Final Rule; Temporary Agricultural Employment of H-2A Aliens in the United States; Modernizing the Labor Certification Process and Enforcement

December 22, 2008

ETA REGIONAL INFORMATION ALERT NO. 018-09

ORIGINATING OFFICE: Region 5

SUBJECT: Notice - Final Rule; Temporary Agricultural Employment of H-2A Aliens in the United States; Modernizing the Labor Certification Process and Enforcement. RIN 1205-AB55

PROGRAMS: Labor Certification, WIA, Wagner-Peyser

1. Purpose. To transmit a notice of final rule which amends DOL 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.

2. References. Federal Register, Vol. 73, No. 244, December 18, 2008, pp. 77109-77262; Information Alerts 045-08, 045-08-1; Immigration and Nationality Act Section 101(a)(15)(H)(ii)(a), 214(c)(1), 218; 8 CFR 214.2(h)(6); Immigration Reform and Control Act of 1986; 20 CFR 602, 651, 652, 653 Subpart B and F, 654 Subpart E, 655 Subpart B and 658; 8 U.S.C. 1101, 1188, 1324; 29 USC 49, 213; 8 CFR 274; 29 CFR 501, 780, 788, 1602, 1910; Fair Labor Standards Act; Migrant and Seasonal Workers Protection Act; Paperwork Reduction Act, 44 USC 3501; Unfunded Mandates Reform Act of 1995, Pub. L. 104-4; Assessment of Federal Regulations and Policies on Families, Pub. L. 105-277 sec 654; 5 USC 605 (b); 5 USC 601(3)-(5); Executive Order 12630, 12866, 13132, 13211, 13175 and 12988.

3. Links. This Alert is in the Regional website Resource page at: http://www.doleta.gov/regions/regionalresources/

Link to the Federal Register attachment (.pdf)

4. Substance. This final rule re-engineers the process by which employers 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. The final rule utilizes an attestation-based application process based on pre-filing recruitment and eliminates duplicative H-2A activities currently performed by State Workforce Agencies (SWAs) and the Department. The rule also provides enhanced enforcement, including more rigorous penalties, to complement the modernized certification process and to appropriately protect workers. The effective date of this final rule is January 17, 2009.

5. Action. Program administrators are request to share this Information Alert with appropriate staff and other agencies.

6. Contact. Questions and comments concerning 20 CFR part 665, subpart B may be directed to William L. Carlson on 202.693.3010. Questions and comments concerning 29 CFR part 501 may be directed to James Kessler on 202.693.0070. Questions or comments about the format of this Alert may be directed to Robert Rainault on 312.596.5416.

7. Expiration Date. Continuing

8. Attachment. Federal Register, Vol. 73, No. 244, December 18, 2008, pp. 77109-77262.