Source: 52 FR 20507, June 1, 1987, unless otherwise noted.
(a) General. This subpart sets out the procedures established by the
Secretary of Labor to acquire information sufficient to make factual
determinations of: (1) Whether there are sufficient able, willing, and
qualified 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 (2) whether the
employment of H-2A workers will adversely effect the wages and working
conditions of workers in the U.S. similarly employed. Under the
authority of the INA, the Secretary of Labor has promulgated the
regulations in this subpart. This subpart sets forth the requirements
and procedures applicable to requests for certification by employers
seeking the services of temporary foreign workers in agriculture. This
subpart provides the Secretary's methodology for the two-fold
determination of availability of domestic workers and of any adverse
effect which would be occasioned by the use of foreign workers, for
particular temporary and seasonal agricultural jobs in the United
States.
(b) The statutory standard. (1) A petitioner for H-2A workers must
apply to the Secretary of Labor for a certification that, as stated in
the INA:
(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.
(2) Section 216(b) of the INA further requires that the Secretary
may not issue a certification if the conditions regarding U.S. worker
availability and adverse effect are not met, and may not issue a
certification if, as stated in the INA:
(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 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 non-
immigrant 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 multistate 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 .
. . shall terminate on the date the H-2A workers depart for the
employer's place of employment.
(3) Regarding the labor certification determination itself, section
216(c)(3) of the INA, as quoted in the following, specifically directs
the Secretary to make the certification if:
(i) the employer has complied with the criteria for certification
(including criteria for the recruitment of eligible individuals as
prescribed by the Secretary), and
(ii) the employer does not actually have, or has not been provided
with referrals of, qualified individuals who have indicated their
availability to perform such labor or services on the terms and
conditions of a job offer which meets the requirements of the Secretary.
(c) The Secretary's determinations. Before any factual determination
can be made concerning the availability of U.S. workers to perform
particular job opportunities, two steps must be taken. First, the
minimum level of wages, terms, benefits, and conditions for the
particular job opportunities below which similarly employed U.S.
workers would be adversely affected must be established. (The
regulations in this subpart establish such minimum levels for wages,
terms, benefits, and conditions of employment). Second, the wages,
terms, benefits, and conditions offered and afforded to the aliens must
be compared to the established minimum levels. If it is concluded that
adverse effect would result, the ultimate determination of availability
within the meaning of the INA cannot be made since U.S. workers cannot
be expected to accept employment under conditions below the established
minimum levels. Florida Sugar Cane League, Inc. v. Usery, 531 F. 2d 299
(5th Cir. 1976). Once a determination of no adverse effect has been
made, the availability of U.S. workers can be tested only if U.S.
workers are actively recruited through the offer of wages, terms,
benefits, and conditions at least at the minimum level or the level
offered to the aliens, whichever is higher. The regulations in this
subpart set forth requirements for recruiting U.S. workers in accordance
with this principle.
(d) Construction. This subpart shall be construed to effectuate the
purpose of the INA that U.S. workers rather than aliens be employed
wherever possible. Elton Orchards, Inc. v. Brennan, 508 F. 2d 493, 500
(1st Cir. 1974); Flecha v. Quiros, 567 F.2d 1154, 1156 (1st Cir. 1977).
Where temporary alien workers are admitted, the terms and conditions of
their employment must not result in a lowering of the wages, terms, and
conditions of domestic workers similarly employed. Williams v. Usery,
531 F. 2d 305, 306 (5th Cir. 1976), cert. denied, 429 U.S. 1000, and the
job benefits extended to any U.S. workers shall be at least those
extended to the alien workers.
