As part of the temporary alien agricultural labor certification
application, the employer shall include in the job offer a statement
agreeing to abide by the conditions of this subpart. By so doing, the
employer makes each of the following assurances:
(a) Labor disputes. The specific job opportunity for which the
employer is requesting H-2A certification is not vacant because the
former occupant is on strike or being locked out in the course of a
labor dispute.
(b) Employment-related laws. During the period for which the
temporary alien agricultural labor certification is granted, the
employer shall comply with applicable federal, State, and local
employment-related laws and regulations, including employment-related
health and safety laws.
(c) Rejections and terminations of U.S. workers. No U.S. worker will
be rejected for or terminated from employment for other than a lawful
job-related reason, and notification of all rejections or terminations
shall be made to the local office.
(d) Recruitment of U.S. workers. The employer shall independently
engage in positive recruitment until the foreign workers have departed
for the employer's place of employment and shall cooperate with the ES
System in the active recruitment of U.S. workers by:
(1) Assisting the ES System to prepare local, intrastate, and
interstate job orders using the information supplied on the employer's
job offer;
(2) Placing advertisements (in a language other than English, where
the RA determines appropriate) for the job opportunities in newspapers
of general circulation and/or on the radio, as required by the RA:
(i) Each such advertisement shall describe the nature and
anticipated duration of the job opportunity; offer at least the adverse
effect wage rate; give the \3/4\ guarantee; state that work tools,
supplies and equipment will be provided by the employer; state that
housing will also be provided, and that transportation and subsistence
expenses to the worksite will be provided or paid by the employer upon
completion of 50% of the work contract, or earlier, if appropriate; and
(ii) Each such advertisement shall direct interested workers to
apply for the job opportunity at a local employment service office in
their area;
(3) Cooperating with the ES System and independently contacting farm
labor contractors, migrant workers and other potential workers in other
areas of the State and/or Nation by letter and/or telephone; and
(4) Cooperating with the ES System in contacting schools, business
and labor organizations, fraternal and veterans' organizations, and
nonprofit organizations and public agencies such as sponsors of programs
under the Job Training Partnership Act throughout the area of intended
employment and in other potential labor supply areas in order to enlist
them in helping to find U.S. workers.
(e) Fifty-percent rule. From the time the foreign workers depart for
the employer's place of employment, the employer, except as provided for
by Sec. 655.106(e)(1) of this part, shall provide employment to any
qualified, eligible U.S. worker who applies to the employer until 50% of
the period of the work contract, under which the foreign worker who is
in the job was hired, has elapsed. In addition, the employer shall offer
to provide housing and the other benefits, wages, and working conditions
required by Sec. 655.102 of this part to any such U.S. worker and shall
not treat less favorably than H-2A workers any U.S. worker referred or
transferred pursuant to this assurance.
(f) Other recruitment. The employer shall perform the other specific
recruitment and reporting activities specified in the notice from the RA
required by Sec. 655.105(a) of this part, and shall engage in positive
recruitment of U.S. workers to an extent (with respect
to both effort and location) no less than that of non-H-2A agricultural
employers of comparable or smaller size in the area of employment. When
it is the prevailing practice in the area of employment and for the
occupation for non-H-2A agricultural employers to secure U.S. workers
through farm labor contractors and to compensate farm labor contractors
with an override for their services, the employer shall make the same
level of effort as non-H-2A agricultural employers and shall provide an
override which is no less than that being provided by non-H-2A
agricultural employers. Where the employer has centralized cooking and
eating facilities designed to feed workers, the employer shall not be
required to provide meals through an override. The employer shall not be
required to provide for housing through an override.
(g) Retaliation prohibited. The employer shall not intimidate,
threaten, restrain, coerce, blacklist, discharge, or in any manner
discriminate against, and shall not cause any person to intimidate,
threaten, restrain, coerce, blacklist, discharge, or in any manner
discriminate against, any person who has with just cause:
(1) Filed a complaint under or related to Sec. 216 of the INA (8
U.S.C. 1186), or this subpart or any other DOL regulation promulgated
pursuant to Sec. 216 of the INA;
(2) Instituted or caused to be instituted any proceeding under or
related to Sec. 216 of the INA, or this subpart or any other DOL
regulation promulgated pursuant to Sec. 216 of the INA (8 U.S.C. 1186);
(3) Testified or is about to testify in any proceeding under or
related to Sec. 216 of the INA (8 U.S.C. 1186), or this subpart or any
other DOL regulation promulgated pursuant to Sec. 216 of the INA;
(4) Consulted with an employee of a legal assistance program or an
attorney on matters related to Sec. 216 of the INA (8 U.S.C. 1186), or
this subpart or any other DOL regulation promulgated pursuant to
Sec. 216 of the INA; or
(5) Exercised or asserted on behalf of himself/herself or others any
right or protection afforded by Sec. 216 of the INA (8 U.S.C. 1186), or
this subpart or any other DOL regulation promulgated pursuant to
Sec. 216 of the INA.
(h) Fees. The application shall include the assurance that fees will
be paid in a timely manner, as follows:
(1) 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 for 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, the fee for each employer-member receiving a temporary
alien agricultural labor certification shall be $100 plus $10 for each
job opportunity for H-2A workers certified, provided that the fee for 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. Fees shall be paid by a check or
money order made payable to ``Department of Labor'', and are
nonrefundable. 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.
(2) Timeliness. Fees received by the RA within 30 calendar days
after the date of the temporary alien agricultural labor certification
determination are timely.
[52 FR 20507, June 1, 1987, as amended by 55 FR 29358, July 19, 1990]
