[Code of Federal Regulations]
[Title 29, Volume 3]
[Revised as of July 1, 2004]
From the U.S. Government Printing Office via GPO Access
[CITE: 29CFR501.1]

[Page 54]
 
                             TITLE 29--LABOR
 
         CHAPTER V--WAGE AND HOUR DIVISION, DEPARTMENT OF LABOR
 
PART 501_ENFORCEMENT OF CONTRACTUAL OBLIGATIONS FOR TEMPORARY ALIEN 
 
                      Subpart A_General Provisions
 
Sec. 501.1  Purpose and scope.

    (a) Statutory standard. Section 216(a) of the INA provides that--

    (1) A petition to import an alien as an H-2A worker (as defined in 
subsection (i)(2) may not be approved by the Attorney General unless the 
petitioner has applied to the Secretary of Labor for a certification 
that--
    (A) 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
    (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.

    (b) Role of the ETA, USES. The issuance and denial of labor 
certification under section 216 of the INA has been delegated by the 
Secretary of Labor to the Employment and Training Administration (ETA). 
In general, matters concerning the obligations of an employer of H-2A 
workers related to the labor certification process are administered and 
enforced by ETA. Included within ETA's jurisdiction are such issues as 
whether U.S. workers were available, whether positive recruitment was 
conducted, whether there was a strike or lockout, the methodology for 
establishing adverse effect wage rates, whether workers' compensation 
insurance was provided, whether employment was offered to U.S. workers 
for up to 50 percent of the contract period and other similar matters. 
The regulations pertaining to the issuance and denial of labor 
certification for temporary alien workers by the Employment and Training 
Administration are found in title 20 CFR part 655.
    (c) Role of ESA, Wage and Hour Division. Section 216(g)(2) of the 
INA provides that--

    [T]he Secretary of Labor is authorized to take such actions 
including imposing appropriate penalties and seeking appropriate 
injunctive relief and specific performance of contractual obligations, 
as may be necessary to assure employer compliance with terms and 
conditions of employment under this section.


Certain investigation, inspection and law enforcement functions to carry 
out the provisions of section 216 of the INA have been delegated by the 
Secretary of Labor to the Employment Standards Administration (ESA), 
Wage and Hour Division. In general, matters concerning the obligations 
of the work contract between an employer of H-2A workers and the H-2A 
workers and other workers in corresponding employment hired by H-2A 
employers are enforced by ESA. Included within the enforcement 
responsibility of ESA, Wage and Hour Division are such matters as the 
payment of required wages, transportation, meals and housing provided 
during the employment. The Wage and Hour Division has the responsibility 
to carry out investigations, inspections and law enforcement functions 
and in appropriate instances impose penalties, seek injunctive relief 
and specific performance of contractual obligations, including recovery 
of unpaid wages.
    (d) Effect of regulations. The amendments to the INA made by title 
III of the IRCA apply to petitions and applications filed on and after 
June 1, 1987. Accordingly, the enforcement functions carried out by the 
Wage and Hour Division under the INA and these regulations apply to the 
employment of any H-2A worker and any other workers hired by H-2A 
employers in corresponding employment as the result of any petition or 
application filed with the Department on and after June 1, 1987.