3) A waiver of any further procedural steps before the ALJ; and
(4) A waiver of any right to challenge or contest the validity of
the findings and order entered into in accordance with the agreement.
(c) Submission. On or before the expiration of the time granted for
negotiations, the parties or their authorized representatives or their
counsel may:
(1) Submit the proposed agreement for consideration by the ALJ; or
(2) Inform the ALJ that agreement cannot be reached.
(d) Disposition. In the event an agreement containing consent
findings and an order is submitted within the time allowed therefore,
the ALJ, within 30 days thereafter, shall, if satisfied with its form
and substance, accept such agreement by issuing a decision based upon
the agreed findings.
Post-Hearing Procedures
Sec. 501.41 Decision and order of Administrative Law Judge.
(a) The ALJ shall prepare, within 60 days after completion of the
hearing and closing of the record, a decision on the issues referred by
the WHD Administrator.
(b) The decision of the ALJ shall include a statement of the
findings and conclusions, with reasons and basis therefor, upon each
material issue presented on the record. The decision shall also include
an appropriate order which may affirm, deny, reverse, or modify, in
whole or in part, the determination of the WHD Administrator. The
reason or reasons for such order shall be stated in the decision.
(c) The decision shall be served on all parties and the ARB in
person or by certified mail.
(d) The decision concerning civil money penalties, debarment,
monetary relief, and/or enforcement of other contractual obligations
under 8 U.S.C. 1188, 20 CFR part 655, subpart B, and/or this part, when
served by the ALJ shall constitute the final agency order unless the
ARB, as provided for in Sec. 501.42, determines to review the
decision.
Review of Administrative Law Judge's Decision
Sec. 501.42 Procedures for initiating and undertaking review.
(a) A respondent, the WHD, or any other party wishing review,
including judicial review, of the decision of an ALJ shall, within 30
days of the decision of the ALJ, petition the ARB to review the
decision. Copies of the petition shall be served on all parties and on
the ALJ. If the ARB does not issue a notice accepting a petition for
review of the decision within 30 days after receipt of a timely filing
of the petition, or within 30 days of the date of the decision if no
petition has been received, the decision of the ALJ shall be deemed the
final agency action.
(b) Whenever the ARB, either on the ARB's own motion or by
acceptance of a party's petition, determines to review the decision of
an ALJ, a notice of the same shall be served upon the ALJ and upon all
parties to the proceeding in person or by certified mail.
Sec. 501.43 Responsibility of the Office of Administrative Law Judges
(OALJ).
Upon receipt of the ARB's Notice pursuant to Sec. 501.42 of these
regulations, the OALJ shall promptly forward a copy of the complete
hearing record to the ARB.
Sec. 501.44 Additional information, if required.
Where the ARB has determined to review such decision and order, the
ARB shall notify the parties of:
(a) The issue or issues raised;
(b) The form in which submissions shall be made (i.e., briefs, oral
argument, etc.); and
(c) The time within which such presentation shall be submitted.
Sec. 501.45 Final decision of the Administrative Review Board.
The ARB's final decision shall be issued within 90 days from the
notice granting the petition and served upon all parties and the ALJ,
in person or by certified mail.
Record
Sec. 501.46 Retention of official record.
The official record of every completed administrative hearing
provided by these regulations shall be maintained and filed under the
custody and control of the Chief ALJ, or, where the case has been the
subject of administrative review, the ARB.
Sec. 501.47 Certification.
Upon receipt of a complaint seeking review of a decision issued
pursuant to this part filed in a U.S. District Court, after the
administrative remedies have been exhausted, the Chief ALJ or, where
the case has been the subject of administrative review, the ARB shall
promptly index, certify and file with the appropriate U.S. District
Court, a full, true, and correct copy of the entire record, including
the transcript of proceedings.
Signed in Washington this 27th day of August 2009.
Jane Oates,
Assistant Secretary, Employment and Training Administration.
Shelby Hallmark,
Acting Assistant Secretary, Employment Standards Administration.
[FR Doc. E9-21017 Filed 9-3-09; 8:45 am]
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