(a) Referral of able, willing, and qualified eligible U.S. workers.
With respect to the referral of U.S. workers to job openings listed on a
job order accompanying an application for temporary alien agricultural
labor certification, no U.S. worker-applicant shall be referred unless
such U.S. worker has been made aware of the terms and conditions of and
qualifications for the job, and has indicated, by accepting referral to
the job, that she or he meets the qualifications required and is able,
willing, and eligible to take such a job.
(b) (1) Determinations. If the RA, in accordance with Sec. 655.105
of this part, has determined that the employer has complied with the
recruitment assurances and the adverse effect criteria of Sec. 655.102
of this part, by the date specified pursuant to Sec. 655.101(c)(2) of
this part for untimely modified applications or 20 calendar days before
the date of need specified in the application, whichever is applicable,
the RA shall grant the temporary alien agricultural labor certification
request for enough H-2A workers to fill the employer's job opportunities
for which U.S. workers are not available. In making the temporary alien
agricultural labor certification determination, the RA shall consider as
available any U.S. worker who has made a firm commitment to work for the
employer, including those workers committed by other authorized persons
such as farm labor contractors and family heads. Such a firm commitment
shall be considered to have been made not only by workers who have
signed work contracts with the employer, but also by those whom the RA
determines are likely to sign a work contract. The RA shall count as
available any U.S. worker who has applied to the employer (or on whose
behalf an application has been made), but who was rejected by the
employer for other than lawful job-related reasons or who has not been
provided with a lawful job-related reason for rejection by the employer,
as determined by the RA. The RA shall not grant a temporary alien
agricultural labor certification request for any H-2A workers if the RA
determines that:
(i) Enough able, willing, and qualified U.S. workers have been
identified as being available to fill all the employer's job
opportunities;
(ii) The employer, since the time the application was accepted for
consideration under Sec. 655.104 of this part, has adversely affected
U.S. workers by offering to, or agreeing to provide to, H-2A workers
better wages, working conditions or benefits (or by offering to, or
agreeing to impose on alien workers less obligations and restrictions)
than those offered to U.S. workers;
(iii) The employer during the previous two-year period employed H-2A
workers and the RA 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 a temporary alien agricultural
labor certification with respect to the employment of U.S. or H-2A
workers;
(iv) The employer has not complied with the workers' compensation
requirements at Sec. 655.102(b)(2) of this part; or
(v) The employer has not satisfactorily complied with the positive
recruitment requirements specified by this subpart.
Further, the RA, in making the temporary alien agricultural labor
certification determination, will subtract from any temporary alien
agricultural labor certification the specific verified number of job
opportunities involved which are vacant because of a strike or other
labor dispute involving a work stoppage, or a lockout, in the occupation
at the place of employment (and for which H-2A workers have been
requested). Upon receipt by the RA of such labor dispute information
from any source, the RA shall verify the existence of the strike, labor
dispute, or lockout and the vacancies directly attributable through the
receipt by the RA of a written report from the State agency written
following an investigation by the State agency (made under the oversight
of the RA) of the situation and after the RA has consulted
with the Director prior to making such a determination.
(2) Fees. A temporary alien agricultural labor certification
determination granting an application shall include a bill for the
required fees. Each employer (except joint employer associations) of H-
2A workers under the application for temporary alien agricultural labor
certification shall pay in a timely manner a nonrefundable fee upon
issuance of the temporary alien agricultural labor certification
granting the application (in whole or in part), as follows:
(i) Amount. The fee for each employer receiving a temporary alien
agricultural labor certification is $100 plus $10 for each job
opportunity for H-2A workers certified, provided that the fee to an
employer for each temporary alien agricultural labor certification
received shall be no greater than $1,000. In the case of a joint
employer association receiving a temporary alien agricultural labor
certification, each employer-member receiving a temporary alien
agricultural labor certification shall pay a fee of $100 plus $10 for
each job opportunity for H-2A workers certified, provided that the fee
to an employer for each temporary alien agricultural labor certification
received shall be no greater than $1,000. The joint employer association
will not be charged a separate fee. The fees shall be paid by check or
money order made payable to ``Department of Labor''. In the case of
employers of H-2A workers which are members of a joint employer
association applying on their behalf, the aggregate fees for all
employers of H-2A workers under the application may be paid by one check
or money order.
(ii) Timeliness. Fees received by the RA no more than 30 calendar
days after the date of the temporary alien agricultural labor
certification determination are timely.
(c) Changes to temporary alien agricultural labor certifications;
temporary alien agricultural labor certifications involving employer
associations--(1) Changes. Temporary alien agricultural labor
certifications are subject to the conditions and assurances made during
the application process. Any changes in the level of benefits, wages,
and working conditions an employer may wish to make at any time during
the work contract period must be approved by the RA after written
application by the employer, even if such changes have been agreed to by
an employee. Temporary alien agricultural labor certifications shall be
for the specific period of time specified in the employer's job offer,
which shall be less than twelve months; shall be limited to the
employer's specific job opportunities; and may not be transferred from
one employer to another, except as provided for by paragraph (c)(2) of
this section.
(2) Associations--(i) Applications. If an association is requesting
a temporary alien agricultural labor certification as a joint employer,
the temporary alien agricultural labor certification granted under this
section shall be made jointly to the association and to its employer
members. Except as provided in paragraph (c)(2)(iii) of this section,
such workers may be transferred among its producer members to perform
work for which the temporary alien agricultural labor certification was
granted, provided the association controls the assignment of such
workers and maintains a record of such assignments. All temporary alien
agricultural labor certifications to associations may be used for the
certified job opportunities of any of its members. If an association is
requesting a temporary alien agricultural labor certification as a sole
employer, the temporary alien agricultural labor certification granted
pursuant to this section shall be made to the association only.
(ii) Referrals and transfers. For the purposes of complying with the
``fifty-percent rule'' at Sec. 655.103(e) of this part, any association
shall be allowed to refer or transfer workers among its members (except
as provided in paragraph (c)(2)(iii) of this section), and an
association acting as an agent for its members shall not be considered a
joint employer merely because of such referral or transfer.
(iii) Ineligible employer-members. Workers shall not be transferred
or referred to an association's member, if that member is ineligible to
obtain any or any additional workers, pursuant to Sec. 655.110 of this
part.
(3) Extension of temporary alien agricultural labor certification--
(i) Short-term extension. An employer who seeks an extension of two
weeks or less of the temporary alien agricultural labor certification
shall apply for such extension to INS. If INS grants such an extension,
the temporary alien agricultural labor certification shall be deemed
extended for such period as is approved by INS. No extension granted
under this paragraph (c)(3)(i) shall be for a period longer than the
original work contract period of the temporary alien agricultural labor
certification.
(ii) Long-term extension. For extensions beyond the period which may
be granted by INS pursuant to paragraph (c)(3)(i) of this section, an
employer, after 50 percent of the work contract period has elapsed, may
apply to the RA for an extension of the period of the temporary alien
agricultural labor certification, for reasons related to weather
conditions or other external factors beyond the control of the employer
(which may include unforeseen changes in market conditions), provided
that the employer's need for an extension is supported in writing by the
employer, with documentation showing that the extension is needed and
could not have been reasonably foreseen by the employer. The RA shall
grant or deny the request for extension of the temporary alien
agricultural labor certification based on available information, and
shall notify the employer of the decision on the request in writing. The
RA shall not grant an extension where the total work contract period,
including past temporary alien labor certifications for the job
opportunity and extensions, would be 12 months or more, except in
extraordinary circumstances. The RA shall not grant an extension where
the temporary alien agricultural labor certification has already been
extended by INS pursuant to paragraph (c)(3)(i) of this section.
(d) Denials of applications. If the RA does not grant the temporary
alien agricultural labor certification (in whole or in part) the RA
shall notify the employer by means reasonably calculated to assure next-
day delivery. The notification shall contain all the statements required
in Sec. 655.104(c) of this part. If a timely request is made for an
administrative-judicial review or a de novo hearing by an administrative
law judge, the procedures of Sec. 655.112 of this part shall be
followed.
(e) Approvals of applications--(1) Continued recruitment of U.S.
workers. After a temporary agricultural labor certification has been
granted, the employer shall continue its efforts to recruit U.S.
workers until the actual date the H-2A workers depart for the
employer's place of employment.
(i) Unless the local employment office is informed in writing of a
different date, the local office shall deem the third day immediately
preceding the employer's first date of need to be the date the H-2A
workers depart for the employer's place of employment. The employer may
notify the local office in writing if the workers depart prior to that
date.
(ii)(A) If the H-2A workers do not depart for the place of
employment on or before the first date of need (or by the stated date
of departure, if the local office has been advised of a different
date), the employer shall notify the local employment office in writing
(or orally, confirmed in writing) as soon as the employer knows that
the workers will not depart by the first date of need, and in no event
later than such date of need. At the same time, the employer shall
notify the local office of the workers' expected departure date, if
known. No further notice is necessary if the workers depart by the
stated date of departure.
(B) If the employer did not notify the local office of the expected
departure date pursuant to paragraph (e)(1)(ii)(A) of this section, or
if the H-2A workers do not leave for the place of employment on or
before the stated date of departure, the employer shall notify the
local employment office in writing (or orally, confirmed in writing) as
soon as the employer becomes aware of the expected departure date, or
that the workers did not depart by the stated date and the new expected
departure date, as appropriate.
(2) Requirement for Active Job Order. The employer shall keep an
active job order on file until the ``50-percent rule'' assurance at
Sec. 655.103(e) of this part is met, except as provided by paragraph
(f) of this section.
(3) Referrals by ES System. The ES system shall continue to refer
to the employer U.S. workers who apply as long as there is an active
job order on file.
(f) Exceptions. (1) ``Fifty-percent rule'' inapplicable to small
employers. The assurance requirement at Sec. 655.103(e) of this part
does not apply to any employer who:
(i) Did not, during any calendar quarter during the preceding
calendar year, use more than 500 ``man-days'' of agricultural labor, as
defined in section 3(u) of the Fair Labor Standards Act of 1938 (29
U.S.C. 203(u)), and so certifies to the RA in the H-2A application; and
(ii) Is not a member of an association which has applied for a
temporary alien agricultural labor certification under this subpart for
its members; and
(iii) Has not otherwise ``associated'' with other employers who are
applying for H-2A workers under this subpart, and so certifies to the
RA.
(2) Displaced H-2A workers. An employer shall not be liable for
payment under Sec. 655.102(b)(6) of this part with respect to an H-2A
worker whom the RA certifies is displaced due to compliance with
Sec. 655.103(e) of this part.
(g) Withholding of U.S. workers prohibited. (1) Complaints. Any
employer who has reason to believe that a person or entity has willfully
and knowingly withheld U.S. workers prior to the arrival at the job site
of H-2A workers in
order to force the hiring of U.S. workers under Sec. 655.103(e) of this
part may submit a written complaint to the local office. The complaint
shall clearly identify the person or entity whom the employer believes
has withheld the U.S. workers, and shall 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 local
office.
(2) Investigations. The local office shall inform the RA by
telephone that a complaint under the provisions of paragraph (g) of this
section has been filed and shall immediately investigate the complaint.
Such investigation shall 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. In the event the local
office fails to conduct such interviews, the RA shall do so.
(3) Reports of findings. Within five working days after receipt of
the complaint, the local office shall prepare a report of its findings,
and shall submit such report (including recommendations) and the
original copy of the employer's complaint to the RA.
(4) Written findings. The RA shall immediately review the employer's
complaint and the report of findings submitted by the local office, and
shall conduct any additional investigation the RA deems appropriate. No
later than 36 working hours after receipt of the employer's complaint
and the local office's report, the RA shall issue written findings to
the local office and the employer. Where the RA determines that the
employer's complaint is valid and justified, the RA shall immediately
suspend the application of Sec. 655.103(e) of this part to the employer.
Such suspension of Sec. 655.103(e) of this part under these
circumstances shall not take place, however, until the interviews
required by paragraph (g)(2) of this section have been conducted. The
RA's determination under the provisions of this paragraph (g)(4) shall
be the final decision of the Secretary, and no further review by any DOL
official shall be given to it.
(h) Requests for new temporary alien agricultural labor
certification determinations based on nonavailability of able, willing,
and qualified U.S. workers--(1) Standards for requests. If a temporary
alien agricultural labor certification application has been denied (in
whole or in part) based on the RA's determination of the availability of
able, willing, and qualified U.S. workers, and, on or after 20 calendar
days before the date of need specified in the temporary alien
agricultural labor certification determination, such U.S. workers
identified as being able, willing, qualified, and available are, in
fact, not able, willing, qualified, or available at the time and place
needed, the employer may request a new temporary alien agricultural
labor certification determination from the RA. The RA shall
expeditiously, but in no case later than 72 hours after the time a
request is received, make a determination on the request.
(2) Filing requests. The employer's request for a new determination
shall be made directly to the RA. The request may be made to the RA by
telephone, but shall be confirmed by the employer in writing as required
by paragraphs (h)(2)(i) or (ii) of this section.
(i) Workers not able, willing, qualified, or eligible. If the
employer asserts that any worker who has been referred by the ES System
or by any other person or entity is not an eligible worker or is not
able, willing, or qualified for the job opportunity for which the
employer has requested H-2A workers, the burden of proof is on the
employer to establish that the individual referred is not able, willing,
qualified, or eligible because of lawful job-related reasons. The
employer's burden of proof shall be met by the employer's submission to
the RA, within 72 hours of the RA's receipt of the request for a new
determination, of a signed statement of the employer's assertions, which
shall identify each rejected worker by name and shall state each lawful
job-related reason for rejecting that worker.
(ii) U.S. workers not available. If the employer telephonically
requests the new determination, asserting solely that U.S. workers are
not available, the employer shall submit to the RA a
signed statement confirming such assertion. If such signed statement is
not received by the RA within 72 hours of the RA's receipt of the
telephonic request for a new determination, the RA may make the
determination based solely on the information provided telephonically
and the information (if any) from the local office.
(3) Regional office review--(i) Expeditious review. The RA
expeditiously shall review the request for a new determination. The RA
may request a signed statement from the local office in support of the
employer's assertion of U.S. worker nonavailability or referred U.S.
workers not being able, willing, or qualified because of lawful job-
related reasons.
(ii) New determination. If the RA determines that the employer's
assertion of nonavailability is accurate and that no able, willing, or
qualified U.S. worker has been refused or is being refused employment
for other than lawful job-related reasons, the RA shall, within 72 hours
after receipt of the employer's request, render a new determination.
Prior to making a new determination, the RA promptly shall ascertain
(which may be through the ES System or other sources of information on
U.S. worker availability) whether able, willing, and qualified
replacement U.S. workers are available or can be reasonably expected to
be present at the employer's establishment within 72 hours from the date
the employer's request was received.
(iii) Notification of new determination. If the RA cannot identify
sufficient able, willing, and qualified U.S. workers who are or who are
likely to be available, the RA shall grant the employer's new
determination request (in whole or in part) based on available
information as to replacement U.S. worker availability. The RA's
notification to the employer on the new determination shall be in
writing (by means normally assuring next-day delivery), and the RA's
determination under the provisions of this paragraph (h)(3) shall be the
final decision of the Secretary, and no further review shall be given to
an employer's request for a new H-2A determination by any DOL official.
However, this does not preclude an employer from submitting subsequent
requests for new determinations, if warranted, based on subsequent facts
concerning purported nonavailability of U.S. workers or referred workers
not being eligible workers or not able, willing, or qualified because of
lawful job-related reasons.
[52 FR 20507, June 1, 1987, as amended by 55 FR 29358, July 19, 1990;
64 FR 34957, June 29, 1999]
