(a) Overview--(1) Filing applications. This subpart provides
guidance to an employer who desires to apply for temporary alien
agricultural labor certification for the employment of H-2A workers to
perform agricultural employment of a temporary or seasonal nature. The
regulations in this subpart provide that such employer shall file an H-
2A application, including a job offer, on forms prescribed by the
Employment and Training Administration (ETA), which describes the
material terms and conditions of employment to be offered and afforded
to U.S. workers and H-2A workers, with the Regional Administrator (RA)
having jurisdiction over the geographical area in which the work will be
performed. The entire application shall be filed with the RA no less
than 45 calendar days before the first date of need for workers, and a
copy of the job offer shall be submitted at the same time to the local
office of the State employment service agency which serves the area of
intended employment. Under the regulations, the RA will promptly review
the application and notify the applicant in writing if there are
deficiencies which render the application not acceptable for
consideration, and afford the applicant a five-calendar-day period for
resubmittal of an amended application or an appeal of the RA's refusal
to approve the application as acceptable for consideration. Employers
are encouraged to file their applications in advance of the 45-calendar-
day period mentioned above in this paragraph (a)(1). Sufficient time
should be allowed for delays that might arise due to the need for
amendments in order to make the application acceptable for
consideration.
(2) Amendment of applications. This subpart provides for the
amendment of applications, at any time prior to the RA's certification
determination, to increase the number of workers requested in the
initial application; without requiring, under certain circumstances, an
additional recruitment period for U.S. workers.
(3) Untimely applications. If an H-2A application does not satisfy
the specified time requirements, this subpart provides for the RA's
advice to the employer in writing that the certification cannot be
granted because there is not sufficient time to test the availability of
U.S. workers; and provides for the employer's right to an administrative
review or a de novo hearing before an administrative law judge.
Emergency situations are provided for, wherein the RA may waive the
specified time periods.
(4) Recruitment of U.S. workers; determinations--(i) Recruitment.
This subpart provides that, where the application is accepted for
consideration and meets the regulatory standards, the State agency and
the employer begin to recruit U.S. workers. If the employer has complied
with the criteria for certification, including recruitment of U.S.
workers, by 20 calendar days before the date of need specified in the
application (except as provided in certain cases), the RA makes a
determination to grant or deny, in whole or in part, the application for
certification.
(ii) Granted applications. This subpart provides that the
application for temporary alien agricultural labor certification is
granted if the RA finds that the employer has not offered foreign
workers higher wages or better working conditions (or has imposed less
restrictions on foreign workers) than those offered and afforded to U.S.
workers; that sufficient U.S. workers who are able, willing, and
qualified will not be available at the time and place needed to perform
the work for which H-2A workers are being requested; and that the
employment of such aliens
will not adversely affect the wages and working conditions of similarly
employed U.S. workers.
(iii) Fees--(A) Amount. This subpart provides that each employer
(except joint employer associations) of H-2A workers shall pay to the RA
fees for each temporary alien agricultural labor certification received.
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.
(B) Timeliness of payment. The fee must be received by the RA no
later than 30 calendar days after the granting a each temporary alien
agricultural labor certification. Fees received any later are untimely.
Failure to pay fees in a timely manner is a substantial violation which
may result in the denial of future temporary alien agricultural labor
certifications.
(iv) Denied applications. This subpart provides that if the
application for temporary alien agricultural labor certification is
denied, in whole or in part, the employer may seek review of the denial,
or a de novo hearing, by an administrative law judge as provided in this
subpart.
(b) Definitions of terms used in this subpart. For the purposes of
this subpart:
Accept for consideration means, with respect to an application for
temporary alien agricultural labor certification, the action by the RA
to notify the employer that a filed temporary alien agricultural labor
certification application meets the adverse effect criteria necessary
for processing. An application accepted for consideration ultimately
will be approved or denied in a temporary alien agricultural labor
certification determination.
Administrative law judge means a person within the Department of
Labor Office of Administrative Law Judges appointed pursuant to 5 U.S.C.
3105; or a panel of such persons designated by the Chief Administrative
Law Judge from the Board of Alien Labor Certification Appeals
established by part 656 of this chapter, but which shall hear and decide
appeals as set forth in Sec. 655.112 of this part. ``Chief
Administrative Law Judge'' means the chief official of the Department of
Labor Office of Administrative Law Judges or the Chief Administrative
Law Judge's designee.
Adverse effect wage rate (AEWR) means the wage rate which the
Director has determined must be offered and paid, as a minimum, to every
H-2A worker and every U.S. worker for a particular occupation and/or
area in which an employer employs or seeks to employ an H-2A worker so
that the wages of similarly employed U.S. workers will not be adversely
affected.
Agent means a legal entity or person, such as an association of
agricultural employers, or an attorney for an association, which (1) is
authorized to act on behalf of the employer for temporary alien
agricultural labor certification purposes, and (2) is not itself an
employer, or a joint employer, as defined in this paragraph (b).
Director means the chief official of the United States Employment
Service (USES) or the Director's designee.
DOL means the United States Department of Labor.
Eligible worker means a U.S. worker, as defined in this section.
Employer means a person, firm, corporation or other association or
organization which suffers or permits a person to work and (1) which has
a location within the United States to which U.S. workers may be
referred for employment, and which proposes to employ workers at a place
within the United States and (2) which has an employer relationship with
respect to employees under this subpart as indicated by the fact that it
may hire, pay, fire, supervise or otherwise control the
work of any such employee. An association of employers shall be
considered the sole employer if it has the indicia of an employer set
forth in this definition. Such an association, however, shall be
considered as a joint employer with an employer member if it shares with
the employer member one or more of the definitional indicia.
Employment Service (ES) and Employment Service (ES) System mean,
collectively, the USES, the State agencies, the local offices, and the
ETA regional offices.
Employment Standards Administration means the agency within the
Department of Labor (DOL), which includes the Wage and Hour Division,
and which is charged with the carrying out of certain functions of the
Secretary under the INA.
Employment and Training Administration (ETA) means the agency within
the Department of Labor (DOL) which includes the United States
Employment Service (USES).
Federal holiday means a legal public holiday as defined at 5 U.S.C.
6103.
H-2A worker means any nonimmigrant alien admitted to the United
States for agricultural labor or services of a temporary or seasonal
nature under section 101(a)(15)(H)(ii)(a) of the INA (8 U.S.C.
1101(a)(15)(H)(ii)(a)).
Immigration and Naturalization Service (INS) means the component of
the U.S. Department of Justice which makes the determination under the
INA on whether or not to grant visa petitions to employers seeking H-2A
workers to perform temporary agricultural work in the United States.
INA means the Immigration and Nationality Act, as amended (8 U.S.C.
1101 et seq.).
Job offer means 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 means a job opening for temporary, full-time
employment at a place in the United States to which U.S. workers can be
referred.
Local office means the State agency's office which serves a
particular geographic area within a State.
Positive recruitment means the active participation of an employer
or its authorized hiring agent in locating and interviewing applicants
in other potential labor supply areas and in the area where the
employer's establishment is located in an effort to fill specific job
openings with U.S. workers.
Prevailing means, with respect to certain benefits other than wages
provided by employers and certain practices engaged in by employers,
that:
(i) Fifty percent or more of employers in an area and for an
occupation engage in the practice or offer the benefit; and
(ii) 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, frequency of wage payments, and workers supplying
their own bedding, but non-H-2A employers only for determinations
concerning the provision of advance transportation and the utilization
of farm labor contractors).
Regional Administrator, Employment and Training Administration (RA)
means the chief ETA official of a DOL regional offfice or the RA's
designee.
Secretary means the Secretary of Labor or the Secretary's designee.
Solicitor of Labor means the Solicitor, United States Department of
Labor, and includes employees of the Office of the Solicitor of Labor
designated by the Solicitor to perform functions of the Solicitor under
this subpart.
State agency means the State employment service agency designated
under Sec. 4 of the Wagner-Peyser Act to cooperate with the USES in the
operation of the ES System.
Temporary alien agricultural labor certification means the
certification made by the Secretary of Labor with respect to an employer
seeking to file with INS a visa petition to import an alien as an H-2A
worker, pursuant to sections 101(a)(15)(H)(ii)(a), 214(a) and (c), and
216 of the INA that (1) 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 agricultural labor or services involved in the
petition, and
(2) the employment of the alien in such agricultural labor or services
will not adversely affect the wages and working conditions of workers in
the United States similarly employed (8 U.S.C. 1101(a)(15)(H)(ii)(a),
1184 (a) and (c), and 1186).
Temporary alien agricultural labor certification determination means
the written determination made by the RA to approve or deny, in whole or
in part, an application for temporary alien agricultural labor
certification.
United States Employment Service (USES) means the agency of the U.S.
Department of Labor, established under the Wagner-Peyser Act, which is
charged with administering the national system of public employment
offices and carrying out certain functions of the Secretary under the
INA.
United States (U.S.) worker means any worker who, whether a U.S.
national, a U.S. citizen, or an alien, is legally permitted to work in
the job opportunity within the United States (as defined at
Sec. 101(a)(38) of the INA (8 U.S.C. 1101(a)(38)).
Wages means all forms of cash remuneration to a worker by an
employer in payment for personal services.
(c) Definition of agricultural labor or services of a temporary or
seasonal nature. For the purposes of this subpart, ``agricultural labor
or services of a temporary or seasonal nature'' means the following:
(1) ``Agricultural labor or services''. Pursuant to section
101(a)(15)(H)(ii)(a) of the INA (8 U.S.C. 1101(a)(15)(H)(ii)(a)),
``agricultural labor or services'' is defined for the purposes of this
subpart as either ``agricultural labor'' as defined and applied in
section 3121(g) of the Internal Revenue Code of 1954 (26 U.S.C. 3121(g))
or ``agriculture'' as defined and applied in section 3(f) of the Fair
Labor Standards Act of 1938 (29 U.S.C. 203(f)). An occupation included
in either statutory definition shall be ``agricultural labor or
services'', notwithstanding the exclusion of that occupation from the
other statutory definition. For informational purposes, the statutory
provisions are quoted below:
(i) ``Agricultural labor''. Section 3121(g) of the Internal Revenue
Code of 1954 (26 U.S.C. 3121(g)), quoted as follows, defines the term
``agricultural labor'' to include all service performed:
(1) 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 furbearing animals and wildlife;
(2) Services performed in the employ of the owner or tenant or other
operator of a farm, in connection with the operation, 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;
(3) 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;
(4) (A) 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;
(B) In the employ of a group of operators of farms (other than a
cooperative organization) in the performance of service described in
subparagraph (A), but only if such operators produced all of the
commodity with respect to which such service is performed. For purposes
of this subparagraph, 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 quarter in
which such service is performed;
(C) The provisions of subparagraphs (A) and (B) 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
(5) 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 subsection, 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.
(ii) ``Agriculture'' Section 203(f) of title 29, United States Code,
(section 3(f) of the Fair Labor Standards Act of 1938, as codified),
quoted as follows, defines ``agriculture'' to include:
(f) * * * 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 as defined as
agricultural commodities in section 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.
(iii) ``Agricultural commodity''. Section 1141j(g) of title 12,
United States Code, (section 15(g) of the Agricultural Marketing Act, as
amended), quoted as follows, defines ``agricultural commodity'' to
include:
(g) * * * 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, as defined in section
92 of Title 7.
(iv) ``Gum rosin''. Section 92 of title 7, United States Code,
quoted as follows, defines ``gum spirits of turpentine'' and ``gum
rosin'' as--
(c) ``Gum spirits of turpentine'' means spirits of turpentine made
from gum (oleoresin) from a living tree.
* * * * *
(h) ``Gum rosin'' means rosin remaining after the distillation of
gum spirits of turpentine.
(2) ``Of a temporary or seasonal nature''--(i) ``On a seasonal or
other temporary basis''. For the purposes of this subpart, ``of a
temporary or seasonal nature'' means ``on a seasonal or other temporary
basis'', as defined in the Employment Standards Administration's Wage
and Hour Division's regulation at 29 CFR 500.20 under the Migrant and
Seasonal Agricultural Worker Protection Act (MSPA).
(ii) MSPA definition. For informational purposes, the definition of
``on a seasonal or other temporary basis'', as set forth at 29 CFR
500.20, is provided below:
``On a seasonal or other temporary basis'' means:
* * * * *
Labor is performed on a seasonal basis, where, ordinarily, the
employment pertains to or is of the kind exclusively performed at
certain seasons or periods of the year and which, from its nature, may
not be continuous or carried on throughout the year. A worker who moves
from one seasonal activity to another, while employed in agriculture or
performing agricultural labor, is employed on a seasonal basis even
though he may continue to be employed during a major portion of the
year.
* * * * *
A worker is employed on ``other temporary basis'' where he is
employed for a limited time only or his performance is contemplated for
a particular piece of work, usually of short duration. Generally,
employment, which is contemplated to continue indefinitely, is not
temporary.
* * * * *
``On a seasonal or other temporary basis'' does not include the
employment of any foreman or other supervisory employee who is employed
by a specific agricultural employer or agricultural association
essentially on a year round basis.
* * * * *
``On a seasonal or other temporary basis'' does not include the
employment of any worker who is living at his permanent place of
residence, when that worker is employed by a specific agricultural
employer or agricultural association on essentially a year round basis
to perform a variety of tasks for his employer and is not primarily
employed to do field work.
(iii) ``Temporary''. For the purposes of this subpart, the
definition of ``temporary'' in paragraph (c)(2)(ii) of this
section refers to any job opportunity covered by this subpart where the
employer needs a worker for a position, either temporary or permanent,
for a limited period of time, which shall be for less than one year,
unless the original temporary alien agricultural labor certification is
extended based on unforeseen circumstances, pursuant to
Sec. 655.106(c)(3) of this part.
[52 FR 20507, June 1, 1987, as amended at 57 FR 43123, Sept. 17, 1992;
64 FR 34957, June 29, 1999]
