[Federal Register: February 13, 2008 (Volume 73, Number 30)]
[Proposed Rules]
[Page 8537-8585]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13fe08-32]
[[Page 8537]]
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Part V
Department of Labor
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Employment and Training Administration
20 CFR Part 655
Wage and Hour Division
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29 CFR Parts 501, 780, and 788
Temporary Agricultural Employment of H-2A Aliens in the United States;
Modernizing the Labor Certification Process and Enforcement; Proposed
Rule
[[Page 8538]]
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DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Part 655
Wage and Hour Division
29 CFR Parts 501, 780, and 788
RIN 1205-AB55
Temporary Agricultural Employment of H-2A Aliens in the United
States; Modernizing the Labor Certification Process and Enforcement
AGENCY: Employment and Training Administration, and Wage and Hour
Division, Employment Standards Administration, Labor.
ACTION: Proposed rule; request for comments.
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SUMMARY: The Department of Labor (the Department or DOL) is proposing
to amend its regulations regarding the certification of temporary
employment of nonimmigrant workers employed in temporary or seasonal
agricultural employment and the enforcement of the contractual
obligations applicable to employers of such nonimmigrant workers. This
notice of proposed rulemaking (NPRM or proposed rule) would re-engineer
the process by which employers may obtain a temporary labor
certification from the Department for use in petitioning the Department
of Homeland Security (DHS) to employ a nonimmigrant worker in H-2A
(agricultural temporary worker) status. Re-engineering measures focus
on the utilization of an attestation-based application process after an
employer conducts pre-filing recruitment and the elimination of
duplicative activities currently performed by the State Workforce
Agencies (SWAs). In concert with these changes, the Department proposes
to amend the wage and hour regulations to provide for enhanced
enforcement, including more rigorous penalties, under the H-2A program
to complement the modernized certification process so that workers are
appropriately protected should an employer fail to meet the
requirements of the H-2A program.
DATE: Interested persons are invited to submit written comments on the
proposed rule on or before March 31, 2008.
ADDRESSES: You may submit comments, identified by Regulatory
Information Number (RIN) 1205-AB55, by any one of the following
methods:
Federal e-Rulemaking Portal http://www.regulations.gov: Follow
the Web site instructions for submitting comments.
Mail: Please submit all written comments (including disk
and CD-ROM submissions) to Thomas Dowd, Administrator, Office of Policy
Development and Research, Employment and Training Administration, U.S.
Department of Labor, 200 Constitution Avenue, NW., Room N-5641,
Washington, DC 20210.
Hand Delivery/Courier: Please submit all comments to
Thomas Dowd, Administrator, Office of Policy Development and Research,
Employment and Training Administration, U.S. Department of Labor, 200
Constitution Avenue, NW., Room N-5641, Washington, DC 20210.
Please submit your comments by only one method. The Department will
post all comments received on http://www.regulations.gov without making
any change to the comments, including any personal information
provided. The http://www.regulations.gov Web site is the Federal e-
rulemaking portal and all comments posted there are available and
accessible to the public. The Department cautions commenters not to
include their personal information such as Social Security numbers,
personal addresses, telephone numbers, and e-mail addresses in their
comments as such submitted information will become viewable by the
public via the http://www.regulations.gov Web site. It is the
responsibility of the commenter to safeguard his or her information.
Comments submitted through http://www.regulations.gov will not include
the commenter's e-mail address unless the commenter chooses to include
that information as part of his or her comment.
Postal delivery in Washington, DC, may be delayed due to security
concerns. Therefore, the Department encourages the public to submit
comments via the Web site indicated above.
Docket: For access to the docket to read background documents or
comments received, go to the Federal eRulemaking portal at http://www.regulations.gov.
The Department will also make all the comments it
receives available for public inspection during normal business hours
at the ETA Office of Policy Development and Research at the above
address. If you need assistance to review the comments, the Department
will provide you with appropriate aids such as readers or print
magnifiers. The Department will make copies of the rule available, upon
request, in large print and as an electronic file on a computer disk.
The Department will consider providing the proposed rule in other
formats upon request. To schedule an appointment to review the comments
and/or obtain the rule in an alternate format, contact the Office of
Policy Development and Research at (202) 693-3700 (VOICE) (this is not
a toll-free number) or 1-877-889-5627 (TTY/TDD).
FOR FURTHER INFORMATION CONTACT: For further information regarding 20
CFR part 655, contact Sherril Hurd, Acting Team Leader, Regulations
Unit, Employment and Training Administration (ETA), U.S. Department of
Labor, 200 Constitution Avenue, NW., Room N-5641, Washington, DC 20210;
Telephone (202) 693-3700 (this is not a toll-free number). Individuals
with hearing or speech impairments may access the telephone number
above via TTY by calling the toll-free Federal Information Relay
Service at 1-800-877-8339. For further information regarding 29 CFR
parts 501, 780 and 788, contact James Kessler, Farm Labor Team Leader,
Wage and Hour Division, Employment Standards Administration, U.S.
Department of Labor, 200 Constitution Avenue, NW., Room S-3510,
Washington, DC 20210; Telephone (202) 693-0070 (this is not a toll-free
number). Individuals with hearing or speech impairments may access the
telephone number above via TTY by calling the toll-free Federal
Information Relay Service at 1-800-877-8339.
SUPPLEMENTARY INFORMATION:
I. Revisions to 20 CFR Part 655 Subpart B
A. Background
1. Statutory Standard and Current Department of Labor Regulations
The H-2A worker visa program provides a means for U.S. agricultural
employers to employ foreign workers on a temporary basis to perform
agricultural labor or services when U.S. labor is in short supply.
Section 101(a)(15)(H)(ii)(a) of the Immigration and Nationality Act
(INA or the Act) defines an H-2A worker as a nonimmigrant admitted to
the U.S. on a temporary or seasonal basis to perform agricultural labor
or services. 8 U.S.C. 1101(a)(15)(H)(ii)(a), see also 8 U.S.C.
1184(c)(1) and 1188. Although foreign agricultural labor has
contributed to the growth and success of America's agricultural sector
since the 19th century, the modern-day agricultural worker visa program
originated with the creation, in the Immigration and Nationality Act of
1952, of the ``H-2 program''--a reference to the INA section that
established it. The H-2
[[Page 8539]]
program established mechanisms for the use of temporary foreign labor
but did not distinguish between agricultural and other types of work.
More than 30 years later, the Immigration Reform and Control Act of
1986 (IRCA) amended the INA to establish a separate H-2A visa
classification for agricultural labor under INA Section
101(a)(15)(H)(ii)(A). Public Law 99-603, Title III, 100 Stat. 3359,
November 6, 1986. Today, the H-2A nonimmigrant visa program authorizes
the Secretary of Homeland Security to permit employers to hire foreign
workers to come temporarily to the U.S. and perform agricultural
services or labor of a seasonal or temporary nature, if such employment
is first certified by the Secretary of Labor (the Secretary).
Section 214(c)(1) of the INA, as amended, requires the Secretary of
Homeland Security to consult with appropriate agencies of the
Government--in particular, the Department of Labor--before approving a
petition from an employer for employment of H-2A nonimmigrant
agricultural workers. 8 U.S.C. 1184(c)(1). Section 218 of the Act,
together with section 214, establishes the statutory structure for the
program and provides that a petition to import H-2A workers may not be
approved unless the petitioner has applied to the Secretary of Labor
for a certification. Section 218 sets out the explicit obligation for
the Department to certify that:
(A) There are not sufficient U.S. 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.
8 U.S.C. 1188(a)(1).
The INA specifies conditions under which the Secretary must deny
certification, and establishes specific timeframes within which
employers must file--and the Department must process and either reject
or certify--applications for H-2A labor certification. In addition, the
statute institutes certain employment-related protections, including
workers' compensation insurance, recruitment, and housing, to which H-
2A employers must adhere. 8 U.S.C. 1188(c). The H-2A program does not
limit the number of aliens who may be accorded H-2A status each year or
the number of labor certification applications the Department may
process.
The Department has published regulations at 20 CFR part 655,
subpart B--``Labor Certification Process for Temporary Agricultural
Employment Occupations in the United States (H-2A Workers),'' governing
the H-2A labor certification process; and at 29 CFR part 501 to
implement its enforcement responsibilities under the H-2A program.
Regulations impacting employer-provided housing for agricultural
workers appear at 20 CFR part 654, subpart E (Housing for Agricultural
Workers), and 29 CFR 1910.42 (standards set by the Occupational Safety
and Health Administration); see also 20 CFR 651.10, and part 653,
subparts B and F.
The INA also sets out the conditions under which a certification
may not be granted, including:
(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 of Labor 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 nonimmigrant 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 multi-state 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 under this paragraph shall terminate on the
date the H-2A workers depart for the employer's place of employment.
8 U.S.C. 1188(b).
The statute further sets out strict timelines for the processing of
certifications: The Secretary may not require that an application be
filed more than 45 days before the employer's date of need, and
certification must occur no later than 30 days prior to the date of
need, provided that all the criteria for certification are met. 8
U.S.C. 1188(c). If the application fails to meet threshold requirements
for certification, notice must be provided to the employer within 7
days of the date of filing, and a timely opportunity to cure
deficiencies must be provided to the employer. The Act does not
explicitly provide a timeframe for certification in cases where an
application as originally filed failed to meet the criteria for
certification and the employer is, upon the date that is 30 days prior
to the date of need, still coordinating with the Department and making
a good faith effort to cure deficiencies.
The Secretary has delegated her statutory responsibilities under
the H-2A program, through the Assistant Secretary, Employment and
Training Administration (ETA), to ETA's Office of Foreign Labor
Certification (OFLC). Under the current regulations in 20 CFR part 655,
subpart B, H-2A labor certification applications are processed
concurrently through the State Workforce Agency (SWA) having
jurisdiction over the area of intended employment and the applicable
National Processing Center (NPC) within the OFLC. The SWA and ETA--
through the NPCs--receive the application and review the terms of the
job offer concurrently.
Upon receipt of an employer's application, the SWA places in its
job clearance system a job order initiating local recruitment, but does
not place the job in broader circulation until it receives additional
instructions from ETA. By law, ETA has 7 calendar days from the
employer's date of filing within which to identify and notify the
employer and SWA of deficiencies in the application and provide the
employer an opportunity to submit an amended or modified application.
Alternatively, in that same time period, ETA may accept the application
for processing; acceptance reflects ETA's initial determination that
the benefits, wages, and working conditions of the employer's job
offer, for which temporary certification of foreign labor is sought,
will not have an adverse effect on similarly employed U.S. workers. ETA
then notifies the employer and SWA of this threshold determination and
authorizes the SWA to place the employer's job order in intrastate/
interstate clearance. See 20 CFR part 653, subpart F.
The SWA having jurisdiction over the State where the employer's
work site is located is responsible for processing the
[[Page 8540]]
employer's request for H-2A labor certification, overseeing the
recruitment and directing U.S. worker referrals to the employer. The
NPC reviews whether the employers comply with advertising and
recruitment requirements, and adjudicates the application--determining
whether to approve or deny certification for some or all of the jobs
requested.
To obtain a temporary labor certification, the employer must
demonstrate that the need for the services or labor is of a temporary
or seasonal nature. The employer must also establish that the job
opportunity for the temporary position is full-time, and, absent
extraordinary circumstances, the period of need is 1 year or less.
Historically, Departmental review and adjudication of applications
took place through both the SWAs and ETA's Regional Offices. However,
in December 2004, the Department opened two new NPCs, one located in
Atlanta, Georgia, and the other in Chicago, Illinois, to consolidate
processing of permanent and temporary foreign labor certification cases
at the Federal level. In 2005, the Department published a notice in the
Federal Register at 70 FR 41430, Jul. 19, 2005, clarifying that
employers seeking H-2A certifications (with a few limited exceptions
discussed below) must file two original copies of Form ETA 750, Part A,
and Form ETA 790 directly with the NPC of jurisdiction and,
concurrently, a copy with the SWA serving the area of intended
employment. SWAs coordinate all activities regarding the processing of
H-2A applications directly with the appropriate NPC for their
jurisdiction, including transmittal to the NPC of housing inspection
results, prevailing wage surveys, prevailing practice surveys, or any
other material bearing on an application. Once the application is
reviewed by the SWA and after the employer conducts its required
recruitment, the SWA sends the complete application to the appropriate
NPC. The NPC Certifying Officer (CO), on behalf of the Secretary,
reviews the application for completeness and either certifies the
application for temporary employment under the H-2A program, or denies
the certification. Current Department regulations at 20 CFR part 655,
subpart B, establish procedures by which an employer may appeal to an
administrative law judge either an initial rejection of an application
or a final determination denying the application.
Employers receiving approved labor certifications attach them in
support of their I-129 petitions to DHS for authorization to employ
foreign workers in H-2A status. For situations where prospective H-2A
workers are outside of the U.S., the employer forwards the approved
petition notice to its prospective employees who then apply for an H-2A
visa at the appropriate U.S. consulate or port of entry. The Department
of State then determines whether to issue visas to the foreign workers
requested under the employer's petition, who can then be admitted
through the appropriate port of entry. For H-2A workers already legally
present in the U.S., DHS adjudicates an application to extend or change
their current status to H-2A status as part of the petition approval
process.
2. The Need for a Redesigned System
Modern agriculture is a tremendous benefit to the U.S.--to its
culture, its health, and its economic prosperity. The value of U.S.
agricultural production was estimated to be $276 billion in 2006.\1\
Farm and farm-related industries employ an estimated 2.7 million
workers every year.\2\ This includes both wage earning workers and
those working for no wages on family farms.
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\1\ Bureau of Economic Analysis, National Income and Product
Accounts, Table 7.3.5; http://www.bea.gov/national/nipaweb/TableView.asp?SelectedTable=263&FirstYear=2005&LastYear=2006&Freq=Year
.
\2\ Bureau of Economic Analysis, Regional Economic Accounts,
Table SA25N, http://www.bea.gov/regional/spi/default.cfm?satable=SA25N&series=NAICS
.
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One unfortunate reality of modern American agriculture is that the
majority of the foreign workers assisting with the year's harvest are
undocumented. In fact, the share of the agricultural workforce that is
not work-authorized has increased dramatically in recent years while
the number of U.S. workers engaged in agriculture has dropped
steadily.\3\
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\3\ National Agricultural Workers Survey, Public Access Data,
Fiscal Years 1989-2006. U.S. Department of Labor, Employment and
Training Administration, Office of Policy Development and Research.
http://www.doleta.gov/agworker/naws.cfm.
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Evidence of a shrinking domestic agricultural workforce is found in
the U.S. Department of Agriculture's (USDA) Farm Labor Survey, a
quarterly survey of employers. Comparing third-quarter totals over the
10 year period 1998-2007, there were 1,450,000 wage-earning workers on
the Nation's farms and ranches in July 1998 but only 1,205,000 for the
same quarter of 2007, for a decrease of 245,000 workers. The largest
decrease occurred between 2005, when there were 1,344,000 wage-earning
workers, and 2006, when 1,196,000 were reported.\4\ The 1 year change
between 2005 and 2006 represents an 11 percent decrease. While
increases in productivity have contributed to an expanding agricultural
output with fewer inputs, including labor, this sudden and dramatic
decrease in the supply of workers cannot be entirely attributed to
productivity, and poses severe economic consequences for growers,
especially those of perishable crops. Indeed, the Department's program
experience and survey data have consistently supported the proposition
that the agricultural industry has many more jobs than available legal
workers.
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\4\ 2006 USDA National Agricultural Survey.
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Recent reports on the state of agriculture in the U.S. confirm the
dependence of many agricultural employers on undocumented workers. The
National Agricultural Worker Survey (NAWS) \5\ conducted each year by
the Department shows that in 1990, 17 percent of agricultural workers
were illegally present in the U.S. By 2006, the number of agriculture
workers who self-identify as being illegal had increased to 53 percent.
Some worker advocates have suggested that the actual number of illegal
workers is greater than 70 percent.\6\
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\5\ The National Agricultural Workers Survey (NAWS) is a
Department-sponsored employment-based, random survey of the
demographic, employment, and health characteristics of the U.S. crop
labor force. The information is obtained directly from farm workers
through face-to-face interviews.
\6\ See, e.g., Marcos Camacho, General Counsel, United Farm
Workers, Testimony Before the Committee on the Judiciary, U.S. House
of Representatives, May 24, 2007.
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Data from NAWS further shows that in 2006, 19 percent of all
agricultural workers were first time U.S. farm workers (new farm
workers are those who have less than a year of U.S. farm work
experience). Among the new workers, 85 percent were foreign-born; 15
percent were U.S. citizens. All of the foreign-born new workers were
unauthorized (100 percent).
Authorized workers appear to be leaving farm jobs because of age or
opportunities for more stable and higher paying employment outside of
agriculture, and are being replaced almost exclusively by unauthorized
foreign-born workers. In addition, enhanced enforcement of Federal
immigration law appears to have also contributed to a reduction in the
availability of agricultural workers, which has in turn had the
unintended consequence of sparking a series of agricultural crises
across a number of States in the past year. As increased border
enforcement efforts have succeeded in limiting the number of border
crossings by illegal workers, U.S.
[[Page 8541]]
employers, which all too often relied on such workers in the past, have
had an increasingly difficult time finding enough workers to harvest
their crops.
Numerous reports of shrinking or nonexistent farm seasonal labor,
with attendant crop loss for lack of harvest help, have been prominent
in recent months and reflect Department survey data. See, e.g.,
``Pickers are Few, and Growers Blame Congress,'' The New York Times,
September 22, 2006; ``Farmers to Congress: Crops are Rotting,'' Austin-
American Statesman, January 10, 2007. As stepped-up enforcement efforts
have diminished the availability of agricultural workers, States and
farmers have increasingly resorted to sometimes extreme means to
address the resulting labor shortage. For example, the State of
Colorado has initiated the use of inmate labor on farms where migrant
labor was previously used. ``Facing Illegal Immigrant Crackdown, Farms
Look to Inmate Labor,'' ABC News, July 25, 2007. In addition, an
increasing number of farmers have been investigating alternatives such
as raising crops across the Mexican border to secure needed workers
that they cannot legally hire in the U.S. ``Short on Labor, Farmers in
U.S. Shift to Mexico,'' The New York Times, September 5, 2007.
This critical need for legal workers in the U.S. agricultural
industry has been recognized by many Members of Congress, including
during recent deliberations over immigration reform. Senator Feinstein
highlighted the unique labor needs of agriculture and the importance of
foreign labor in a September 2006 floor statement:
We have 1 million people who usually work in agriculture. I must
tell you they are dominantly undocumented. Senator Craig pointed out
the reason they are undocumented is because American workers will
not do the jobs.
When I started this I did not believe it, so we called all the
welfare departments of the major agriculture counties in California
and asked--can you provide agricultural workers? Not one worker came
from the people who were on welfare who were willing to do this kind
of work. That is because it is difficult work. The Sun is hot. The
back has to be strong. You have to be stooped over. It is
extraordinarily difficult work.
For a State as big as mine, there is an immigrant community
which is professionally adept at this kind of work. They can pick,
they can sort, they can prune, they can harvest--virtually better
than anybody. This is what they do. This is what makes our
agricultural community exist.
It is very hard for a farmer to hire a documented worker. It is
very hard to find that documented worker. So if they are going to
produce they have to find the labor somewhere.
My State produces one-half of the Nation's fruits, vegetables
and nuts. One-half comes from California. We produce 350 different
crops. We have an opportunity now, with this bill, to get adequate
labor for this harvest season on this border security bill.
In my State of California, growers are reporting that their
harvesting crews are 10 to 20 percent of what they were previously
due to two things: Stepped up enforcement, a dwindling pool of
workers, and the problem that ensues from both.\7\
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\7\ 152 Cong. Rec. S9773 (2006).
In January 2007, Senator Craig summarized the problem facing U.S.
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agriculture in this way:
[T]his economic sector, more than any other, has become
dependent for its existence on the labor of immigrants who are here
without legal documentation. The only program currently in place to
respond to a lack of legal domestic agricultural workers, the H-2A
guest worker program, is profoundly broken. Outside of H-2A, farm
employers have no effective, reliable assurance that their employees
are legal.
We all want and need a stable, predictable, legal workforce in
American agriculture. Willing American workers deserve a system that
puts them first in line for available jobs with fair market wages.
All workers should receive decent treatment and protection of
fundamental legal rights. Consumers deserve a safe, stable, domestic
food supply. American citizens and taxpayers deserve secure borders
and a government that works.
Last year, we saw millions of dollars' worth of produce rot in
the fields for lack of workers. We are beginning to hear talk of
farms moving out of the country, moving to the foreign workforce.
All Americans face the danger of losing more and more of our safe,
domestic food supply to imports.
Time is running out for American agriculture, farm workers, and
consumers. What was a problem years ago is a crisis today and will
be a catastrophe if we do not act immediately.\8\
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\8\ 153 Cong. Rec. S441-S442 (2007).
Facing a shortage of available U.S. workers, agricultural employers
have been left with the untenable choice of either (a) attempting to
legally employ temporary foreign workers through an H-2A program that
is widely decried as dysfunctional, but risking losing crops if
inefficient program administration results in the workers arriving too
late for harvest; (b) using illegal workers, and incurring the risk
that the workers, and consequently the crops, will be lost to
immigration enforcement; or (c) not hiring any workers at all--in
effect, ending U.S. farming operations.
It is entirely unacceptable, but perhaps unsurprising, that many
agricultural employers have chosen in recent years to take their
chances with undocumented workers--if for no other reason than a lack
of viable alternatives. The willingness of agricultural employers to
hire illegal workers has created a continuing economic magnet
encouraging illegal workers to enter the U.S., resulting in attendant
problems for national security and the rule of law, as well as
additional costs associated with an underground economy, crime, and
social services.
This increasing reliance on undocumented workers has left the
agricultural workforce increasingly vulnerable to exploitation because
illegal workers fear deportation if they complain about substandard
wages or working conditions. As the U.S. Supreme Court has noted,
``[A]cceptance by illegal aliens of jobs on substandard terms as to
wages and working conditions can seriously depress wage scales and
working conditions of citizens and legally admitted aliens.* * *''
Sure-Tan v. NLRB, 467 U.S. 883, 892 (1984) (citing De Canas v. Bica,
424 U.S. 351, 356-57, 96 S.Ct. 933, 936-37 (1976). And it is not only
wages that are depressed, as Senator Kennedy stated in May 2007:
[W]e have, unfortunately, employers who are prepared to exploit
the current condition of undocumented workers in this country--
potentially, close to 12 [and] \1/2\ million are undocumented.
Because they are undocumented, employers can have them in these
kinds of conditions. If they don't like it, they tell them they will
be reported to the immigration service and be deported. That is what
is happening today.
I yield to no one in terms of my commitment to working
conditions or for fairness and decency in the workplace. That is
happening today. The fact that we have those undocumented workers
and they are being exploited and paid low wages has what kind of
impact in terms of American workers? It depresses their wages. That
should not be too hard to grasp. Those are the facts.\9\
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\9\ 153 Cong. Rec. S6590 (2007).
The U.S. has an estimated 3 million agricultural job opportunities
filled by about 1.2 million hired agricultural workers each year.\10\
As noted above, more than 50 percent and perhaps in excess of 70
percent of these workers are in the country illegally. This means there
are at least 600,000 and perhaps more than 800,000 illegal workers
employed on America's 2 million farms.
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\10\ Dr. James S. Holt, Testimony Before the Committee on
Education and Labor, U.S. House of Representatives, June 7, 2007.
http://edworkforce.house.gov/testimony/060707JamesHoltTestimony.pdf.
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The H-2A program is woefully underutilized by agricultural
employers. Unlike other temporary worker programs with annual visa caps
that are routinely reached on the first day on
[[Page 8542]]
which visas are available, the H-2A program has no annual limit on the
number of visas that can be issued. Yet despite the vast need for
agricultural labor, and the availability of H-2A visas, only about
7,700 agriculture employers used the H-2A program last year, and only
75,000 workers were hired--less than 6 percent of the hired
agricultural workforce. This situation clearly demonstrates that the
vast majority of agricultural employers in the U.S. find the H-2A
program so plagued with problems that they avoid using it altogether.
The Department seeks to remedy this problem and render the H-2A program
functional so that if and when agricultural employers are unable to
locate sufficient numbers of U.S. workers, they will turn to the
program to provide them with a fully legal workforce. A functional H-2A
program will change the incentives for agricultural employers, thereby
assisting in eradicating the underground economy created by the
widespread use of unauthorized workers and better protecting the wages
and working conditions of U.S. workers who are currently harmed by the
employment of workers illegally present in the U.S.
On August 10, 2007, the Administration announced a series of
actions the Administration would pursue to address border security and
immigration-related processes. As part of that effort, the President
directed the Department to review the H-2A program:
No sector of the American economy requires a legal flow of
foreign workers more than agriculture, which has begun to experience
severe labor shortages as our Southern border has tightened. The
President has therefore directed DOL to review the regulations
implementing the H-2A program and to institute changes that will
provide farmers with an orderly and timely flow of legal workers,
while protecting the rights of laborers.\11\
\11\ Fact Sheet: Improving Border Security and Immigration
Within Existing Law, Office of the Press Secretary, The White House
(August 10, 2007); see also Statement on Improving Border Security
and Immigration Within Existing Law, 43 Weekly Comp. Pres. Doc. 1067
(Aug. 13, 2007).
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Pursuant to this directive, the Department conducted a ``top to
bottom'' review of the H-2A program, its statutory basis, and current
implementing regulations. This analysis identified a number of
practices not required by the statute that have made administration of
the program unwieldy and parts of the program difficult to use,
particularly for an industry that needs its workforce at specific times
and cannot afford delays. This NPRM enhances many protections for
workers while seeking to eliminate unnecessarily cumbersome regulatory
practices that interfere with or inhibit use of the program, provide
little or no benefit for U.S workers, and indirectly contribute to the
employment of illegal workers.
The process for obtaining a temporary labor certification for H-2A
nonimmigrant agricultural temporary workers has been criticized as
complicated, time-consuming, and requiring the considerable expenditure
of resources by employers, SWAs, and the Federal Government. The
current requirement that applications for temporary labor
certifications be filed simultaneously at the SWA and the applicable
ETA NPC has resulted in burdensome, costly, and unnecessarily
duplicative Government review, with little associated benefit to
workers. In addition, the compressed time frame for supervised
recruitment has burdened employers and made it difficult for U.S.
workers to access and pursue these opportunities. The supervised
recruitment requirements and process have also been inconsistently
applied, leading to further administrative burdens for both employers
and workers. While the consolidation of the Regional Office oversight
of applications into two NPCs has, to a certain extent, lessened the
administrative burden and made application processing more consistent
at the Federal level, it has not lessened the burden faced by
employers, eliminated delays in application processing, or increased
the Department's ability to ensure worker protections. Consequently,
the program continues to be regarded with trepidation by many
agricultural employers who continue to make the unacceptable choice to
employ an undocumented workforce rather than face the program's many
complexities.
3. Overview of the Proposed Redesign of the System
In light of its extensive experience in both the processing of
applications and the enforcement of worker protections, the Department
has re-examined its program administration and is consequently
proposing several significant measures to re-engineer the H-2A program
processing. These proposals will simplify the process by which
employers obtain a labor certification while maintaining, and even
enhancing, the Department's substantial role in ensuring that U.S.
workers have access to agricultural job opportunities before H-2A
workers are hired. These proposals will also increase employer
accountability through newly applied penalties to further protect
against violations of program and worker standards, including
substantially increased civil monetary penalties for non-compliance
with program requirements and enhanced provisions for denying non-
compliant employers access to the program.
The Department expects that the resulting efficiencies in program
administration will significantly encourage increased program
participation, resulting in an increased legal farm worker labor supply
with the attendant legal rights and protections for workers. The
Department further expects that U.S. workers will be better protected
from adverse effects when they are competing with workers who are
legally present in the U.S. and who are subject to all of the
requirements of the H-2A program. See Sure-Tan v. NLRB, 467 U.S. at 883
(1984).
The Department is proposing to implement an attestation-based
process by which employers, as part of their application, would attest,
under threat of penalties, including perjury and debarment from the
program, they have complied with all applicable program requirements.
In addition, employers would be required to maintain all supporting
documentation for their application for a period of 5 years in order to
support the Department's enforcement of program requirements. The
Department would also institute a new auditing process to verify that
employers have, in fact, met their responsibilities under the H-2A
program.
In the Department's experience, delays by SWAs in conducting
housing inspections have frequently caused the Department to miss
mandatory statutory deadlines for processing H-2A labor certification
applications. By statute, the Department has only 15 days to process H-
2A labor certifications; the Department cannot require that
applications be filed more than 45 days before the first date of need,
8 U.S.C. 1188(c)(1), and is required to make a determination on
applications no fewer than 30 days before the first date of need, 8
U.S.C. 1188(c)(3)(A). Housing determinations are similarly required by
statute to be completed no fewer than 30 days before the first date of
need--a mandate designed to ensure that housing inspections do not
interfere with the specified timeframes for certifying labor
applications. 8 U.S.C. 1188(c)(4). The Department's program experience
indicates, however, that housing inspections are frequently delayed
well past 30 days before the first date of need, causing the Department
to make late certification
[[Page 8543]]
decisions thus violating the statutory timeframe specified. To bring
the program back into compliance with the law and ensure that
determinations are made no fewer than 30 days prior to the first date
of need, the proposed rule would alter the current H-2A housing
inspection procedures by adopting procedures that are currently used to
inspect housing for U.S. workers under the Migrant and Seasonal
Agricultural Worker Protection Act (MSPA). These procedures are
explained in greater detail below.
Consistent with the Department's statutory obligations under the
INA to process H-2A applications under strict time constraints, and the
experience we have had in not being able on a regular basis to achieve
these obligations with respect to employer-provided housing, it is
necessary in this proposed rule to separate the INA procedure from the
procedures for inspections not under the H-2A program in 20 CFR 654.400
and 654.403. While this INA rule would apply to H-2A related housing
inspections in the future, the housing standards themselves, that is,
20 CFR 654.404-654.417 and 29 CFR 1910.142, whichever are applicable,
continue to apply to such housing.
Employer applications would be submitted directly to an NPC,
streamlining the intake process and reducing the time required to
render a determination on the application. SWAs would continue to post
job orders, circulate them through the Interstate Employment Service
System, and refer potential U.S. workers to employers. SWAs would no
longer directly oversee the employer's recruitment efforts. Instead, as
described above, employers will attest to their compliance with the
program requirements and those attestations will be audited by the
Department to ensure compliance.
Upon submission of the application, the applicable NPC would review
the job offer and the attestations to ensure compliance with all the
criteria for certification relative to the date of need. As necessary,
the NPC may issue a notice of application deficiency to enable the
employer to amend or modify the application or job offer. The employer
would also submit a preliminary recruitment report to the NPC as part
of the filing process, documenting its recruitment efforts (and their
outcome) for the period from the initiation of the recruitment efforts
to the time of the submission of the application. In addition, the
employer would be required to create and retain a supplemental written
recruitment report for 5 years from the date of certification for use
in a Department audit or other investigation.
Employers would be required to retain for 5 years all supporting
documentation for their application including documents supporting
recruitment efforts, a copy of the housing certification, any relevant
certificate of occupancy used to demonstrate compliance, as well as any
written requests submitted to a SWA or other State agency for
preoccupancy inspection of housing, and any other documentation
required to demonstrate compliance with a program obligation.
The introduction of audits serves as both a quality control measure
and a means of evaluating applications. Audits would be conducted for
quality control and fraud detection purposes on adjudicated
applications as well as randomly-selected applications being processed.
The criteria used for selecting applications for audits would be drawn
from the Department's program experience and be based in part on
information received from the Department's Employment Standards
Administration (ESA), which is charged with enforcing the provisions of
the H-2A program through its Wage and Hour Division (WHD). During an
audit, employers would be required to provide information supporting
the attestations in their application. Failure to meet the required
program standards or to provide information in response to an audit
would result in an adverse finding that could lead to penalties, such
as revocation of an approved labor certification or debarment from the
program. These penalties may be in addition to penalties separately
assessed by ESA.
Finally, the Department's proposal creates an additional process
for penalizing employers or their attorneys or agents who have failed
to perform obligations required under the H-2A program. The Department
will continue to debar employers who have engaged in prohibited
activities or who have failed to comply with the obligations and
assurances required by the program, and we have added a process to
revoke an approved labor certification, which may in turn provide a
basis for the DHS to revoke an approved visa petition.
The re-engineering of the H-2A program to include pre-filing
recruitment, submission of applications directly to an NPC, modernized
processing of applications, reduction of duplication in the application
process, and focusing of SWAs on referral of U.S. workers should yield
improvements in the time needed to process labor certification
applications and help ensure the Department meets its obligation to
protect U.S. workers and process applications within the statutory
timeframe mandated by Congress.
B. Proposed Redesign To Achieve a Modernized Attestation-Based Program
1. Enhanced Recruitment Requirements
The recruitment process fulfills the Department's statutory mandate
to certify that there are not sufficient U.S. workers who are
available, able, willing, and qualified to perform the agricultural
labor or services and that the employment of the temporary foreign
worker will not adversely affect the wages and working conditions of
similarly employed U.S. workers. 8 U.S.C. 1188(a)(1). The Department
currently ensures that these standards are met by requiring a
combination of SWA-supervised recruitment by employers, the posting of
job orders in the Interstate Employment Service System, and the
independent contacting of other sources of potential labor. These
activities must take place in a very narrow 15-day window, as under the
statute the Department cannot require that applications be filed more
than 45 days prior to date of need for the worker and the Department
must approve or deny labor certifications no later than 30 days before
the employer's date of need.
The Department is now proposing to require employers to conduct
recruitment of U.S. workers for temporary agricultural job
opportunities for a substantially longer period of time before the job
begins by requiring that recruitment be started well in advance of the
employer filing the application. The Department's experience in other
programs, such as its permanent labor certification program, has
demonstrated that recruitment in advance of filing an application
benefits the potential U.S. worker population by providing a maximum
opportunity for consideration of the job opportunity. Employers would
continue to engage in so-called ``positive recruitment'' and post a job
clearance order for both interstate and intrastate clearance with the
SWA having jurisdiction over the place of employment in advance of the
application being filed with the Department. The Department believes
that advance recruitment in the H-2A program would help maximize the
ability of employees and organizations representing their interests to
identify available jobs with sufficient time to apprise all interested
workers of the potential opportunity well in advance of the job's start
date.
[[Page 8544]]
Under the new recruitment system, which is discussed in more detail
below, U.S. workers' ability to identify job opportunities would be
further enhanced by requiring employers to place three advertisements,
instead of the currently required two, in a newspaper of general
circulation most appropriate for the agricultural occupation and most
likely to reach the U.S. workers who will apply for the job
opportunity. In addition, the Department would require that one of the
three newspaper advertisements appear in a Sunday edition. If a
newspaper of general circulation with a Sunday edition is not available
(as may be the case in many rural areas where such jobs are located),
the employer would instead use the edition with the widest circulation
in the area of intended employment that is most appropriate to the
occupation and most likely to be read by the U.S. workers most likely
to apply for the job opportunity. In addition, if the use of a
professional, trade or ethnic publication is more appropriate to the
occupation, and if that publication is the most likely source to bring
responses from qualified and available U.S. workers, the employer may
use such publication instead of a newspaper in place of the two
required daily (but not Sunday) advertisements. This advertising option
will allow recruitment for agricultural jobs to be appropriately
tailored in those areas where such jobs are traditionally advertised in
ethnic or trade publications. Employers would also be required to
contact former employees to determine their willingness to accept the
employer's job opportunity.
In addition to recruiting in the area of intended employment,
employers would be required, based on an annual determination made by
the Secretary, to recruit in any State designated as a State of
traditional or expected labor supply for the place the employer's work
is to be performed. This additional recruitment would consist of a
single newspaper advertisement in the area or areas within the States
that are outlined in the Secretary's designation, and must be placed at
the same time as the three local newspaper advertisements discussed
above. SWAs will also place job orders into those designated states as
required.
As required by the current regulations, all advertising must
include all of the details required in the job offer, including the
name and geographic location of the employer. If the employer is an
association, the advertisement may, as is current practice, list only
the name of the association, but the Department proposes to require
that the advertisement inform the reader that the SWA will have on file
and will make available upon request the name and location of every
member of the association seeking workers through the advertisement.
Ads must identify in all cases the wage being offered. In the event an
association is serving as the employer and the wage is a range
throughout the area of intended employment, the range of wages must be
included in the advertisement, and the advertisement must indicate that
the SWA will have on file, and will make available upon request, the
wage rate applicable to each member of the association. These
requirements will help ensure that potential applicants are afforded
the opportunity to make fully informed decisions about job
opportunities.
Employers would begin advertising job opportunities no earlier than
120 calendar days and no later than 75 calendar days before the date on
which the foreign worker would begin work (i.e., the date of need).
This will permit sufficient time for an advertisement to be placed and
responded to by potential U.S. workers most likely to apply for the job
opportunities, and for workers who apply to be evaluated by the
employer before the H-2A application is filed. The Department believes
that the expanded recruitment window appropriately balances the need to
maximize the notice of available job opportunities to U.S. workers with
the need to ensure that recruitment is not conducted so far in advance
of the growing season that employers do not yet know when or how many
workers will be needed.
Employers filing the labor certification applications would be
required to attest under penalty of perjury that (1) they did, in fact,
attempt to recruit U.S. workers in the manner prescribed by the
regulations, and (2) any potentially qualified U.S. workers that
applied were rejected for lawful, job-related reasons. Employers would
submit with their application a preliminary recruitment report,
documenting their efforts to date in attempting to find eligible U.S.
workers, including the outcome of the evaluation of U.S. worker
applicants. Employers would also be required to prepare a supplemental
report after filing that documents subsequent recruitment efforts and
the results, including results from SWA recruitment and referrals, to
be retained with the other documentation supporting the application.
The proposed rule expands the period in which the employer must
conduct recruitment and consider potential U.S. workers, so that U.S.
workers will be given notice well in advance of the actual openings. To
account for the fact that the date and extent of need is always
flexible in the agriculture industry, the Department has retained
current provisions permitting employers to reasonably adjust the
numbers of workers needed without engaging in additional recruitment.
The INA also requires employers to engage in recruitment through
the Employment Service SWA job clearance system. See 8 U.S.C.
1188(b)(4); see also 29 U.S.C. 49, et seq., and 20 CFR part 653,
subpart F. The proposed recruitment model requires employers to submit
job orders to the SWA having jurisdiction over the area of intended
employment. When the job order is for a work opportunity in more than
one State, the SWA to which the job order is submitted will in turn
forward the job order to all States listed in the application as
anticipated worksites. In circumstances where the employer's
anticipated worksite location(s) is contained within the jurisdiction
of a single State, the SWA must, to maximize the recruitment of
eligible U.S. workers, transmit a copy of its job order to no fewer
than three States, which must include any State designated by the
Secretary as a State of traditional or expected labor supply for the
area of intended employment. This recruitment takes place in tandem
with the employer's own recruitment within a multi-state region of
traditional labor or expected labor supply, as discussed above. INA
Sec. 218(b)(4).
The Department is proposing that SWA job orders also be posted
until the time the H-2A worker departs for the place of employment (or
3 days prior to the start date of the employment, whichever is later).
Because referrals of U.S. workers resulting from newspaper
advertisements and intrastate/interstate job orders will all come from
the SWA, this proposal will better synchronize efforts to recruit U.S.
workers and ensure that such efforts operate in parallel.
Employers should retain several types of documents reflecting their
compliance with the program's recruitment requirements. Documentation
relating to newspaper advertisements will be satisfied by copies of
pages from the newspapers (or other publication) in which the job
opportunity appeared. Documentation of an SWA job order will be
satisfied by maintaining copies of the job order printed from the SWA's
Internet job listing Web site on the first day of posting, a copy of
the job order provided
[[Page 8545]]
by the SWA with the start date of posting, or other proof of
publication from the SWA containing the text of the job order on the
first day of posting. Contact with previous employees, another required
positive recruitment element, will be documented by maintaining copies
of correspondence with such employees (or records of attempts to
contact former employees). Such documentation should also contain a
description of the outcome of those contacts, including the lawful,
job-related reasons for not rehiring a former employee. In sum, these
proposed changes in the recruitment process will increase the
likelihood that U.S. workers will receive advance notice of available
job opportunities, as well as provide them with additional information
on available positions. In addition, the proposed changes will help
avoid recruitment-related processing delays.
2. Use of Attestations of Compliance With Assurances and Obligations
The Department is proposing to require employers to submit their
application directly to the NPC having jurisdiction over the employer's
place of employment. The application under the re-engineered process
will differ not only in the manner of its submission, but also in its
form. Based on the Department's experience administering the
attestation-based Permanent Labor Certification (PERM) program, the
Department is proposing instituting an application that would require
employers to attest to their adherence to the articulated obligations
under the H-2A program. An employer would be required to attest, under
penalty of perjury, that it will abide by all of the obligations
imposed on employers under the statutory and regulatory framework. The
employer would have to attest, for example, that it has begun to
conduct and either completed or will complete the required recruitment
(and document the recruitment efforts). The employer would also have to
attest that it has provided or secured required housing and, where
applicable, applied to the SWA and requested or received a satisfactory
inspection. The employer would also need to attest its compliance with
securing workers' compensation insurance; the so-called ``three-fourths
guarantee;'' and the provision of tools and transportation. In
addition, the employer would have to attest that it is in compliance
with and will continue to comply with all applicable Federal, State and
local employment-related laws. In short, all of the obligations of
employers to comply with H-2A program requirements would continue and
would be documented through these formal attestations.
As part of the application process, employers would attest that
they have conducted expanded recruitment in advance of filing an
application with the Department. Employers would attest to their
compliance with the required elements of the H-2A job offer, including
offering the applicable legally required wage, which would be obtained
in advance through a request to the NPC. Employers would attest that
they have provided the obligatory workers' compensation insurance and
met the required working conditions. Employers would further attest to
their adherence to requirements regarding the recruitment of qualified
U.S. workers through both their own positive recruitment efforts and by
requesting the posting of job orders through SWAs, as well as
confirming that any U.S. workers who have applied or been referred and
were not hired were rejected only for lawful, job-related reasons.
Employers would attest to having obtained worker housing comporting
with all applicable safety and health standards. Employers would
identify the housing to be provided by location and, if public or
rental accommodation, by name, and attest that the housing meets the
applicable standards. And, if the housing is of a sort that must by
statute be inspected, the employer would attest that such housing has
either satisfactorily passed a preoccupancy SWA inspection, or that the
employer has made a timely request for such an inspection that has not
occurred through no fault of the employer. As part of its recruitment
prior to filing its application, the employer would be required to
place a job order with the appropriate SWA, which would in turn post it
through the interstate/intrastate job clearance system.
The Department anticipates the shift to an attestation-based
process with pre-filing recruitment would help to bring the program
into compliance with longstanding statutorily required processing
timelines and better harmonize the program with the unique needs of the
agricultural sector, thereby enabling more employers to utilize the
program and better protecting U.S. workers from the adverse effects
resulting from the employment of illegal workers. Employers would still
be required to comply with all the requirements and obligations of the
program, and indeed penalties for noncompliance would increase.
Employers would retain supporting documentation evidencing their
compliance with the program requirements, while the Department would
retain for itself the right to request such documentation to ensure
program integrity.
The revised attestation process will dramatically reduce the number
of incomplete applications that currently consume valuable processing
time only to then have to be returned to the applicant for the
inclusion of missing information. The majority of the information on
the application form would consist of attestations that will elicit
information similar to that required by the current H-2A labor
certification process reflecting that the employer has performed the
necessary activities to establish eligibility for certification. These
proposed attestations lend themselves to a more efficient processing of
applications.
The Department anticipates that, with an expected increase in use
of the program, it will see a marked increase in participants
unfamiliar with the obligations that are integral to the H-2A program.
The movement to an attestation system would be accompanied by outreach
to potential users as well as those currently utilizing the program.
Such education efforts will of necessity focus on employers'
obligations and the mechanisms by which compliance will be judged. The
Department invites comment on a timeline for its anticipated training
and educational outreach initiatives.
3. Form Submission
The Department proposes initially to require employers to submit
applications on paper, through an information collection form that will
be modified significantly from the current form to reflect an
attestation-based process. The use of a redesigned form would provide
the necessary assurances of an expeditious paper application review
process. The Department ultimately envisions implementing an electronic
submission system similar to that employed in other programs
administered by the Department's OFLC, such as the electronic
submission system in the PERM program.
The Department is proposing to eventually require electronic
submission in explicit recognition of the fact that such a process will
significantly further improve the application process. An electronic
submission process will also improve the collection of key program data
and better allow the Department to anticipate trends, investigate areas
of concern, and focus on areas of needed program improvement. Improved
data collection will also enable the
[[Page 8546]]
Department to capture information regarding noncompliance and potential
fraud that may lead to future administrative, civil, or criminal
enforcement actions against unscrupulous or non-performing employers.
The Department recognizes that H-2A employers may be concerned
about their ability to comply with the application requirements through
use of an Internet-based submission process and is accordingly not
requiring it at this time. The Department is committed to reviewing its
ability to transition the H-2A filing process to such a method and is
reviewing specifically its ability to provide, based upon its previous
experience, user-friendly electronic registration and filing processes
that would enable use by any employer with computer and Internet
access. The Department's experience with agricultural employers in
other contexts (program requirements under the Migrant and Seasonal
Agricultural Worker Protection Act, for example) support its
determination that such access is common enough among agricultural
employers to justify eventually requiring its use in this context. The
Department invites comments, in particular from H-2A employers, on the
concept of an electronic filing process.
4. Elimination of Unnecessary Duplication in the SWAs' Role
The Department's focus on providing employers a more efficient
process has taken into consideration the total time an employer must
spend before all Federal agencies to obtain permission to employ an H-
2A worker and ensure that workers are available when needed. Employers
must by statute apply to DOL, DHS and DOS to obtain H-2A workers.
Reducing the time it takes an employer to secure H-2A workers after
filing their application, and after their unsuccessful search for U.S.
workers, is critical to the program's success given the time sensitive
nature of many agricultural employers' labor needs.
Congress has signaled its awareness of the incredible importance to
the agricultural sector of timely application processing by building
tight mandatory timeframes into the statutes governing the H-2A
program. For example, the Secretary is required to make certification
decisions ``not later than 30 days before the date such labor or
services are first required to be performed,'' 8 U.S.C. 1188(c)(3)(A),
and SWAs are required to complete housing inspections by that date as
well, 8 U.S.C. 1188(c)(4). Actual practice has shown, however, that the
procedures established by the current regulations are cumbersome, slow,
unwieldy, and have resulted in both SWAs and the Department regularly
failing to meet the required statutory timeframes.
Consequently, the Department's efforts have focused on how to
develop a smoother and more expeditious H-2A process while ensuring
protections for workers. Among our proposals in this rulemaking is the
elimination of duplicate filing of applications with the SWA and the
Department's NPC. By focusing the SWAs' role in the initial stages of
the application process (placing job orders, managing referrals of
eligible U.S. workers, and conducting housing inspections), the
Department can more effectively oversee the adjudication and consistent
processing of all applications. As a result of this modernized
application review procedure, the Department can reduce and equalize
the average processing time of applications regardless of the area of
the country where the application originated.
We expect that the time savings gained by using a more efficient
labor certification process will reduce the total time an employer
spends obtaining permission from the Federal Government to employ an H-
2A worker and getting that worker from his or her country of origin to
the place of employment. Moreover, the Department's consolidation of
the review of applications in its NPCs will permit greater consistency
of adjudication. Two centers, as opposed to the fifty State agencies,
will be charged with all major aspects of application adjudication,
ensuring consistency in the application of program requirements and
policy. Indeed, the Department is considering consolidating all H-2A
applications into one NPC rather than two, to further enhance
consistency of adjudication and processing.
The SWA will continue to play its traditional role in the
recruitment process by posting and processing an appropriate job order
to notify available and qualified U.S. workers of the opportunity. The
employer would need to contact the SWA to initiate placement of the job
order, rather than relying on the SWA to place it in the course of
processing the H-2A application, as is the case now. The job order
would be required to provide the same information as the newspaper
advertisements contemplated by this proposal. This is an expansion of
the information previously required to be included with the job order,
and will significantly enhance the transparency of the recruitment
process for prospective workers. Employers whose applications involve
worksites in multiple SWA jurisdictions would place the job order with
the SWA in which the majority of the proposed work assignment will take
place. The SWA will arrange to have it posted with other SWAs, as
appropriate.
To strengthen the integrity of the Secretary's determination of
whether there are available U.S. workers for the position, and to help
build employers' confidence in their local SWAs and the H-2A program,
the proposed rule at Sec. 655.102(j) clarifies the SWAs' obligation to
verify the employment eligibility of prospective U.S. workers before
referring them to an employer under a job order in support of a H-2A
application. The failure of many SWAs to verify the employment
eligibility of referred workers, despite existing statutory
requirements that only eligible workers be counted as valid referrals
and existing regulatory requirements that no ineligible workers be
referred, has created a situation in which it is all too easy for
illegal workers, rather than U.S. workers, to be referred to employers.
For many years, agricultural employers have complained to this
Department that SWA-referred workers are often undocumented, generating
substantial additional legal risks and administrative burdens for
employers. Collectively, agricultural employers appear to have little
confidence in their local employment service or the H-2A program, and
consequently rarely utilize either.
The INA provisions governing admission of foreign workers under the
H-2A program make employment eligibility of U.S. workers a core element
of a worker's ``availability;'' a U.S. worker has long been
characterized as being ``available'' for employment when authorized to
legally undertake that employment. An employer will not be penalized
for turning away applicants who are not authorized to work, and
referred workers who are refused employment on the basis of not having
work authorization will not be counted as available for purposes of H-
2A labor certification. By statute, the Secretary must certify the job
opportunity if the employer: (1) ``Has complied with the criteria for
certification (including criteria for the recruitment of eligible
individuals as prescribed by the Secretary),'' and (2) ``does not
actually have, or has not been provided with referrals of, qualified
eligible 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.'' 8 U.S.C.
[[Page 8547]]
1188(c)(3)(A) (emphasis added); see also definition of ``agricultural
worker,'' 20 CFR 651.10 (applicable to referrals under the Employment
Service System regulations at 20 CFR parts 651-658). For purposes of
employment, the INA defines an ``eligible individual'' as one ``who is
not an unauthorized alien * * * with respect to that employment.'' 8
U.S.C. 1188(i)(1).
SWAs receiving ETA Alien Labor Certification (ALC) grant funding to
support H-2A activities are required to verify the employment
eligibility of applicants seeking referral under a job order in support
of an H-2A application pursuant to current regulations and agency
guidance; this proposed regulation provides additional clarification of
this requirement. The Department notes that DHS regulations at 8 CFR
274a.6 provide additional verification authority and procedures for
SWAs. To confirm its continued eligibility to receive ALC grant
funding, each State agency will be asked to submit proof of these
procedures to the Department prior to the beginning of the 2009 fiscal
year (FY). In the event a SWA refers a worker who is not eligible,
current H-2A employer responsibilities will not change; an employer is
not required to hire such worker and can include ineligibility as a
reason for rejection in its recruitment report.
We strongly caution that the SWA's responsibility to perform
threshold, pre-referral verification exists separate from each
employer's independent obligation under Immigration Reform Control Act
of 1986 (IRCA) to verify the employment eligibility of every worker to
whom it has extended a job offer. The INA does provide, however, that
employers who accept referrals from SWAs that verify employment
eligibility in compliance with the DHS process and provide referred
employees with appropriate documentation certifying that verification
has taken place are entitled to ``safe harbor'' in the event it is
later discovered a referred worker was not authorized to work in the
U.S. 8 U.S.C. 1324a(a)(5). To simplify the recruiting process and avoid
unnecessary duplication of functions, SWAs are directed to provide all
referred employees with adequate documentation that verification of
their employment eligibility has taken place. Employers can rely on INA
Sec. 274A(a)(5) only where the documentation complies with all
statutory and regulatory requirements, including 8 CFR 274a.6. SWAs are
strongly encouraged to provide this documentation to employers. The
Department is not insensitive to the resource and time constraints
facing SWAs in their administration of H-2A program requirements and
the difficulties inherent in making informed referrals from a
population of workers that is frequently itinerant and often difficult
to contact. However, we do not believe that this requirement has
resulted or will result in a significant workload increase or
administrative burden. Further, the mechanisms available for
verification, including the E-Verify Web-based system operated by DHS,
allow SWA staff to perform this function relatively quickly after
training.
E-Verify is a program administered by the United States Citizenship
and Immigration Services (USCIS) within DHS. E-Verify electronically
confirms a person's employment eligibility after the Employment
Eligibility Verification Form (Form I-9) has been completed. SWAs that
choose to use E-Verify refer a job seeker to an H-2A-related job
opportunity only after completing a Form I-9 and submitting the
required information via E-Verify. The SWA will be required to follow
the terms and conditions in the Memorandum of Understanding that must
be signed by the SWA and USCIS in order to gain access to E-Verify. The
SWA may not refuse to make a referral and the employer may not refuse
to accept a referral because of an E-Verify tentative nonconfirmation
(TNC), unless the job seeker decides not to contest the TNC. SWAs and
employers may not take any adverse action, such as delaying a referral
or start date, against a job seeker or referred worker based on the
fact that E-Verify may not have yet generated a final confirmation of
employment eligibility. The SWA will be required to advise the employer
when E-Verify generates a final confirmation or nonconfirmation.
The requirement that SWAs verify employment eligibility prior to
referral is designed to strengthen the integrity of the temporary labor
certification process, afford employers a legal pool of U.S. worker
applicants, and improve confidence in and use of the H-2A labor
certification program.
5. Retention of Supporting Documentation
Employers would be required to retain the documentation outlined in
the proposed regulations in hard copy for 5 years from the date of
adjudication, and to provide all documentation to demonstrate
compliance with the requirements of the program in response to an audit
or other investigative matter, whether conducted by the Department or
another Federal agency, such as DHS. As described above, the documents
to be retained include proof of recruitment efforts, including
advertising, contact made with applicants and former employees, and a
written recruitment report with results of efforts and reasons for not
hiring U.S. workers.
Finally, the Department recognizes that there is always a risk that
less-than-scrupulous H-2A program participants will try to secure
workers through fraud or misrepresentation. Long-standing practice and
coordination with SWAs in the H-2A program, as well as experience with
the attestation-based PERM system, have provided us substantial insight
regarding the mechanisms by which employers may seek to take advantage
of the re-engineered attestation-based system. The Department proposes
to employ various measures to address potential fraud or abuse in the
attestation-based process and the H-2A program generally. These will
include audits, a combination of increased deterrent penalties,
including [0]fines, revocation of approved applications, and debarment
from future participation in the H-2A program, all of which are
discussed below, as well as other mechanisms for detecting fraud. In
addition, employers and their agents and attorneys are reminded that
submission of any materially false, fictitious, or fraudulent
statements to any Federal Government agency constitutes a criminal
violation (18 U.S.C. 1001 and 1546), subjecting anyone convicted of a
violation to fines and/or imprisonment for not more than 5 years.
C. Maintaining and Enhancing Program Integrity
The shift to an attestation-based temporary H-2A agricultural labor
certification system will be accompanied by the Department's vigorous
enforcement of employer obligations under this program. Consequently,
the Department is proposing certain actions in this rulemaking,
consistent with its statutory authority, to examine and enforce
compliance with the enumerated obligations and responsibilities of
employers that seek approval of labor certifications pursuant to the H-
2A program.
1. Prohibition on Cost-Shifting
Under proposed new Sec. 655.105(n), an employer must attest that
it has not shifted and will not shift to the H-2A worker the costs of
preparing or filing the application, including the costs of recruitment
or attorneys' fees, and that it has not utilized a foreign recruiter
without contractually prohibiting that
[[Page 8548]]
foreign recruiter from passing on such costs. The recruitment, legal,
and other costs associated with filing a temporary labor certification
application are business expenses necessary for, or in the case of
legal fees, desired by, the employer to complete the labor market test
and to prepare and submit the labor certification application. The
employer's responsibility to pay the costs of preparing an application
exists separate and apart from any potential benefit that may accrue to
the foreign worker as a result of the employer filing the application.
Prohibiting the employer, including a Farm Labor Contractor (FLC), from
passing these costs on to its H-2A worker(s) allows the Department to
better protect the integrity of the process, as well as protect the
wages of the H-2A worker from deterioration by disallowable deductions.
Disallowable deductions taken from an H-2A worker's wages cause those
workers to be paid less than the required wage, which results in an
adverse effect on U.S. workers.
2. The Use of Audits
Pursuant to proposed new Sec. 655.112, after a labor certification
application has been adjudicated, the Department would, based upon
various selection criteria, identify certain applications for audit
review. Investigations performed by the Department's WHD and the
Department of Justice's Office of Special Counsel for Unfair
Immigration-Related Employment Practices (OSC) would provide another
potential source of information triggering audits. In addition, some
applications would be randomly selected for audit as part of the
Department's quality control processes. This authority would enable the
Department to perform its directed and random audits on any application
that has been adjudicated, regardless of whether the application was
approved or denied.
If an application is selected for an audit, the employer will be
notified in writing of the selection. The employer would then be
required to submit, within 30 days, the documentation specified in the
audit request to verify the information stated in or attested to on the
selected application. Upon timely receipt of an employer's audit
documentation, and after any further investigation that may be
warranted, the audit information would be reviewed by the Department's
Certifying Officer (CO). The Department would then determine whether
the employer complied with its obligations and would notify the
employer in writing of its findings.
The Department will take firm action when it discovers non-
compliance by employers. The Department is invoking all available
statutory authorities to bolster its enforcement capabilities. If, at
the conclusion of an audit, there is evidence of non-compliance with
required attestations and/or other program requirements, or if an
employer refuses to participate in the audit process, the proposed rule
would enable the CO to order a variety of remedies. The CO may initiate
debarment proceedings against the employer, agent and/or attorney in
order to prohibit participation in the H-2A program for a period of up
to 3 years at the Department's discretion and depending on the nature
and severity of the violations. If the audit reveals that employer's
documentation is incomplete, is inconsistent with the employer's
statements and/or attestations contained in the application, or if the
application and supporting documentation is otherwise deficient in some
material respect, the employer may, in addition to debarment, also
experience revocation of the approved H-2A certification, as described
below. The proposed rule also adds a provision explaining that the
Department of Justice's OSC will refer to the CO pertinent information
gained in the course of OSC's investigations. Likewise, the proposed
rule would require the Department and Department-funded entities to
share pertinent information with OSC.
3. Revocation of Existing Labor Certifications
Section 218(e)(1) of the INA authorizes the Department to revoke a
temporary agricultural labor certification in appropriate instances.
When the Department initiated rulemaking in 1987 to implement IRCA, it
considered implementing this provision, but determined that the SWA's
supervision of the employer's activities during the labor certification
application process, together with WHD's post-certification enforcement
role, vitiated the need for such a sanction. 52 FR 20524, 20525, Jun.
1, 1987.
Along with the modernized approach to the application and
certification processes proposed in this rule, we also include proposed
measures, consistent with the provisions of INA Sec. 218(e)(1), to
ensure compliance. This includes the possibility of revocation of an
approved certification if it is subsequently determined that an
employer has not complied with a material term or condition of the
certification, or upon recommendation of WHD for egregious program
violations or interference with or failure to cooperate with an
investigation. DHS, in a separate rulemaking, is proposing to revoke
approved visa petitions that were approved on the basis of the revoked
H-2A labor certifications.
4. Debarment
Proposed Sec. 655.118 seeks to modernize and enhance the statutory
process relating to the debarment of employers who substantially
violate the terms of a labor certification. Over the past two decades,
effective policing of the program has been hampered by an unnecessarily
narrow definition of employer actions warranting debarment. In
particular, the current regulation does not authorize debarment for
actions that occurred during the recruitment process, including the
rejection of domestic workers for other than lawful job-related
reasons. Under the proposed rule, however, where certification would be
granted based on employer attestations that recruitment of U.S. workers
was unsuccessful, the availability of debarment as a sanction would be
a powerful tool to encourage compliance.
Accordingly, if the OFLC Administrator finds that an employer or an
employer's agent or attorney has misrepresented a material fact or made
fraudulent statements in its attestations, materially failed to comply
with the terms of the attestations, or committed an act(s) of
commission or omission that reflects a willful failure to comply with
an obligation, attestation or other activity listed in proposed Sec.
656.118, the OFLC Administrator may order debarment of the employer,
agent and/or attorney from the H-2A program for a period of up to 3
years. In addition, other Federal agencies will be notified, as
appropriate, of the audit findings.
The current regulation provides debarment authority solely to ETA
and requires the WHD to report findings of violations to ETA and make
recommendations to deny future certifications. Under the proposal,
debarment authority for issues identified by WHD investigations would
reside with the Wage and Hour Administrator, while debarment authority
for violations of program requirements committed during the application
and attestation process would remain with ETA. This change will allow
administrative hearings and appeals for civil money penalties assessed
by the WHD to be consolidated with debarment actions arising from the
same facts. It will also eliminate the need for ETA to review Wage and
Hour investigations, allowing for more
[[Page 8549]]
expeditious proceedings and efficient enforcement.
D. Other Significant Changes
1. Wages and the Adverse Effect Wage Rate (AEWR)
Section 218(a)(1)(B) of the INA requires as a condition for
approval of H-2A petitions that the Secretary has certified that ``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.'' To ensure that the wages of similarly employed
U.S. workers are not adversely affected, agricultural employers wishing
to utilize the H-2A program have traditionally been required to offer
and pay their covered U.S. workers and H-2A workers the higher of the
applicable hourly ``Adverse Effect Wage Rate'' (AEWR), as determined by
the Federal government; the applicable prevailing wage, as determined
by the States; or the Federal or State statutory minimum wage.
Over the last 20 years, it has become clear that perhaps the
biggest threat to the wages and working conditions of U.S. workers is
direct competition from a large undocumented workforce that is often
underpaid and taken advantage of yet is afraid to assert its rights.
Senators from both political parties remarked upon this phenomenon
during the recent immigration debates in Congress,\12\ and the U.S.
Supreme Court has also noted the threat that undocumented workers pose
to the wages and working conditions of U.S. workers. See Sure-Tan v.
NLRB, 467 U.S. 883, 892 (1984).
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\12\ See e.g., 152 Cong. Rec. S9773 (2006) (statement of Senator
Dianne Feinstein); 153 Cong. Rec. S441-S442 (2007) (statement of
Senator Larry Craig); and 153 Cong. Rec. S6590 (2007) (statement of
Senator Edward Kennedy).
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Thus, based on data collected during more than 20 years of
experience in administering the H-2A program, the Department has
concluded that one of the most significant actions it can take to
protect the wages and working conditions of U.S. workers is to render
the H-2A program sufficiently functional such that, rather than
resorting to the employment of workers illegally present in the U.S. to
make up for shortages in the number of U.S. workers who are willing and
available to perform agricultural work, agricultural employers will
instead use the H-2A program, with all of its accompanying legal
requirements and protections.
One of the most important things the Department must do to ensure
that the H-2A program is fully functional and protective of the wages
and working conditions of U.S. workers is to set AEWRs that
appropriately reflect market realities and labor costs. Two decades of
experience with the H-2A program have shown that, in light of the
prevailing conditions in the agricultural labor market, an AEWR that is
set too low or too high is likely to harm U.S. workers. It is no secret
that foreign workers may be willing to work for wages that are lower,
and often substantially lower, than wages that are typically paid to
U.S. workers. Allowing foreign workers to work at substandard wages
would likely harm U.S. agricultural workers by causing them to be
displaced or by forcing them to accept substandard wages in order to
compete with the foreign workers. Direct harm effects of a too-low AEWR
may also include increased levels of unemployment among U.S. workers.
Indirect effects of a too-low AEWR could include worsening working
conditions.
Conversely, an AEWR that is artificially set too high can also
result in harm to U.S. workers. If the AEWR is set so high that it is
seen as not reflective of actual market conditions, agricultural
employers may hire undocumented foreign workers instead of
participating in the H-2A program, and the resulting influx of
undocumented foreign workers erodes the earnings and employment
opportunities of U.S. workers in agricultural occupations. U.S. workers
cannot fairly compete against undocumented workers, who may accept work
at below-market wages, and who are also cheaper to employ than H-2A
workers because they do not require the additional payment of other H-
2A program requirements, including transportation, and housing.
Although the threat of legal sanctions and attendant risks of work
disruption will constrain some employers from employing undocumented
workers, the greater the total cost to employers of the AEWR plus all
other attendant H-2A program costs as compared to the market rate for
labor, the greater the likelihood is that employers will risk hiring
undocumented foreign labor.
Indeed, according to the USDA, there are an estimated 1.2 million
hired agriculture workers in the United States. Recent survey data from
the Department indicate that more than 50 percent of agriculture
workers in the U.S. admit to being here illegally, and some farm worker
advocacy groups have estimated that 70 percent of the agricultural
labor force is undocumented.\13\ That means there are currently more
than 600,000 and perhaps more than 800,000 illegal agricultural workers
on U.S. farms, a strong indication of the failures of the current
system.
---------------------------------------------------------------------------
\13\ See Julia Preston, ``Farmers Call Crackdown on Illegal
Workers Unfair,'' The New York Times, August 11, 2007.
---------------------------------------------------------------------------
These system failures have contributed to the large number of
undocumented workers in agricultural positions in the U.S., which has
in turn adversely impacted U.S. workers by eroding agricultural
employment opportunities and wages. The effect on U.S. workers of an
AEWR that is set too high is ultimately similar to the effect of an
AEWR that is set too low: Loss of family income, increased duration of
job searches, and increased levels of unemployment. The undocumented
workers whose hiring is incentivized when AEWRs are artificially set
too high lack the legally enforced protections and benefits that the H-
2A program provides, further threatening to degrade U.S. workers'
working conditions.
The Supreme Court expressly recognized in its decision in Sure-Tan,
467 U.S. at 892, that ``acceptance by illegal aliens of jobs on
substandard terms as to wages and working conditions can seriously
depress wage scales and working conditions of citizens and legally
admitted aliens * * *.'' This is still the case today. As Senator
Kennedy stated in May 2007,
We have, unfortunately, employers who are prepared to exploit
the current condition of undocumented workers in this country--
potentially, close to 12 [and] 1/2 million are undocumented. Because
they are undocumented, employers can have them in these kinds of
conditions. If they don't like it, they tell them they will be
reported to the immigration service and be deported. That is what is
happening today.'' \14\
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\14\ 153 Cong. Rec. S6590 (2007).
Because illegal aliens may be willing to work for substandard
wages, may be reluctant to report violations of the labor and
employment laws, and in some instances may even accept illegally low
wages that are paid off the books, the prevalence of illegal aliens in
the agricultural sector today represents a substantial threat to the
wages and working conditions of U.S. workers.
As noted above, there is demand for hundreds of thousands of
agricultural workers beyond what the domestic labor market is able to
supply. Replacing the hundreds of thousands of undocumented
agricultural workers currently employed in the U.S. with U.S. workers
or with H-2A program workers paid at a legally required wage
[[Page 8550]]
that will not undermine agricultural wages will substantially
counteract these adverse effects.
Wages vary across the U.S. by geographic location, by specific
agricultural occupation, and by level of skill. An AEWR that does not
take into account these variables will inevitably disrupt program
functionality and adversely affect U.S. workers. For example, a single
national AEWR applicable to all agricultural jobs in all geographic
locations would prove to be below market rates in some areas and above
market rates in other areas, resulting in all of the associated adverse
effects that have been previously discussed. AEWRs covering large
multi-state regions suffer from similar flaws. In an agricultural
sector where prevailing labor conditions make the need for precision in
AEWR determinations paramount, it is essential that a methodology be
adopted that allows for as great a degree of geographic refinement as
possible.
It is therefore critical that the AEWR be accurate and reflect
market conditions for each locality across the country. If the AEWR
does not reflect market wages and is too low or too high in any given
area, it will harm U.S. workers directly by artificially lowering wages
or it will harm U.S. workers indirectly by providing an incentive for
employers to hire undocumented workers. Improving the geographic
precision of the AEWR is essential to ensuring that the AEWR meets its
statutory objective.
Another important element in determining an appropriate AEWR that
reflects market realities and labor costs is including wage data
relating to the specific occupation and level of skill or experience
required for a position. Farm labor comprises a number of occupations
and skills, and both the demand for and supply of farm workers with a
particular skill level or experience varies significantly across
geographic areas. The farm labor market is not a monolithic entity, but
rather is a matrix of markets across a spectrum of occupations, skill
or experience levels, and local areas. Effectively protecting U.S.
workers from unfair foreign competition by setting an AEWR that is
neither too low nor too high requires that the AEWR be specifically
applicable to the labor market affected in terms of specific
occupation, skill or experience, and geographic location.
The present AEWR calculation method is based on a 1989 final rule,
29 CFR part 655, that calculates regional AEWRs based on the previous
year's annual combined average hourly wage rate for field and livestock
workers in each of 15 multi-state regions and 3 stand-alone States, as
compiled by the USDA quarterly Farm Labor Survey Reports. In 1989, the
Department determined that the USDA survey was the best available
``barometer'' for measuring farm wages on a nationwide basis. In the
succeeding years, however, the Department has gained vast knowledge and
experience in applying wage data that simply did not exist in 1989.
The Department's reliance on USDA Farm Labor Survey data creates
several problems for functional program administration. The USDA
quarterly Farm Labor Survey does not provide refined data by skill
level or experience, occupations, or geographic locales of workers
typically sought by agriculture employers in the H-2A program. The USDA
Farm Labor Survey population includes not only the lower-skilled crop
field workers typically sought by agriculture employers who turn to the
H-2A program for labor resources, but also inspectors, animal breeding
technicians, and trained animal handlers--all occupations that provide
a poor basis for determining H-2A wages because they are rarely, if
ever, filled by H-2A workers. Additionally, the USDA Farm Labor Survey
does not account at all for different skill levels required by
agriculture occupations.
The accuracy of AEWRs based on the USDA Farm Labor Survey is
further diminished because the Farm Labor Survey is not based on
reported hourly wage rates. Instead, USDA's Farm Labor Survey asks
employers to report total gross wages and total hours worked for all
hired workers for the two reference weeks of the survey. Based on this
limited information, the survey constructs annual average wages for the
broad general categories of field workers and livestock workers. The
AEWR is then calculated by combining the average of the annual wage for
field workers and the average annual wage for livestock workers into
one annual wage rate covering both of those general occupational
categories. The survey thus determines the hourly AEWR based not on
reported hourly wages, but rather on the basis of the numerator (total
gross wages for the combined occupations) and denominator (total hours
for the combined occupations) derived from the information supplied by
employers.
In addition, the Farm Labor Survey estimates hired labor use and
costs at the aggregation of 15 multi-state regions (along with 3 stand-
alone states). The aggregation of a widely diverse national
agricultural landscape into just 15 regions (and 3 stand-alone states)
results in extremely broad generalizations that fail to account for
specific market conditions at the local level. Wage data collected at
each individual State and even substate level would be more appropriate
for purposes of computing an accurate, sub-regional AEWR that reflects
local market conditions. Indeed, market-based wage survey data at the
state or substate level is the standard for calculating comparison
wages in other temporary worker programs administered by the
Department, including the H-2B program that is the non-agricultural
counterpart of H-2A and the H-1B specialty occupation worker
program.\15\
Moreover, the USDA Farm Labor Survey is administered and funded
through USDA, giving the Department no direct control over its design
and implementation. USDA could terminate the survey at any time and
leave the Department without the basic data, problematic as it is, used
to calculate the AEWR. In fact, just this past year, USDA announced
that it would suspend the survey in February 2007 due to budget
constraints. Ultimately, USDA resumed the Survey in May 2007. The
possibility that USDA may suspend the survey at some point in the
future adds a measure of instability and uncertainty for AEWR
determinations in future years.
Therefore, this NPRM proposes to institute an alternative
methodology for determining the AEWR that will more accurately measure
market-based wages by occupation, skill level, and geographic location.
A more accurate and refined AEWR methodology will produce an AEWR that
more closely approximates actual market conditions, which will, in
turn, help protect the wages and working conditions of U.S. workers.
The Department invites comment on an alternative AEWR methodology
that achieves the goals described above. Under this proposed rule, the
Department suggests a revised AEWR methodology that would achieve those
goals by utilizing the Bureau of Labor Statistics (BLS) Occupational
Employment Survey (OES) data instead of USDA Farm Labor Survey data.
The OES program in BLS collects data on wage and salary workers and
produces employment and wage estimates for about 800 occupations
covering over 70 percent of the employment in the U.S. See 67 FR at
30479, May 6, 2002.
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\15\ Calculation of the applicable wage by a SWA using the OES
survey is, in fact, a ``safe harbor'' providing presumption of
correctness in the H-1B labor condition application. 20 CFR
655.730.(a)(2)(ii)(A)(3).
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The wage component of the OES survey is, with the exception of the
[[Page 8551]]
Decennial Census, the most comprehensive survey conducted by any agency
of the Federal Government. The OES program surveys approximately
200,000 establishments every 6 months, and over 3 years collects the
full sample of 1.2 million establishments. The OES program collects
occupational employment and wage data in every State in the U.S. and
the data are published annually. The OES wage data is already utilized
by the Department for determining comparison wages in other temporary
worker programs and has proven to be an accurate and successful wage
reference. In 1989, when the Department established the current AEWR
methodology, the OES program was not well developed and thus was not an
effective alternative for the USDA Labor Survey. In the intervening 18
years the OES program has surpassed the USDA Labor Survey as a source
for comprehensive agricultural wage data in several respects.
First, the OES program produces occupational estimates by
geographic area and by industry. Estimates based on geographic areas
are available at the national, State, and metropolitan area levels.
Industry estimates are available for over 450 industry classifications
at the national level. The industry classifications correspond to the
sector, 3, 4, and 5-digit North American Industry Classification System
(NAICS) industrial groups.
Second, the OES program provides data at the substate level in
addition to the State level. Data is compiled for each metropolitan
statistical area (MSA) and for additional non-MSA areas that completely
cover the balance of each State. Data is available for 573 distinct
areas comprehensively covering the U.S. This level of detail will
enable AEWRs to be defined for H-2A applicant occupations that are
specific to a relevant substate labor market area, greatly improving
the ability of the Department to tailor certification decisions and
parameters to relevant local labor market conditions. By contrast, the
current AEWR provides wage data for just 15 multi-state regions and 3
stand-alone States across the U.S.
Another advantage of OES is that it offers the ability to establish
four wage level benchmarks commonly associated with the concepts of
experience, skill, responsibility, and difficulty variations within
each occupation. The four skill levels for each occupation afford the
employer and the Department the opportunity to more closely associate
the level of skill required for the job opportunity to the relevant OES
occupational category and skill level. This is another important
advantage over the USDA Farm Labor Survey, which makes absolutely no
skill distinctions.
There are five OES categories of occupations that would most likely
be identified with H-2A job classifications. The Department expects
that the ``farm workers and laborers, crop, nursery and greenhouse''
occupational category would encompass the majority of the jobs that
employers would seek to fill under the H-2A program. The survey does,
however, contain other categories, such as ``sorters and graders'' and
``farmworkers, farm and ranch animals,'' that will enable employers and
the Department to more closely match the job opportunity to the
relevant OES job category and, in turn, the appropriate AEWR. This is a
significant advantage over the USDA Farm Labor Survey, which awkwardly
provides just a single wage that purports to cover the entire spectrum
of agricultural occupations.
Importantly, the OES survey is conducted by the Department's Bureau
of Labor Statistics, which will enable continuity and coordination
between those who gather the wage data and those who utilize it. This
will help ensure the data needs of the H-2A program and AEWR
calculation are consistently met.
The Department recognizes that the proposed new methodology
utilizing the OES survey data to determine the AEWR is subject to some
limitations. For example, the OES survey presently determines
agricultural wages by surveying establishments that provide support
activities for crop production, such as farm labor contractors, who
provide workers and laborers to farm owners and operators. The survey
does not include farm establishments that are directly engaged in the
business of crop production. Nonetheless, the survey is broad enough to
provide accurate and statistically valid wage rates: The latest OES
data covers agricultural establishments accounting for the employment
of 451,770 hired agricultural workers of all types or more than one-
third of the 1.2 million hired farm workers in the U.S., according to
the USDA. Moreover, employees of farm labor contractors and other
similar businesses generally perform the same type of work as H-2A
workers, and thus provide a good general basis for wage comparison. In
the Department's estimation, taking these factors into account, the OES
survey data is substantially more complete, detailed, and accurate--
considering geography, occupation, and skill level--than is the USDA
Farm Labor Survey.
The Department's examination of data from the Census Bureau's
Current Population Survey (CPS), which includes agricultural workers
from both farm and nonfarm establishments, confirms that the OES data
covering wages paid by nonfarm agricultural establishments provides an
effective and appropriate proxy for the wages paid directly to workers
by farm operators. The CPS, a monthly survey of 60,000 households,
collects information on the employment and unemployment experience of
workers in the U.S. Estimates based on CPS data for 2006 show little
difference in the mean or median earnings of agricultural workers
employed by farm establishments and those employed by nonfarm
establishments (the establishments within the scope of OES).\16\
Agricultural workers in nonfarm establishments had mean hourly earnings
of $8.86 and median hourly earnings were $8.20. In the farm
establishments, mean hourly earnings were $8.55 and median hourly
earnings were $7.80. Because of the small size of the CPS survey, the
difference in wages reported by agricultural workers in farm
establishments and nonfarm establishments is not statistically
significant. Comparable OES estimates place mean hourly earnings at
$8.94 for agricultural workers in nonfarm establishments and are very
similar to the CPS estimate of $8.86.\17\
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\16\ As noted above, although an OES-surveyed employer may
technically be a nonfarm establishment, the employer's workers may
work on farms in agricultural occupations as reflected in the OES
agricultural worker categories.
\17\ The CPS estimates were for miscellaneous agricultural
workers (occupation code 45-2090). The OES estimates were done for
four more specific occupations: Agricultural equipment operators
(occupation code 45-2091); farmworkers and laborers, crop, nursery,
and greenhouse (45-2092); farmworkers, farm and ranch animals (45-
2093); and agricultural workers, all other (45-2099). Average hourly
earnings for these four occupations ranged from $8.48 to $12.05 (see
http://www.bls.gov/oes/current/oes_nat.htm#b45-0000) and the weighed
average across the four occupations was $8.94. Median hourly
earnings range from $7.95 to $10.80. The vast majority of the
workers in these occupations are in the ``farmworkers and laborers,
crop, nursery, and greenhouse'' category, which has median earnings
of $7.95, and so it is likely that the median across all four
occupational categories differs little from $7.95 or from the CPS
estimate of $7.80.
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In looking at the CPS as a possible source of wage data for this
purpose, the Department determined that while that survey may provide a
reasonable basis for making national level estimates and comparisons,
the sample size is too small to provide the type of detailed State and
substate-level estimates that can be gleaned from the OES data. And for
that reason, the Department
[[Page 8552]]
determined that the CPS program would not be able to provide
sufficiently accurate comprehensive data on agricultural wages to
compute a precise and reliable AEWR.
The Department is aware that shifting from regional AEWRs derived
from USDA Farm Labor Survey data to more geographically and
occupationally refined AEWRs derived from OES data may raise the
legally required wage rates in some areas while lowering them in
others. Although these changes in wage rates presumably will make local
AEWRs more reflective of actual local labor market conditions, the
Department proposes, and asks for comment on, adding an additional
protection for workers against potential short-term wage reductions
resulting from the change in AEWR methodology. To counteract potential
wage reductions in some areas, the Department proposes to use the
future (effective July 24, 2009) Fair Labor Standards Act (FLSA)
minimum wage of $7.25 as the floor for any AEWR, regardless of the
methodology ultimately selected for calculating the AEWR. This basic
wage floor will provide a fundamental protection to both foreign
temporary workers and U.S. workers that will ensure that AEWRs cannot
be lower than new federal minimum wage even though that wage will not
be legally required until 2009.
An additional frame of reference on appropriate wage rates is the
proposed ``AgJOBS'' legislation, which has been widely endorsed by
groups representing both agricultural businesses and agricultural
workers.\18\ Many AgJOBS provisions implicate important Governmental
interests that may not have been adequately taken into account when
business and worker groups worked out their proposed compromise
legislation, but the wage provisions are at the heart of the direct
economic interests of both groups, and the bargain they have struck
with respect to wages presumably reflects a comfortable middle ground
from their point of view. At a minimum, the Department believes that
the many worker advocacy groups and congressional sponsors who have
endorsed the legislation would never agree to wage rates that they
believe would hurt the interests of U.S. workers.
---------------------------------------------------------------------------
\18\ The Agricultural Job Opportunities, Benefits, and Security
Act (AgJOBS) builds upon years of discussion and ideas from growers,
farm worker advocates, and various groups and organizations,
including several Latino groups, focused on the issue of
immigration.'' Senator Larry Craig, AgJOBS Issue Briefing, http://craig.senate.gov/~craig/i_agjobs.cfm#faq.
Myriad advocacy groups
have supported the AgJOBS legislation, including for example, the
United Farm Workers, Farmworker Justice, National Council of LaRaza,
AFL-CIO, Change to Win, Farm Labor Organizing Committee, Int'l
Brotherhood of Teamsters, Laborers' Int'l Union of North America,
Service Employees Int'l Union, United Food and Commercial Workers,
UNITE HERE, National Council of Agricultural Employers, American
Farm Bureau Federation, Western Growers Assn, Florida Fruit and
Vegetable Assn, Agricultural Coalition for Immigration Reform, U.S.
Chamber of Commerce, National Cattlemen's Beef Assn, American
Nursery and Landscape Assn, United Egg Producers, United Fresh Fruit
and Vegetable Assn, and New England Apple Council. See letter signed
by more than 850 organizations supporting AgJOBS legislation that
was sent to every member of the U.S. Senate, available at http://fj.nclr.org/Public/webpage/October2007edits/InformationAboutAgJOBS/110thAgJOBSsignonApril2007Final.pdf
.
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As a comparison of the OES hourly wage rate at the national average
or median rates for the occupational category ``Farmworkers and
Laborers, Crop, Nursery and Greenhouse'' and the national average for
the AEWR included in the ``AgJOBS'' legislation shows that on average,
these workers would receive higher wages if paid an AEWR based on the
OES data ($8.39) rather than the AEWR prescribed in AgJOBS ($7.50),
thus demonstrating that use of the OES data provides additional wage
protection to similarly employed U.S. workers. Even at the 25th
percentile OES wage rate, workers in several States will receive higher
AEWR wages on average than the AEWR rates proposed in AgJOBS. Further,
when considering the proposed addition of the 2009 FLSA minimum wage
floor to the OES data, that average AEWR turns out to be almost exactly
the same as the average AEWR prescribed in AgJOBS.
Even in those instances where the use of OES data may result in
lower AEWRs for H-2A workers in the short term, the Department is
confident that the wages and working conditions of U.S. workers will be
protected because the total costs of hiring H-2A workers are higher
than the hourly AEWR alone reflects, and employers focus not only on
wages when making hiring decisions, but on a workers' total cost. The
program requirement that employers pay for H-2A workers' transportation
and lodging, as well as the administrative expense of filing H-2A
applications with several different Government agencies, add
substantial additional costs to the employment of H-2A workers. The
additional costs beyond wages (administrative expense, transportation
and lodging) associated with utilization of foreign labor under the H-
2A program are an important consideration that provides significant
protection for U.S. workers. It is expected that U.S. workers in
similar occupations, with similar skills and working in the same
locality would likely be able to command higher hourly wages than H-2A
workers and at least equivalent benefits because the additional cost
considerations associated with utilization of the H-2A program provide
an economic incentive for employers to seek out and hire U.S. workers
instead of H-2A workers.\19\ And of course, U.S. workers also have the
protection of the rule requiring agricultural employers to first
attempt to recruit U.S. workers before they can employ H-2A workers.
This proposed rule also includes added protection for U.S. workers by
requiring employers to recruit U.S. workers for an expanded period of
time.
---------------------------------------------------------------------------
\19\ U.S. workers hired in response to recruitment required by
the H-2A program are entitled to at least the same benefits received
as those received by H-2A workers.
---------------------------------------------------------------------------
In conclusion, the Department seeks comment on alternative
methodologies for calculating AEWRs for the H-2A program, including the
use of OES data. The Department believes that to achieve a more
accurate AEWR, the proposed methodology must include data concerning
occupational category, skill level, and geographical distinctions, at a
state or substate level. The Department's proposals have been made
after careful consideration of the statutory requirements of the
program and with the full knowledge of the administrative record
developed in earlier rulemaking activities regarding AEWRs, as
published in the Federal Register. The Department has reviewed the
current methodology in light of the limitations of the USDA data
sources, as well as improvements in alternative data collection
instruments. The Department invites specific comments on the current
AEWR methodology as well as its proposals to improve it, including
reasonable alternatives that both provide adequate protections for U.S.
workers and avoid introducing undesirable inflexibilities in
agricultural labor markets.
2. The 50 Percent Rule
The 50 percent rule, which requires employers of H-2A workers to
hire any qualified U.S. worker who applies to the employer during the
first 50 percent of the period of the H-2A work contract, was
originally created by regulation as part of the predecessor H-2
agricultural worker program in 1978. 20 CFR 655.203(e); 43 FR 10316,
Mar. 10, 1978. In 1986, IRCA added the 50 percent rule to the INA as a
temporary 3 year statutory requirement, pending the findings of a study
that the Department was required to conduct ``and other relevant
materials including evidence of benefits to U.S. workers and costs to
employers addressing the advisability of continuing a policy which
requires an
[[Page 8553]]
employer as a condition for certification under this section, to
continue to accept qualified, eligible U.S. workers for employment
after the date the H-2A workers depart for work with the employer.''
Id.; Public Law 99-603. In the absence of the enactment of Federal
legislation prior to the end of the 3 year period, the Secretary was
instructed to immediately publish the findings and promulgate an
interim or final regulation based on the findings.
The Secretary hired a research firm to analyze the cost-benefit
impact of the 50 percent rule on U.S. workers, growers, and the general
public. The research firm studied the impact of the 50 percent rule in
just Virginia and Idaho, the two States that were determined to have
had the highest number of 50 percent rule workers. The number of
growers interviewed was small, as the firm interviewed only those
growers that actually hired U.S. workers because of the 50 percent
rule--just 66 growers (0.1 percent) in all of Virginia and Idaho's
total 64,346 farms (according to the USDA). The study did not take into
consideration the 131 growers in the two States who received referrals
under the 50 percent rule but did not hire any of the referred workers.
The study also did not investigate why so few growers were using the H-
2A program, and therefore did not take into account the overwhelming
number of growers who were not using the program. The study sought only
to determine the costs to employers that hire referred 50 percent rule
workers and the concomitant benefits to the U.S. workers hired under
the rule.
Even with this narrow focus, the study made it clear that the H-2A
program was not regarded as desirable by growers. Of those questioned,
6 percent said they were dropping out of the H-2A program because of
the 50 percent rule. Forty percent wanted the rule eliminated entirely
and 33 percent wanted to alter the requirement by, for example,
requiring the 50 percent rule workers to finish the season or modifying
substantially the 50 percent rule by requiring the hiring of U.S.
workers only up to a certain point before the date of need. In fact, 16
years later, only one of the agriculture employers surveyed in 1990 is
still using the H-2A program.
In 1990, pursuant to what is now INA Sec. 218(c)(3)(B)(iii), ETA
published an interim final rule to continue the 50 percent requirement.
55 FR 29356, July 19, 1990. Since the 1990 publication of the interim
final rule continuing the 50 percent rule, the Department has gained
experience and additional perspective that calls into question whether
the Department's decision to continue the 50 percent rule was, at the
time, supported by the data in the 1990 study; and whether the rule is
in fact a necessary, efficient and effective means of protecting U.S.
workers from the adverse impact resulting from the employment of
foreign workers, No other temporary foreign labor program administered
by the Department includes such a requirement, which may be yet another
reason the H-2A program is viewed by many as containing burdensome
requirements that do not provide a corresponding benefit to U.S.
workers.
The Department has heard complaints that the 50 percent rule
creates substantial uncertainty for the employer in terms of managing
their labor supply and labor costs during the life of the contract. In
many situations, it appears the employer does not substitute the U.S.
worker arriving under the 50 percent rule for the existing H-2A worker,
but rather retains both workers and incurs the added expense in order
to prevent further disruption to work flow resulting from dismissing an
H-2A worker and sending that worker home. Anecdotally, employers report
that the majority of the U.S. workers who are hired under the 50
percent rule remain on the job for less than the term of the H-2A
contract. This means that if an employer immediately dismisses an H-2A
worker when a U.S. worker is hired under the 50 percent rule, that
action could result in the employer being short of labor if and when
the U.S. worker leaves the job early. In any case, the concern that new
workers may arrive well into the harvest cycle and create the type of
disruption described above can serve as a serious disincentive for
employers to participate in the H-2A program. Given the ready
availability of jobs in the agricultural sector to authorized workers,
there is also reason to believe that U.S. workers would generally be
best served by referrals to jobs that have not yet begun, rather than
being thrust into job opportunities that have already partly elapsed.
With the newly redesigned process being proposed, employers will be
required to conduct additional recruitment in advance of their
application. Employers will begin advertising for job opportunities no
earlier than 120 days and no later than 75 days before the date on
which the foreign worker will begin. This is a significant expansion of
the period of required recruitment in the current rule and would enable
more U.S. workers to be apprised of the job opportunities in a timely
manner before the job begins. Additionally, under the redesigned
process, the SWA will post the job orders until the date of departure
of the foreign workers for the place of employment. These expanded time
frames for recruitment will ensure that U.S. workers have substantially
better and more effective notice about opportunities to obtain full
term employment than is currently afforded by the 50 percent rule.
Substituting these expanded recruitment requirements for the current 50
percent rule would provide employers substantially greater certainty
regarding required recruitment, expected labor costs, and the available
workforce, and would help lend greater stability to a program that has
been rendered unattractive to many agricultural employers because of
the many administratively imposed uncertainties.
For the above reasons, the Department is inclined to replace the 50
percent rule with expanded up-front recruitment requirements that will
enhance the ability of U.S. workers to identify and apply for
agricultural job openings before the jobs begin. The Department would
like more information about the impact of the 50 percent rule before it
makes a final decision, however, and requests comment on and
information regarding the costs and benefits of the 50 percent rule in
the current labor market. The Department requests comments from
employers, workers and their representatives on the merits of retaining
or eliminating the rule, as well as possible alternatives, such as
reducing the applicable time period for mandatory hiring to the first
25 percent of the H-2A worker's contract, that might be effective in
protecting U.S. worker access to job opportunities without creating
uncertainty and competitive disadvantage for employers.
3. Housing
Section 218(c)(4) of the INA requires employers to provide housing
in accordance with specific regulations. Employer-provided housing,
depending on when it was built, must meet either the Department's
Occupational Safety and Health Administration (OSHA) standards set
forth under 29 CFR 1910.142 (standards for temporary labor camps), or
the ETA standards at 20 CFR 654.404-654.417 (standards for H-2A
housing). In circumstances where rental, public accommodation, or
another substantially similar class of habitation is used, the housing
must first meet any local standards for such housing or, in the absence
of applicable local standards, any applicable State standards. In the
absence of both local and State standards, the housing must
[[Page 8554]]
meet the OSHA standards for temporary labor camps.
The Department is proposing to require that employers attest to
having secured the necessary housing and having requested or obtained
the necessary inspection. The requirement that housing be inspected in
a timely fashion is often problematic for SWAs, whose staff must travel
to the site of the housing, sometimes over great distances to remote
areas; perform the inspection; and issue a final determination, all
within the current 15-day processing window (i.e., between 45 days and
30 days prior to the date of need). The Department is accordingly
proposing that employers who have commenced recruitment request a
housing inspection no earlier than 75 days and no later than 60 days
before the date of need, well in advance of the statutory deadline
requiring the Department to issue a labor certification determination
no later than 30 days before the date of need.
The Department is not proposing to alter the discretion currently
afforded to SWAs in the method by which inspections are conducted. The
ability to perform inspections earlier than the date of filing will,
however, provide SWAs with more time and more flexibility in executing
this charge. This change is essential to address the frequent failure
of SWAs to comply with the statutory mandate that housing inspections
be completed ``prior to the date * * * by which the Secretary of Labor
is required to make a certification,'' INA Sec. 218(d), which has in
turn resulted in labor certifications being issued outside of the
statutorily required timeframes. Absent an expansion in the timeframe
for inspections, the expected increase in program participation would
likely lead to ever greater strains on the resources of SWAs to keep up
with requested inspections, and ever greater delays beyond the legally
required deadline for completion of inspections.
To ensure efficient and legally sufficient processing of
applications, the Department is proposing to use the same basic model
that applies to housing inspections for U.S. workers under the Migrant
and Seasonal Workers Protection Act (MSPA). Employers would be required
to request housing inspections no later than 60 days prior to the
anticipated date of need. If an employer has not received or does not
receive a housing inspection prior to the statutory deadline of 30 days
prior to date of need, and the SWA failed to conduct the inspection for
reasons beyond the employer's control, the Department will make a
conditional determination on the application in the absence of a
physical inspection. This conditional determination would only be
granted in situations in which an employer has made a timely request
and housing has not been inspected; employers who have been informed of
deficiencies by SWAs and have failed to act to correct these
deficiencies will not be conditionally certified, nor will those who
have made untimely requests or who have not otherwise met all other
criteria for certification. Moreover, the issuance of a conditional
determination would not in any way prevent SWAs from later conducting
housing inspections and ensuring that appropriate penalties are imposed
if housing fails to meet standards. This proposed system closely
parallels MSPA and ensures that foreign workers receive every
protection to which U.S. workers are entitled while avoiding punishing
employers for the Government's failure to meet its statutory deadlines
with respect to housing.
The Department appreciates the obstacles faced by employers when
looking to build housing for farm workers, including zoning
restrictions, resistance from the community, cost and the Federal
housing standards to which the housing must be built. Therefore, the
Department is proposing to allow H-2A employers to provide a housing
voucher as an additional option by which H-2A certified employers may
meet the requirement to provide housing to H-2A and U.S. workers who
are not reasonably able to return to their residences within the same
day.
To ensure that workers receive the benefit to which they are
entitled, the Department has proposed a number of safeguards when
housing is provided via the voucher method. These safeguards include
the requirement that the voucher method may not be used in an area
where the Governor of the State has certified that there is inadequate
housing available in the area of intended employment for farm workers;
the voucher is not transferable and is not redeemable for cash by the
employee, it may only be redeemed for cash paid by the employer to a
party providing appropriate housing; and the voucher may not be used to
secure housing located outside the reasonable commuting distance of the
place of employment. Workers may ``pool'' the housing vouchers to
secure housing (e.g., to secure a house instead of a motel room), but
such pooling may not result in a violation of the applicable safety and
health standards. The proposed voucher is one way an employer may meet
his obligation to provide housing. However, if acceptable housing
cannot be obtained via the voucher, the employer is not relieved of his
obligation to provide housing meeting the applicable safety and health
standards and must either provide or secure housing for the H-2A
workers. The Department invites comments on whether this proposal
appropriately balances the needs of employers and workers.
In addition, the Department proposes to clarify and codify
additional limited flexibility in the matter of post-certification
changes in housing. Currently, under policy clarified by the Training
and Employment Guidance Letter 11-07, Change 1 (November 14, 2007) if
the employer-provided housing becomes unexpectedly unavailable, an
employer is required to (1) notify the SWA in writing of the housing
change, and (2) provide to the SWA evidence from the appropriate local
or State agency responsible for determining compliance with the
applicable safety and health standards and licensing such rental or
public accommodations, which may include a certificate of occupancy
where such a certificate demonstrates current compliance with
applicable safety and health standards. This NPRM further clarifies and
codifies this policy. Only if the employer takes these steps will a
housing certification continue to be considered valid. The SWA may
then, in its discretion, inspect the housing to ensure that it complies
with the applicable safety and health standards. The SWA shall notify
the appropriate CO of all housing changes and of the results of any
housing inspections. This process will enable employers to avoid the
delays associated with amending certifications and beginning the
process anew when previously arranged and inspected housing becomes
unavailable or uninhabitable for reasons outside their control (i.e.,
fire, natural disaster).
4. Transportation
The NPRM at Sec. 655.104(h) proposes to continue the Department's
policy of requiring employers to provide or pay for the worker's daily
subsistence and transportation from the worker's home or place of
employment, provided the worker works for 50 percent or more of the
contract period. This proposal also retains the requirement that
employers advance transportation and subsistence costs (or otherwise
provide them) if it is the prevailing practice of non-H-2A agricultural
employers in the occupation in the area to do so. The Department
recognizes, however, that these requirements are unique to the H-2A
program, and invites comments providing information on the costs and
[[Page 8555]]
benefits to employers and workers of continuing to require employers to
pay for the inbound and outbound transportation and subsistence costs
of H-2A workers.
5. Treatment of Logging
The Department has long held logging employment to the same or
similar standards as those found in the H-2A regulations, even though
logging has not been included in the statutory definitions of
agricultural employment. In 1978, the Department included logging in
its final H-2 regulations for temporary labor certifications for
``agricultural and logging workers,'' encompassing most of the same
obligations found today in the current H-2A program. 43 FR 10306 Mar.
10, 1978. This continued a Departmental policy going back to 1965. See
20 CFR 602.10 and 602.10a (1971), 35 FR 12393, Aug. 4, 1970; 20 CFR
602.10 (1966), 30 FR 12292, Sept. 25, 1965.
In 1986, when IRCA separated the H-2 visa category into
agricultural work under the H-2A visa and nonagricultural work under
the H-2B visa, Congress provided the Secretary explicit authority in
administering the H-2A program to expand the definition of
``agriculture'' through regulation beyond IRCA's required minimum
definition, which includes all agricultural labor as defined in the
Federal Insurance Contributions Act (FICA) (the social security tax in
section 3121(g) of the Internal Revenue Code) and in Sec. 3(f) of the
FLSA. IRCA Sec. 301(a), Public Law 99-603, Title III, 100 Stat. 3359,
November 6, 1986. The Department chose at that time not to expand the
definition of agriculture beyond the statutory minimum. Nevertheless,
the Department simultaneously continued the existing regulatory H-2A-
like standards for logging workers who were admitted under the H-2B
program. Those pre-IRCA standards for agricultural and logging
applications continue to apply to logging today (20 CFR part 655,
subpart C), and are the model from which the H-2A agricultural
regulatory processing framework derived. 52 FR 20496, Jun. 1, 1987.
Logging employers, therefore, have been subject to a substantially
similar set of obligations and processes as H-2A employers, but their
nonimmigrant employees must enter on H-2B, rather than H-2A, visas.
The Department no longer sees any reason to maintain two
substantially similar yet slightly divergent processes for agriculture
and logging, and intends to return to our 1965-1986 practice of
treating both activities alike. The types of activities in which the
employers in both fields engage--i.e., harvesting of agricultural and
horticultural products--and the labor certification requirements to
which they are subject, are essentially the same.
Accordingly, the Department proposes to include logging employment
in its definition of ``agricultural activity'' for purposes of H-2A
labor certification. By doing so, the Department is exercising its
legislative authority under Sec. 101(a)(15)(H)(ii)(a) of the INA to
expand the definition of agriculture beyond the definitions in FICA and
FLSA to include logging. Conforming amendments are being made to
reflect this change, including the removal of the current regulations
specific to logging employment. This change will result in loggers
being eligible for H-2A visas rather than H-2B.
The Department seeks comments as to whether there are other
businesses that should be similarly included within the definition of
agriculture under this program.
6. Definitions
The Department is proposing to include the definition of employee
and to modify the definition of employer to conform these definitions
to those used in other Department-administered programs. The definition
of employee conforms to the Supreme Court's holding in Nationwide
Mutual Insurance v. Darden, 503 U.S. 318, 322-324 (1992). The
Department is proposing these clarifications to remove any confusion
that may exist for agricultural employers who have compliance
obligations under FLSA, MSPA and the H-2A program.
In defining an H-2A worker, the INA gives the Secretary of Labor
the authority to define in regulations the term ``agricultural labor or
services,'' with the requirement that the definition include
agricultural labor or services as defined in the IRC, the FLSA, and the
pressing of apples for cider on a farm. The work must also be of a
temporary or seasonal nature. 8 U.S.C. 1101(a)(15)(h)(ii)(A). The
activity of ``pressing of apples for cider on a farm'' was added to the
statute by Public Law 109-90, dated October 18, 2005. The Department
proposes to change the regulatory definition to reflect the 2005
amendment.
The Department is also proposing changes to the regulatory
definition of ``agricultural labor or services'' to clarify that an
activity that meets either the IRC or the FLSA definitions of
agriculture is considered agricultural labor or services for H-2A
program purposes and to remove limitations on the performance of
traditional agricultural activities which, when performed for more than
one farmer, are not considered agricultural labor or services under the
IRC or the FLSA. The Department is also proposing clarifications to
reflect that work activity of the type typically performed on a farm
and incident to the agricultural labor or services for which an H-2A
labor certification was approved may be performed by an H-2A worker.
This clarification will ensure that H-2A workers can engage in minor
amounts of other incidental farm work activity during periods when they
are not performing the agricultural labor of services that is the
subject of their application. In no case can this work amount to more
than an incidental portion of the H-2A worker's total labor or services
for which they were admitted.
7. Fees
The proposed rule continues to provide that each employer (except
joint employer associations) of H-2A workers must pay to the Department
appropriate fees for each temporary agricultural labor certification
received. The application fee for each employer receiving a temporary
agricultural labor certification is supplemented by an appropriate fee
covering each H-2A worker certified under the application. These
processing fees, which are authorized by statute and set by regulations
originally published in 1988, are required by the current statutory
language to be deposited in the Treasury rather than being used to fund
program costs at the Department. Nevertheless, the Department is
updating the fees to an amount appropriate to comport with the
statute's expectation that the fee recover ``the reasonable costs of
processing'' H-2A applications.
II. Other Proposed Amendments to the Department's Regulations
A. Changes to Parts 780 and 788
The Department proposes a modification to the FLSA regulations so
that the production of trees through the application of agricultural
and horticultural techniques to be harvested and sold for seasonal
ornamental use as Christmas trees will be recognized as ``agriculture''
under the FLSA. The Department has determined that this modification is
necessary in light of the Fourth Circuit Court of Appeals' decision in
U.S. Department of Labor v. North Carolina Growers Association, 377
F.3d 345 (4th Cir. 2004), as well as a recognition that modern
production of such trees typically involves extensive
[[Page 8556]]
care and management. Indeed, Christmas tree production is already an
eligible job under the H-2A program.
The FLSA provides that employees who are ``employed in
agriculture'' are exempt from the FLSA's overtime provisions. 29 U.S.C.
213(b)(12). Section 203(f) of the FLSA defines ``agriculture'' as
follows:
Agriculture includes 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
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.
In an interpretive bulletin published in 1956, the Department
interpreted Sec. 203(f) of the FLSA to exclude Christmas tree farming.
See 29 CFR 780.115, 780.200, 780.208. The Court of Appeals for the
Fourth Circuit has noted that the exclusion of Christmas tree farming
from the definition of ``agriculture'' is not consistent with the
typical manner in which Christmas trees are produced. Indeed, as the
North Carolina Growers Association court recognized:
Christmas tree farming has evolved since the FLSA was enacted in
1938. Before the 1960's, Christmas tree harvesting was more in the
nature of ``enterprising individuals who took what nature
provided.'' * * * However, since the mid 1960's, Christmas tree
farming has evolved into the current system where growers plant and
cultivate the trees for harvest.
N. Car. Growers Ass'n., 377 F.3d at 348 n.2 (internal citation
omitted).
Based on the Department's experience, modern Christmas tree
production usually involves extensive care and management through the
application of agricultural and horticultural techniques to raise such
trees as ornamental horticultural products, such as planting seedlings
in beds in a nursery; on-going treatment with fertilizer, herbicides,
and pesticides as necessary; re-planting in lineout beds; lifting and
re-planting the small trees in cultivated soil with continued treatment
with fertilizers, herbicides, and pesticides as indicated by testing to
see if such applications are necessary; pruning or shearing yearly; and
harvesting of the tree for seasonal decorative use typically within 7
to 10 years of planting. The Fourth Circuit described these activities
as ``significant changes [from the time of the initial interpretive
bulletin] in the industry's cultivation and management techniques.''
Thus, the Department proposes to revise those references in 29 CFR
part 780 and 29 CFR part 788 stating that planted Christmas trees are
within the scope of forestry and lumbering operations and are not
agricultural or horticultural commodities for purposes of
``agriculture'' under the FLSA.
The Department does not intend to change the treatment of Christmas
trees that are not produced through the application of agricultural or
horticultural techniques as discussed above. Production of such trees
will continue to fall outside the scope of ``agriculture'' under the
FLSA. In sections listed below for changes, references to Sec.
13(a)(13) have been updated to make the reference to 13(b)(28). The
exemption in 13(a)(13) for forestry and lumbering operations was
repealed and a new exemption from overtime only was created in Sec.
13(b)(28) in the 1974 amendments to the FLSA. See Sec. , 23(b)(1) and
(2), Public Law 93-259, 88 Stat. 69 (Apr. 8, 1974).
B. Changes to Part 501
Section 218(g)(2) of the INA authorizes the Secretary of Labor to
take such actions, including imposing appropriate penalties and seeking
appropriate injunctive relief and specific performance of contractual
obligations, as may be necessary to ensure employer compliance with
terms and conditions of employment under this section of the statute.
The Secretary determined that enforcement of the contractual
obligations of employers under the H-2A program is the responsibility
of the WHD. Regulations at 29 CFR part 501 were issued to implement the
WHD's responsibilities under the H-2A program; amendment of these
regulations is part of this proposed rulemaking.
Concurrent with the Department's proposed amendments to its
regulations in 20 CFR part 655 subpart B to modernize the certification
of temporary employment of nonimmigrant H-2A workers, the Department
proposes to amend its regulations at 29 CFR part 501 regarding
enforcement under the H-2A program.
Changes are proposed for enhanced enforcement to complement the
modernized certification process so that workers are appropriately
protected when employers fail to meet the requirements of the H-2A
program. This notice of proposed rulemaking would make changes to
specific sections of the existing regulations in 29 CFR part 501, as
summarized below.
1. Definitions
Section 501.10 of the current regulations sets forth the
definitions used in part 501. The proposed rule would update the
definition of ``work contract'' to reflect language used in the
proposed changes to 20 CFR part 655, subpart B. As had been done in the
current regulations, proposed Sec. 501.10 incorporates the same
definitions listed in 20 CFR part 655, subpart B that pertain to 29 CFR
part 501.
In addition, language in Sec. Sec. 501.4, 501.15, and elsewhere
has been modified to indicate that ``corresponding employment''
includes only U.S. workers who are newly hired by the employer in the
occupations and during the period of time set forth in the application
for labor certification and does not include U.S. workers who were
already employed by the H-2A employer at the time the application was
filed. The INA requires that U.S. workers hired during the H-2A
recruitment period, including workers who respond to job
advertisements, must be offered and provided no less than the same
wages, benefits, and working conditions that the employer offers,
intends to offer, or provides to the H-2A workers. U.S. workers who
were already employed by the H-2A employer at the time the labor
certification application was filed, however, cannot possibly be
adversely affected by the subsequent hiring of H-2A workers who are
paid higher wages. This modification to the Department's enforcement
policy appropriately ties that policy to the Department's statutory
authority to prevent adverse effects to the wages and working
conditions of U.S. workers. The Department notes that its experience
with the H-2A program indicates that situations where H-2A workers are
paid more than similarly employed U.S. workers will arise very rarely,
if ever, in practice.
2. Sanctions and Remedies--General
The number of FLCs applying for labor market certifications
enabling them to hire and employ H-2A workers has risen in recent years
and is expected to continue to increase. The WHD's enforcement
statistics reveal that FLCs are generally more likely to be found in
violation of applicable requirements than fixed-site agricultural
employers. To address this higher violation rate of FLCs and given the
transient nature of FLCs, ESA has proposed in 29 CFR part 655, subpart
B that FLCs must attest to, obtain, and maintain a surety bond, based
on the number of workers
[[Page 8557]]
employed, throughout the period the temporary labor certification is in
effect, including any extensions thereof. WHD will have authority to
make a claim against the surety bond to secure unpaid wages or other
benefits due to workers under the labor certification.
3. Civil Monetary Penalties
In order to deter significant violations of the H-2A worker
protection provisions, Sec. 501.19 would be amended to increase the
maximum civil money penalties. The proposed maximum civil money penalty
amount would be increased from $1,000 to $5,000 for a willful failure
to meet a condition of the work contract, or for discrimination against
a U.S. or H-2A worker who in connection with the INA or these
regulations has filed a complaint, has testified or is about to
testify, has exercised or asserted a protected right. Additionally, the
fine amount would be increased to up to $15,000 for a willful failure
to meet a condition of the work contract that results in displacing a
U.S. worker employed by the employer during the period of employment on
the employer's application, or during the period of 75 days preceding
such period of employment.
The proposed penalties for violators who willfully disregard their
obligations under an attestation program would provide the Department
with an effective tool to discourage potential abuse of the program.
Such penalties will deter willful violations, discrimination and
interference with investigations, and strengthen necessary enforcement
of laws that protect workers who may be unlikely to approach Government
agencies to intercede on their behalf.
Further, if a violation of an applicable housing or transportation
safety and health provision of the work contract causes the death or
serious injury of any worker, the Department proposes a new penalty of
up to $50,000 per worker. The Department also proposes a new penalty of
up to $100,000 per worker where the violation of a safety and health
provision involving death or serious injury is repeated or willful.
In an attestation-based program the proposed penalties for such
violations of applicable safety and health provisions would provide a
meaningful assurance that participants meet their obligation to see
that housing and/or transportation provided to the workers meets all
applicable safety and health requirements and that housing and/or
vehicles used in connection with employment do not endanger workers.
The proposed penalty for repeat or willful violations that involve a
fatality or serious injury will provide a significant deterrent to
ensure that such violations do not occur. The Department's experience
in enforcing safety and health standards shows that penalties are an
important tool in reducing fatalities and injuries. Increased penalties
will induce employers to be more proactive in their approach to
complying with the applicable safety and health standards.
The assessment of the maximum penalty under proposed Sec. 501.19
would not be mandatory, but rather would be based on regulatory
guidelines and the facts of each individual case.
4. Debarment by the WHD
The current regulations provide ETA the authority to deny
certification (i.e., debarment) and require the WHD to report findings
to make a recommendation to ETA to deny future certifications. Under
proposed Sec. 501.20, debarment authority for issues arising from WHD
investigations would reside with the WHD Administrator, while debarment
authority for issues arising out of the attestation process would
remain with ETA. This proposal is in keeping with recommendations made
as far back as 1997 in a General Accounting Office (GAO) report to
Congress in which GAO proposed that authority to suspend employers with
serious labor standard or H-2A contract violations be extended to the
WHD. See U.S. Gen. Accounting Office: Report to Congressional
Committees: H-2A Agricultural Guestworker Program, Changes Could
Improve Services to Employers and Better Protect Workers, 68, 70
(1997)). Both agencies will coordinate their activities whenever
debarment is considered. The proposed standards for debarment within
WHD's purview are identical to those proposed by ETA for debarment
actions under 20 CFR part 655, thus ensuring consistency in
application. This change will allow administrative trials and appeals
for civil money penalties assessed by the WHD to be consolidated with
the debarment actions that arise from the same facts. This change will
remove the requirement that ETA review WHD investigations, eliminating
a step in the administrative process and allowing for more expeditious
proceedings and efficient enforcement. This will not affect ETA's
ability to institute its own debarment proceedings regarding issues
that arise from the application or attestations or ETA's proposed
audits. Conforming changes are proposed to other sections in part 501
to reflect the proposed WHD debarment authority.
5. Referrals of Revocations to ETA
Section 501.21 is proposed to conform to the proposed changes in 20
CFR part 655, which provides ETA the authority to revoke an existing
certification, by allowing the WHD to recommend revocation to ETA based
upon the WHD's investigative determinations.
6. Exhaustion of Administrative Remedies
Sections 501.33 and 501.42 would be revised to include language
that clarifies and assures that the exhaustion of all administrative
remedies is required before an appeal of a final agency action may be
taken to the Federal courts pursuant to the Administrative Procedures
Act.
7. Nomenclature Changes
The proposed rule would also make a number of non-substantive
nomenclature changes and technical corrections to 29 CFR part 501.
These include: Reflecting that the INA was amended in 1988 while the
current regulations were published in June 1987 and H-2A provisions
that were in Sec. 216 are now codified in Sec. 218 of the INA;
changing references from the State Employment Service offices to the
SWA; and reflecting that appeals from administrative law judge
decisions are made to the Department's Administrative Review Board.
III. Administrative Information
A. Executive Order 12866--Regulatory Planning and Review
Under Executive Order (E.O.) 12866, the Department must determine
whether a regulatory action is ``significant'' and therefore subject to
the requirements of the E.O. and subject to review by the Office of
Management and Budget (OMB). Section 3(f) of the E.O. defines a
``significant regulatory action'' as an action that is likely to result
in a rule (1) having an annual effect on the economy of $100 million or
more, or adversely and materially affecting a sector of the economy,
productivity, competition, jobs, the environment, public health or
safety, or State, local or tribal governments or communities (also
referred to as ``economically significant''); (2) creating serious
inconsistency or otherwise interfering with an action taken or planned
by another agency; (3) materially altering the budgetary impacts of
entitlement grants, user fees, or loan programs or the rights and
obligations of recipients thereof; or (4) raising novel legal or policy
issues arising out of legal mandates, the President's priorities, or
the principles set forth in the E.O.
[[Page 8558]]
The Department has determined that this proposed rule is not an
``economically significant regulatory action'' under Sec. 3(f)(1) of
E.O. 12866. The procedures for filing an Application for Temporary
Employment Certification under the H-2A visa category on behalf of
nonimmigrant temporary agricultural workers, as proposed under this
regulation, will not have an economic impact of $100 million or more.
The regulation will not adversely affect the economy or any sector
thereof, productivity, competition, jobs, the environment, nor public
health or safety in a material way. In fact, this proposed rule is
intended to provide relief to the affected employers both directly, by
streamlining the process by which they can apply for H-2A labor
certification, and indirectly, by increasing the available legal
workforce. The Department, however, has determined that this proposed
rule is a ``significant regulatory action'' under Sec. 3(f)(4) of the
E.O.
Summary of Impacts
The changes being proposed are expected to have little or no direct
cost impact, above and beyond the baseline of the current costs
required by the program as it is currently implemented, with the
exception of increased fees for filing. The re-engineering of the
program requirements, including attestation-based applications and pre-
application recruitment, will have the effect of reducing employer
application costs in time and resources and introduce processing
efficiencies that will reduce costs for employers, particularly costs
associated with loss of labor due to delayed certifications. The
Department is specifically requesting comment on what costs these
policies introduce and what efficiencies may be gained from adopting
these new proposed procedures, toward the goal of ensuring a thorough
consideration and discussion of the costs and benefits at the final
rule stage.
The additional filing fees will offset these reductions to a
certain extent, but the Department believes that the increased filing
fees represent the actual cost of processing and will have a net
benefit to employers in the increased access to the program and the
benefit of having a workforce in place when and where needed. The
additional record retention costs for employers are minimal. The new
record retention requirements will require a burden of approximately 10
minutes per year per application to retain the application and
supporting documents above and beyond the 1 year of retention required
by regulations of the Equal Employment Opportunity Commission (EEOC) at
29 CFR 1602.14, promulgated pursuant to Title VII of the Civil Rights
Act and the American With Disabilities Act, and 29 CFR 1627.3(b)(3),
promulgated pursuant to the Age Discrimination in Employment Act. In FY
2007, 7,725 employers filed requests for 80,294 workers. Using standard
administrative wage rates, including benefits, of $60.42 \20\ per hour,
this additional burden for each of the 4 years following the mandated
year above is approximately $77,791 total per year (or approximately
$10 per applicant per year) if the current number of requests remains
constant. Any increase in the use of the program would result in the
same ultimate burden to applicants.
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\20\ Derived by utilizing the Bureau of Labor Statistics 2006
median wage for Human Resources Manager wage of $42.55 and a 1.42
factor for the cost of benefits and taxes.
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Employers will experience efficiencies as a result of the
reengineering of the process. These savings are expected to be found in
the simplified attestation-based application. While the Department
cannot precisely estimate the cost savings as a result of this time
saved, it believes that employers will experience economic benefits as
a result of this reengineering of the application process to an
attestation-based submission, including lower advertising costs and
fewer labor costs from overlapping or duplicative workforces. These
savings may be impacted by increased usage of the program by employers;
while at this time it is impossible to tell exactly what that increased
usage will be, the savings to employers will be universal to new users
as well as current participants.
B. Regulatory Flexibility Analysis
When an agency issues a rulemaking proposal, the Regulatory
Flexibility Act (RFA) requires that a regulatory flexibility analysis
be prepared and made available for public comment. The RFA must
describe the impact of the proposed rule on small entities. (5 U.S.C.
603(a)). Section 605 of the RFA allows an agency to certify a rule, in
lieu of preparing an analysis, if the proposed rulemaking is not
expected to have significant economic impact on a substantial number of
small entities. The Assistant Secretary of ETA has notified the Chief
Counsel for Advocacy, Small Business Administration (SBA), and
certifies under the RFA at 5 U.S.C. 605(b), that this proposed rule
will not have a significant economic impact on a substantial number of
small entities. The rule does not substantively change existing
obligations for employers who choose to participate in the H-2A
temporary agricultural worker program.
The factual basis for such a certification is that even though this
proposed rule can and does affect small entities, there are not a
substantial number of small entities that will be affected, nor is
there a significant economic impact upon those small entities that are.
In FY 2007, 7,725 employers filed requests for 80,294 workers. Of the
total 2,089,790 farms, 98 percent have sales of less than $750,000 per
year and fall within SBA's definition of small entities. However, the
Department does not expect that there will be a substantial number of
small businesses that will utilize the H-2A program in light of its
prior history. In FY 2007, 7,725 employers filed requests for 80,294
workers. Even if all of the 7,725 employers who filed applications
under H-2A in FY 2007 were small entities, the percentage of small
entities applying for temporary foreign worker certification would be
only 3 percent of the total number of small farms.
The Department contends the costs incurred to employers under this
proposed rule will not be substantially different from those incurred
under the current application filing process. Employers seeking to hire
foreign workers on a temporary basis under the H-2A program must
continue to establish to the Secretary's satisfaction that their
recruitment attempts have not yielded enough qualified and available
U.S. workers and that their hiring of foreign workers will not
adversely affect the wages and working conditions of similarly employed
U.S. workers. Similar to the current process, employers under this
proposed H-2A process will file a standardized application for
temporary labor certification and will retain recruitment
documentation, a recruitment report, and any supporting evidence or
documentation justifying the temporary need for the services or labor
to be performed.
To estimate the cost of this reformed H-2A process on employers,
the Department calculated each employer will likely pay in the range of
$500 to $1,850 to meet the advertising and recruitment requirements for
a job opportunity, and spend approximately 3 hours of staff time
preparing the standardized applications for the required offered wage
rate and for temporary labor certification, final recruitment report,
and retaining all other required documentation (e.g., newspaper ads,
job orders, business necessity) in a file for audit purposes
[[Page 8559]]
that is not otherwise required to be retained in the normal course of
business. In estimating employer staff time costs, the Department used
the median hourly wage rate for a Human Resources Manager ($42.55), as
published by the Department's OES survey, O*Net OnLine,\21\ and
increased it by a factor of 1.42 to account for employee benefits and
other compensation for a total staff time cost of $181.00 per
applicant.
---------------------------------------------------------------------------
\21\ Source: Bureau of Labor Statistics 2006 wage data.
---------------------------------------------------------------------------
The Department acknowledges that there might be some extremely
small businesses that may incur additional costs to file their
application on-line if and when the Department moves to an electronic
processing model. However, neither these additional costs nor the
advertising and human resource staff time, if any, will eliminate more
than 10 percent of the businesses' profits; exceed 1 percent of the
gross revenue of the entities in a particular sector; nor exceed 5
percent of the labor costs of the entities in the sector.
The total costs for the small entities affected by this program
will be reduced or stay the same as the costs for participating in the
current program. Even assuming that all entities who file H-2A labor
certification applications are considered to be small businesses, the
net economic effect is not significant.
The Department invites comments from members of the public who
believe there will be a significant impact on a substantial number of
small entities or who disagree with the size standard used by the
Department in certifying that this proposed rule will not have a
significant impact on a substantial number of small entities.
C. Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C.
1531) directs agencies to assess the effects of Federal regulatory
actions on State, local, and tribal governments, and the private
sector. This proposed rule has no ``Federal mandate,'' which is defined
in 2 U.S.C. 658(6) to include either a ``Federal intergovernmental
mandate'' or a ``Federal private sector mandate.'' A Federal mandate is
any provision in a regulation that imposes an enforceable duty upon
State, local, or tribal governments, or imposes a duty upon the private
sector which is not voluntary. A decision by a private entity to obtain
an H-2A worker is purely voluntary and is, therefore, excluded from any
reporting requirement under the Act.
The SWAs are mandated to perform certain activities for the Federal
Government under this program, and are compensated for the resources
used in performing these activities. Under the current regulations,
employers file applications for H-2A labor certifications concurrently
with the Department and the SWA having jurisdiction over the area of
intended employment. The SWA and the Department through the NPCs of the
OFLC both receive the application and review the terms of the job
offer. The SWA then places the job order to initiate local recruitment.
The SWA directly supervises and assists employer recruitment, and makes
referrals of U.S. workers. The NPC directs the SWA to place job orders
into intrastate/interstate clearance ensuring employers meet
advertising and recruitment requirements. The SWA is responsible for
processing the employer's certification request for H-2A labor
certification, overseeing the recruitment and directing referrals to
the employer. SWAs coordinate all activities regarding the processing
of H-2A applications directly with the appropriate NPC for their
jurisdiction, including transmittal to the NPC of housing inspection
results, prevailing wage surveys, prevailing practice surveys or any
other material bearing on the application. Once the application is
reviewed by the SWA and after the employer conducts its required
recruitment, the SWA then sends the complete application to the
appropriate NPC for final certification or denial.
Under the re-engineered process in the NPRM, the SWAs will still
play a role in the clearance of job orders, the referral of eligible
U.S. workers to employers, and conducting housing inspections, but will
no longer be responsible for the receipt and substantive review of H-2A
applications. SWA activities under the H-2A program are currently
funded by the Department pursuant to grants provided under the Wagner-
Peyser Act. 29 U.S.C. 49, et seq. The Department anticipates continuing
funding under the Wagner-Peyser Act. As a result of this NPRM and the
publication of a final regulation, the Department will analyze the
amounts of such grants made available to each State to fund the
activities of the SWAs.
D. Small Business Regulatory Enforcement Fairness Act of 1996
The Department determined that this rulemaking did not impose a
significant impact on a substantial number of small entities under the
RFA; therefore, the Department is not required to produce any
Compliance Guides for Small Entities as mandated by the Small Business
Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801) (SBREFA).
The Department has similarly concluded that this proposed rule is not a
``major rule'' requiring review by the Congress under the SBREFA
because it will not likely result in: (1) An annual effect on the
economy of $100 million or more; (2) a major increase in costs or
prices for consumers, individual industries, Federal, State or local
Government agencies, or geographic regions; or (3) significant adverse
effects on competition, employment, investment, productivity,
innovation, or on the ability of U.S.-based enterprises to compete with
foreign-based enterprises in domestic or export markets.
E. Executive Order 13132, Federalism
The Department has reviewed this proposed rule in accordance with
E.O. 13132 regarding federalism and has determined that it does not
have ``federalism implications.'' The proposed rule does not ``have
substantial direct effects on States, on the relationship between the
States, or on the distribution of power and responsibilities among the
various levels of Government'' as described by E.O. 13132. Therefore,
the Department has determined that this proposed rule will not have a
sufficient federalism implication to warrant the preparation of a
summary impact statement.
F. Executive Order 13175, Indian Tribal Governments
This rule was reviewed under the terms of E.O. 13175 and determined
not to have ``tribal implications.'' The rule does not have
``substantial direct effects on one or more Indian tribes, on the
relationship between the Federal Government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
Government and Indian tribes.'' As a result, no tribal summary impact
statement has been prepared.
G. Assessment of Federal Regulations and Policies on Families
Section 654 of the Treasury and General Government Appropriations
Act, enacted as part of the Omnibus Consolidated and Emergency
Supplemental Appropriations Act of 1999 (Pub. L. 105-277, 112 Stat.
2681) requires the Department to assess the impact of this proposed
rule on family well-being. A rule that is determined to have a negative
effect on families must
[[Page 8560]]
be supported with an adequate rationale.
The Department has assessed this proposed rule and determines that
it will not have a negative effect on families.
H. Executive Order 12630
This proposed rule is not subject to E.O. 12630, Governmental
Actions and Interference with Constitutionally Protected Property
Rights, because it does not involve implementation of a policy with
takings implications.
I. Executive Order 12988
This regulation has been drafted and reviewed in accordance with
E.O. 12988, Civil Justice Reform, and will not unduly burden the
Federal court system. The regulation has been written so as to minimize
litigation and provide clear legal standard for affected conduct, and
has been reviewed carefully to eliminate drafting errors and
ambiguities.
J. Plain Language
The Department drafted this Notice of Proposed Rulemaking in plain
language.
K. Executive Order 13211, Energy Supply
This rule is not subject to E.O. 13211. It will not have a
significant adverse effect on the supply, distribution, or use of
energy.
L. Paperwork Reduction Act
This NPRM contains revised paperwork requirements at Sec. Sec.
655.100(a), 655.101, 655.102(c), 655.104(d)(5), 655.105, 655.106,
655.107, 655.108, and 655.109 of Title 20 in the Code of Federal
Regulations. This NPRM proposes to significantly change the method of
collecting information for the H-2A program for which the current
collection instruments do not suffice. Employers are currently required
to file a Form ETA 750 (OMB Control Number 1205-0015) and Form ETA 790
(OMB Control Number 1205-0134) when requesting a labor certification
for temporary agricultural workers. Additionally, each SWA has its own
form for its offered wage rate determinations. This proposed rule
revises the current process for applying by requiring petitioners to
attest to certain terms, conditions, and obligations. These
attestations are made to the U.S. Government in accordance with these
proposed regulations in order to modernize processing. To streamline
the process, the proposed rule mandates the offered wage rate
determination requests be filed with the Department instead of the
individual SWAs. Under the Paperwork Reduction Act of 1995 (PRA), OMB
considers the attestations and the wage rate determination requests an
information collection requirement subject to review. Accordingly, this
information collection in this proposed rule has been submitted to OMB
for review under Sec. 3507(d) of the PRA. Copies of the proposed
information collection request (ICR) can be obtained by contacting the
office listed below in the addressee section of this notice or at this
Web site: http://www.doleta.gov/OMBCN/OMBControlNumber.cfm or http://www.reginfo.gov/public/dol/pramain.
Written comments are encouraged and
ritten comments are encouraged and
When submitting comments on the information collection, your
comments should address one or more of the following four points.
Review Focus: The Department of Labor is particularly interested in
comments which:
Evaluate whether the proposed collection of information is
necessary for the proper performance of the functions of the agency,
including whether the information will have practical utility;
Evaluate the accuracy of the agency's estimate of the
burden of the proposed collection of information, including the
validity of the methodology and assumptions used;
Enhance the quality, utility, and clarity of the
information to be collected; and
Minimize the burden of the collection of information on
those who are to respond, including through the use of appropriate
automated, electronic, mechanical, or other technological collection
techniques or other forms of information technology, e.g., permitting
electronic submissions of responses.
I. Overview of Information Collection Form 1
Type of Review: New.
Agency: Employment and Training Administration.
Title: Application for Temporary Employment Certification.
OMB Number: 1205-NEW1.
Agency Number(s): (Proposed) Form ETA-9142.
Recordkeeping: On occasion.
Affected Public: Individuals, households, businesses, farms,
Federal, State, local and tribal governments.
Total Respondents: 7,725.
Estimated Total Burden Hours: 16,738.
Total Burden Cost (capital/startup): $9,573,400.
Total Burden Cost (operating/maintaining): 0.
II. Overview of Information Collection Form 2
Type of Review: New.
Agency: Employment and Training Administration.
Title: Job Offer and Required Wage Request Form.
OMB Number: 1205-NEW2.
Agency Number(s): (Proposed) Form ETA-9141.
Recordkeeping: On occasion.
Affected Public: Individuals, households, businesses, farms,
Federal, State, local and tribal governments.
Total Respondents: 7,725.
Estimated Total Burden Hours: 5,794.
Total Burden Cost (capital/startup): 0.
Total Burden Cost (operating/maintaining): 0.
Comments submitted in response to this comment request will be
summarized and/or included in the request for OMB approval of the ICR;
they will also become a matter of public record. All comments and
suggestions or questions regarding additional information should be
directed to the Federal e-Rulemaking Portal at: http://www.regulations.gov encouraged and or
mailed to the Office of Information and Regulatory Affairs of the
Office of Management and Budget, Washington, DC 20503, Attention: Desk
Officer for Employment & Training Administration. The information
collection aspects of the proposed rulemaking will not take effect
until published in a final rule and approved by OMB. Persons are not
required to respond to a collection of information unless it displays a
currently valid OMB control number as required in 5 CFR 1320.11(k)(1).
M. Catalog of Federal Domestic Assistance Number
This program is listed in the Catalog of Federal Domestic
Assistance at Number 17-273, ``Temporary Labor Certification for
Foreign Workers.''
List of Subjects in 20 CFR Part 655
Administrative practice and procedure, Foreign workers, Employment,
Employment and training, Enforcement, Forest and forest products,
Fraud, Health professions, Immigration, Labor, Passports and visas,
Penalties, Reporting and recordkeeping requirements, Unemployment,
Wages, Working conditions.
List of Subjects in 29 CFR Part 501
Administrative practice and procedure, Agriculture, Aliens,
Employment, Housing, Housing standards, Immigration, Labor, Migrant
labor, Penalties, Transportation, Wages.
[[Page 8561]]
List of Subjects in 29 CFR Part 780
Agricultural commodities, Agriculture, Employment, Forests and
forest products, Labor, Minimum wages, Nursery stock, Overtime pay,
Wages.
List of Subjects in 29 CFR Part 788
Employment, Forests and forest products, Labor, Overtime pay,
Wages.
For reason stated in the preamble, the Department of Labor proposes
that 20 CFR part 655 and 29 CFR parts 501, 780, and 788 be amended as
follows:
Title 20--Employees' Benefits
PART 655--TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED
STATES
1. Revise the authority citation for part 655 to read as follows:
Authority: Section 655.0 issued under 8 U.S.C. 1101(a)(15)(H)(i)
and (ii), 1182(n) and (t), 1184(c), (g), and (j), 1188, and 1288(c)
and (d); Sec. 3(c)(1), Public Law 101-238, 103 Stat. 2099, 2102 (8
U.S.C. 1182 note); Sec. 221(a), Public Law 101-649, 104 Stat. 4978,
5027 (8 U.S.C. 1184 note); Sec. 303(a)(8), Public Law 102-232, 105
Stat. 1733, 1748 (8 U.S.C. 1101 note); Sec. 323(c), Public Law 103-
206, 107 Stat. 2428; Sec. 412(e), Public Law 105-277, 112 Stat.
2681; and 8 CFR 214.2(h)(4)(i).
Section 655.00 issued under 8 U.S.C. 1101(a)(15)(H)(ii),
1184(c), and 1188; and 8 CFR 214.2(h).
Subparts A and C issued under 8 CFR 214.2(h).
Subpart B issued under 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c),
and 1188; and 8 CFR 214.2(h).
Subparts D and E authority repealed.
Subparts F and G issued under 8 U.S.C. 1288(c) and (d); and
Sec. 323(c), Public Law 103-206, 107 Stat. 2428.
Subparts H and I issued under 8 U.S.C. 1101(a)(15)(H)(i)(b) and
(b)(1), 1182(n) and (t), and 1184(g) and (j); Sec. 303(a)(8),
Public Law 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1101 note); Sec.
412(e), Public Law 105-277, 112 Stat. 2681; and 8 CFR 214.2(h).
Subparts J and K issued under Sec. 221(a), Public Law 101-649,
104 Stat. 4978, 5027 (8 U.S.C. 1184 note).
Subparts L and M issued under 8 U.S.C. 1101(a)(15)(H)(i)(c) and
1182(m); Sec. 2(d), Public Law 106-95, 113 Stat. 1312, 1316 (8
U.S.C. 1182 note); Public Law 109-423, 120 Stat. 2900; and 8 CFR
214.2(h).
2. Revise the heading of part 655 to read as set forth above.
3. Revise Sec. 655.1 to read as follows:
Sec. 655.1 Purpose of scope of subpart A.
This subpart sets forth the procedures governing the labor
certification process for the temporary employment of nonimmigrant
foreign workers in the United States in occupations other than
agriculture or registered nursing.
4. Revise subpart B to read as follows:
Subpart B--Labor Certification Process for Temporary Agricultural
Sec.
655.90 Purpose and scope of subpart B.
655.92 Authority of ETA-OFLC.
655.93 Special procedures
655.100 Overview of subpart B and definition of terms.
655.101 Applications for temporary employment certification in
agriculture.
655.102 Required pre-filing recruitment.
655.103 Advertising requirements.
655.104 Contents of job offers.
655.105 Assurances and obligations of H-2A employers.
655.106 Assurances and obligations of Farm Labor Contractors.
655.107 Receipt and processing of applications.
655.108 Offered Wage Rate.
655.109 Labor certification determinations.
655.110 Validity and scope of temporary labor certifications.
655.111 Required departure.
655.112 Audits.
655.113 H-2A applications involving fraud or willful
misrepresentation.
655.114 Petition for higher meal charges.
655.115 Administrative review and de novo hearing before an
administrative law judge.
655.116 Job Service Complaint System; enforcement of work contracts.
655.117 Revocation of H-2A certification approval.
655.118 Debarment.
Sec. 655.90 Purpose and scope of subpart B.
General. This subpart sets out the procedures established by the
Secretary of Labor (the Secretary) to acquire information sufficient to
make factual determinations of:
(a) 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
(b) Whether the employment of H-2A workers will adversely affect
the wages and working conditions of workers in the U.S. similarly
employed.
Sec. 655.92 Authority of ETA-OFLC.
Under this subpart, the accepting for consideration and the making
of temporary agricultural labor certification determinations are
ordinarily performed by the Administrator, Office of Foreign Labor
Certification (OFLC), who, in turn, may delegate this responsibility to
a designated staff member, e.g., a Certifying Officer (CO).
Sec. 655.93 Special procedures.
(a) Systematic process. This subpart provides systematic and
accessible procedures for the processing of applications from
agricultural employers and associations of employers for the
certification of employment of nonimmigrant workers, usually in
relation to the production or harvesting of a particular agricultural
crop or the raising of livestock for market.
(b) Establishment of special procedures. To provide for a limited
degree of flexibility in carrying out the Secretary's responsibilities
under the INA, while not deviating from statutory requirements to
determine U.S. worker availability and make a determination as to
adverse effect, the OFLC Administrator has the authority to establish
or to revise special procedures in the form of variances for processing
certain H-2A applications when employers can demonstrate upon written
application to and consultation with the OFLC Administrator that
special procedures are necessary. In a like manner, for work in
occupations characterized by other than a reasonably regular workday or
workweek, such as the range production of sheep or other livestock, the
Administrator has the authority to establish monthly, weekly, or bi-
weekly adverse effect wage rates for those occupations, for a Statewide
or other geographical area, other than the rates established pursuant
to Sec. 655.108, provided that the Administrator uses a methodology to
establish adverse effect wage rates that are consistent with the
methodology in Sec. 655.108. Prior to making determinations under this
paragraph (b), the Administrator may consult with employer and worker
representatives.
(c) Construction. This subpart shall be construed to permit the
OFLC Administrator, where the OFLC Administrator deems appropriate, to
devise, continue, revise, or revoke special procedures where
circumstances warrant. These include procedures previously in effect
for the handling of applications for sheepherders in the Western States
(and adaptation of such procedures to occupations in the range
production of other livestock), for custom combine crews, and others on
an as-needed basis.
Sec. 655.100 Overview of subpart B and definition of terms.
(a) Overview--(1) Filing application process. (i) This subpart
provides guidance to an employer that desires to apply for temporary
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
[[Page 8562]]
and Training Administration (ETA), that describes the material terms
and conditions of employment to be offered and afforded to U.S. and H-
2A workers, with the OFLC Administrator. The entire application shall
be filed with the OFLC Administrator at least 45 calendar days before
the first date the employer requires the services of the H-2A workers.
The application will contain attestations of the employer's compliance
or promise to comply with program requirements regarding recruitment of
eligible U.S. workers, including the payment of an appropriate wage,
and terms and conditions of employment.
(ii) No earlier than 120 calendar days and no later than 75
calendar days before the first date the employer requires the services
of the H-2A workers, the employer shall initiate positive recruitment
of eligible U.S. workers and cooperate with the local office of the
State Workforce Agency (SWA) which serves the area of intended
employment to place a job order into intrastate and interstate
recruitment. To comply with the regulation and as part of its positive
recruitment, an employer will: Obtain the appropriate agricultural wage
directly from the ETA National Processing Center (NPC); place a job
order with the SWA; place advertisements meeting the requirements of
this regulation; contact former U.S. workers; and engage in recruitment
in traditional labor supply States, when required, based on an annual
determination from the Secretary, where such determination results in a
finding of a multistate region of traditional or expected labor supply
with a significant number of U.S. workers who, if recruited, would be
willing to make themselves available at the time and place needed. The
SWA will post a job order locally, as well as in all States listed in
the application as anticipated work sites and in any States in which
the Secretary finds that a multistate region of traditional or expected
labor supply exists with a significant number of U.S. workers who, if
recruited, would be willing to make themselves available at the time
and place needed. No more than 60 days prior to the first date the
employer requires the services of the H-2A workers, the employer will
prepare an initial written recruitment report that it must submit with
its application. The employer will cease any recruitment and acceptance
of referrals of eligible U.S. workers no earlier than the actual date
on which the H-2A workers depart for the place of work, or no earlier
than three days prior to the first date the employer requires the
services of the H-2A workers, whichever is later.
(iii) The application for H-2A temporary labor certification may be
filed by mail; in addition, the Department may require the application
to be filed electronically. Applications that meet threshold
requirements for completeness and accuracy will be forwarded for
processing to NPC staff, who will review each application for
compliance with the criteria for certification. Each application must
meet requirements for timeliness, temporary need, and the provision of
assurances and other safeguards against adverse impact, and must be
free of technical errors. Employers receiving a labor certification
must continue to cooperate with the SWA by accepting referrals--and
have the obligation to accept eligible U.S. workers who apply--until
the date on which the H-2A workers depart for the place of work, or 3
days prior to the first date the employer requires the services of the
H-2A workers, whichever is later.
(2) Deficient applications. Under this subpart, the CO will
promptly review the application and notify the applicant in writing if
there are deficiencies that render the application not acceptable for
certification, and afford the applicant a 5 business day period for
resubmission of an amended application or an appeal of the CO's refusal
to approve the application as acceptable for consideration. Amended
applications that fail to cure deficiencies in a way that would make
them certifiable will be denied. In addition, when an initial
application contains a deficiency related to recruitment or some other
element of adverse effect, the CO will deny the application, instruct
the employer to file a new application, and include guidance on how to
correct the deficiency during the new recruitment period. In these
cases, the application must contain a new, later date of need and
demonstrate compliance with pre-filing recruitment requirements.
(3) Amendment of applications. This subpart provides for the
amendment of applications, at any time prior to the CO's certification
determination, to increase the number of workers requested in the
initial application; and/or change the period of employment. In
circumstances where the recruitment was not materially altered by such
amendments, such amendments may not require an additional recruitment
period for eligible U.S. workers.
(4) Recruitment of U.S. workers; determinations--(i) Recruitment.
If the employer has complied with the criteria for certification,
including recruitment of eligible U.S. workers, the CO shall make a
determination no later than 30 calendar days before the first date the
employer requires the services of the H-2A workers to grant or deny, in
whole or in part, the application for certification. Failure to comply
with any of the certification criteria, and efforts to cure
deficiencies identified by the CO, may lengthen the time required for
processing, resulting in a final determination issued later than 30
days prior to date of need.
(ii) Granted applications. This subpart provides that an
application for temporary agricultural labor certification shall be
granted if the CO finds that the employer has not offered and does not
intend to offer 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, qualified, and eligible, 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
nonimmigrants 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
appropriate CO fees for each temporary agricultural labor certification
received. The application fee for each employer receiving a temporary
agricultural labor certification is $200 plus $100 for each H-2A worker
certified under the Application for Temporary Employment Certification.
In the case of a joint employer association receiving a temporary
agricultural labor certification, each employer-member receiving a
temporary agricultural labor certification shall pay an application fee
of $200 plus $100 for each H-2A worker certified for that employer-
member. The joint employer association will not be charged a separate
fee. Any amendments requested pursuant to Sec. 655.107(a)(6) by the
employer to a temporary agricultural labor certification, which are
received, accepted, and processed by the appropriate CO, will be
subject to an additional processing fee of $100. In circumstances where
the CO grants an amendment to increase the number of H-2A workers
requested on the initial certified application, the employer shall be
subject to a fee of $100 for each additional H-2A worker certified on
the amended temporary agricultural labor certification.
[[Page 8563]]
(B) Timeliness of payment. The fee must be received by the
appropriate CO no later than 30 calendar days after the granting of
each temporary agricultural labor certification. Fees received any
later are untimely. Failure to pay fees in a timely manner is a
substantial program violation which may result in the denial of future
temporary agricultural labor certifications and program debarment.
(iv) Denied applications. This subpart provides that if the
application for temporary 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:
Administrative law judge means a person within the DOL 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. 655.115. ``Chief Administrative Law Judge'' means the
chief official of the DOL Office of Administrative Law Judges or the
Chief Administrative Law Judge's designee.
Administrator, Office of Foreign Labor Certification (OFLC) means
the primary official of the Office of Foreign Labor Certification, or
the Administrator's designee.
Adverse effect wage rate (AEWR) means the minimum wage rate that
the Administrator has determined must be offered and paid to every H-2A
worker employed in a particular occupation and/or area to ensure 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
agricultural labor certification purposes, and
(2) Is not itself an employer, or a joint employer, as defined in
this paragraph (b).
Agricultural association means any nonprofit or cooperative
association of farmers, growers, or ranchers, incorporated or qualified
under applicable State law, which recruits, solicits, hires, employs,
furnishes, or transports any H-2A worker. An agricultural association
may act as the agent of an employer for purposes of filing an H-2A
temporary labor certification application.
Agricultural employer means any person who owns or operates a farm
or ranch, or otherwise engages in agriculture as defined in this
subpart, and who either recruits, solicits, hires, employs, furnishes,
or transports any H-2A worker. Agricultural employers may file H-2A
applications either directly or through their agents or other legal
representatives.
Application for Temporary Employment Certification means the form
submitted by an employer to secure a temporary agricultural labor
certification determination from DOL.
Area of intended employment means the geographic area within normal
commuting distance of the place (worksite address) of intended
employment of the job opportunity for which the certification is
sought. There is no rigid measure of distance which constitutes a
normal commuting distance or normal commuting area, because there may
be widely varying factual circumstances among different areas (e.g.,
average commuting times, barriers to reaching the worksite, quality of
regional transportation network, etc.). If the place of intended
employment is within a Metropolitan Statistical Area (MSA), including a
multistate MSA, any place within the MSA is deemed to be within normal
commuting distance of the place of intended employment. The borders of
MSAs are not controlling in the identification of the normal commuting
area; a location outside of an MSA may be within normal commuting
distance of a location that is inside (e.g., near the border of) the
MSA.
Attorney means any person who is a member in good standing of the
bar of the highest court of any state, possession, territory, or
commonwealth of the United States, or the District of Columbia, and who
is not under suspension or disbarment from practice before any court or
before DHS or the United States Department of Justice's Executive
Office for Immigration Review. Such a person is permitted to act as an
agent, representative, or attorney for an employer and/or foreign
worker under this part.
Certifying Officer (CO) means the person designated by the
Administrator, OFLC with making programmatic determinations on
employer-filed applications under the H-2A program.
Date of need means the first date the employer requires services of
the H-2A workers.
Department of Homeland Security (DHS), through the United States
Citizenship and Immigration Services (USCIS), means the Federal agency
making the determination under the INA whether to grant petitions filed
by employers seeking H-2A workers to perform temporary agricultural
work in the U.S.
DOL or Department means the U.S. Department of Labor.
Eligible worker means, with respect to employment, an individual
who is not an unauthorized alien (as defined in section 274A(h)(3) of
the INA, 8 U.S.C. 1324a(h)(3), or in this paragraph (b)) with respect
to that employment.
Employee means ``employee'' as defined under the general common law
of agency. Some of the factors relevant to the determination of
employee status include: The hiring party's right to control the manner
and means by which the work is accomplished; the skill required; the
source of the instrumentalities and tools for accomplishing the work;
the location of the work; the hiring party's discretion over when and
how long to work; and whether the work is part of the regular business
of the hiring party. Other applicable factors should be considered and
no one factor is dispositive.
Employer means a person, firm, corporation or other association or
organization:
(1) Which has a location within the U.S. to which U.S. workers may
be referred for employment, or qualifies as a farm labor contractor
(FLC) under this subpart;
(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; and
(3) Which possesses a valid Federal Employer Identification Number
(FEIN).
(4) Where two or more employers each have the definitional indicia
of employment with respect to an employee, those employers shall be
considered to jointly employ that employee.
(5) FLCs, for purposes of this subpart, shall be considered to be
employers.
Employment Service (ES) means the system of Federal and State
entities responsible for administration of the labor certification
process for temporary and seasonal agricultural employment of
nonimmigrant foreign workers. This includes the State Workforce
Agencies (SWAs) and the OFLC, including the NPCs.
Employment Standards Administration (ESA) means the agency within
the Department of Labor (DOL) that includes the Wage and Hour Division,
and which is charged with carrying out certain investigative and
[[Page 8564]]
enforcement functions of the Secretary under the INA.
Employment and Training Administration (ETA) means the agency
within the Department that includes the OFLC.
Federal holiday means a legal public holiday as defined at 5 U.S.C.
6103.
Farm labor contracting activity means recruiting, soliciting,
hiring, employing, furnishing, or transporting any migrant and seasonal
agricultural worker as those terms are used in 29 U.S.C. 1801 et seq.
and 29 CFR part 500, with the intent to contract those workers to
fixed-site employers.
Farm Labor Contractor (FLC) means any person--other than an
agricultural association, or an employee of an agricultural
association--who, for any money or other valuable consideration paid or
promised to be paid, performs any farm labor contracting activity.
H-2A worker means any nonimmigrant who shall perform agricultural
labor or services of a temporary or seasonal nature under INA Sec.
101(a)(15)(H)(ii)(a), as amended, 8 U.S.C. 1101(a)(15)(H)(ii)(a).
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 eligible 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 U.S. to which a U.S. worker can be
referred.
Office of Foreign Labor Certification (OFLC) means the
organizational component of the ETA that provides national leadership
and policy guidance and develops regulations and procedures to carry
out the responsibilities of the Secretary of Labor under the INA
concerning the admission of foreign workers to the U.S. to perform work
described in INA Sec. 101(a)(15)(H)(ii)(a), as amended.
Occupational Safety and Health Administration (OSHA) means the
organizational component of DOL that assures the safety and health of
America's workers by setting and enforcing standards; providing
training, outreach, and education; establishing partnerships; and
encouraging continual improvement in workplace safety and health under
the Occupational Safety and Health Act, as amended.
Positive recruitment means the active participation of an employer
or its authorized hiring agent in recruiting and interviewing qualified
and eligible individuals in the area where the employer's establishment
is located and any other area designated by the Secretary as a
multistate area of traditional or expected labor supply with respect to
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 practice or benefit which is most commonly provided by employers
(including H-2A and non-H-2A employers) for the occupation in the area
of intended employment.
Representative means the official employed by or duly authorized to
act on behalf of the employer with respect to activities entered into
for and/or attestations made with respect to the Application for
Temporary Employment Certification. In the case of an attorney who acts
as an employer's representative and who interviews and/or considers
U.S. workers for the job offered to the foreign worker(s), such
individual must be the person who normally interviews or considers, on
behalf of the employer, applicants for job opportunities such as that
offered in the application, but which do not involve labor
certifications.
Secretary means the Secretary of Labor, the chief official of the
U.S. Department of Labor, or the Secretary's designee.
Secretary of Homeland Security means the chief official of the U.S.
Department of Homeland Security (DHS) or the Secretary of Homeland
Security's designee.
Secretary of State means the chief official of the U.S. Department
of State (DOS) or the Secretary of State's designee.
State Workforce Agency (SWA), formerly known as State Employment
Security Agency (SESA), means the State Government agency that receives
funds pursuant to the Wagner-Peyser Act to administer the public labor
exchange delivered through the State's one-stop delivery system in
accordance with the Wagner-Peyser Act. 29 U.S.C. 49 et seq. Separately,
SWAs receive ETA grants, administered by the OFLC, to assist them in
performing certain activities related to foreign labor certification--
including conducting housing inspections.
Temporary agricultural labor certification means the certification
made by the Secretary with respect to an employer seeking to file with
DHS a visa petition to employ a foreign national as an H-2A worker,
pursuant to Sec. Sec. 101(a)(15)(H)(ii)(a), 214(a) and (c), and 218 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 foreign worker in such agricultural labor
or services will not adversely affect the wages and working conditions
of workers in the U.S. similarly employed, 8 U.S.C.
1101(a)(15)(H)(ii)(a), 1184 (a) and (c), and 1188.
Temporary agricultural labor certification determination means the
written determination made by the CO to approve or deny, in whole or in
part, an application for temporary agricultural labor certification to
employ a foreign worker(s).
Unauthorized alien means, with respect to employment, an alien who
is not at that time either (a) a foreign national lawfully admitted for
permanent residence or (b) otherwise authorized to be so employed.
United States (U.S.), when used in a geographic sense, means the
continental United States, Alaska, Hawaii, the Commonwealth of Puerto
Rico, and the territories of Guam, and the Virgin Islands of the United
States.
United States worker (U.S. worker) means a worker who is either
(1) A citizen or national of the U.S., or
(2) An alien who is lawfully admitted for permanent residence in
the U.S., is admitted as a refugee under Sec. 207 of the INA, is
granted asylum under Sec. 208 of the INA, or is an immigrant otherwise
authorized (by the INA or by DHS) to be employed in the U.S.
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 Sec.
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:
(i) ``Agricultural labor'' as defined and applied in Sec. 3121(g)
of the Internal Revenue Code of 1954 (26 U.S.C. 3121(g));
(ii) ``Agriculture'' as defined and applied in Sec. 3(f) of the
Fair Labor Standards Act of 1938 (29 U.S.C. 203(f));
[[Page 8565]]
(iii) The pressing of apples for cider on a farm;
(iv) Logging employment; or
(v) 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 while in the employ of the
operator of a farm; or
(vi) Other work typically performed on a farm that is incidental to
the agricultural labor or services for which the worker was sought.
(2) An occupation included in either of the statutory definitions
cited in paragraphs (c)(1)(i) and (ii) of this section shall be
``agricultural labor or services'', notwithstanding the exclusion of
that occupation from the other statutory definition.
(i) ``Agricultural labor'' for purposes of paragraph (c)(1)(i) of
this section means all services performed:
(A) 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;
(B) 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;
(C) 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;
(D)(1) 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;
(2) In the employ of a group of operators of farms (other than a
cooperative organization) in the performance of service described in
paragraph (c)(2)(i)(A) of this section, but only if such operators
produced all of the commodity with respect to which such service is
performed. For purposes of this paragraph (c)(2)(i)(D)(2), 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;
(3) The provisions of paragraphs (c)(1) and (2) of this section
shall not be deemed to be applicable with respect to services 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
(4) 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.
(E) 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. (See Sec. 3121(g) of the
Internal Revenue Code of 1986 (26 U.S.C. 3121(g).)
(ii) ``Agriculture.'' For purposes of paragraph (c)(1)(ii) of this
section agriculture means 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 12 U.S.C. 1141j(g)), 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. (See 29 U.S.C.
203(f) (Sec. 3(f) of the FLSA of 1938, as amended.).
(iii) ``Agricultural commodity''. For purposes of paragraph
(c)(1)(ii), of this section ``agricultural commodity'' includes, in
addition to other agricultural commodities, crude gum (oleoresin) from
a living tree, and gum spirits of turpentine and gum rosin as processed
by the original producer of the crude gum (oleoresin) from which
derived.. ``Gum spirits of turpentine'' means spirits of turpentine
made from gum (oleoresin) from a living tree and ``gum rosin'' means
rosin remaining after the distillation of gum spirits of turpentine.
(See 12 U.S.C. 1141j(g) (Sec. 15(g) of the Agricultural Marketing Act,
as amended, and 7 U.S.C. 92.)
(3) ``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 ESA's WHD's
regulation at 29 CFR 500.20 under the Migrant and Seasonal Agricultural
Worker Protection Act (MSPA).
(ii) MSPA definition. The definition of ``on a seasonal or other
temporary basis'' found in MSPA, summarized as follows, is:
(A) 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.
(B) 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.
(C) ``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.
(D) ``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 for a limited period of time,
which shall be for less than 1 year, unless the original temporary
agricultural labor
[[Page 8566]]
certification is extended based on unforeseen circumstances, pursuant
to Sec. 655.110 of this part.
Sec. 655.101 Applications for temporary employment certification in
agriculture.
(a) Application Filing Requirements. (1) An employer that desires
to apply for certification of temporary employment of one or more
nonimmigrant foreign workers must file a completed DOL Application for
Temporary Employment Certification form, including a job offer. If the
job opportunity contains multiple work locations within the same area
of intended employment and the area of intended employment is found in
more than one NPC, the application, if filed by mail, shall be filed
with the NPC having jurisdiction over the place where the work is
contemplated to begin. The employer's application will contain
information related to the job opportunity, which shall comply with the
requirements of Sec. Sec. 655.104 and 653.501 of this chapter and the
assurances required by Sec. 655.105.
(2) If an association of agricultural producers, which uses
agricultural labor or services, files the application, the association
shall identify whether it is either the sole employer, a joint employer
with its employer-member employers, or the agent of its employer-
members. The association shall identify on the Application for
Temporary Employment Certification, by name and address, each member
that will be an employer of H-2A workers. The association shall retain
documentation substantiating the employer or agency status of the
association and be prepared to submit such documentation to the CO in
the event of an audit examination.
(3) If an employer intends to be represented by an agent, the
employer shall sign the appropriate statement on the Application for
Temporary Employment Certification that the agent is representing the
employer and the employer assumes full responsibility for the accuracy
of any representations made by the agent. The agent may accept for
interview workers being referred to the job and make hiring commitments
on behalf of the employer.
(4) If an FLC intends to file the application, he/she must meet all
of the requirements of the definition of ``employer'' in Sec.
655.100(b), and comply with all the assurances, guarantees, and other
requirements contained in this part and in part 653, subpart F, of this
chapter. The FLC must have a place of business (physical location) in
the United States to which U.S. workers may be referred. If an FLC
files an application, H-2A workers employed by the FLC may not perform
services for an agricultural employer unless the FLC has filed a
confirmation of the agricultural employer's compliance with the housing
and transportation obligations, as outlined in Sec. 655.106, with the
OFLC, for each agricultural employer listed on the application. The FLC
shall retain a copy of the compliance certificate.
(b) Filing. The employer may complete the Application for Temporary
Employment Certification and send it by U.S. Mail or private mail
courier to the appropriate NPC. The Department shall publish a Notice
in the Federal Register identifying the address(es), and any future
address changes, to which paper applications must be mailed, and shall
also post these addresses on the DOL Internet Web site at http://www.foreignlaborcert.doleta.gov/.
The form must bear the original
signature of the employer (or that of the employer's authorized agent
or representative) at the time it is submitted.
(c) Timeliness. A completed Application for Temporary Employment
Certification is not required to be filed with the appropriate NPC more
than forty-five (45) calendar days before the date of need.
Sec. 655.102 Required pre-filing recruitment.
(a) Time of Filing of Application. An employer may not file an
Application for Temporary Employment Certification before all of the
pre-filing recruitment steps set forth in this section have been fully
satisfied. An employer may file earlier than 45 days prior to the date
of need, but is not required to do so.
(b) General Attestation Obligation. An employer must document
recruitment efforts on the application form and attest to performing
all necessary steps of the recruitment process as specified in this
section and having rejected any eligible U.S. workers who have applied
only for lawful reasons. In addition, the employer shall attest that it
will continue to cooperate with the SWA by accepting referrals of all
eligible U.S. workers who apply (or on whose behalf an application is
made) for the job opportunity until the H-2A workers depart for the
place of work, or 3 days prior to the first date the employer requires
the services of the H-2A workers, whichever is later, and then
preparing a written recruitment report for submission to the CO in the
event of an audit examination.
(c) Retention of documentation. An employer filing an Application
for Temporary Employment Certification must maintain documentation of
its advertising and recruitment efforts as required in this subpart and
be prepared to submit this documentation in response to a Notice of
Deficiency from the CO prior to rendering a Final Determination or in
the event of an audit examination. The documentation required in this
section to be retained by the employer must be retained for a period of
no less than 5 years from the date of the certification or, if such
application was denied, no less than 5 years from the date of
notification from the Department of such denial.
(d) Positive Recruitment Steps. An employer filing an application
must:
(1) Post a job order with the SWA serving the area of intended
employment,
(2) Run three print advertisements (one of which must be on a
Sunday, except as outlined in paragraph (g) of this section);
(3) Contact former U.S. employees who were employed within the last
year (except those who were dismissed for cause or who abandoned the
worksite); and
(4) Based on an annual determination made by the Secretary, as
described in paragraph (i) of this section, recruit in any States
currently designated as States of traditional or expected labor supply
with respect to the State in which the employer's work is to be
performed.
(e) Job Order. (1) The employer shall place an active job order,
consistent with part 653, subpart F, of this chapter, with the SWA
serving the area of intended employment no earlier than 120 calendar
days and no later than 75 calendar days before the date of need for
intrastate and interstate clearance and begin recruitment of U.S.
workers. For an application filed by an association of agricultural
employers, the SWA shall prepare a single job order in the name of the
association on behalf of all employer-members named in the application.
If the job opportunity contains multiple work locations within the same
area of intended employment and the area of intended employment is
found in more than one State, the employer shall place a job order with
the SWA having jurisdiction over the place where the work is
contemplated to begin. Documentation of this step shall be satisfied by
maintaining a copy of the SWA job order downloaded from the SWA
Internet job listing site on the first day of posting, a copy of the
job order provided by the SWA with the start date of posting, or other
proof of publication from the SWA containing the text of the job order
on the first day of posting.
(2) The job order contents submitted by the employer to the SWA
must satisfy all the requirements for newspaper advertisements
contained in Sec. 655.103 and the adverse effect
[[Page 8567]]
requirements set forth at Sec. 655.104. In the job order, the SWA
shall disclose that only eligible workers shall be referred and list
the name of the employer and location(s) of work, or in the event that
an association is serving as the employer, a statement indicating that
the name and location of each member of the association can be obtained
through the SWA.
(3) Unless otherwise directed by the CO, the SWA shall keep the job
order on its active file for intrastate clearance until the date the H-
2A worker(s) depart for the place of work, or upon 3 days prior to the
date the employer requires the services of the H-2A workers, whichever
is later.
(f) Intrastate/Interstate Recruitment. (1) Upon placing a job order
for intrastate clearance, the SWA receiving the job offer under
paragraph (e) of this section shall promptly transmit, on behalf of the
employer, a copy of its active job order to all States listed in the
application as anticipated worksites. If the employer's anticipated
worksite location(s) is contained within the jurisdiction of a single
State, the SWA shall transmit a copy of its active job order to no
fewer than 3 States, which must include those States designated as
traditional or expected labor supply States (``out-of-state recruitment
States'') for the State in which the employer's work is to be performed
as defined in paragraph (i) of this section. Upon receipt of the active
job order, each SWA shall promptly prepare a job order for intrastate
clearance within its respective State and begin recruitment of eligible
U.S. workers. For applications filed by an association of agricultural
producers, each SWA shall prepare a single job order in the name of the
association on behalf of all employer-members duly named in the
application.
(2) The job order contents must satisfy all the requirements for
newspaper advertisements contained in Sec. 655.103 and the adverse
effect requirements set forth at Sec. 655.104. In the job order, the
SWA shall disclose that only eligible U.S. workers shall be referred
and list the name of the employer and location(s) of work, or in the
event that an association is serving as the employer, a statement
indicating that the name and location of each member of the association
can be obtained from the SWA to which the job offer was originally
submitted under paragraph (e) of this section.
(3) Unless otherwise directed by the CO, the SWA shall keep the job
order on its active file for intrastate clearance until and only until
the date the H-2A worker(s) depart for the place of work, or 3 days
prior to the date the employer requires the services of the H-2A
workers, whichever is later. Each of the SWAs to which the job order
was referred shall refer back to the SWA to which the job offer was
originally submitted under paragraph (e) of this section each eligible
U.S. worker who applies (or on whose behalf an application is made) for
the job opportunity.
(g) Newspaper Advertisements. (1) Within the same period of time as
the job order is being circulated by the SWA(s) for interstate
clearance under paragraph (f) of this section, the employer shall place
an advertisement on 3 separate days, which may be consecutive, one of
which is to be a Sunday advertisement (except as provided in paragraph
(g)(2) of this section), in a newspaper of general circulation serving
the area of intended employment, which may be a daily local newspaper,
that is most appropriate to the occupation and the workers likely to
apply for the job opportunity and most likely to bring responses from
able, available, qualified, and eligible U.S. workers. The first
newspaper advertisement must be printed no earlier than 120 calendar
days and no later than 75 calendar days before the date of need.
(2) If the job opportunity is located in a rural area that does not
have a newspaper with a Sunday edition, the employer shall use, in
place of a Sunday edition advertisement, the regularly published
edition with the widest circulation in the area of intended employment.
(3) The newspaper advertisements must satisfy the requirements
under Sec. 655.103 and the adverse effect requirements set forth at
Sec. 655.104. Documentation of this step shall be satisfied by
maintaining copies of newspaper pages (with date of publication and
full copy of ad), tear sheets of the pages of the publication in which
the advertisements appeared, or other proof of publication containing
the text of the printed advertisements and the dates of publication
furnished by the newspaper.
(4) If the use of a professional, trade or ethnic publication is
more appropriate to the occupation and the workers likely to apply for
the job opportunity than the use of a general circulation newspaper and
is the most likely source to bring responses from able, willing,
qualified, and available U.S. workers, the employer may use a
professional, trade or ethnic publication in place of two newspaper
advertisements, but shall not replace the Sunday advertisement, or the
substitute outlined in (g)(2), as appropriate.
(h) Contact with former U.S. workers. Within the same period of
time as the job offer is being circulated by the SWA(s) for intrastate/
interstate clearance under paragraph (f) of this part, the employer
must contact by mail former U.S. workers (except those who were
dismissed for cause or who abandoned the worksite) employed by the
employer in the occupation at the place of employment during the
previous year and solicit their return to the job. Such contact can be
documented by providing copies of official correspondence signed and
dated by the employer demonstrating that the workers were contacted and
either unable or unwilling to return to the job or non-responsive to
the employer's request.
(i) Additional positive recruitment. (1) Each year, the Secretary
shall make a determination with respect to each State whether there are
other States in which there are located a significant number of able
and qualified workers who, if recruited, would be willing to make
themselves available for work in that State. Such determination shall
be based on information provided by State agencies or by other sources
within the 120 days preceding the determination, and shall take into
account the success of recent efforts by out-of-state employers to
recruit in that State. The Secretary shall not designate a State as a
State of traditional or expected labor supply with respect for any
other State if the State has a significant number of local employers
that are recruiting for U.S. workers for the same types of occupations.
The Secretary's annual determination as to which other States, if any,
applicants from each State must recruit in shall be published in the
Federal Register and made available through the ETA Web site.
(2) Each employer shall be required to engage in positive
multistate recruitment efforts in those States, if any, that the
Secretary has designated as out-of-state recruitment States for the
State in which the employer's work is to be performed. Such recruitment
shall consist of one newspaper advertisement in each State so
designated, published within the same period of time as the newspaper
advertisements under paragraph (g) of this section, which must satisfy
the requirements under Sec. 655.103 and the adverse effect
requirements set forth at Sec. 655.104.
(3) The obligation to engage in such positive recruitment shall
terminate on the date H-2A workers depart for the employer's place of
work.
[[Page 8568]]
(j) Referrals of U.S. workers. SWAs shall refer for employment only
those individuals whom they have verified are eligible U.S. workers.
(k) Recruitment Report. No earlier than 60 calendar days before the
date of need the employer must prepare, sign, and date a written
recruitment report. The recruitment report must be submitted with the
Application for Temporary Labor Certification. The recruitment report
must:
(1) Identify each recruitment source by name;
(2) State the name and contact information of each U.S. worker who
applied or was referred to the job opportunity up to the date of the
preparation of the recruitment report for consideration by the
employer, and the disposition of each U.S. worker who applied or was
referred to the job opportunity;
(3) If applicable, explain the lawful job-related reason(s) for not
hiring any U.S. workers who applied for the position.
(4) The employer shall retain resumes of (if available), and
evidence of contact with, each U.S. worker who applied or was referred
to the job opportunity. Such resumes and evidence of contact shall be
retained as part of the recruitment report for a period of no less than
5 years and must be provided in response to a Notice of Deficiency from
the CO prior to rendering a Final Determination or in the event of an
audit.
(5) The employer shall update the recruitment report within 48
hours of the date the H-2A workers depart for the place of work, or 3
days prior to the date the employer requires the services of the H-2A
workers, whichever is later. This supplement to the recruitment report
shall list the name(s) and contact information of any additional U.S.
workers who applied or were referred to the job opportunity, and list
the disposition of each U.S. worker who applied or was referred to the
job opportunity; explaining, if applicable, the lawful job-related
reason(s) for not hiring any U.S. workers who applied or who were
referred. The employer must sign and date this supplement to the
recruitment report and retain it for a period of no less than 5 years.
The supplement to the recruitment report must be provided in the event
of an audit.
Sec. 655.103 Advertising requirements.
All advertising conducted to satisfy the required recruitment steps
under Sec. 655.102 before filing the Application for Temporary
Employment Certification must meet the adverse effect requirements set
forth at Sec. 655.104 and disclose the following information:
(a) Identify the employer's name and location(s) of work, or in the
event that an association is serving as the employer, a statement
indicating that the name and location of each member of the association
can be obtained from the SWA;
(b) Indicate the geographic area of employment with enough
specificity to apprise applicants of any travel requirements or where
applicants will likely have to reside to perform the services or labor;
(c) Describe the job opportunity with particularity to apprise U.S.
workers of services or labor to be performed for which certification is
sought and the duration of the job opportunity;
(d) Identify the wage offer, or in the event that an association is
serving as the employer, the range of applicable wage offers and a
statement indicating that the rate applicable to each member can be
obtained from the SWA;
(e) Give the three-fourths guarantee described in Sec.
655.104(h)(3)(i);
(f) If applicable, state that work tools, supplies, and equipment
will be provided without cost to the worker;
(g) State that housing will be made available at no cost to workers
who cannot reasonably return to their permanent residence at the end of
the day;
(h) If applicable, state that transportation and subsistence
expenses to the worksite will be provided by the employer;
(i) Indicate the position is temporary and the total number of job
openings the employer intends to fill;
(j) Contain terms and conditions of employment which are not less
favorable than those subsequently offered to the foreign worker(s); and
(k) Direct applicants to report or send resumes to the SWA for
referral to the employer; and
(l) Contact information for the SWA and the job order number.
Sec. 655.104 Contents of job offers.
(a) Preferential treatment of aliens prohibited. The employer's job
offer shall offer no less than the same benefits, wages, and working
conditions that the employer is offering, intends to offer, or will
provide to H-2A workers. Except where otherwise permitted under this
section, no job offer may impose on U.S. workers any restrictions or
obligations that will not be imposed on the employer's H-2A workers.
(b) No less than minimum offered. The job duties and requirements
specified in the job offer shall be consistent with the normal and
accepted duties and requirements of non-H-2A employers in the same or
comparable occupations and crops in the area of intended employment and
shall not require a combination of duties not normal to the occupation.
The employer cannot offer less than the minimum wages, benefits and
working conditions that are required by paragraph (a) of this section.
(c) Minimum benefits, wages, and working conditions. Except when
higher benefits, wages or working conditions are required by the
provisions of paragraph (a) of this section, every job offer
accompanying an H-2A application must include each of the minimum
benefit, wage, and working condition provisions listed in paragraphs
(d) through (i) of this section.
(d) Housing. (1) Obligation To Provide Housing. The employer shall
provide housing to those workers who are not reasonably able to return
to their permanent residence within the same day through one of the
following means:
(i) Employer-owned housing. Employer-owned housing that meets the
full set of DOL OSHA standards set forth at 29 CFR 1910.142, or the
full set of standards at Sec. Sec. 654.404 through 654.417 of this
chapter, whichever are applicable pursuant to Sec. 654.401.
(ii) Rental and/or public accommodations. Rental and/or public
accommodations or other substantially similar class of habitation which
meets applicable local standards for such housing. In the absence of
applicable local standards, State standards shall apply. In the absence
of applicable local or State standards, DOL OSHA standards at 29 CFR
1910.142 shall apply. Any charges for rental housing shall be paid
directly by the employer to the owner or operator of the housing. When
such housing is to be supplied by an employer, the employer shall
document to the satisfaction of the CO that the housing complies with
the applicable Federal housing standards.
(iii) Housing voucher. Except where the Governor of the State has
certified that there is inadequate housing available in the area of
intended employment for migrant farm workers and H-2A workers seeking
temporary housing while employed in agricultural work, the employer may
satisfy the requirement to provide housing by furnishing the worker a
housing voucher provided that:
(A) The employer has verified that housing meeting applicable
standards is available for the period during which the work is to be
performed, within a reasonable commuting distance of the place of
employment, for the amount of
[[Page 8569]]
the voucher provided, and that the voucher is useable for that housing;
(B) Upon the request of a worker seeking assistance in locating
housing for which the voucher will be accepted, the employer shall make
a good faith effort to assist the worker in identifying, locating and
securing housing in the area of intended employment; and
(C) Payment for the housing shall be made with a housing voucher,
or such other means, that is not redeemable for cash by the employee to
a third party.
(D) The Governor's certification will be valid for a period of 3
years from the date of the certification.
(2) Standards for range housing. Housing for workers principally
engaged in the range production of livestock shall meet standards of
the DOL OSHA for such housing. In the absence of such standards, range
housing for sheepherders and other workers engaged in the range
production of livestock shall meet guidelines issued by ETA.
(3) Deposit charges. Charges in the form of deposits for bedding or
other similar incidentals related to housing shall not be levied upon
workers. However, employers may require workers to reimburse them for
damage caused to housing, bedding, or other property by the individual
workers found to have been responsible for damage which is not the
result of normal wear and tear related to habitation.
(4) Family housing. When it is the prevailing practice in the area
of intended employment and the occupation to provide family housing,
family housing shall be provided to workers with families who request
it.
(5) Housing inspection. In order to ensure that the housing
provided by an employer pursuant to this section meets the relevant
standard:
(i) An employer must make the required attestation at the time of
filing the Application for Temporary Employment Certification pursuant
to Sec. 655.105(e)(2).
(ii) The employer must make a request to the SWA for a housing
inspection no more than 75 days and no fewer than 60 days before the
date of need.
(iii) The determination that the housing meets the statutory
criteria applicable to the type of housing provided must take place
prior to certification as outlined in Sec. 218(c)(4) of the INA. If
the employer has attested and met all other criteria for certification,
and the employer has made a timely request for a housing inspection
pursuant to this paragraph (d)(5), and the housing inspection has not
taken place by the statutory deadline of 30 days prior to date of need,
the certification shall not be withheld. The SWA shall in such cases
inspect the housing prior to or during occupation to ensure it meets
applicable housing standards. If, upon inspection, the SWA determines
the supplied housing does not meet the applicable housing standards,
the SWA shall promptly provide written notification to the NPC for
appropriate action, which may include, but need not be limited to,
referral to the ESA and where the violations is more than de minimis,
revocation of the temporary labor certification, and/or debarment.
(6) Certified Housing that Becomes Unavailable. For situations in
which housing certified by the SWA later becomes unavailable for
reasons outside the employer's control, the employer may substitute
other rental or public accommodation housing that is in compliance with
applicable housing standards and for which the employer is able to
submit evidence of such compliance. The employer must notify the SWA in
writing of the change in accommodations and the reason(s) for such
change and provide the SWA evidence of compliance from the appropriate
local or State agency responsible for determining compliance with
applicable local, State or Federal safety and health standards. The SWA
should make every effort to inspect such accommodations prior to
occupation but may also conduct inspections during occupation, to
ensure that they meet applicable housing standards. The SWA will notify
the appropriate CO of all housing changes and of the results of any
housing inspections
(e) Workers' compensation. The employer shall provide, at no cost
to the worker and for the entire time of the worker's employment,
insurance, under a State workers' compensation law or otherwise,
covering injury and disease arising out of and in the course of the
worker's employment that will provide benefits at least equal to those
provided under the State workers' compensation law, if any, for
comparable employment. The employer shall retain for the full period of
record retention required (5 years from the date of adjudication of the
application) the name of the insurance carrier, the insurance policy
number, and proof of insurance, or, if appropriate, proof of State law
coverage.
(f) Employer-provided items. Except as provided below, the employer
shall provide to the worker, without charge or deposit charge, all
tools, supplies, and equipment required to perform the duties assigned.
The employer may charge the worker for reasonable costs related to the
worker's refusal or negligent failure to return any property furnished
by the employer or due to such worker's willful damage or destruction
of such property. Where it is a common practice in the particular area,
crop activity and occupation for workers to provide tools and
equipment, with or without the employer reimbursing the workers for the
cost of providing them, such an arrangement will be permitted.
(g) Meals. The employer either shall provide each worker with three
meals a day or shall furnish free and convenient cooking and kitchen
facilities to the workers that will enable the workers to prepare their
own meals. Where the employer provides the meals, the job offer shall
state the charge, if any, to the worker for such meals. Until a new
amount is set pursuant to this paragraph (g), the charge shall not be
more than $9.52 per day unless the CO has approved a higher charge
pursuant to Sec. 655.114. Each year the charge allowed by this
paragraph (g) will be changed by the same percentage as the 12-month
percent change in the Consumer Price Index for All Urban Consumers for
Food between December of the year just concluded and December of the
year prior to that. The annual adjustments shall be effective on the
date of their publication by the Department as a Notice in the Federal
Register.
(h) Transportation; daily subsistence. (1) Transportation to place
of employment. If the employer has not previously advanced such
transportation and subsistence costs to the worker or otherwise
provided such transportation or subsistence directly to the worker by
other means and if the worker completes 50 percent of the work contract
period, the employer shall pay the worker for costs incurred by the
worker for transportation and daily subsistence from the place from
which the worker has come to work for the employer to the place of
employment. When it is the prevailing practice of non-H-2A agricultural
employers in the occupation in the area to do so, or when such benefits
are extended to H-2A workers, the employer shall advance the required
transportation and subsistence costs (or otherwise provide them) to
workers. The amount of the transportation payment shall be no less (and
shall not be required to be more) than the most economical and
reasonable common carrier transportation charges for the distances
involved. The amount of the daily subsistence payment shall be at least
as much as the employer will charge the worker for providing the worker
with three meals a day during employment, but in no event less than
[[Page 8570]]
the amount permitted under paragraph (g) of this section.
(2) Transportation from place of employment. If the worker
completes the work contract period, the employer shall provide or pay
for the worker's transportation and daily subsistence from the place of
employment to the place from which the worker, disregarding intervening
employment, came to work for the employer, or, if the worker has
contracted with a subsequent employer who has not agreed in that
contract to provide or pay in advance for the worker's transportation
and daily subsistence expenses from the employer's worksite to such
subsequent employer's worksite, the employer shall provide or pay for
such expenses.
(3) Transportation between living quarters and worksite. The
employer shall provide transportation between the worker's living
quarters (i.e., housing provided or secured by the employer directly or
through a voucher pursuant to paragraph (d) of this section) and the
employer's worksite without cost to the worker, and such transportation
will be in accordance with all applicable Federal, State or local laws
and regulations, and shall provide, at a minimum, the same vehicle
safety standards, driver licensure, and vehicle insurance as required
under 29 U.S.C. 1841 and 29 CFR part 500. If workers' compensation is
used to cover such transportation, in lieu of vehicle insurance, the
employer must either ensure that the workers' compensation covers all
travel or that vehicle insurance exists to provide coverage for travel
not covered by workers' compensation. This paragraph (h) is applicable
to the transportation of workers eligible for housing, pursuant to
paragraph (d) of this section.
(i) Three-fourths guarantee. (1) Offer to worker. The employer
shall guarantee to offer the worker employment for a total number of
work hours equal to at least three-fourths of the workdays of the total
period during which the work contract and all extensions thereof are in
effect, beginning with the first workday after the arrival of the
worker at the place of employment or the advertised contractual first
date of need, whichever is later, and ending on the expiration date
specified in the work contract or in its extensions, if any. For
purposes of this paragraph (i)(1), a workday shall mean the number of
hours in a workday as stated in the job order and shall exclude the
worker's Sabbath and Federal holidays. The employer shall offer a total
number of hours to ensure the provision of sufficient work to reach the
three-fourths guarantee. The work hours must be offered during the work
period specified in the work contract during or any modified work
contract period of at least the same duration to which the worker and
employer have mutually agreed and has been approved by ETA. The work
contract period can be shortened only with the approval of the
Department. In the event the worker begins working later than the
specified beginning date of the contract, the guarantee period begins
with the first workday after the arrival of the worker at the place of
employment, and continues until the last day during which the work
contract and all extensions thereof are in effect. Therefore, if, for
example a work contract is for a 10-week period, during which a normal
workweek is specified as 6 days a week, 8 hours per day, the worker
would have to be guaranteed employment for at least 360 hours (e.g., 10
weeks x 48 hours/week = 480-hours x 75 percent = 360). A worker may be
offered more than the specified hours of work on a single workday. For
purposes of meeting the guarantee, however, the worker shall not be
required to work for more than the number of hours specified in the job
order for a workday, or on the worker's Sabbath or Federal holidays.
However, all hours of work actually performed may be counted by the
employer in calculating whether the period of guaranteed employment has
been met. If the employer affords the U.S. or H-2A worker during the
total work contract period less employment than that required under
this paragraph (i)(1), the employer shall pay such worker the amount
the worker would have earned had the worker, in fact, worked for the
guaranteed number of days.
(2) Guarantee for piece-rate paid worker. If the worker will be
paid on a piece rate basis, the employer shall use the worker's average
hourly piece rate earnings or the AEWR, whichever is higher, to
calculate the amount due under the guarantee.
(3) Failure to work. Any hours the worker fails to work, up to a
maximum of the number of hours specified in the job order for a
workday, when the worker has been offered an opportunity to do so in
accordance with paragraph (i)(1) of this section may be counted by the
employer in calculating whether the period of guaranteed employment has
been met.
(4) Obligation to provide housing and meals. Notwithstanding the
three-fourths guarantee contained in this section, employers are
obligated to provide subsistence and, where appropriate, transportation
for each day of the contract period up until the day the H-2A workers
depart for other H-2A employment or depart to their place of permanent
residence.
(j) Records. (1) The employer shall keep accurate and adequate
records with respect to the workers' earnings, including but not
limited to field tally records, supporting summary payroll records, and
records showing the nature and amount of the work performed; the number
of hours of work offered each day by the employer (broken out by hours
offered both in accordance with and over and above the three-fourths
guarantee at paragraph (i)(3) of this section); the hours actually
worked each day by the worker; the time the worker began and ended each
workday; the rate of pay (both piece rate and hourly, if applicable);
the worker's earnings per pay period; the worker's home address; and
the amount of and reasons for any and all deductions made from the
worker's wages.
(2) To assist in determining whether the three-fourths guarantee at
paragraph (i)(3) of this section has been met, if the number of hours
worked by the worker on a day during the work contract period is less
than the number of hours offered, as specified in the job opportunity
for a work day, the records shall state the reason or reasons therefor.
(3) Upon reasonable notice, the employer shall make the records
available, including field tally records and supporting summary payroll
records, for inspection and copying by representatives of the Secretary
of Labor, and by the worker and representatives designated by the
worker; and
(4) The employer shall retain the records for not less than 5 years
after the completion of the work contract.
(k) Hours and earnings statements. The employer shall furnish to
the worker on or before each payday in one or more written statements
the following information:
(1) The worker's total earnings for the pay period;
(2) The worker's hourly rate and/or piece rate of pay;
(3) The hours of employment offered to the worker (broken out by
offers in accordance with and over and above the guarantee);
(4) The hours actually worked by the worker;
(5) An itemization of all deductions made from the worker's wages;
and
(6) If piece rates are used, the units produced daily.
(l) Rates of Pay. (1) If the worker will be paid by the hour, the
employer shall pay the worker at least the adverse effect
[[Page 8571]]
wage rate in effect at the time the work is performed, the prevailing
hourly wage rate, or the legal Federal or State minimum wage rate,
whichever is highest, for every hour or portion thereof worked during a
pay period; or
(2)(i) If the worker will be paid on a piece rate basis and the
piece rate does not result at the end of the pay period in average
hourly piece rate earnings during the pay period at least equal to the
amount the worker would have earned had the worker been paid at the
appropriate hourly rate, the worker's pay shall be supplemented at that
time so that the worker's earnings are at least as much as the worker
would have earned during the pay period if the worker had been paid at
the appropriate hourly wage rate for each hour worked; and the piece
rate shall be no less than the piece rate prevailing for the activity
in the area of intended employment; and
(ii) If the employer who pays by the piece rate requires one or
more minimum productivity standards of workers as a condition of job
retention, such standards shall be specified in the job offer and be no
more than those normally required by other employers for the activity
in the area of intended employment.
(m) Frequency of Pay. The employer shall state the frequency with
which the worker will be paid, which must be in accordance with the
prevailing practice in the area of intended employment, or at least
twice monthly, whichever is more frequent.
(n) Abandonment of employment or termination for cause. If the
worker voluntarily abandons employment before the end of the contract
period, or is terminated for cause, and the employer notifies the
Department and DHS in writing or any other method specified not later
than 48 hours of such abandonment or termination, the employer will not
be responsible for providing or paying for the subsequent
transportation and subsistence expenses of that worker under paragraph
(h) of this section, and that worker is not entitled to the ``three-
fourths guarantee'' (see paragraph (i) of this section).
(o) Contract impossibility. If, before the expiration date
specified in the work contract, the services of the worker are no
longer required for reasons beyond the control of the employer due to
fire, hurricane, or other Act of God that makes the fulfillment of the
contract impossible, the employer may terminate the work contract.
Whether such an event constitutes a contract impossibility will be
determined by the Department. In the event of such termination of a
contract, the employer shall fulfill the three-fourths guarantee at
paragraph (i)(1) of this section for the time that has elapsed from the
start of the work contract to its termination. The employer shall:
(1) Offer to return the worker, at the employer's expense, to the
place from which the worker came to work for the employer,
(2) Reimburse the worker the full amount of any deductions made
from the worker's pay by the employer for transportation and
subsistence expenses to the place of employment, and
(3) Pay the worker for any costs incurred by the worker for
transportation and daily subsistence to that employer's place of
employment. Daily subsistence shall be computed as set forth in
paragraph (h) of this section. The amount of the transportation payment
shall be no less (and shall not be required to be more) than the most
economical and reasonable common carrier transportation charges for the
distances involved.
(p) Deductions. The employer shall make those deductions from the
worker's paycheck required by law. The job offer shall specify all
deductions not required by law which the employer will make from the
worker's paycheck. All deductions shall be reasonable.
(q) Copy of work contract. The employer shall provide to the
worker, no later than on the day the work commences, a copy of the work
contract between the employer and the worker. The work contract shall
contain all of the provisions required by paragraphs (a) through (p) of
this section. In the absence of a separate, written work contract
entered into between the employer and the worker, the required terms of
the Application for Temporary Employment Certification, including the
job offer, shall be the work contract.
Sec. 655.105 Assurances and obligations of H-2A employers.
An employer seeking to employ H-2A foreign workers shall attest
that it will abide by the following conditions of this subpart. By so
attesting, the employer makes each of the following assurances:
(a) The job opportunity is open to any U.S. worker regardless of
race, creed, color, national origin, age, sex, religion, handicap, or
citizenship, and the employer conducted or will conduct the required
recruitment, in accordance with regulations, prior to filing the labor
certification application and was unsuccessful in locating qualified
U.S. applicants for the job opportunity for which certification is
sought. Any U.S. workers who applied for the job were rejected only for
lawful, job-related reasons;
(b) The employer is offering terms and working conditions normal to
workers similarly employed in the area of intended employment and which
are not less favorable than those offered to the H-2A worker(s) and are
not less than the minimum terms and conditions required by this
subpart;
(c) There is not, at the time the labor certification application
is filed, a strike, lockout, or work stoppage in the course of a labor
dispute in the occupational classification at the place of employment;
(d) The employer will continue to cooperate with the SWA by
accepting referrals of all eligible U.S. workers who apply (or on whose
behalf an application is made) for the job opportunity until the H-2A
workers depart for the place of work, or three days prior to the first
date on which the employer requires the services of the H-2A workers,
whichever is later;
(e) During the period of employment that is the subject of the
labor certification application, the employer will:
(1) Comply with applicable Federal, State and local employment-
related laws and regulations, including employment-related health and
safety laws;
(2) Provide housing to those workers who are not reasonably able to
return to their permanent residence within the same day, without charge
to the worker, that complies with the applicable local, State, or
Federal standards and guidelines for housing; and, where applicable,
has requested a preoccupancy inspection of the housing and, if one has
been conducted, received certification;
(3) Provide insurance, without charge to the worker, under a State
workers' compensation law or otherwise, that meets the requirements set
forth at Sec. 655.104(e).
(4) Provide transportation in compliance with all applicable
Federal, State or local laws and regulations between the worker's
living quarters (i.e., housing provided by the employer pursuant to
Sec. 655.104(d)) and the employer's worksite without cost to the
worker.
(f) Upon the separation from employment of H-2A worker(s) employed
under the labor certification application, if such separation occurs
prior to the end date of the employment specified in the application,
the employer will notify the Department and DHS in writing or any other
method specified of the separation from employment not later than 48
hours after such separation is effective.
[[Page 8572]]
(g) The offered wage rate is the highest of the adverse effect wage
rate, the prevailing wage rate, which may be a prevailing wage piece
rate, or the legal Federal or State minimum wage, and the employer will
pay the offered wage during the entire valid period of the approved
labor certification.
(h) The offered wage is not based on commission, bonuses, or other
incentives, unless the employer guarantees a wage paid on a weekly, bi-
weekly, or monthly basis that equals of exceeds the adverse effect wage
rate, prevailing wage rate, which may be a prevailing wage piece rate,
or the legal Federal or State minimum wage, whichever is highest.
(i) The job opportunity is a full-time temporary position, whose
qualifications are consistent with the normal and accepted
qualifications required by non-H-2A employers in the same or comparable
occupations and crops in that they shall not require a combination of
duties not normal to the occupation,
(j) The employer has not laid off and will not lay off any
similarly employed U.S. worker in the occupation that is the subject of
the Application for Temporary Employment Certification in the area of
intended employment within the period beginning 75 days before the date
of need, except that such layoff shall be permitted where the employer
also attests that it offered the opportunity to the laid-off U.S.
worker(s) and said U.S. worker(s) either refused the job opportunity or
were rejected for the job opportunity for lawful, job-related reasons.
(k) The employer shall not intimidate, threaten, restrain, coerce,
blacklist, or in any manner discriminate against, and shall not cause
any person to intimidate, threaten, restrain, coerce, blacklist, or in
any manner discriminate against, any person who has with just cause:
(1) Filed a complaint under or related to Sec. 218 of the INA (8
U.S.C. 1188), or this subpart or any other DOL regulation promulgated
pursuant to Sec. 218 of the INA;
(2) Instituted or caused to be instituted any proceeding under or
related to Sec. 218 of the INA, or this subpart or any other DOL
regulation promulgated pursuant to Sec. 218 of the INA;
(3) Testified or is about to testify in any proceeding under or
related to Sec. 218 of the INA or this subpart or any other DOL
regulation promulgated pursuant to Sec. 218 of the INA;
(4) Consulted with an employee of a legal assistance program or an
attorney on matters related to Sec. 218 of the INA or this subpart or
any other DOL regulation promulgated pursuant to Sec. 218 of the INA;
or
(5) Exercised or asserted on behalf of himself/herself or others
any right or protection afforded by Sec. 218 of the INA, or this
subpart or any other DOL regulation promulgated pursuant to Sec. 218
of the INA.
(l) The employer shall not discharge any person for the sole reason
of that person's taking any action listed in paragraphs (k)(1) through
(k)(5) of this section.
(m) All fees associated with processing the temporary labor
certification will be paid in a timely manner.
(n) The employer will inform H-2A workers of the requirement that
they leave the U.S. at the end of the period certified by the
Department or separation from the employer, whichever is earlier, as
required under Sec. 655.111, unless the H-2A is being sponsored by
another employer and that employer has already filed and received a
certified Application for Temporary Employment Certification and has
filed that certification in support of a petition to employ that worker
with DHS.
(o) The employer has not sought or received payment of any kind for
any activity related to obtaining labor certification, including
payment of the employer's attorneys' fees or domestic recruitment
costs, whether as an incentive or inducement to filing, or as a
reimbursement for costs incurred in preparing or filing the application
or securing the H-2A workers, from the employee or any other party,
except when work to be performed by the H-2A worker in connection with
the job opportunity will benefit or accrue to the person or entity
making the payment, based on that person's or entity's established
business relationship with the employer. In connection with this
attestation, the employer is required to contractually forbid any
foreign labor contractor whom they engage in international recruitment
of H-2A workers to seek or receive payments from prospective employees.
For purposes of this paragraph, payment includes, but is not limited
to, monetary payments, wage concessions (including deductions from
wages, salary, or benefits), kickbacks, bribes, or tributes, in kind
payments, and free labor.
(p) The applicant shall attest to whether it is a fixed-site
employer, an agent or recruiter, an FLC as defined by MSPA, or an
association, and--in cases in which the filer is someone other than a
fixed-site employer--whether it is an employer as defined by these
regulations with respect to the H-2A workers sought.
Sec. 655.106 Assurances and obligations of Farm Labor Contractors.
In addition to all the assurances and obligations listed in Sec.
655.105, FLC applicants shall also be required to:
(a) Provide the MSPA certificate of registration number and
expiration date;
(b) Identify the farm labor contracting activities the FLC is
authorized to perform;
(c) Provide for each fixed-site agricultural business to whom the
FLC will provide workers, the name and location of the fixed-site
agricultural business, the approximate beginning and ending dates of
when the FLC will be providing the workers, and a description of the
crops and activities the workers will perform;
(d) Provide proof of its ability to discharge financial obligations
under the H-2A program by attesting that it has obtained a surety bond
as required by 29 CFR 501.8, stating on the application the name,
address, phone number, and contact person for the surety, and providing
the amount of the bond and any identifying designation utilized by the
surety for the bond;
(e) Attest that it has engaged in, or will engage in within the
timeframes required by Sec. 102, positive recruitment efforts in each
location in which it has listed a fixed-site agricultural business; and
(f) Attest that it has obtained from each fixed-site agricultural
business that will provide housing or transportation to the workers a
certificate of compliance regarding the following:
(1) All housing utilized by H-2A workers and owned and/or operated
by the fixed-site agricultural business complies with the applicable
local, State or Federal standards and guidelines for such housing and
(2) All transportation between the H-2A workers' living quarters
and the worksite that is provided by the fixed-site agricultural
business complies with all applicable Federal, State, or local laws and
regulations and shall provide, at a minimum, the same vehicle safety
standards, driver licensure, and vehicle insurance as required under 29
U.S.C. 1841 and 29 CFR part 500.
Sec. 655.107 Receipt and processing of applications.
(a) Processing. (1) Receipt. Upon receipt of the application, the
CO will promptly review the application for completeness and compliance
with the requirements of the program as outlined under paragraph (a)(2)
of this section.
(2) Review. Each Application for Temporary Employment Certification
will be substantively reviewed for compliance with the criteria for
[[Page 8573]]
certification, and the CO will make a determination to certify, deny,
or issue a Notice of Deficiency prior to making a Final Determination
on the application. ``Criteria for Certification,'' as used in this
part, shall include, but not be limited to, the nature of the
employer's need for the agricultural services or labor to be performed
is temporary; all assurances and obligations outlined in Sec. 655.105
in this part; compliance with the timeliness requirements as outlined
in Sec. 655.102 of this part; and a lack of errors in completing the
application prior to submission, which would make the application
otherwise non-certifiable.
(3) Notice of Deficiencies. If the CO determines the employer has
made all necessary attestations and assurances sufficient to reflect
compliance with the assurances and obligations related to the
recruitment of U.S. workers, but the application still fails to comply
with one or more of the criteria for certification as outlined under
paragraph (a)(2) of this section, the CO will promptly notify the
employer (by means normally assuring next day delivery) within 7
calendar days with a copy to the SWA serving the area of intended
employment of any deficiencies.
(4) The notice shall:
(i) State the reason(s) why the application is unacceptable for
temporary labor certification, citing the relevant regulatory
standard(s);
(ii) Offer the applicant an opportunity for submitting a modified
application within 5 business days, stating the modification is needed
for the CO to accept the application for consideration;
(iii) State that the CO's determination on whether to grant or deny
the Application for Temporary Employment Certification will be made no
later than 30 calendar days before the date of need, provided that the
employer submits the requested modification to the application within 5
business days and in a manner specified by the CO.
(iv) Offer the employer an opportunity to request an expedited
administrative review of or a de novo administrative hearing before an
administrative law judge of the non-acceptance. The notice shall state
that in order to obtain such a review or hearing, the employer, within
five business days of the notice, shall file by facsimile (fax),
telegram, or other means normally assuring next day delivery, a written
request to the Chief Administrative Law Judge of the DOL (giving the
address) and simultaneously serve a copy to the CO. The notice shall
also state that the employer may submit any legal arguments that the
employer believes will rebut the basis of the CO's action; and
(v) State that if the employer does not request an expedited
administrative judicial review or a de novo hearing before an
administrative law judge within the 5 business days no further
consideration of the employer's application for temporary employment
certification under the H-2A classification will be made by a
Department official.
(5) Submission of Modified Applications.
(i) Provided that the CO notifies the employer of any deficiencies
within the 7 calendar day timeframe set forth under paragraph (a)(3) of
this section, the date by which the CO's Final Determination is
required by statute to be made will be postponed by 1 day for each day
that passes beyond the 5 business day period allowed under paragraph
(a)(4)(ii) before an amended or modified application is filed.
(ii) In circumstances where the employer submits an amended or
modified application as required by the CO, and the CO approves the
amended or modified application, the CO shall not deny the application
based solely on the fact that it now does not meet the timeliness
requirements for filing applications.
(iii) If the amended or modified application is not approved, the
CO shall deny the application in accordance with the labor
certification determination provisions set forth at 655.109.
(6) Amendments to Applications. (i) Applications may be amended to
increase the number of workers requested in the initial application by
not more than 20 percent (50 percent for employers of less than 10
workers) without requiring an additional recruitment period for U.S.
workers. Requests for increases above the percent prescribed, without
additional recruitment, may be approved by the CO only when the request
is submitted in writing, the need for additional workers could not have
been foreseen, and the crops or commodities will be in jeopardy prior
to the expiration of an additional recruitment period.
(ii) Applications may be amended to make minor changes in the
period of employment, as stated in the application, including the job
offer, only when a written request is submitted to the CO and approved
in advance. In considering whether to approve the request, the CO shall
review the reason(s) for the request, determine whether each reason is
justified, and take into account the effect(s) of a decision to approve
on the adequacy of the underlying test of the domestic labor market for
the job opportunity. If a request for a change in the start date of the
period of employment is made after workers have departed for the
employer's place of work, the CO may only approve the change if the
request is accompanied by a written assurance signed and dated by the
employer that all such U.S. workers will be provided housing and
subsistence, without cost to the U.S. workers, until work becomes
available.
(iii) Other minor technical amendments to the application,
including the job offer, may be requested if the CO determines the
proposed amendment(s) are justified and will have no significant effect
upon the CO's ability to make the labor certification determination
required under Sec. 655.109.
(7) Appeal procedures. With respect to either a notice of
deficiency issued pursuant to paragraph (a)(6) of this section or a
notice of final determination issued pursuant to paragraph (a)(2) of
this section, if the employer timely requests an expedited
administrative review or de novo hearing before an administrative law
judge, the procedures set forth at Sec. 655.115 shall be followed.
(b) [Reserved]
Sec. 655.108 Offered Wage Rate.
(a) Highest wage. To comply with its obligation under Sec.
655.105(g), an employer must provide an offered wage rate that is the
highest of the adverse effect wage rate, the prevailing wage rate,
which may be a prevailing wage piece rate, or the legal Federal or
State minimum wage.
(b) Wage rate request. The employer shall request an offered wage
rate from the NPC having jurisdiction over the proposed area of
intended employment before commencing any recruitment under this
subpart. If the job opportunity involves multiple work sites within the
same area of intended employment over which more than one NPC has
jurisdiction, the employer shall request an offered wage rate from the
NPC having jurisdiction over the area where the work is scheduled to
begin.
(c) Validity of wage rate. The employer must obtain an offered wage
rate that is valid either on the date recruitment begins or the date of
filing the Application for Temporary Employment Certification with the
Department.
(d) Wage offer. The employer must offer and advertise in its
positive recruitment, as outlined in Sec. 655.103, for the position to
all potential workers
[[Page 8574]]
at a wage at least equal to the wage rate obtained from the NPC.
(e) Adverse effect wage rate. The adverse effect wage rate (AEWR)
shall be based on published wage data for the occupation, skill level,
and geographical area from the BLS, Occupational Employment Statistics
(OES) survey. The NPC shall obtain wage information on the AEWR using
the Agricultural On-line Wage Library (AOWL) found on the Foreign Labor
Certification Data Center Web site (http://www.flcdatacenter.com/).
This wage shall not be less than the 2009 Federal minimum wage of
$7.25.
(f) Wage determination. The NPC must enter its wage determination
on the form it uses for these purposes, indicate the source, and return
the form with its endorsement to the employer. The employer must offer
this wage (or higher) to both its U.S. and H-2A workers.
Sec. 655.109 Labor certification determinations.
(a) COs. The Administrator, OFLC, is the DOL National CO. The
Administrator and the CO(s) in the NPC(s), by virtue of delegation from
the Administrator, have the authority to certify or deny applications
for temporary employment certification under the H-2A nonimmigrant
classification. If the Administrator has directed that certain types of
temporary labor certification applications or specific applications
under the H-2A nonimmigrant classification be handled by the National
OFLC, the Director(s) of the ETA NPC(s) shall refer such applications
to the Administrator.
(b) Determination. No later than 30 calendar days before the date
of need, as identified in the Application for Temporary Employment
Certification, except as provided for under Sec. 655.107(a)(7) of this
part for amended or modified applications, or applications not
otherwise meeting certification criteria by that date, the CO makes a
determination either to grant or deny the Application for Temporary
Employment Certification, and will grant the application if and only
if:
(1) The employer has properly attested that it has met the
requirements of this subpart.
(2) The nature of the employer's need is temporary or seasonal.
(3) The application was timely filed with the Department.
(4) The job opportunity does not contain duties, requirements or
other conditions that preclude consideration of U.S. workers or that
otherwise inhibit their effective recruitment for the temporary job
opportunity. In making this determination, the following requirements
shall apply:
(i) The job opportunity is not vacant because the former
occupant(s) is or are on strike or locked out in the course of a labor
dispute involving a work stoppage;
(ii) The job is not at issue in a labor dispute involving a work
stoppage;
(iii) The job opportunity's terms, conditions, and/or occupational
environment are not contrary to Federal, State, or local law(s);
(iv) The employer has a location within the U.S. to which domestic
workers can be referred and hired for employment;
(v) The employer is paying the highest of the adverse effect wage
rate, the prevailing wage rate, which may be a prevailing wage piece
rate, or the legal Federal or State minimum wage for the job to be
performed; and
(vi) The requirements of the job opportunity are not unduly
restrictive and do not represent a combination of duties not normal to
the occupation being requested for certification.
(5) The employment of the H-2A worker(s) will not adversely affect
the benefits, wages, and working conditions of similarly employed U.S.
workers.
(c) Notification. The CO shall notify the employer in writing
(either electronically or by mail) of the labor certification
determination.
(d) Approved certification. If temporary labor certification is
granted, the CO must send the certified Application for Temporary
Employment Certification and a Final Determination letter to the
employer, or, if appropriate, to the employer's agent or attorney, with
a copy to the SWA serving the area of intended employment. The Final
Determination letter shall notify the employer to file the certified
application and any other documentation required by USCIS with the
appropriate USCIS office and to continue to cooperate with the SWA by
accepting all referrals of eligible U.S. workers who apply (or on whose
behalf an application is made) for the job opportunity until the H-2A
worker(s) depart for the place of work, or three days prior to the
first date the employer requires the services of the H-2A workers,
whichever is later.
(e) Denied certification. If temporary labor certification is
denied, the Final Determination letter will:
(1) State the reasons the application is not accepted for
consideration, citing the relevant regulatory standards and/or special
procedures;
(2) If applicable, address the availability of U.S. workers in the
occupation as well as the prevailing benefits, wages, and working
conditions of similarly employed U.S. workers in the occupation and/or
any applicable special procedures.
(f) Partial Certification. The CO may, in his/her discretion, and
to ensure compliance with all regulatory requirements, issue a partial
certification, reducing either the period of need or the number of H-2A
workers being requested or both for certification, based upon
information the CO receives in the course of processing the temporary
labor certification application, an audit, or otherwise.
(g) Payment of Processing Fees. A determination by the CO to grant
an Application for Temporary Employment Certification or grant
amendments to a certified application pursuant to Sec. 655.107(a)(6)
shall include a bill for the required fees. Each employer (except joint
employer associations) of H-2A workers under the Application for
Temporary Employment Certification shall pay in a timely manner a non-
refundable fee upon issuance of the certification granting the
application (in whole or in part), as follows:
(1) Amount. The application fee for each employer receiving a
temporary agricultural labor certification is $200 plus $100 for each
H-2A worker certified under the Application for Temporary Employment
Certification. In the case of a joint employer association receiving a
temporary agricultural labor certification, each employer-member
receiving a temporary agricultural labor certification shall pay an
application fee of $200 plus $100 for each H-2A worker certified. Any
amendments requested pursuant to Sec. 655.107(a)(6) by the employer to
a temporary agricultural labor certification, which are received and
processed by the appropriate CO will be subject to an additional
processing fee of $100. In circumstances where the CO grants an
amendment to increase the number of H-2A workers requested on the
initial certified application, the employer shall be subject to a fee
of $100 for each additional H-2A worker certified on the amended
temporary agricultural labor certification. The fees shall be paid by
check or money order made payable to ``United States DOL.'' In the case
of H-2A employers that are members of a joint-employer association
applying on their behalf, the aggregate fees for all employers of H-2A
workers under the application must be paid by one check or money order.
(2) Timeliness. Fees received by the CO no more than 30 days after
the date the temporary labor certification is granted will be
considered timely. Non-payment of fees shall be considered a
substantial program violation.
[[Page 8575]]
Sec. 655.110 Validity and scope of temporary labor certifications.
(a) Validity Period. A temporary labor certification shall be valid
for the duration of the job opportunity for which certification is
being requested by the employer. Except as provided for under paragraph
(c) of this section, the validity period shall be the beginning and
ending dates of certified employment, as listed on the Application for
Temporary Employment Certification. The beginning date of certified
employment cannot be earlier than the date certification was granted by
the CO. The certification expires on the last day of authorized
employment.
(b) Scope of Validity. Except as provided for under paragraphs (c)
and (d) of this section, a temporary labor certification is valid only
for the number of H-2A workers, the area of intended employment, the
specific occupation and duties, the beginning and ending dates of
employment, and the employer(s) specified on the Application for
Temporary Employment Certification and may not be transferred from one
employer to another.
(c) Scope of Validity--Associations. (1) Certified Applications. If
an association is requesting temporary labor certification as a joint
employer, the certified Application for Temporary Employment
Certification shall be granted jointly to the association and to each
of its employer members named on the application. Such workers may be
transferred among its certified employer members to perform work for
which the temporary labor certification was granted, provided the
association controls the assignment of such workers and maintains a
record of such assignments. All temporary agricultural labor
certifications to associations may be used for the certified job
opportunities of any of its employer members named on the application.
If an association is requesting temporary labor certification as a sole
employer, the certified Application for Temporary Employment
Certification shall be granted to the association only.
(2) Ineligible employer-members. Workers shall not be transferred
or referred to an association's employer member, if that employer
member has been debarred.
(d) Extensions on Period of Employment. (1) Short-term extension.
An employer who seeks an extension of 2 weeks or less of the certified
Application for Temporary Employment Certification shall apply for such
extension to DHS. If DHS grants such an extension, the corresponding
Application for Temporary Employment Certification shall be deemed
extended for such period as is approved by DHS.
(2) Long-term extension. For extensions beyond the period which may
be granted by DHS pursuant to paragraph (d)(1) of this section, an
employer, after 50 percent of the work contract period has elapsed, may
apply to the CO for an extension of the period of employment on the
certified Application for Temporary Employment 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 CO shall grant or deny the request for
extension of the period of employment on the Application for Temporary
Employment Certification based on available information, and shall
notify the employer of the decision on the request in writing. The CO
shall not grant an extension where the total work contract period,
including past temporary labor certifications for the job opportunity
and extensions, would be 12 months or more, except in extraordinary
circumstances. The CO shall not grant an extension where the
Application for Temporary Employment Certification has already been
extended by DHS pursuant to paragraph (d)(i) of this section.
Sec. 655.111 Required departure.
(a) Limit to worker's stay. As defined further in DHS regulations,
a temporary labor certification shall limit the authorized period of
stay for any H-2A worker whose admission is based upon it. 8 CFR Sec.
214.2(h). A foreign worker may not remain beyond the validity period of
any labor certification under which the H-2A worker is employed nor
beyond separation from employment, whichever occurs first, absent an
extension or change of such worker's status pursuant to DHS
regulations.
(b) Notice to worker. Upon establishment of a program by DHS for
registration of departure, an employer must notify any H-2A worker
starting work at a job opportunity for which the employer has obtained
labor certification that the H-2A worker, when departing the United
States by land at the conclusion of employment as outlined in paragraph
(a) of this section, must register such departure at the place and in
the manner prescribed by DHS.
Sec. 655.112 Audits and Referrals.
(a) Discretion. The Department shall, in its discretion, conduct
audits of temporary labor certification applications, regardless of
whether the Department has issued a certification or denial of the
application.
(b) Audit letter. In circumstances where an application is selected
for audit, the CO shall issue an audit letter. The audit letter will:
(1) State the documentation that must be submitted by the employer;
(2) Specify a date, no more than 30 days from the date of the audit
letter, by which the required documentation must be received by the CO;
and
(3) Advise that failure to comply with the audit process, including
providing documentation within the specified time period, may result in
a finding by the CO to
(i) Revoke the labor certification and/or
(ii) Debar the employer from future filings of H-2A temporary labor
certification applications as outlined in Sec. 655.118.
(c) Supplemental information request. During the course of the
audit examination, the CO may request supplemental information and/or
documentation from the employer in order to complete the audit.
(d) Audit violations. If, as a result of the audit or otherwise,
the CO determines the employer failed to produce required
documentation, or determines a material misrepresentation was made with
respect to the application, or if the CO determines it is appropriate
for other reasons, the employer may be referred for revocation pursuant
to Sec. 655.117 and/or debarment pursuant to Sec. 655.118. The CO may
determine to provide the audit report and underlying documentation to
DHS or another appropriate enforcement agency. With respect to any
findings that an employer may have discouraged an eligible U.S. worker
from applying, or failed to hire, discharged, or otherwise
discriminated against an eligible U.S. worker, the CO shall refer those
matters to the Department of Justice, Civil Rights Division, Office of
Special Counsel for Unfair Immigration Related Employment Practices.
Sec. 655.113 H-2A applications involving fraud or willful
misrepresentation.
(a) Referral for investigation. If possible fraud or willful
misrepresentation involving an Application for Temporary Employment
Certification application is discovered by the CO or if the CO and/or
Administrator become aware the employer, or its attorney or agent (with
[[Page 8576]]
respect to an application) is the subject of a criminal indictment or
information filed in a court, the Administrator shall refer the matter
to the DHS and the Department's Office of the Inspector General for
investigation.
(b) Continued processing. If a court finds an employer or agent not
guilty of fraud or willful misrepresentation, or if the Department of
Justice decides not to prosecute an employer or agent, the CO shall
decide each pending temporary labor certification application on its
merits related to that employer or agent.
(c) Terminated processing. If a court or the DHS determines that
there was fraud or willful misrepresentation involving an Application
for Temporary Employment Certification, the application is thereafter
invalid, consideration of the application shall be terminated and the
Administrator shall return the application to the employer or agent
with the reasons therefore stated in writing.
Sec. 655.114 Petition for higher meal charges.
(a) Filing petitions. Until a new amount is set pursuant to this
paragraph (a), the CO may permit an employer to charge workers up to
$9.52 for providing them with three meals per day, if the employer
justifies the charge and submits to the CO the documentation required
by paragraph (b) of this section. In the event the employer's petition
for a higher meal charge is denied in whole or in part, the employer
may appeal such denial. Such appeals shall be filed with the Chief
Administrative Law Judge. Administrative law judges shall hear such
appeals according to the procedures in 29 CFR part 18, except that the
appeal shall not be considered as a complaint to which an answer is
required. The decision of the administrative law judge shall be the
final decision of the Secretary. Each year the maximum charge allowed
by this paragraph (a) will be changed by the same percentage as the 12
month percent change for the Consumer Price Index for all Urban
Consumers for Food between December of the year just concluded and
December of the year prior to that. The annual adjustments shall be
effective on the date of their publication by the Administrator as a
Notice in the Federal Register. However, an employer may not impose
such a charge on a worker prior to the effective date contained in the
CO's written confirmation of the amount to be charged.
(b) Required documentation. Documentation submitted shall include
the cost of goods and services directly related to the preparation and
serving of meals, the number of workers fed, the number of meals served
and the number of days meals were provided. The cost of the following
items may be included: food; kitchen supplies other than food, such as
lunch bags and soap; labor costs which have a direct relation to food
service operations, such as wages of cooks and restaurant supervisors;
fuel, water, electricity, and other utilities used for the food service
operation; and other costs directly related to the food service
operation. Charges for transportation, depreciation, overhead and
similar charges may not be included. Receipts and other cost records
for a representative pay period shall be retained and available for
inspection by the CO upon request for a period of one year.
Sec. 655.115 Administrative review and de novo hearing before an
administrative law judge.
(a) Administrative review. (1) Consideration. Whenever an employer
has requested an administrative review before an administrative law
judge of a decision by the CO not to accept for consideration an
Application for Temporary Employment Certification, to deny an
Application for Temporary Employment Certification, or to revoke a
certified Application for Temporary Employment Certification the CO
shall send a certified copy of the ETA case file to the Chief
administrative law judge by means normally assuring next-day delivery.
The Chief administrative law judge shall immediately assign an
administrative law judge (which may be a panel of such persons
designated by the Chief Administrative Law Judge from the Board of
Alien Labor Certification Appeals established by 20 CFR part 656 of
this chapter, but which shall hear and decide the appeal as set forth
in this section) to review the record for legal sufficiency. The
administrative law judge shall not remand the case and shall not
receive additional evidence.
(2) Decision. Within 5 business days after receipt of the ETA case
file the administrative law judge shall, on the basis of the written
record and after due consideration of any written submissions from the
parties involved or amici curiae, either affirm, reverse, or modify the
CO's decision by written decision. The decision of the administrative
law judge shall specify the reasons for the action taken and shall be
immediately provided to the employer, CO, the Administrator, and DHS by
means normally assuring next-day delivery. The administrative law
judge's decision shall be the final decision of the Secretary and no
further review shall be given to the application or the determination
by any Department official.
(b) De novo hearing. (1) Request for hearing; conduct of hearing.
Whenever an employer has requested a de novo hearing before an
administrative law judge of a decision by the CO not to accept for
consideration an Application for Temporary Employment Certification, to
deny an Application for Temporary Employment Certification, or to
revoke a certified Application for Temporary Employment Certification,
the CO shall send a certified copy of the ETA case file to the Chief
Administrative Law Judge by means normally assuring next-day delivery.
The Chief Administrative Law Judge shall immediately assign an
administrative law judge (which may be a panel of such persons
designated by the Chief Administrative Law Judge from the Board of
Alien Labor Certification Appeals established by 20 CFR part 656 of
this chapter, but which shall hear and decide the appeal as set forth
in this section) to conduct the de novo hearing. The procedures
contained in 29 CFR part 18 shall apply to such hearings, except that:
(i) The appeal shall not be considered to be a complaint to which
an answer is required;
(ii) The administrative law judge shall ensure that, at the request
of the employer, the hearing is scheduled to take place within five
business days after the administrative law judge's receipt of the ETA
case file; and
(iii) The administrative law judge's decision shall be rendered
within10 business days after the hearing.
(2) Decision. After a de novo hearing, the administrative law judge
shall either affirm, reverse, or modify the CO's determination, and the
administrative law judge's decision shall be provided immediately to
the employer, CO, Administrator, and DHS by means normally assuring
next-day delivery. The administrative law judge's decision shall be the
final decision of the Secretary, and no further review shall be given
to the application or the determination by any Department official.
Sec. 655.116 Job Service Complaint System; enforcement of work
contracts.
(a) Complaints arising under this subpart may be filed through the
Job Service Complaint System, as described in 20 CFR part 658, subpart
E, of this chapter. Complaints which involve worker contracts shall be
referred by the SWA to the ESA for appropriate handling and resolution,
as described in 29 CFR part 501. As part of this process,
[[Page 8577]]
the ESA may report the results of its investigation to the
Administrator for consideration of employer penalties or such other
action as may be appropriate.
(b) Complaints alleging that an employer discouraged an eligible
U.S. worker from applying, failed to hire, discharged, or otherwise
discriminated against an eligible U.S. worker, or discovered violations
involving the same, shall be referred to the U.S. Department of
Justice, Civil Rights Division, Office of Special Counsel for Unfair
Immigration Related Employment Practices (OSC), in addition to any
activity, investigation, and/or enforcement action taken by ETA or an
SWA. Likewise, if OSC becomes aware of a violation of these
regulations, it shall provide such information to the appropriate SWA
and the CO.
Sec. 655.117 Revocation of approved labor certifications.
(a) Basis for DOL revocation. The CO, in consultation with the
Administrator, may revoke a temporary agricultural labor certification
approved under this subpart, if:
(1) The CO finds that issuance of the temporary agricultural labor
certification was not justified based on criteria set forth under the
INA and enumerated at 8 CFR 214.2(h)(5);
(2) The CO finds that the employer violated the terms and
conditions of the approved temporary agricultural labor certification;
or
(3) Upon recommendation of the ESA WHD of the Department.
(b) DOL procedures for revocation. (1) The CO shall send to the
employer a Notice of Intent to Revoke an approved temporary
agricultural labor certification, which contains a detailed statement
of the grounds for the proposed revocation and the time period allowed
for the employer's rebuttal. The employer may submit evidence in
rebuttal within 14 calendar days of the date the notice is issued. The
CO must consider all relevant evidence presented in deciding whether to
revoke the temporary agricultural labor certification.
(2) If rebuttal evidence is not timely filed by the employer, the
Notice of Intent to Revoke shall become the final decision of the
Secretary and take effect immediately at the end of the 14-day window.
(3) If, notwithstanding the employer's timely filed rebuttal
evidence, and if the CO determines the temporary agricultural labor
certification should be revoked, the CO shall promptly notify the
employer of this final determination and of the employer's right to
appeal. The revocation takes effect immediately upon issuance of this
notice and remains in place pending the outcome of any subsequent
appeal proceedings. The employer may file an administrative appeal
under Sec. 655.115 within 10 calendar days after the date of
revocation.
(4) The CO will inform the employer of the CO's final determination
on the revocation within 14 calendar days of receiving timely rebuttal
evidence.
(5) If the temporary agricultural labor certification is revoked,
the CO will also send a copy of the notification to DHS and DOS.
Sec. 655.118 Debarment.
(a) No later than 2 years after an employer has substantially
violated a material term or condition of its temporary agricultural
labor certification, the Administrator may on that basis make a
determination denying the employer and any successor in interest to the
debarred employer future labor certifications under this subpart for a
period of up to 3 years from the date of the determination.
(b) For the purposes of this section, a substantial violation
includes, but is not limited to:
(1) One or more acts of commission or omission on the part of the
employer or the employer's agent which:
(i) Are significantly injurious to the wages, benefits, or working
conditions of 10 percent or more of an employer's U.S. or H-2A
workforce or of a substantial number of U.S. workers similarly employed
in the area of intended employment;
(ii) Reflect a significant failure to offer employment to all
qualified domestic workers who applied for the job opportunity for
which certification was being sought, except for lawful job-related
reasons;
(iii) Reflect a willful failure to comply with the employer's
obligations to recruit domestic workers as set forth in this subpart;
(iv) Reflect a failure to comply with one or more sanctions or
remedies imposed by the ESA for violation(s) of obligations found by
that agency (if applicable), or with one or more decisions or orders of
the Secretary or a court pursuant to Sec. 218 of the INA (8 U.S.C.
1188), this subpart, or 29 CFR part 501 (ESA enforcement of contractual
obligations);
(v) Reflect action(s) impeding an investigation of an employer
pursuant to Sec. 218 of the INA (8 U.S.C. 1188), this subpart, or 29
CFR part 501 (ESA enforcement of contractual obligations); or
(vi) Reflect the employment of an H-2A worker outside the area of
intended employment, or in an activity not listed on the job order, or
after the expiration of the job order and any approved extension;
(2) The employer's failure to pay the necessary fee in a timely
manner; or
(3) Fraud involving the Application for Temporary Employment
Certification or the employer making a material misrepresentation of
fact during the application process.
(c) The Notice of Debarment shall be in writing; shall state the
reason for the debarment finding, including a detailed explanation of
the grounds for and the duration of the debarment, and shall identify
administrative appeal rights under Sec. 655.115 and a timeframe under
which such rights must be exercised. The debarment shall take effect on
the start date identified in the Notice of Debarment, unless an
administrative appeal request for review is properly filed. The timely
filing of an administrative appeal stays the debarment pending the
outcome of those appeal proceedings.
(d) Debarment involving members of associations. If, after
consultation with the Administrator, the CO determines a substantial
violation has occurred, and if an individual producer member of a joint
employer association is determined to have committed the violation, the
determination to deny future labor certifications under this subpart
for a period of up to three years from the date of the determination
shall apply only to that member of the association unless the
Administrator determines that the association or other association
members participated in, had knowledge of, or had reason to know of the
violation, in which case the debarment shall be invoked against the
complicit association or other association members as well.
(e) Debarment involving associations acting as joint employers. If,
after consultation with the Administrator, the CO determines a
substantial violation has occurred, and if an association acting as a
joint employer with its members is determined to have committed the
violation, the determination to deny future labor certifications under
this subpart for a period of up to three years from the date of the
determination shall apply only to the association, and shall not be
applied to any individual producer member of the association unless the
Administrator determines that the member participated in, had knowledge
of, or reason to know of the violation, in which case the debarment
shall be invoked against any complicit association members as well.
Associations debarred from the H-2A
[[Page 8578]]
temporary labor certification program will not be permitted to continue
to file as joint employers with their members.
(f) Debarment involving associations acting as sole employers. If
the Administrator determines a substantial violation has occurred, and
if an association acting as a sole employer is determined to have
committed the violation, the determination to deny future labor
certifications under this subpart for a period of up to 3 years from
the date of the determination shall apply only to the association and
any successor in interest to the debarred association.
Subpart C--[Removed]
5. Subpart C is removed and reserved.
Title 29--Labor
PART 501--ENFORCEMENT OF CONTRACTUAL OBLIGATIONS FOR TEMPORARY
ALIEN AGRICULTURAL WORKERS ADMITTED UNDER SECTION 218 OF THE
IMMIGRATION AND NATIONALITY ACT
6. The authority citation for part 501 continues to read as
follows:
Authority: 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c), and 1188.
Sec. Sec. 501.0, 501.1, 501.3, 501.4, 501.5, 501.10, and
501.15 [Amended]
7. In part 501 all references to ``Section 216'' are revised to
read ``Section 218'' in the following places:
a. Section 501.0;
b. Section 501.1(a), (b), (c)(1), and (c)(2);
c. Section 501.3(a), (b), (c), (d), and (e);
d. Section 501.4;
e. Section 501.5(a) and (d);
f. Section 501.10(a) and (s);
g. Section 501.15.
8. Section 501.0 is amended by revising the second sentence to read
as follows:
Sec. 501.0 Introduction.
* * * These regulations are also applicable to the employment of
U.S. workers newly hired by employers of H-2A workers in the
occupations during the period of time set forth in the labor
certification approved by ETA as a condition for granting H-2A
certification, including any extension thereof. * * *
9. Section 501.1 is amended by revising paragraphs (b) and (c) to
read as follows:
Sec. 501.1 Purpose and scope.
* * * * *
(b) Role of the ETA. The issuance and denial of labor certification
under section 218 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 issues such as
whether U.S. workers are available, whether positive recruitment has
been conducted, whether there is a strike or lockout, the methodology
for establishing adverse effect wage rates, whether workers'
compensation insurance has been provided, and other similar matters.
The regulations pertaining to the issuance and denial of labor
certification for temporary alien workers by the ETA are found in Title
20 CFR, part 655.
(c) Role of ESA, Wage and Hour Division. (1) The Secretary of Labor
may take actions that assure compliance with the terms and conditions
of employment under the H-2A, including the assessment of civil money
penalties and seeking injunctive relief and specific performance of
contractual obligations. (see 8 U.S.C. 1188(g)(2).)
(2) Certain investigatory, inspection, and law enforcement
functions to carry out the provisions of section 218 of the INA have
been delegated by the Secretary of Labor to the ESA (ESA), Wage and
Hour Division. In general, matters concerning the obligations under a
work contract between an employer of H-2A workers and the H-2A workers
and U.S. workers hired in corresponding employment 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, recommend revocation of
existing certification(s), debar from future certifications, and seek
injunctive relief and specific performance of contractual obligations,
including recovery of unpaid wages (either directly from the employer
or in the case of an FLC, from the FLC directly or from the insurer who
issued the surety bond to the FLC as required by 20 CFR part 655,
subpart B).
* * * * *
10. Section 501.2 is revised to read as follows:
Sec. 501.2 Coordination of intake between DOL agencies.
Complaints received by ETA or any State Workforce Agency (SWA)
regarding contractual H-2A labor standards between the employer and the
employee will be immediately forwarded to the appropriate Wage and Hour
Division office for appropriate action under these regulations.
11. Section 501.3 is amended by redesignating the introductory text
as paragraph (a) introductory text, existing paragraphs (a) through (e)
as paragraphs (a)(1) through (5), revising newly designated paragraph
(a)(5), and designating the undesignated paragraph at the end of the
section as paragraph (b) and revising it.
The revisions read as follows:
Sec. 501.3 Discrimination prohibited.
* * * * *
(a) * * *
(5) Consulted with an employee of a legal assistance program or an
attorney on matters related to section 218 of the INA, or to this
subpart or any other Department regulation promulgated pursuant to
section 218 of the INA.
(b) Allegations of discrimination in employment against any person
will be investigated by the Wage and Hour Division. Where the Wage and
Hour Division has determined through investigation that such
allegations have been substantiated, appropriate remedies may be
sought. The Wage and Hour Division may assess civil money penalties,
seek injunctive relief, and/or seek additional remedies necessary to
make the employee whole as a result of the discrimination, as
appropriate, and may initiate action to debar any such violator from
future labor certification. Complaints alleging discrimination against
U.S. workers and immigrants based on citizenship or immigration status
will be forwarded by the Wage and Hour Division to the Department of
Justice, Civil Rights Division, Office of Special Counsel for
Immigration-Related Unfair Employment Practices.
12. Section 501.4 is revised to read as follows:
Sec. 501.4 Waiver of rights prohibited.
No person shall seek to have an H-2A worker, or other U.S. worker
hired in corresponding employment by an H-2A employer, waive rights
conferred under Section 218 of the INA or under these regulations.
13. Section 501.5 is amended by revising paragraphs (b) and (d) to
read as follows:
Sec. 501.5 Investigation authority of Secretary.
* * * * *
[[Page 8579]]
(b) Failure to cooperate with an investigation. Where any employer
using the services of an H-2A worker does not cooperate with an
investigation concerning the employment of H-2A workers or U.S. workers
hired in corresponding employment, the Wage and Hour Division shall
report such occurrence to ETA and may recommend that ETA revoke the
existing certification, and the Wage and Hour Division may debar the
employer from future certification for up to three years. In addition,
the Wage and Hour Division may take such action as may be appropriate,
including the seeking of an injunction and/or assessing civil money
penalties, against any person who has failed to permit the Wage and
Hour Division to make an investigation.
* * * * *
(d) Report of Violations. Any person may report a violation of the
work contract obligations of section 218 of the INA or these
regulations to the Secretary by advising any local office of the State
Workforce Agency, the ETA, the U.S. DOL's Wage and Hour Division, or
any other authorized representative of the Secretary. The office or
person receiving such a report shall refer it to the appropriate office
of the U.S. DOL, Wage and Hour Division for the area in which the
reported violation is alleged to have occurred.
14. Section 501.6 is revised to read as follows:
Sec. 501.6 Prohibition on interference with DOL officials.
No person shall interfere with any official of the DOL assigned to
perform an investigation, inspection, or law enforcement function
pursuant to the INA and these regulations during the performance of
such duties. The Wage and Hour Division will take such action as it
deems appropriate, including seeking an injunction to bar any such
interference with an investigation and/or assessing a civil money
penalty therefor. In addition, the Wage and Hour Division will report
the matter to ETA, and the Wage and Hour Division may debar the
employer from future certification and/or may make a recommendation
that the person's existing labor certification be revoked. (Federal
statutes that prohibit persons from interfering with a Federal officer
in the course of official duties are found at 18 U.S.C. 111 and 18
U.S.C. 1114.)
15. Add new section 501.8 to read as follows:
Sec. 501.8 Surety bond.
(a) Farm Labor Contractors (FLCs) shall obtain a surety bond to
assure compliance with the provisions of this part and 20 CFR part 655
Subpart B for each labor certification being sought. The FLC shall
attest on the application for labor certification that such a bond
meeting all the requirements of this section has been obtained and
shall provide on the labor certification application form information
that fully identifies the surety, including the name, address and phone
number of the surety, and which identifies the bond by number or other
identifying designation.
(b) The bond shall be payable to the Administrator, Wage and Hour
Division, U.S. DOL. It shall obligate the surety to pay any sums owed
to the Administrator, for wages and benefits owed to H-2A and U.S.
workers, based on a final decision finding a violation or violations of
this part or 20 CFR part 655 subpart B for the labor certification the
bond is intended to cover. The aggregate liability of the surety shall
not exceed the face amount of the bond. The bond shall be written to
cover liability incurred during the term of the period listed in the
application for labor certification made by the FLC, and shall be
amended to cover any extensions of the labor certification requested by
the FLC. Surety bonds may not be canceled or terminated unless thirty
days' notice is provided by the surety to the Administrator.
(c) The bond shall be in the amount of $10,000 for a labor
certification for which an FLC will employ fewer than 50 employees and
$20,000 for a labor certification for which an FLC will employ 50 or
more employees. The amount of the bond may be increased by the
Administrator after notice and an opportunity for hearing when it is
shown that the amount of the bond is insufficient to meet potential
liabilities.
16. Section 501.10 is revised to read as follows:
Sec. 501.10 Definitions.
(a) Act and INA mean the Immigration and Nationality Act, as
amended (8 U.S.C. 1101 et seq.), with reference particularly to section
218.
(b) Administrative Law Judge (ALJ) means a person within the
Department of Labor Office of Administrative Law Judges appointed
pursuant to 5 U.S.C. 3105.
(c) Administrator means the Administrator of the Wage and Hour
Division, Employment Standards Administration, U.S. Department of
Labor, and such authorized representatives as may be designated to
perform any of the functions of the Administrator under this part.
(d) Work contract means all the material terms and conditions of
employment relating to wages, hours, working conditions, and other
benefits, including those terms and conditions attested to by the H-2A
employer and required by the applicable regulations in subpart B of 20
CFR part 655, Labor Certification for Temporary Agricultural Employment
of H-2A Aliens in the United States (H-2A Workers), and those contained
in the Application for Temporary Employment Certification and job offer
under that subpart, which contract between the employer and the worker
may be in the form of a separate written document. In the absence of a
separate written work contract incorporating the required terms and
conditions of employment, entered into between the employer and the
worker, the work contract at a minimum shall be the terms of the job
order included in the application for temporary labor certification,
and shall be enforced in accordance with these regulations.
(e) Adverse effect wage rate (AEWR) means the minimum wage rate
that the ETA Office of Foreign Labor Certification Administrator has
determined must be offered and paid to every H-2A worker employed in a
particular occupation and/or area to ensure that the wages of similarly
employed U.S. workers will not be adversely affected.
(f) Agent means a legal entity or person, such as an association of
agricultural employers, or an attorney for an association, that
(1) Is authorized to act on behalf of the employer for temporary
agricultural labor certification purposes, and
(2) Is not itself an employer, or a joint employer, as defined in
this section.
(g) Agricultural association means any non-profit or cooperative
association of farmers, growers, or ranchers, incorporated or qualified
under applicable state law, that recruits, solicits, hires, employs,
furnishes, or transports any H-2A worker. Agricultural associations may
act as agents of an employer for purposes of filing an H-2A temporary
labor certification application.
(h) Agricultural employer means any person who owns or operates a
farm or ranch, or otherwise engages in agriculture as defined in this
part, and who either recruits, solicits, hires, employs, furnishes, or
transports any H-2A worker. Agricultural employers may file H-2A
applications either directly or through their agents or other legal
representatives.
(i) Application for Temporary Employment Certification means the
form submitted by an employer to secure a temporary agricultural labor
certification determination from the DOL.
[[Page 8580]]
(j) Department of Homeland Security (DHS) through the United States
Citizenship and Immigration Services (USCIS) means the Federal agency
making the determination under the INA on whether to grant visa
petitions filed by employers seeking H-2A workers to perform temporary
agricultural work in the United States.
(k) DOL means the United States Department of Labor.
(l) Eligible worker means, with respect to employment, an
individual who is not an unauthorized alien (as defined in Section
274A(h)(3) of the Immigration and Nationality Act, 8 U.S.C.
1324a(h)(3), or in this part) with respect to that employment.
(m) Employ means to suffer or permit to work.
(n) Employee means ``employee'' as defined under the general common
law of agency. Some of the factors relevant to the determination of
employee status include: the hiring party's right to control the manner
and means by which the work is accomplished; the skill required; the
source of the instrumentalities and tools for accomplishing the work;
the location of the work; the hiring party's discretion over when and
how long to work; and whether the work is part of the regular business
of the hiring party. Other applicable factors should be considered and
no one factor is dispositive.
(o) Employer means a person, firm, corporation or other association
or organization:
(1) Which has a location within the U.S. to which U.S. workers may
be referred for employment, or qualifies as a farm labor contractor
(FLC) under this part;
(2) Which has an employer relationship with respect to employees
under this part as indicated by the fact that it may hire, pay, fire,
supervise or otherwise control the work of any such employee; and
(3) Which possesses a valid Federal Employer Identification Number
(FEIN).
(4) Where two or more employers each have the definitional indicia
of employment with respect to an employee, those employers shall be
considered to jointly employ that employee.
(5) FLCs, for purposes of this part, shall be considered to be
employers.
(p) Employment Service (ES) refers to the system of Federal and
state entities responsible for administration of the labor
certification process for temporary and seasonal agricultural
employment of nonimmigrant foreign workers. This includes the State
Workforce Agencies (SWAs) and the Office of Foreign Labor Certification
(OFLC), including the National Processing Centers (NPCs).
(q) Employment Standards Administration (ESA) means the agency
within the Department of Labor (DOL) that includes the Wage and Hour
Division, and which is charged with carrying out certain investigative
and enforcement functions of the Secretary under the INA.
(r) Employment and Training Administration (ETA) means the agency
within the Department of Labor (DOL) that includes the Office of
Foreign Labor Certification (OFLC).
(s) Federal holiday means a legal public holiday as defined at 5
U.S.C. 6103.
(t) Farm labor contracting activity means recruiting, soliciting,
hiring, employing, furnishing, or transporting any migrant or seasonal
agricultural worker as those terms are used in 29 U.S.C. 1801 et seq.
and 29 CFR part 500 with the intent to contract those workers to fixed-
site employers.
(u) Farm labor contractor means any person--other than an
agricultural association, or an employee of an agricultural
association--who, for any money or other valuable consideration paid or
promised to be paid, performs any farm labor contracting activity.
(v) H-2A worker means any nonimmigrant 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)).
(w) Job offer means the offer made by an employer or potential
employer of H-2A workers to eligible workers describing all the
material terms and conditions of employment, including those relating
to wages, working conditions, and other benefits.
(x) 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.
(y) Office of Foreign Labor Certification (OFLC) means the
organizational component of the Employment and Training Administration
that provides national leadership and policy guidance and develops
regulations and procedures to carry out the responsibilities of the
Secretary of Labor under the Immigration and Nationality Act, as
amended, concerning the admission of foreign workers to the United
States in order to work under section 101(a)(15)(H)(ii)(a) of the
Immigration and Nationality Act, as amended.
(z) Positive recruitment means the active participation of an
employer or its authorized hiring agent in recruiting and interviewing
qualified and eligible individuals in the area where the employer's
establishment is located and any other area designated by the Secretary
as a multistate area of traditional or expected labor supply with
respect to the area where the employer's establishment is located in an
effort to fill specific job openings with U.S. workers.
(aa) Prevailing means with respect to certain benefits other than
wages provided by employers and certain practices engaged in by
employers, that practice or benefit which is most commonly provided by
employers (including H-2A and non H-2A employers) for the occupation in
the area of intended employment.
(bb) Representative means the official employed by or authorized to
act on behalf of the employer with respect to activities entered into
for and/or attestations made with respect to the Application for
Temporary Employment Certification. In the case of an attorney who acts
as an employer's representative and who interviews and/or considers
U.S. workers for the job offered to the foreign worker(s), such
individual must be the person who normally interviews or considers, on
behalf of the employer, applicants for job opportunities such as that
offered in the application, but which do not involve labor
certifications.
(cc) Secretary means the Secretary of Labor, the chief official of
the U.S. Department of Labor, or the Secretary's designee.
(dd) State Workforce Agency (SWA), formerly known as the State
Employment Security Agency (SESA), means the State government agency
that receives funds pursuant to the Wagner-Peyser Act to administer the
public labor exchange delivered through the state's one-stop delivery
system in accordance with the Wagner-Peyser Act. 29 U.S.C. 49, et seq.
Separately, SWAs receive ETA grants, administered by the Office of
Foreign Labor Certification, to assist them in performing certain
activities related to foreign labor certification--including the
conducting housing inspections.
(ee) Temporary agricultural labor certification means the
certification made by the Secretary of Labor with respect to an
employer seeking to file with DHS a visa petition to employ a foreign
national as an H-2A worker, pursuant to sections 101(a)(15)(H)(ii)(a),
214(a) and (c), and 218 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
[[Page 8581]]
agricultural labor or services involved in the petition, and
(2) The employment of the foreign worker 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 1188).
(ff) Temporary agricultural labor certification determination means
the written determination made by the OFLC Administrator to approve or
deny, in whole or in part, an application for a temporary agricultural
labor certification to import a foreign worker(s).
(gg) United States, when used in a geographic sense, means the
continental United States, Alaska, Hawaii, the Commonwealth of Puerto
Rico, and the territories of Guam and the Virgin Islands of the United
States.
(hh) United States worker means any worker who is:
(1) A citizen or national of the United States, or;
(2) An alien who is lawfully admitted for permanent residence in
the United States, is admitted as a refugee under Sec. 207 of the INA,
is granted asylum under Sec. 208 of the INA, or is an immigrant
otherwise authorized (by the INA or by DHS) to be employed in the
United States.
(ii) Wages means all forms of cash remuneration to a worker by an
employer in payment for personal services.
(jj) Definition of agricultural labor or services of a temporary or
seasonal nature. For the purposes of this part, ``agricultural labor or
services of a temporary or seasonal nature'' means the following:
(1) ``Agricultural labor or services.'' Pursuant to Sec.
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
part as:
(i) ``Agricultural labor'' as defined and applied in Sec. 3121(g)
of the Internal Revenue Code of 1954 (26 U.S.C. 3121(g));
(ii) ``Agriculture'' as defined and applied in Sec. 3(f) of the
Fair Labor Standards Act of 1938 (29 U.S.C. 203(f));
(iii) The pressing of apples for cider on a farm;
(iv) Logging employment; or
(v) 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 while in the employ of the
operator of a farm; or
(vi) Other work typically performed on a farm that is incidental to
the agricultural labor or services for which the worker was sought.
(2) An occupation included in either of the statutory definitions
cited in paragraphs (jj)(1)(i) and (ii) of this section shall be
``agricultural labor or services'', notwithstanding the exclusion of
that occupation from the other statutory definition.
(i) ``Agricultural labor'' for purposes of paragraph (jj)(1)(i) of
this section means all services performed:
(A) 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;
(B) 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;
(C) 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;
(D)(1) 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;
(2) In the employ of a group of operators of farms (other than a
cooperative organization) in the performance of service described in
paragraph (jj)(2)(i)(A) of this section, but only if such operators
produced all of the commodity with respect to which such service is
performed. For purposes of this paragraph (jj)(2)(i)(D)(2), 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;
(3) The provisions of paragraphs (jj)(2)(i)(A) and (B) of this
section shall not be deemed to be applicable with respect to services
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
(4) 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.
(E) 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. (See Section 3121(g) of the
Internal Revenue Code of 1986 (26 U.S.C. 3121(g).)
(ii) ``Agriculture.'' For purposes of paragraph (jj)(1)(ii) of this
section agriculture means 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. (See Section 203(f)
of title 29, U.S.C. (Sec. 3(f) of the FLSA of 1938, as amended.).
(iii) ``Agricultural commodity''. For purposes of paragraph
(jj)(1)(ii) of this section, ``agricultural commodity'' includes, in
addition to other agricultural commodities, crude gum (oleoresin) from
a living tree, and gum spirits of turpentine and gum rosin as processed
by the original producer of the crude gum (oleoresin) from which
derived. ``Gum spirits of turpentine'' means spirits of turpentine made
from gum (oleoresin) from a living tree and ``gum rosin'' means rosin
remaining after the distillation of gum spirits of turpentine. (See
Section 1141j(g) of title 12, U.S.C.(Sec. 15(g) and 7 U.S.C. 92.)
(3) ``Of a temporary or seasonal nature''
(i) ``On a seasonal or other temporary basis''. For the purposes of
this part, ``of
[[Page 8582]]
a temporary or seasonal nature'' means ``on a seasonal or other
temporary basis'', as defined in the ESA's WHD's regulation at 29 CFR
500.20 under the Migrant and Seasonal Agricultural Worker Protection
Act (MSPA).
(ii) MSPA definition. The definition of ``on a seasonal or other
temporary basis'' found in MSPA, summarized as follows, is:
(A) 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.
(B) 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.
(C) ``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.
(D) ``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 part, the definition
of ``temporary'' in paragraph (c)(2)(ii) of this section refers to any
job opportunity covered by this part where the employer needs a worker
for a position for a limited period of time, which shall be for less
than 1 year, unless the original temporary agricultural labor
certification is extended based on unforeseen circumstances, pursuant
to 20 CFR 655.110 subpart B.
16. Section 501.15 is amended by revising the first and last
sentences of the section to read as follows:
Sec. 501.15 Enforcement.
The investigation, inspections and law enforcement functions to
carry out the provisions of section 218 of the INA, as provided in
these regulations for enforcement by the Wage and Hour Division,
pertain to the employment of any H-2A worker and any other U.S. worker
hired in corresponding employment by an H-2A employer. * * * The work
contract enforced includes the employment benefits which must be stated
in the job offer, as prescribed in 20 CFR part 655, subpart B.
17. Section 501.16 is amended by revising the section heading and
paragraphs (a) and (b) to read as follows:
Sec. 501.16 Sanctions and Remedies--General.
* * * * *
(a) Impose denial of labor certification against any person for a
violation of the H-2A obligations of the INA or the regulations. ETA
shall make all determinations regarding the issuance or denial of a
labor certification in connection with the attestation process. The
Wage and Hour Division shall make all determinations regarding the
enforcement functions listed in paragraphs (b) through (d) of this
section.
(b) Institute appropriate administrative proceedings, including the
recovery of unpaid wages (whether directly from the employer, or in the
case of an FLC by claim against any surety who issued a bond to the
farm labor contractor), the enforcement of any other contractual
obligations, the assessment of a civil money penalty or denial of
future certification(s) for up to three years against any person for a
violation of the H-2A work contract obligations of the Act or these
regulations. In the event of a denial of future certification, notice
is provided to OFLC.
* * * * *
18. Section 501.19 is amended by revising paragraph (c) to read as
follows:
Sec. 501.19 Civil money penalty assessment.
* * * * *
(c) A civil money penalty for violation of the work contract will
not exceed $1,000 for each violation committed against each worker,
with the following exceptions:
(1) For a willful failure to meet a condition of the work contract,
or for discrimination, the civil money penalty shall not exceed $5,000
for each worker affected by the violation;
(2) For a violation of a housing or transportation safety and
health provision of the work contract that causes the death or serious
injury of any worker, the civil money penalty shall not exceed $50,000
per worker, unless the violation is a repeated or willful violation, in
which case the penalty shall not exceed $100,000 per worker.
(3) For purposes of paragraph (c)(3) of this section, the term
``serious injury'' means:
(i) Permanent loss or substantial impairment of one of the senses
(sight, hearing, taste, smell, tactile sensation);
(ii) Permanent loss or substantial impairment of the function of a
bodily member, organ, or mental faculty, including the loss of all or
part of an arm, leg, foot, hand or other body part; or
(iii) Permanent paralysis or substantial impairment that causes
loss of movement or mobility of an arm, leg, foot, hand or other body
part.
(d) A civil money penalty for interference with a Wage and Hour
Division investigation shall not exceed $5,000 per investigation;
(e) For a willful layoff or displacement of any similarly employed
U.S. worker in the occupation that is the subject of the Application
for Temporary Employment Certification in the area of intended
employment within the period beginning 75 days before the date of need,
except that such layoff shall be permitted where the employer also
attests that it offered the opportunity to the laid-off U.S. worker(s)
and said U.S. worker(s) either refused the job opportunity or were
rejected for the job opportunity for lawful, job-related reasons, the
civil penalty shall not exceed $15,000 per violation per worker.
19. Section 501.20 is revised to read as follows:
Sec. 501.20 Debarment.
(a) As a result of the Wage and Hour Division's authority to
conduct investigations, inspections, and law enforcement functions to
carry out the provisions of section 218 of the INA, if the Wage and
Hour Division determines that an employer has substantially violated a
material term or condition of a work contract, the Wage and Hour
Division Administrator may debar the employer from future labor
certifications for a period of up to three years from the date of the
determination.
(b) For the purposes of this section, a substantial violation
includes but is not limited to:
(1) Violations that through investigation by the Wage and Hour
Division were determined to be significantly injurious to the wages,
benefits, or working conditions of 10 percent or more of the employer's
workforce of H-2A and U.S. workers hired in corresponding employment;
[[Page 8583]]
(2) Reflect a failure to comply with one or more penalties imposed
by the Employment Standards Administration Wage and Hour Division for
violation(s) of contractual obligations, or with one or more decisions
or orders of the Secretary or a court pursuant to Sec. 218 of the INA
(8 U.S.C. 1188), 20 CFR part 655, subpart B, or 29 CFR part 501; or
(3) Employment of an H-2A worker outside the area of intended
employment, or in an activity not listed in the job order, or after the
expiration of the job order and any approved extension.
(c) The Notice of Debarment shall be in writing, shall state the
reason for the debarment finding, including a detailed explanation of
the grounds for and the duration of the debarment, and shall identify
appeal opportunities under 29 CFR part 501.33. The debarment shall take
effect on the start date identified in the Notice of Debarment, unless
a timely request for review is filed. The timely filing of an
administrative appeal stays the debarment pending the outcome of the
appeal proceedings.
(d) Debarment involving members of associations. If after
investigation, the Wage and Hour Division determines a substantial
violation has occurred, and if an individual producer member of a joint
employer association is determined to have committed the violation, the
determination to debar the employer from future labor certifications
for a period of up to three years from the date of the determination
shall apply only to that member of the association unless the Wage and
Hour Division Administrator determines that the association or other
association member participated in, had knowledge of, or had reason to
know of the violation, in which case the debarment shall be invoked
against the complicit association or other association members as well.
(e) Debarment involving associations acting as joint employers. If
after investigation, the Wage and Hour Division determines a
substantial violation has occurred, and if an association acting as a
joint employer with its members is determined to have committed the
violation, the determination to debar the association from future labor
certifications for a period of up to three years from the date of the
determination shall apply only to the association, and shall not be
applied to any individual producer member of the association unless the
Wage and Hour Division Administrator determines that the member
participated in, had knowledge of, or reason to know of the violation,
in which case the debarment shall be invoked against the complicit
association member as well.
(f) Debarment involving associations acting as sole employers. If
after investigation, the Wage and Hour Division determines a
substantial violation has occurred, and if an association acting as a
sole employer is determined to have committed the violation, the
determination to deny future labor certifications under this part for a
period of up to three years from the date of the determination shall
apply only to the association and any successor in interest to the
debarred association.
20. Section 501.21 is revised to read as follows:
Sec. 501.21 Referral to ETA of interference with or refusal to permit
investigation.
Sections 501.5 through 501.7 of this part describe the
investigation authority conferred by the Secretary upon the Wage and
Hour Division for the purpose of enforcing the contractual obligations
relating to wages, benefits, and working conditions of employers of H-
2A workers and U.S. workers hired in corresponding employment. The
following sections describe the actions which may be taken by the Wage
and Hour Division when an employer fails to cooperate with an
investigation concerning the employment of H-2A workers or U.S. workers
hired in corresponding employment. The Wage and Hour Division shall
report such occurrence to ETA and may recommend revocation of an
existing labor certification. No person shall interfere with any
employee of the Secretary who is exercising or attempting to exercise
this investigative or enforcement authority. As stated in Sec. Sec.
501.5, 501.6 and 501.19 of this part, a civil money penalty may be
assessed for each failure to permit an investigation or interference
therewith, and other appropriate relief may be sought. In addition, the
Wage and Hour Division shall report each such occurrence to ETA, and
the Wage and Hour Division may debar the employer from future
certification and recommend to ETA revocation of existing
certification. The taking of any one action shall not bar the taking of
any additional action.
21. Section 501.30 is revised to read as follows:
Sec. 501.30 Applicability of procedures and rules.
The procedures and rules contained herein prescribe the
administrative process that will be applied with respect to a
determination to impose an assessment of civil money penalties or
debarment, and which may be applied to the enforcement of contractual
obligations, including the collection of unpaid wages due as a result
of any violation of the H-2A provisions of the Act or of these
regulations. Except with respect to the imposition of civil money
penalties or debarment, the Secretary may, in the Secretary's
discretion, seek enforcement action in Federal court without resort to
any administrative proceedings.
22. Section 501.31 is revised to read as follows:
Sec. 501.31 Written notice of determination required.
Whenever the Administrator determines to assess a civil money
penalty, to debar, or to proceed administratively to enforce
contractual obligations, including the recovery of unpaid wages, the
person against whom such action is taken shall be notified in writing
of such determination.
23. Section 501.32 is amended by revising paragraph (a) to read as
follows:
Sec. 501.32 Contents of notice.
* * * * *
(a) Set forth the determination of the Administrator including the
amount of any unpaid wages due or contractual obligations required, the
amount of any civil money penalty assessment, whether to debar and the
length of the debarment, and the reason or reasons therefor.
* * * * *
24. Section 501.33 is amended by revising paragraph (a) and adding
(d) to read as follows:
Sec. 501.33 Request for hearing.
(a) Any person desiring review of a determination referred to in
Sec. 501.32, including judicial review, shall make a written request
for an administrative hearing to the official who issued the
determination at the Wage and Hour Division address appearing on the
determination notice, no later than 30 days after issuance of the
notice referred to in Sec. 501.32.
* * * * *
(d) The determination shall take effect on the start date
identified in the determination, unless an administrative appeal
request for review is properly filed. The timely filing of an
administrative appeal stays the determination pending the outcome of
the appeal proceedings.
25. Section 501.42 is amended by revising paragraph (a) to read as
follows:
Sec. 501.42 Procedures for initiating and undertaking review.
(a) A respondent, the Administrator, or any other party wishing
review,
[[Page 8584]]
including judicial review, of the decision of an administrative law
judge shall, within 30 days of the decision of the administrative law
judge, petition the Administrative Review Board (ARB) to review the
decision. Copies of the petition shall be served on all parties and on
the administrative law judge. If the ARB does not issue a notice
accepting a petition for review within 30 days after receipt of a
timely filing of the petition, or within 30 days of the date of the
decision if no petition has been received, the decision of the
administrative law judge shall be deemed the final agency action. If a
petition for review is filed, the decision of the administrative law
judge shall be inoperative unless and until the ARB issues an order
affirming the decision, or declining review.
* * * * *
Sec. Sec. 501.22, 501.41 through 501.45 [Amended]
26. In Sec. 501.22 and Sec. Sec. 501.41 through 501.45 all
references to ``Secretary'' are revised to read ``Administrative Review
Board''.
PART 780--EXEMPTIONS APPLICABLE TO AGRICULTURE, PROCESSING OF
AGRICULTURAL COMMODITIES, AND RELATED SUBJECTS UNDER THE FAIR LABOR
STANDARDS ACT
27. The authority citation for part 780 continues to read as
follows:
Authority: Secs. 1-19, 52 Stat. 1060, as amended; 29 U.S.C. 201-
219.
28. Section 780.115 is revised to read as follows:
Sec. 780.115 Forest products.
Trees grown in forests and the lumber derived therefrom are not
``agricultural or horticultural commodities,'' for the purpose of the
FLSA (See Sec. 780.205 regarding production of Christmas trees.) It
follows that employment in the production, cultivation, growing, and
harvesting of such trees or timber products is not sufficient to bring
an employee within section 3(f) unless the operation is performed by a
farmer or on a farm as an incident to or in conjunction with his or its
farming operations. On the latter point, see Sec. Sec. 780.160 through
780.164 discussing the question of when forestry or lumbering
operations are incident to or in conjunction with farming operations so
as to constitute ``agriculture.'' For a discussion of the exemption in
section 13(b)(28) of the Act for certain forestry and logging
operations in which not more than eight employees are employed, see
part 788 of this chapter
29. Section 780.201 is revised to read as follows:
Sec. 780.201 Meaning of ``forestry or lumbering operations.''
The term ``forestry or lumbering operations'' refers to the
cultivation and management of forests, the felling and trimming of
timber, the cutting, hauling, and transportation of timber, logs,
pulpwood, cordwood, lumber, and like products, the sawing of logs into
lumber or the conversion of logs into ties, posts, and similar
products, and similar operations. It also includes the piling,
stacking, and storing of all such products. The gathering of wild
plants and of wild Christmas trees is included. (See the related
discussion in Sec. Sec. 780.205 through 780.209 and in part 788 of
this chapter which considers the section 13(b)(28) exemption for
forestry or logging operations in which not more than eight employees
are employed.) ``Wood working'' as such is not included in ``forestry''
or ``lumbering'' operations. The manufacture of charcoal under modern
methods is neither a ``forestry'' nor ``lumbering'' operation and
cannot be regarded as ``agriculture.''
30. Section 780.205 is revised to read as follows:
Sec. 780.205 Nursery activities generally and Christmas tree
production.
(a) The employees of a nursery who are engaged in the following
activities are employed in ``agriculture'':
(1) Sowing seeds and otherwise propagating fruit, nut, shade,
vegetable, and ornamental plants or trees, and shrubs, vines, and
flowers;
(2) Handling such plants from propagating frames to the field;
(3) Planting, cultivating, watering, spraying, fertilizing,
pruning, bracing, and feeding the growing crop.
(b) Trees produced through the application of extensive
agricultural or horticulture techniques to be harvested and sold for
seasonal ornamental use as Christmas trees are considered to be
agricultural or horticultural commodities. Employees engaged in the
application of agricultural and horticultural techniques to produce
Christmas trees as ornamental horticultural commodities such as the
following are employed in ``agriculture'':
(1) Planting seedlings in a nursery; on-going treatment with
fertilizer, herbicides, and pesticides as necessary;
(2) After approximately three years, re-planting in lineout beds;
(3) After two more seasons, lifting and re-planting the small trees
in cultivated soil with continued treatment with fertilizers,
herbicides, and pesticides as indicated by testing to see if such
applications are necessary;
(4) Pruning or shearing yearly;
(5) Harvesting of the tree for seasonal ornamental use, typically
within seven to ten years of planting.
(c) Trees to be used as Christmas trees which are gathered in the
wild such as from forests or uncultivated land and not produced through
the application of agricultural or horticultural techniques are not
agricultural or horticultural commodities for purposes of section 3(f).
(See USDOL v. North Carolina Growers Association, Inc., et. al., 377
F.3d 345.)
31. Section 780.208 is revised to read as follows:
Sec. 780.208 Forestry activities.
Operations in a forest tree nursery such as seeding new beds and
growing and transplanting forest seedlings are not farming operations.
For such operations to fall within section 3(f), they must qualify
under the second part of the definition dealing with incidental
practices. (See Sec. 780.201.)
PART 788--FORESTRY OR LOGGING OPERATIONS IN WHICH NOT MORE THAN
EIGHT EMPLOYEES ARE EMPLOYED
32. The authority citation for part 788 continues to read as
follows:
Authority: Secs. 1-19, 52 Stat. 1060, as amended; 29 U.S.C. 201-
219.
33. Section 788.10 is revised to read as follows:
Sec. 788.10 ``Preparing * * * other forestry products.''
As used in the exemption, ``other forestry products'' mean plants
of the forest and the natural properties or substances of such plants
and trees. Included among these are decorative greens such as holly,
ferns, roots, stems, leaves, Spanish moss, wild fruit, and brush.
Christmas trees are only included where they are gathered in the wild
from forests or from uncultivated land and not produced through the
application of extensive agricultural or horticultural techniques. (See
29 CFR 780.205 for further discussion.) Gathering and preparing such
forestry products as well as transporting them to the mill, processing
plant, railroad, or other transportation terminal are among the
described operations. Preparing such forestry products does not include
operations that change the natural physical or chemical condition of
the products or that amount to extracting (as distinguished from
gathering) such as shelling nuts, or that mash berries to obtain
juices.
[[Page 8585]]
Signed in Washington, DC, this 7th day of February, 2008.
Douglas F. Small,
Deputy Assistant Secretary, Employment and Training Administration.
Alexander Passantino,
Acting Administrator, Wage and Hour Division, Employment Standards
Administration.
[FR Doc. E8-2525 Filed 2-12-08; 8:45 am]
BILLING CODE 4510-FP-P