[Federal Register: March 17, 2009 (Volume 74, Number 50)]
[Proposed Rules]
[Page 11407-11440]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17mr09-16]
[[Page 11407]]
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Part II
Department of Labor
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Employment and Training Administration
20 CFR Part 655
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Wage and Hour Division
29 CFR Parts 501, 780, and 788
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Temporary Employment of H-2A Aliens in the United States; Proposed Rule
[[Page 11408]]
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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 Employment of H-2A Aliens in the United States
AGENCY: Employment and Training Administration and Wage and Hour
Division, Employment Standards Administration, Labor.
ACTION: Notice of proposed suspension of rule.
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SUMMARY: The Department of Labor (DOL or the Department) proposes to
suspend for 9 months the H-2A regulations published on December 18,
2008, which became effective on January 17, 2009, that amended the
rules governing the certification for temporary employment of
nonimmigrant workers in agricultural occupations on a temporary or
seasonal basis, and the enforcement of contractual obligations
applicable to employers of such nonimmigrant workers. A suspension
would provide the Department with an opportunity to review and
reconsider the new requirements in light of issues that have arisen
since the publication of the H-2A Final Rule, while minimizing the
disruption to the Department, State Workforce Agencies (SWAs),
employers, and workers. To avoid the regulatory vacuum that would
result from a suspension, the Department proposes to reinstate on an
interim basis the rules that were in place on January 16, 2009, the day
before the revised rules became effective, by reprinting those previous
regulations.
DATES: Interested persons are invited to submit written comments on the
proposed suspension on or before March 27, 2009. The Department will
not necessarily consider any comments received after the above date in
making its decisions on the final rule.
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.
Please provide written comments only on whether the Department
should suspend the December 18, 2008 final rule for further review and
consideration of the issues that have arisen since the final rule's
publication. Comments concerning the substance or merits of the
December 18, 2008 final rule or the prior rule will not be considered.
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 this notice available,
upon request, in large print and as an electronic file on a computer
disk. The Department will consider providing this notice in other
formats upon request. To schedule an appointment to review the comments
and/or obtain this notice 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 William Carlson, PhD, Administrator, Office of
Foreign Labor Certification, Employment and Training Administration
(ETA), U.S. Department of Labor, 200 Constitution Avenue, NW., Room C-
4312, Washington, DC 20210; Telephone (202) 693-3010 (this is not a
toll-free number). 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 numbers
above via TTY by calling the toll-free Federal Information Relay
Service at 1-800-877-8339.
SUPPLEMENTARY INFORMATION:
I. Background and Proposed Action
On December 18, 2008, the Department published final regulations
revising title 20 of the Code of Federal Regulations (20 CFR) part 655
and title 29 of the Code of Federal Regulations (29 CFR) parts 501,
780, and 788 (the ``H-2A Final Rule''). See 73 FR 77110, Dec. 18, 2008.
The H-2A Final Rule replaced the previous versions of 20 CFR part 655
(2008) and 29 CFR part 501 (2008) that, for the most part, were
published at 52 FR 20507, Jun. 1, 1987. With respect to the provisions
under 29 CFR parts 780 and 788 that were amended by the H-2A Final
Rule, the previous versions of 29 CFR 780.115, 780.201, 780.205, and
780.208 were published at 37 FR 12084, Jun. 17, 1972, and the previous
version of 29 CFR 788.10 was published at 34 FR 15784, Oct. 14, 1969.
Following the issuance of the H-2A Final Rule, a lawsuit was filed
in the U.S. District Court for the District of Columbia on January 12,
2009 (brought by the United Farm Workers and others) challenging the H-
2A Final Rule.
[[Page 11409]]
United Farm Workers, et al. v. Chao, et al., Civil No. 09-00062 RMU
(D.D.C.). The plaintiffs asserted that in promulgating the H-2A Final
Rule, the Department violated section 218 of the Immigration and
Nationality Act as well as the Administrative Procedure Act. The
plaintiffs requested a temporary restraining order and preliminary
injunction, along with a permanent injunction that would prohibit DOL
from implementing the H-2A Final Rule. On January 15, 2009, Judge
Ricardo M. Urbina denied the plaintiffs' request for a temporary
restraining order and preliminary injunction on the basis that the
plaintiffs failed to show ``likely, imminent and irreparable harm'';
the court did not address the merits of the case or whether the
plaintiffs demonstrated the substantial likelihood of success on the
merits. Accordingly, the H-2A Final Rule went into effect as scheduled
on January 17, 2009. Although the court concluded that the plaintiffs
were not entitled to a temporary restraining order and preliminary
injunction, plaintiffs' challenges to the H-2A Final Rule are still
pending before the district court. The Department's Answer is due in
district court on March 13, 2009.
As we move forward with implementing the Final Rule, however, it is
rapidly becoming evident that the Department and the SWAs may lack
sufficient resources to effectively and efficiently implement the H-2A
Final Rule. This has already resulted in processing delays; the delays
will become even greater as applications for the upcoming growing
season are now being filed with the Department. The Department has been
unable to implement the sequence of operational events required to
avoid confusion and application processing delays. These include
developing an automated review system before the H-2A Final Rule went
into effect, and training program users, State Workforce Agency staff,
and Federal agency staff. Without such an automated system the
Department must process each application manually, which already is
causing a significant strain on the timely review and approval of H-2A
applications. The Department believes that it has a responsibility to
employers, workers, SWAs, and the public to ensure that a new
regulatory regime has a sound basis and is capable of effective
implementation. Suspending the new H-2A Final Rule and reinstating the
prior rule on an interim basis will allow this examination to occur
while maintaining the previous status quo.
In addition, DOL has increasing evidence that undertaking
implementation of a complex new regulatory program applicable to the
temporary employment of nonimmigrant workers in agricultural
occupations before additional examination of the relevant legal and
economic concerns is proving unnecessarily disruptive and confusing to
the Department's administration of the H-2A program, SWAs, agricultural
employers, and domestic and foreign workers. It is particularly
important to avoid such disruption, if possible, in light of the severe
economic conditions the country is now facing.
Furthermore, development of the H-2A Final Rule was based in part
on policy positions of the prior Administration with which the current
Administration may differ. Relatedly, the Department may wish to
reconsider these policy positions in light of the rising unemployment
among U.S. workers and their availability for these jobs, and
continuing economic problems in this country. It would not be an
efficient use of limited agency resources and it would be confusing and
disruptive to program users to engage in the steps necessary to make
the current rule operational if the Department were then to soon after
issue a different rule. Suspending the H-2A Final Rule would prevent
all parties from having to incur the costs of learning, filing,
implementing, and operating under a new program that will likely be
subject to further changes.
The 10 day comment period on whether to suspend the new H-2A Final
Rule and reinstate on an interim basis the prior rules is necessary due
to the time constraints and concerns inherent in the Department's
administration of the H-2A program, and in the use of the H-2A program
by the agricultural community. Growers require clear and consistent
guidance on the rules governing the processing of their applications so
that they can plan and staff their operations appropriately for the
impending growing season. The statute requires the Department to
process H-2A applications within a strict timeframe, and the
Department's ability to meet the statutory mandate has been undermined
by the uncertainties and technical deficiencies in the administration
of the program. A longer comment period would stretch the uncertainty
over the applicable rules further into the upcoming growing season.
Confusion or delay in the administration of the program will result in
the disruption of agricultural production, sales and market conditions
in areas traditionally served by H-2A workers, which could have further
deleterious effects on an already unstable economic environment. Given
that the H-2A Final Rule has already been in effect for more than 6
weeks, time is of the essence, especially since H-2A applications for
the upcoming growing season are now being filed with the Department
under the new regulations. It is imperative that the regulations and
positions taken in the preamble of the H-2A Final Rule be reviewed to
ensure that they effectively carry out the statutory objectives and
requirements of the program; there is a compelling need to undertake
that review as soon as possible so that any changes in the H-2A Final
Rule can be implemented in time to avoid jeopardizing the program's use
by its stakeholders and workers. It is also imperative that during the
time such a review is undertaken, the Department, SWAs, employers, and
workers experience minimal disruption as to how applications are
processed and the terms and conditions that apply.
To avoid confusion for the readers of the Code of Federal
Regulations (CFR), if the suspension continues on April 1, 2009, the
previous regulations that were in effect on April 1, 2008 would appear
in the next published version of the CFR as 20 CFR 655.1 and 20 CFR
part 655, subpart B. Additionally, if the suspension continues on July
1, 2009, the previous regulations that were in effect on July 8, 2008
would appear in the next published version of the CFR as 29 CFR part
501, 29 CFR 780.115, 780.201, 780.205, 780.208, and 788.10. The
suspended regulations also would appear in the CFR and would be
designated as 20 CFR 655.5, 20 CFR part 655, subpart C, 20 CFR part
655, subpart N, 29 CFR part 502, and 29 CFR 780.159, 780.216, 780.217,
and 788.217 for clarity of citation purposes and because two distinct
regulations cannot use the same regulation number.
If a final decision is reached to suspend the H-2A Final Rule, DOL
would reinstate the previous rules verbatim on an interim basis to
avoid a regulatory vacuum while judicial and administrative review of
the H-2A Final Rule proceed. The rulemaking document would thus include
provisions identifying the suspended provisions and interim regulatory
text identical to the previous H-2A rule. Although the Department
cannot predict the outcome of its review of the issues that have been
raised or the outcome of the legal challenge to the H-2A Final Rule,
either DOL will engage in further rulemaking or the suspension will be
lifted after 9 months. If a final decision is reached to suspend the H-
2A Final Rule, any H-2A application for which pre-filing positive
recruitment was
[[Page 11410]]
initiated in accordance with the H-2A Final Rule prior to the date of
suspension will continue to be governed by the H-2A Final Rule.
List of Subjects
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.
29 CFR Part 501
Administrative practice and procedure, Agriculture, Aliens,
Employment, Housing, Housing standards, Immigration, Labor, Migrant
labor, Penalties, Transportation, Wages.
29 CFR Part 780
Agricultural commodities, Agriculture, Employment, Forests and
forest products, Labor, Minimum wages, Nursery stock, Overtime pay,
Wages.
29 CFR Part 788
Employment, Forests and forest products, Labor, Overtime pay,
Wages.
Accordingly, 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 ALIENS IN THE UNITED STATES
1. The authority citation for part 655 is revised to read as
follows:
Authority: Section 655.0 issued under 8 U.S.C. 1101(a)(15)(H)(i)
and (ii), 1182(m), (n), and (t), 1184, 1188, and 1288(c) and (d); 29
U.S.C. 49 et seq.; sec. 3(c)(1), Pub. L. 101-238, 103 Stat. 2099,
2102 (8 U.S.C. 1182 note); sec. 221(a), Pub. L. 101-649, 104 Stat.
4978, 5027 (8 U.S.C. 1184 note); sec. 323, Pub. L. 103-206, 107
Stat. 2149; Title IV, Pub. L. 105-277, 112 Stat. 2681; Pub. L. 106-
95, 113 Stat. 1312 (8 U.S.C. 1182 note); and 8 CFR 213.2(h)(4)(i).
Section 655.00 issued under 8 U.S.C. 1101(a)(15)(H)(ii), 1184,
and 1188; 29 U.S.C. 49 et seq.; and 8 CFR 214.2(h)(4)(i).
Subparts A and C issued under 8 U.S.C. 1101(a)(15)(H)(ii)(b) and
1184; 29 U.S.C. 49 et seq.; and 8 CFR 214.2(h)(4)(i).
Subpart B issued under 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184, and
1188; and 29 U.S.C. 49 et seq.
Subparts D and E issued under 8 U.S.C. 1101(a)(15)(H)(i)(a),
1182(m), and 1184; 29 U.S.C. 49 et seq. ; and sec. 3(c)(1), Pub. L.
101-238, 103 Stat. 2099, 2103 (8 U.S.C. 1182 note).
Subparts F and G issued under 8 U.S.C. 1184 and 1288(c); and 29
U.S.C. 49 et seq.
Subparts H and I issued under 8 U.S.C. 1101(a)(15)(H)(i)(b) and
(b1), 1182(n), 1182(t), and 1184; 29 U.S.C. 49 et seq.; sec
303(a)(8), Pub. L. 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1182
note); and Title IV, Pub. L. 105-277, 112 Stat. 2681.
Subparts J and K issued under 29 U.S.C. 49 et seq.; and sec.
221(a), Pub. L. 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),
1182(m), and 1184; and 29 U.S.C. 49 et seq.
2. Revise the heading to part 655 to read as set forth above.
3. Redesignate Sec. 655.1 as Sec. 655.5 and suspend newly
designated Sec. 655.5.
4. Add Sec. 655.1 to read as follows:
Sec. 655.1 Scope and purpose of subpart A.
This subpart sets forth the procedures governing the labor
certification process for the temporary employment of nonimmigrant
aliens in the United States in occupations other than agriculture,
logging, or registered nursing.
5. Redesignate subpart B, consisting of Sec. Sec. 655.90, 655.92,
655.93, and 655.100 through 655.119, as subpart N, consisting of
Sec. Sec. 655.1290, 655.1292, 655.1293, and 655.1300 through 655.1319,
and suspend newly designated subpart N.
6. Add subpart B to read as follows:
Subpart B--Labor Certification Process for Temporary Agricultural
Employment in the United States (H-2A Workers)
Sec.
655.90 Scope and purpose of subpart B.
655.92 Authority of the Office of Foreign Labor Certification (OFLC)
Administrator.
655.93 Special circumstances.
655.100 Overview of this subpart and definition of terms.
655.101 Temporary alien agricultural labor certification
applications.
655.102 Contents of job offers.
655.103 Assurances.
655.104 Determinations based on acceptability of H-2A applications.
655.105 Recruitment period.
655.106 Referral of U.S. workers; determinations based on U.S.
worker availability and adverse effect; activities after receipt of
the temporary alien agricultural labor certification.
655.107 Adverse effect wage rates (AEWRs).
655.108 H-2A applications involving fraud or willful
misrepresentation.
655.110 Employer penalties for noncompliance with terms and
conditions of temporary alien agricultural labor certifications.
655.111 Petition for higher meal charges.
655.112 Administrative review and de novo hearing before an
administrative law judge.
655.113 Job Service Complaint System; enforcement of work contracts.
Subpart B--Labor Certification Process for Temporary Agricultural
Employment in the United States (H-2A Workers)
Sec. 655.90 Scope and purpose of subpart B.
(a) General. This subpart sets out the procedures established by
the Secretary of Labor to acquire information sufficient to make
factual determinations of: (1) Whether there are sufficient able,
willing, and qualified U.S. workers available to perform the temporary
and seasonal agricultural employment for which an employer desires to
import nonimmigrant foreign workers (H-2A workers); and (2) whether the
employment of H-2A workers will adversely effect the wages and working
conditions of workers in the U.S. similarly employed. Under the
authority of the INA, the Secretary of Labor has promulgated the
regulations in this subpart. This subpart sets forth the requirements
and procedures applicable to requests for certification by employers
seeking the services of temporary foreign workers in agriculture. This
subpart provides the Secretary's methodology for the two-fold
determination of availability of domestic workers and of any adverse
effect which would be occasioned by the use of foreign workers, for
particular temporary and seasonal agricultural jobs in the United
States.
(b) The statutory standard. (1) A petitioner for H-2A workers must
apply to the Secretary of Labor for a certification that, as stated in
the INA:
(A) There are not sufficient workers who are able, willing, and
qualified, and who will be available at the time and place needed,
to perform the labor or services involved in the petition, and
(B) The employment of the alien in such labor or services will
not adversely affect the wages and working conditions of workers in
the United States similarly employed.
(2) Section 216(b) of the INA further requires that the Secretary
may not issue a certification if the conditions regarding U.S. worker
availability and adverse effect are not met, and may not issue a
certification if, as stated in the INA:
(1) There is a strike or lockout in the course of a labor
dispute which, under the regulations, precludes such certification.
(2)(A) The employer during the previous two-year period employed
H-2A workers and the Secretary has determined, after notice and
opportunity for a hearing, that the employer at any time during that
period substantially violated a material term or condition of the
labor certification with respect to the employment of domestic or
non-immigrant workers.
(B) No employer may be denied certification under subparagraph
(A) for more
[[Page 11411]]
than three years for any violation described in such subparagraph.
(3) The employer has not provided the Secretary with
satisfactory assurances that if the employment for which the
certification is sought is not covered by State workers'
compensation law, the employer will provide, at no cost to the
worker, insurance covering injury and disease arising out of and in
the course of the worker's employment which will provide benefits at
least equal to those provided under the State workers' compensation
law for comparable employment.
(4) The Secretary determines that the employer has not made
positive recruitment efforts within a multistate region of
traditional or expected labor supply where the Secretary finds that
there are a significant number of qualified United States workers
who, if recruited, would be willing to make themselves available for
work at the time and place needed. Positive recruitment under this
paragraph is in addition to, and shall be conducted within the same
time period as, the circulation through the interstate employment
service system of the employer's job offer. The obligation to engage
in positive recruitment * * * shall terminate on the date the H-2A
workers depart for the employer's place of employment.
(3) Regarding the labor certification determination itself, section
216(c)(3) of the INA, as quoted in the following, specifically directs
the Secretary to make the certification if:
(i) The employer has complied with the criteria for
certification (including criteria for the recruitment of eligible
individuals as prescribed by the Secretary), and
(ii) The employer does not actually have, or has not been
provided with referrals of, qualified individuals who have indicated
their availability to perform such labor or services on the terms
and conditions of a job offer which meets the requirements of the
Secretary.
(c) The Secretary's determinations. Before any factual
determination can be made concerning the availability of U.S. workers
to perform particular job opportunities, two steps must be taken.
First, the minimum level of wages, terms, benefits, and conditions for
the particular job opportunities below which similarly employed U.S.
workers would be adversely affected must be established. (The
regulations in this subpart establish such minimum levels for wages,
terms, benefits, and conditions of employment). Second, the wages,
terms, benefits, and conditions offered and afforded to the aliens must
be compared to the established minimum levels. If it is concluded that
adverse effect would result, the ultimate determination of availability
within the meaning of the INA cannot be made since U.S. workers cannot
be expected to accept employment under conditions below the established
minimum levels. Florida Sugar Cane League, Inc. v. Usery, 531 F. 2d 299
(5th Cir. 1976). Once a determination of no adverse effect has been
made, the availability of U.S. workers can be tested only if U.S.
workers are actively recruited through the offer of wages, terms,
benefits, and conditions at least at the minimum level or the level
offered to the aliens, whichever is higher. The regulations in this
subpart set forth requirements for recruiting U.S. workers in
accordance with this principle.
(d) Construction. This subpart shall be construed to effectuate the
purpose of the INA that U.S. workers rather than aliens be employed
wherever possible. Elton Orchards, Inc. v. Brennan, 508 F. 2d 493, 500
(1st Cir. 1974); Flecha v. Quiros, 567 F.2d 1154, 1156 (1st Cir. 1977).
Where temporary alien workers are admitted, the terms and conditions of
their employment must not result in a lowering of the wages, terms, and
conditions of domestic workers similarly employed. Williams v. Usery,
531 F. 2d 305, 306 (5th Cir. 1976), cert. denied, 429 U.S. 1000, and
the job benefits extended to any U.S. workers shall be at least those
extended to the alien workers.
Sec. 655.92 Authority of the Office of Foreign Labor Certification
(OFLC) Administrator.
Under this subpart, the accepting for consideration and the making
of temporary alien agricultural labor certification determinations are
ordinarily performed by the Office of Foreign Labor Certification
(OFLC) Administrator (OFLC Administrator), who, in turn, may delegate
this responsibility to a designated staff member. The OFLC
Administrator will informally advise the employer or agent of the name
of the official who will make determinations with respect to the
application.
Sec. 655.93 Special circumstances.
(a) Systematic process. The regulations under this subpart are
designed to provide a systematic process for handling applications from
the kinds of employers who have historically utilized nonimmigrant
alien workers in agriculture, usually in relation to the production or
harvesting of a particular agricultural crop for market, and which
normally share such characteristics as:
(1) A fixed-site farm, ranch, or similar establishment;
(2) A need for workers to come to their establishment from other
areas to perform services or labor in and around their establishment;
(3) Labor needs which will normally be controlled by environmental
conditions, particularly weather and sunshine; and
(4) A reasonably regular workday or workweek.
(b) Establishment of special procedures. In order to provide for a
limited degree of flexibility in carrying out the Secretary's
responsibilities under the INA, while not deviating from the statutory
requirements to determine U.S. worker availability and make a
determination as to adverse effect, the OFLC Administrator has the
authority to establish special procedures for processing 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 OFLC 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.
655.107 of this part, provided that the OFLC Administrator uses a
methodology to establish such adverse effect wage rates which is
consistent with the methodology in Sec. 655.107(a). Prior to making
determinations under this paragraph (b), the OFLC Administrator may
consult with employer representatives and worker representatives.
(c) Construction. This subpart shall be construed to permit the
OFLC Administrator to continue and, where the OFLC Administrator deems
appropriate, to revise the special procedures previously in effect for
the handling of applications for sheepherders in the Western States
(and to adapt such procedures to occupations in the range production of
other livestock) and for custom combine crews.
Sec. 655.100 Overview of this subpart and definition of terms.
(a) Overview--(1) Filing applications. This subpart provides
guidance to an employer who desires to apply for temporary alien
agricultural labor certification for the employment of H-2A workers to
perform agricultural employment of a temporary or seasonal nature. The
regulations in this subpart provide that such employer shall file an H-
2A application, including a job offer, on forms prescribed by the
Employment and Training Administration (ETA), which describes the
material terms and conditions of employment to be offered and afforded
to U.S. workers and H-2A
[[Page 11412]]
workers, with the OFLC Administrator. The entire application shall be
filed with the OFLC Administrator no less than 45 calendar days before
the first date of need for workers, and a copy of the job offer shall
be submitted at the same time to the local office of the State
employment service agency which serves the area of intended employment.
Under the regulations, the OFLC Administrator will promptly review the
application and notify the applicant in writing if there are
deficiencies which render the application not acceptable for
consideration, and afford the applicant a five-calendar-day period for
resubmittal of an amended application or an appeal of the OFLC
Administrator's refusal to approve the application as acceptable for
consideration. Employers are encouraged to file their applications in
advance of the 45-calendar-day period mentioned above in this paragraph
(a)(1). Sufficient time should be allowed for delays that might arise
due to the need for amendments in order to make the application
acceptable for consideration.
(2) Amendment of applications. This subpart provides for the
amendment of applications, at any time prior to the OFLC
Administrator's certification determination, to increase the number of
workers requested in the initial application; without requiring, under
certain circumstances, an additional recruitment period for U.S.
workers.
(3) Untimely applications. If an H-2A application does not satisfy
the specified time requirements, this subpart provides for the OFLC
Administrator's advice to the employer in writing that the
certification cannot be granted because there is not sufficient time to
test the availability of U.S. workers; and provides for the employer's
right to an administrative review or a de novo hearing before an
administrative law judge. Emergency situations are provided for,
wherein the OFLC Administrator may waive the specified time periods.
(4) Recruitment of U.S. workers; determinations--(i) Recruitment.
This subpart provides that, where the application is accepted for
consideration and meets the regulatory standards, the State agency and
the employer begin to recruit U.S. workers. If the employer has
complied with the criteria for certification, including recruitment of
U.S. workers, by 20 calendar days before the date of need specified in
the application (except as provided in certain cases), the OFLC
Administrator makes a determination to grant or deny, in whole or in
part, the application for certification.
(ii) Granted applications. This subpart provides that the
application for temporary alien agricultural labor certification is
granted if the OFLC Administrator finds that the employer has not
offered foreign workers higher wages or better working conditions (or
has imposed less restrictions on foreign workers) than those offered
and afforded to U.S. workers; that sufficient U.S. workers who are
able, willing, and qualified will not be available at the time and
place needed to perform the work for which H-2A workers are being
requested; and that the employment of such aliens will not adversely
affect the wages and working conditions of similarly employed U.S.
workers.
(iii) Fees--(A) Amount. This subpart provides that each employer
(except joint employer associations) of H-2A workers shall pay to the
OFLC Administrator fees for each temporary alien agricultural labor
certification received. The fee for each employer receiving a temporary
alien agricultural labor certification is $100 plus $10 for each job
opportunity for H-2A workers certified, provided that the fee to an
employer for each temporary alien agricultural labor certification
received shall be no greater than $1,000. In the case of a joint
employer association receiving a temporary alien agricultural labor
certification, each employer-member receiving a temporary alien
agricultural labor certification shall pay a fee of $100 plus $10 for
each job opportunity for H-2A workers certified, provided that the fee
to an employer for each temporary alien agricultural labor
certification received shall be no greater than $1,000. The joint
employer association will not be charged a separate fee.
(B) Timeliness of payment. The fee must be received by the OFLC
Administrator no later than 30 calendar days after the granting of each
temporary alien agricultural labor certification. Fees received any
later are untimely. Failure to pay fees in a timely manner is a
substantial violation which may result in the denial of future
temporary alien agricultural labor certifications.
(iv) Denied applications. This subpart provides that if the
application for temporary alien agricultural labor certification is
denied, in whole or in part, the employer may seek review of the
denial, or a de novo hearing, by an administrative law judge as
provided in this subpart.
(b) Definitions of terms used in this subpart. For the purposes of
this subpart:
Except for consideration means, with respect to an application for
temporary alien agricultural labor certification, the action by the
OFLC Administrator to notify the employer that a filed temporary alien
agricultural labor certification application meets the adverse effect
criteria necessary for processing. An application accepted for
consideration ultimately will be approved or denied in a temporary
alien agricultural labor certification determination.
Administrative law judge means a person within the Department of
Labor Office of Administrative Law Judges appointed pursuant to 5
U.S.C. 3105; or a panel of such persons designated by the Chief
Administrative Law Judge from the Board of Alien Labor Certification
Appeals established by part 656 of this chapter, but which shall hear
and decide appeals as set forth in Sec. 655.112 of this part. ``Chief
Administrative Law Judge'' means the chief official of the Department
of Labor Office of Administrative Law Judges or the Chief
Administrative Law Judge's designee.
Administrator, Office of Foreign Labor Certification (OFLC) means
the primary official of the Office of Foreign Labor Certification (OFLC
Administrator), or the OFLC Administrator's designee.
Adverse effect wage rate (AEWR) means the wage rate which the OFLC
Administrator has determined must be offered and paid, as a minimum, to
every H-2A worker and every U.S. worker for a particular occupation
and/or area in which an employer employs or seeks to employ an H-2A
worker so that the wages of similarly employed U.S. workers will not be
adversely affected.
Agent means a legal entity or person, such as an association of
agricultural employers, or an attorney for an association, which (1) is
authorized to act on behalf of the employer for temporary alien
agricultural labor certification purposes, and (2) is not itself an
employer, or a joint employer, as defined in this paragraph (b).
Department of Homeland Security (DHS) through the United States
Citizenship and Immigration Services (USCIS) makes the determination
under the INA on whether or not to grant visa petitions to employers
seeking H-2A workers to perform temporary agricultural work in the
United States.
DOL means the United States Department of Labor.
Eligible worker means a U.S. worker, as defined in this section.
Employer means a person, firm, corporation or other association or
organization which suffers or permits a person to work and (1) which
has a location within the United States to
[[Page 11413]]
which U.S. workers may be referred for employment, and which proposes
to employ workers at a place within the United States and (2) which has
an employer relationship with respect to employees under this subpart
as indicated by the fact that it may hire, pay, fire, supervise or
otherwise control the work of any such employee. An association of
employers shall be considered the sole employer if it has the indicia
of an employer set forth in this definition. Such an association,
however, shall be considered as a joint employer with an employer
member if it shares with the employer member one or more of the
definitional indicia.
Employment Service (ES), in this subpart, 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), the National Processing Centers (NPCs) and
the Office of Foreign Labor Certification (OFLC).
Employment Standards Administration means the agency within the
Department of Labor (DOL), which includes the Wage and Hour Division,
and which is charged with the carrying out of certain functions of the
Secretary under the INA.
Employment and Training Administration (ETA) means the agency
within the Department of Labor (DOL) which includes the Office of
Foreign Labor (OFLC).
Federal holiday means a legal public holiday as defined at 5 U.S.C.
6103.
H-2A worker means any nonimmigrant alien admitted to the United
States for agricultural labor or services of a temporary or seasonal
nature under section 101(a)(15)(H)(ii)(a) of the INA (8 U.S.C.
1101(a)(15)(H)(ii)(a)). INA means the Immigration and Nationality Act,
as amended (8 U.S.C. 1101 et seq.).
Job offer means the offer made by an employer or potential employer
of H-2A workers to both U.S. and H-2A workers describing all the
material terms and conditions of employment, including those relating
to wages, working conditions, and other benefits.
Job opportunity means a job opening for temporary, full-time
employment at a place in the United States to which U.S. workers can be
referred.
Office of Foreign Labor Certification (OFLC) means the
organizational component within 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 alien workers seeking admission to the United States in
order to work under the Immigration and Nationality Act, as amended.
Positive recruitment means the active participation of an employer
or its authorized hiring agent in locating and interviewing applicants
in other potential labor supply areas and in the area where the
employer's establishment is located in an effort to fill specific job
openings with U.S. workers.
Prevailing means, with respect to certain benefits other than wages
provided by employers and certain practices engaged in by employers,
that:
(i) Fifty percent or more of employers in an area and for an
occupation engage in the practice or offer the benefit; and
(ii) This 50 percent or more of employers also employs 50 percent
or more of U.S. workers in the occupation and area (including H-2A and
non-H-2A employers for purposes of determinations concerning the
provision of family housing, frequency of wage payments, and workers
supplying their own bedding, but non-H-2A employers only for
determinations concerning the provision of advance transportation and
the utilization of farm labor contractors).
Secretary means the Secretary of Labor or the Secretary's designee.
Solicitor of Labor means the Solicitor, United States Department of
Labor, and includes employees of the Office of the Solicitor of Labor
designated by the Solicitor to perform functions of the Solicitor under
this subpart.
State Workforce Agency (SWA) means the State employment service
agency designated under Sec. 4 of the Wagner-Peyser Act to cooperate
with OFLC in the operation of the ES System.
Temporary alien agricultural labor certification means the
certification made by the Secretary of Labor with respect to an
employer seeking to file with DHS a visa petition to import an alien as
an H-2A worker, pursuant to sections 101(a)(15)(H)(ii)(a), 214(a) and
(c), and 216 of the INA that (1) there are not sufficient workers who
are able, willing, and qualified, and who will be available at the time
and place needed, to perform the agricultural labor or services
involved in the petition, and (2) the employment of the alien in such
agricultural labor or services will not adversely affect the wages and
working conditions of workers in the United States similarly employed
(8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184 (a) and (c), and 1186).
Temporary alien agricultural labor certification determination
means the written determination made by the OFLC Administrator to
approve or deny, in whole or in part, an application for temporary
alien agricultural labor certification.
United States (U.S.) worker means any worker who, whether a U.S.
national, a U.S. citizen, or an alien, is legally permitted to work in
the job opportunity within the United States (as defined at Sec.
101(a)(38) of the INA (8 U.S.C. 1101(a)(38))).
Wages means all forms of cash remuneration to a worker by an
employer in payment for personal services.
(c) Definition of agricultural labor or services of a temporary or
seasonal nature. For the purposes of this subpart, ``agricultural labor
or services of a temporary or seasonal nature'' means the following:
(1) ``Agricultural labor or services''. Pursuant to section
101(a)(15)(H)(ii)(a) of the INA (8 U.S.C. 1101(a)(15)(H)(ii)(a)),
``agricultural labor or services'' is defined for the purposes of this
subpart as either ``agricultural labor'' as defined and applied in
section 3121(g) of the Internal Revenue Code of 1954 (26 U.S.C.
3121(g)) or ``agriculture'' as defined and applied in section 3(f) of
the Fair Labor Standards Act of 1938 (29 U.S.C. 203(f)). An occupation
included in either statutory definition shall be ``agricultural labor
or services'', notwithstanding the exclusion of that occupation from
the other statutory definition. For informational purposes, the
statutory provisions are quoted below:
(i) ``Agricultural labor''. Section 3121(g) of the Internal Revenue
Code of 1954 (26 U.S.C. 3121(g)), quoted as follows, defines the term
``agricultural labor'' to include all service performed:
(1) On a farm, in the employ of any person, in connection with
cultivating the soil, or in connection with raising or harvesting
any agricultural or horticultural commodity, including the raising,
shearing, feeding, caring for, training, and management of
livestock, bees, poultry, and furbearing animals and wildlife;
(2) Services performed in the employ of the owner or tenant or
other operator of a farm, in connection with the operation, or
maintenance of such farm and its tools and equipment, or in
salvaging timber or clearing land of brush and other debris left by
a hurricane, if the major part of such service is performed on a
farm;
(3) In connection with the production or harvesting of any
commodity defined as an agricultural commodity in section 15(g) of
the Agricultural Marketing Act, as amended (12 U.S.C. 1141j), or in
connection with the ginning of cotton, or in connection with the
operation or maintenance of ditches, canals, reservoirs, or
waterways, not owned or operated for profit, used exclusively for
[[Page 11414]]
supplying and storing water for farming purposes;
(4)(A) In the employ of the operator of a farm in handling,
planting, drying, packing, packaging, processing, freezing, grading,
storing, or delivering to storage or to market or to a carrier for
transportation to market, in its unmanufactured state, any
agricultural or horticultural commodity; but only if such operator
produced more than one-half of the commodity with respect to which
such service is performed;
(B) In the employ of a group of operators of farms (other than a
cooperative organization) in the performance of service described in
subparagraph (A), but only if such operators produced all of the
commodity with respect to which such service is performed. For
purposes of this subparagraph, any unincorporated group of operators
shall be deemed a cooperative organization if the number of
operators comprising such group is more than 20 at any time during
the calendar quarter in which such service is performed;
(C) The provisions of subparagraphs (A) and (B) shall not be
deemed to be applicable with respect to service performed in
connection with commercial canning or commercial freezing or in
connection with any agricultural or horticultural commodity after
its delivery to a terminal market for distribution for consumption;
or
(5) On a farm operated for profit if such service is not in the
course of the employer's trade or business or is domestic service in
a private home of the employer.
As used in this subsection, the term ``farm'' includes stock,
dairy, poultry, fruit, fur-bearing animal, and truck farms,
plantations, ranches, nurseries, ranges, greenhouses or other
similar structures used primarily for the raising of agricultural or
horticultural commodities, and orchards.
(ii) ``Agriculture'' Section 203(f) of title 29, United States
Code, (section 3(f) of the Fair Labor Standards Act of 1938, as
codified), quoted as follows, defines ``agriculture'' to include:
(f) * * * farming in all its branches and among other things
includes the cultivation and tillage of the soil, dairying, the
production, cultivation, growing, and harvesting of any agricultural
or horticultural commodities (including commodities as defined as
agricultural commodities in section 1141j(g) of Title 12), the
raising of livestock, bees, fur-bearing animals, or poultry, and any
practices (including any forestry or lumbering operations) performed
by a farmer or on a farm as an incident to or in conjunction with
such farming operations, including preparation for market, delivery
to storage or to market or to carriers for transportation to market.
(iii) ``Agricultural commodity''. Section 1141j(g) of title 12,
United States Code (section 15(g) of the Agricultural Marketing Act, as
amended), quoted as follows, defines ``agricultural commodity'' to
include:
(g) * * * in addition to other agricultural commodities, crude
gum (oleoresin) from a living tree, and the following products as
processed by the original producer of the crude gum (oleoresin) from
which derived: Gum spirits of turpentine, and gum rosin, as defined
in section 92 of Title 7.
(iv) ``Gum rosin''. Section 92 of title 7, United States Code,
quoted as follows, defines ``gum spirits of turpentine'' and ``gum
rosin'' as--
(c) ``Gum spirits of turpentine'' means spirits of turpentine
made from gum (oleoresin) from a living tree.
(h) ``Gum rosin'' means rosin remaining after the distillation
of gum spirits of turpentine.
(2) ``Of a temporary or seasonal nature''--(i) ``On a seasonal or
other temporary basis''. For the purposes of this subpart, ``of a
temporary or seasonal nature'' means ``on a seasonal or other temporary
basis'', as defined in the Employment Standards Administration's Wage
and Hour Division's regulation at 29 CFR 500.20 under the Migrant and
Seasonal Agricultural Worker Protection Act (MSPA).
(ii) MSPA definition. For informational purposes, the definition of
``on a seasonal or other temporary basis'', as set forth at 29 CFR
500.20, is provided below:
``On a seasonal or other temporary basis'' means:
Labor is performed on a seasonal basis, where, ordinarily, the
employment pertains to or is of the kind exclusively performed at
certain seasons or periods of the year and which, from its nature,
may not be continuous or carried on throughout the year. A worker
who moves from one seasonal activity to another, while employed in
agriculture or performing agricultural labor, is employed on a
seasonal basis even though he may continue to be employed during a
major portion of the year.
A worker is employed on ``other temporary basis'' where he is
employed for a limited time only or his performance is contemplated
for a particular piece of work, usually of short duration.
Generally, employment, which is contemplated to continue
indefinitely, is not temporary.
``On a seasonal or other temporary basis'' does not include the
employment of any foreman or other supervisory employee who is
employed by a specific agricultural employer or agricultural
association essentially on a year round basis.
``On a seasonal or other temporary basis'' does not include the
employment of any worker who is living at his permanent place of
residence, when that worker is employed by a specific agricultural
employer or agricultural association on essentially a year round
basis to perform a variety of tasks for his employer and is not
primarily employed to do field work.
(iii) ``Temporary''. For the purposes of this subpart, the
definition of ``temporary'' in paragraph (c)(2)(ii) of this section
refers to any job opportunity covered by this subpart where the
employer needs a worker for a position, either temporary or permanent,
for a limited period of time, which shall be for less than one year,
unless the original temporary alien agricultural labor certification is
extended based on unforeseen circumstances, pursuant to Sec.
655.106(c)(3) of this part.
Sec. 655.101 Temporary alien agricultural labor certification
applications.
(a) General--(1) Filing of application. An employer who anticipates
a shortage of U.S. workers needed to perform agricultural labor or
services of a temporary or seasonal nature may apply to the OFLC
Administrator, for a temporary alien agricultural labor certification
for temporary foreign workers (H-2A workers). A signed application for
temporary alien agricultural worker certification shall be filed by the
employer, or by an agent of the employer, with the OFLC Administrator.
At the same time, a duplicate application shall be submitted to the SWA
serving the area of intended employment.
(2) Applications filed by agents. If the temporary alien
agricultural labor certification application is filed by an agent on
behalf of an employer, the agent may sign the application if the
application is accompanied by a signed statement from the employer
which authorizes the agent to act on the employer's behalf. The
employer may authorize the agent to accept for interview workers being
referred to the job and to make hiring commitments on behalf of the
employer. The statement shall specify that the employer assumes full
responsibility for the accuracy of the application, for all
representations made by the agent on the employer's behalf, and for
compliance with all regulatory and other legal requirements.
(3) Applications filed by associations. If an association of
agricultural producers which uses agricultural labor or services files
the application, the association shall identify whether it is: (i) The
sole employer; (ii) a joint employer with its employer-member
employers; or (iii) the agent of its employer-members. The association
shall submit documentation sufficient to enable the OFLC Administrator
to verify the employer or agency status of the association; and shall
identify by name and address each member which will be an employer of
H-2A workers.
(b) Application form. Each H-2A application shall be on a form or
forms prescribed by ETA. The application shall state the total number
of workers the employer anticipates employing in
[[Page 11415]]
the agricultural labor or service activity during the covered period of
employment. The application shall include:
(1) A copy of the job offer which will be used by each employer for
the recruitment of U.S. and H-2A workers. The job offer shall state the
number of workers needed by the employer, based upon the employer's
anticipation of a shortage of U.S. workers needed to perform the
agricultural labor or services, and the specific estimated date on
which the workers are needed. The job offer shall comply with the
requirements of Sec. Sec. 655.102 and 653.501 of this chapter, and
shall be signed by the employer or the employer's agent on behalf of
the employer; and
(2) An agreement to abide by the assurances required by Sec.
655.103 of this part.
(c) Timeliness. Applications for temporary alien agricultural labor
certification are not required to be filed more than 45 calendar days
before the first day of need. The employer shall be notified by the
OFLC Administrator in writing within seven calendar days of filing the
application if the application is not approved as acceptable for
consideration. The OFLC Administrator's temporary alien agricultural
labor certification determination on the approved application shall be
made no later than 20 calendar days before the date of need if the
employer has complied with the criteria for certification. To allow for
the availability of U.S. workers to be tested, the following process
applies:
(1) Application filing date. The entire H-2A application, including
the job offer, shall be filed with the OFLC Administrator, in
duplicate, no less than 45 calendar days before the first date on which
the employer estimates that the workers are needed. Applications may be
filed in person; may be mailed to the OFLC Administrator (Attention: H-
2A Certifying Officer) by certified mail, return receipt requested; or
delivered by guaranteed commercial delivery which will ensure delivery
to the OFLC Administrator and provide the employer with a documented
acknowledgment of receipt of the application by the OFLC Administrator.
Any application received 45 calendar days before the date of need will
have met the minimum timeliness of filing requirement as long as the
application is eventually approved by the OFLC Administrator as being
acceptable for processing.
(2) Review of application; recruitment; certification determination
period. Section 655.104 of this part requires the OFLC Administrator to
promptly review the application, and to notify the applicant in writing
within seven calendar days of any deficiencies which render the
application not acceptable for consideration and to afford an
opportunity for resubmittal of an amended application. The employer
shall have five calendar days in which to file an amended application.
Section 655.106 of this part requires the OFLC Administrator to grant
or deny the temporary alien agricultural labor certification
application no later than 20 calendar days before the date on which the
workers are needed, provided that the employer has complied with the
criteria for certification, including recruitment of eligible
individuals. Such recruitment, for the employer, the State agencies,
and DOL to attempt to locate U.S. workers locally and through the
circulation of intrastate and interstate agricultural clearance job
orders acceptable under Sec. 653.501 of this chapter and under this
subpart, shall begin on the date that an acceptable application is
filed, except that the SWA shall begin to recruit workers locally
beginning on the date it first receives the application. The time
needed to obtain an application acceptable for consideration (including
the job offer) after the five-calendar-day period allowed for an
amended application will postpone day-for-day the certification
determination beyond the 20 calendar days before the date of need,
provided that the OFLC Administrator notifies the applicant of any
deficiencies within seven calendar days after receipt of the
application. Delays in obtaining an application acceptable for
consideration which are directly attributable to the OFLC Administrator
will not postpone the certification determination beyond the 20
calendar days before the date of need. When an employer resubmits to
the OFLC Administrator (with a copy to the SWA) an application with
modifications required by the OFLC Administrator, and the OFLC
Administrator approves the modified application as meeting necessary
adverse effect standards, the modified application will not be rejected
solely because it now does not meet the 45-calendar-day filing
requirement. If an application is approved as being acceptable for
processing without need for any amendment within the seven-calendar-day
review period after initial filing, recruitment of U.S. workers will be
considered to have begun on the date the application was received by
the OFLC Administrator; and the OFLC Administrator shall make the
temporary alien agricultural labor certification determination required
by Sec. 655.106 of this part no later than 20 calendar days before the
date of need provided that other regulatory conditions are met.
(3) Early filing. Employers are encouraged, but not required, to
file their applications in advance of the 45-calendar-day minimum
period specified in paragraph (c)(1) of this section, to afford more
time for review and discussion of the applications and to consider
amendments, should they be necessary. This is particularly true for
employers submitting H-2A applications for the first time who may not
be familiar with the Secretary's requirements for an acceptable
application or U.S. worker recruitment. Such employers particularly are
encouraged to consult with DOL and SWA staff for guidance and
assistance well in advance of the minimum 45-calendar-day filing
period.
(4) Local recruitment; preparation of clearance orders. At the same
time the employer files the H-2A application with the OFLC
Administrator, a copy of the application shall be submitted to the SWA
which will use the job offer portion-of the application to prepare a
local job order and begin to recruit U.S. workers in the area of
intended employment. The SWA also shall begin preparing an agricultural
clearance order, but such order will not be used to recruit workers in
other geographical areas until the employer's H-2A application is
accepted for consideration and the clearance order is approved by the
OFLC Administrator and the SWA is so notified by the OFLC
Administrator.
(5) [Reserved]
(d) Amendments to application to increase number of workers.
Applications may be amended at any time, prior to an OFLC Administrator
certification determination, to increase the number of workers
requested in the initial application by not more than 20 percent (50
percent for employers of less than ten workers) without requiring an
additional recruitment period for U.S. workers. Requests for increases
above the percent prescribed, without additional recruitment, may be
approved only when the need for additional workers could not have been
foreseen, and that crops or commodities will be in jeopardy prior to
the expiration of an additional recruitment period.
(e) Minor amendments to applications. Minor technical amendments
may be requested by the employer and made to the application and job
offer prior to the certification determination if the OFLC
Administrator determines they are justified and will have no
significant
[[Page 11416]]
effect upon the OFLC Administrator's ability to make the labor
certification determination required by Sec. 655.106 of this part.
Amendments described at paragraph (d) of this section are not ``minor
technical amendments''.
(f) Untimely applications--(1) Notices of denial. If an H-2A
application, or any part thereof, does not satisfy the time
requirements specified in paragraph (c) of this section, and if the
exception in paragraph (d) of this section does not apply, the OFLC
Administrator may then advise the employer in writing that the
certification cannot be granted because, pursuant to paragraph (c) of
this section, there is not sufficient time to test the availability of
U.S. workers. The notice of denial shall inform the employer of its
right to an administrative review or de novo hearing before an
administrative law judge.
(2) Emergency situations. Notwithstanding paragraph (f)(1) of this
section, in emergency situations the OFLC Administrator may waive the
time period specified in this section on behalf of employers who have
not made use of temporary alien agricultural workers (H-2 or H-2A) for
the prior year's agricultural season or for any employer which has
other good and substantial cause (which may include unforeseen changes
in market conditions), provided that the OFLC Administrator has an
opportunity to obtain sufficient labor market information on an
expedited basis to make the labor certification determination required
by Sec. 216 of the INA (8 U.S.C. 1186). In making this determination,
the OFLC Administrator will accept information offered by and may
consult with representatives of the U.S. Department of Agriculture.
(g) Length of job opportunity. The employer shall set forth on the
application sufficient information concerning the job opportunity to
demonstrate to the OFLC Administrator that the need for the worker is
``of a temporary or seasonal nature'', as defined at Sec.
655.100(c)(2) of this part. Job opportunities of 12 months or more are
presumed to be permanent in nature. Therefore, the OFLC Administrator
shall not grant a temporary alien agricultural labor certification
where the job opportunity has been or would be filled by an H-2A worker
for a cumulative period, including temporary alien agricultural labor
certifications and extensions, of 12 months or more, except in
extraordinary circumstances.
Sec. 655.102 Contents of job offers.
(a) Preferential treatment of aliens prohibited. The employer's job
offer to U.S. workers shall offer the U.S. workers no less than the
same benefits, wages, and working conditions which the employer is
offering, intends to offer, or will provide to H-2A workers.
Conversely, no job offer may impose on U.S. workers any restrictions or
obligations which will not be imposed on the employer's H-2A workers.
This does not relieve the employer from providing to H-2A workers at
least the same level of minimum benefits, wages, and working conditions
which must be offered to U.S. workers consistent with this section.
(b) 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, DOL has determined that in
order to protect similarly employed U.S. workers from adverse effect
with respect to benefits, wages, and working conditions, every job
offer which must accompany an H-2A application always shall include
each of the following minimum benefit, wage, and working condition
provisions:
(1) Housing. The employer shall provide to those workers who are
not reasonably able to return to their residence within the same day
housing, without charge to the worker, which may be, at the employer's
option, rental or public accommodation type housing.
(i) Standards for employer-provided housing. Housing provided by
the employer shall meet the full set of DOL Occupational Safety and
Health Administration standards set forth at 29 CFR 1910.142, or the
full set of standards at Sec. Sec. 654.404-654.417 of this chapter,
whichever are applicable, except as provided for under paragraph
(b)(1)(iii) of this section. Requests by employers, whose housing does
not meet the applicable standards, for conditional access to the
intrastate or interstate clearance system, shall be processed under the
procedures set forth at Sec. 654.403 of this chapter.
(ii) Standards for range housing. Housing for workers principally
engaged in the range production of livestock shall meet standards of
the DOL Occupational Safety and Health Administration 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.
(iii) Standards for other habitation. Rental, public accommodation,
or other substantially similar class of habitation must meet 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, Occupational Safety and Health Administration
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 OFLC Administrator
that the housing complies with the local, State, or federal housing
standards applicable under this paragraph (b)(1)(iii).
(iv) Charges for public housing. If public housing provided for
migrant agricultural workers under the auspices of a local, county, or
State government is secured by an employer, and use of the public
housing unit normally requires charges from migrant workers, such
charges shall be paid by the employer directly to the appropriate
individual or entity affiliated with the housing's management.
(v) Deposit charges. Charges in the form of deposits for bedding or
other similar incidentals related to housing shall not be levied upon
workers by employers who provide housing for their workers. However,
employers may require workers to reimburse them for damage caused to
housing by the individual workers found to have been responsible for
damage which is not the result of normal wear and tear related to
habitation.
(vi) 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.
(2) Workers' compensation. The employer shall provide, at no cost
to the worker, 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 which will provide benefits at least equal
to those provided under the State workers' compensation law, if any,
for comparable employment. The employer shall furnish the name of the
insurance carrier and the insurance policy number, or, if appropriate,
proof of State law coverage, to the OFLC Administrator prior to the
issuance of a labor certification.
(3) Employer-provided items. Except as provided below, the employer
shall provide, without charge including deposit charge, to the worker
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
[[Page 11417]]
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 is
permissible if approved in advance by the OFLC Administrator.
(4) Meals. Where the employer has centralized cooking and eating
facilities designed to feed workers, the employer shall provide each
worker with three meals a day. When such facilities are not available,
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 which 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 (b)(4), the charge shall not be more than
$5.26 per day unless the OFLC Administrator has approved a higher
charge pursuant to Sec. 655.111 of this part. Each year the charge
allowed by this paragraph (b)(4) 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 OFLC Administrator as
a notice in the Federal Register.
(5) Transportation; daily subsistence--(i) Transportation to place
of employment. The employer shall advance transportation and
subsistence costs (or otherwise provide them) to workers 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 amount of the transportation payment shall be no less
(and shall not be required to be more) than the most economical and
reasonable similar common carrier transportation charges for the
distances involved. 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. 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. If no charges will be
made for meals and free and convenient cooking and kitchen facilities
will be provided, the amount of the subsistence payment shall be no
less than the amount permitted under paragraph (b)(4) of this section.
(ii) 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 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; except that, if the worker has contracted for employment with
a subsequent employer who, in that contract, has agreed to pay for the
worker's transportation and daily subsistence expenses from the
employer's worksite to such subsequent employer's worksite, the
employer is not required to provide or pay for such expenses.
(iii) Transportation between living quarters and worksite. The
employer shall provide transportation between the worker's living
quarters (i.e., housing provided by the employer pursuant to paragraph
(b)(1) of this section) and the employer's worksite without cost to the
worker, and such transportation will be in accordance with applicable
laws and regulations. This paragraph (b)(5)(iii) is applicable to the
transportation of workers eligible for housing, pursuant to paragraph
(b)(1) of this section.
(6) Three-fourths guarantee--(i) Offer to worker. The employer
shall guarantee to offer the worker employment for at least three-
fourths of the workdays of the total periods 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 and ending on the expiration date specified in the work
contract or in its extensions, if any. 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 (b)(6), the employer shall pay
such worker the amount which the worker would have earned had the
worker, in fact, worked for the guaranteed number of days. For purposes
of this paragraph (b)(6), 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. An employer shall not be considered to
have met the work guarantee if the employer has merely offered work on
three-fourths of the workdays if each workday did not consist of a full
number of hours of work time specified in the job order. The work shall
be offered for at least three-fourths of the workdays (that is, \3/4\ x
(number of days) x (specified hours)). Therefore, if, for example, the
contract contains 20 eight-hour workdays, the worker shall be offered
employment for 120 hours during the 20 workdays. 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 hours specified in the job
order for a workday, or on the worker's Sabbath or Federal holidays.
(ii) 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.
(iii) Failure to work. Any hours which 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
pursuant to paragraph (b)(6)(i) of this section and all hours of work
actually performed (including voluntary work over 8 hours in a workday
or on the worker's Sabbath or federal holidays) may be counted by the
employer in calculating whether the period of guaranteed employment has
been met.
(iv) Displaced H-2A worker. The employer shall not be liable for
payment under this paragraph (b)(6) with respect to an H-2A worker whom
the OFLC Administrator certifies is displaced because of the employer's
compliance with Sec. 655.103(e) of this part.
(7) Records. (i) The employer shall keep accurate and adequate
records with respect to the workers' earnings including 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 (b)(6) of this section); the hours actually worked each day
by the worker; the
[[Page 11418]]
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;
(ii) If the number of hours worked by the worker is less than the
number offered in accordance with the three-fourths guarantee at
paragraph (b)(6) of this section, the records shall state the reason or
reasons therefore.
(iii) Upon reasonable notice, the employer shall make available the
records, 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
(iv) The employer shall retain the records for not less than three
years after the completion of the work contract.
(8) 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:
(i) The worker's total earnings for the pay period;
(ii) The worker's hourly rate and/or piece rate of pay;
(iii) The hours of employment which have been offered to the worker
(broken out by offers in accordance with and over and above the
guarantee);
(iv) The hours actually worked by the worker;
(v) An itemization of all deductions made from the worker's wages;
and
(vi) If piece rates are used, the units produced daily.
(9) Rates of pay. (i) If the worker will be paid by the hour, the
employer shall pay the worker at least the adverse effect 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
(ii)(A) 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
(B) If the employer who pays by the piece rate requires one or more
minimum productivity standards of workers as a condition of job
retention,
(1) Such standards shall be specified in the job offer and be no
more than those required by the employer in 1977, unless the OFLC
Administrator approves a higher minimum; or
(2) If the employer first applied for H-2 agricultural or H-2A
temporary alien agricultural labor certification after 1977, such
standards shall be no more than those normally required (at the time of
the first application) by other employers for the activity in the area
of intended employment, unless the OFLC Administrator approves a higher
minimum.
(10) Frequency of pay. The employer shall state the frequency with
which the worker will be paid (in accordance with the prevailing
practice in the area of intended employment, or at least twice monthly
whichever is more frequent).
(11) 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 SWA
of such abandonment or termination, the employer will not be
responsible for providing or paying for the subsequent transportation
and subsistence expenses of any worker for whom the employer would have
otherwise been required to pay such expenses under paragraph (b)(5)(ii)
of this section, and that worker is not entitled to the ``three-fourths
guarantee'' (see paragraph (b)(6) of this section).
(12) 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 which makes the fulfillment of the
contract impossible the employer may terminate the work contract. In
the event of such termination of a contract, the employer shall fulfill
the three-fourths guarantee at paragraph (b)(6) of this section for the
time that has elapsed from the start of the work contract to its
termination. In such cases the employer will make efforts to transfer
the worker to other comparable employment acceptable to the worker. If
such transfer is not effected, the employer shall:
(i) Offer to return the worker, at the employer's expense, to the
place from which the worker disregarding intervening employment came to
work for the employer,
(ii) 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
(iii) Notwithstanding whether the employment has been terminated
prior to completion of 50 percent of the work contract period
originally offered by the employer, pay the worker for costs incurred
by the worker for transportation and daily subsistence from the place
from which the worker, without intervening employment, has come to work
for the employer to the place of employment. Daily subsistence shall be
computed as set forth in paragraph (b)(5)(i) 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 similar
common carrier transportation charges for the distances involved.
(13) Deductions. The employer shall make those deductions from the
worker's paycheck which are 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. The
employer may deduct the cost of the worker's transportation and daily
subsistence expenses to the place of employment which were borne
directly by the employer. In such cases, the job offer shall state that
the worker will be reimbursed the full amount of such deductions upon
the worker's completion of 50 percent of the worker's contract period.
However, an employer subject to the Fair Labor Standards Act (FLSA) may
not make deductions which will result in payments to workers of less
than the federal minimum wage permitted by the FLSA as determined by
the Secretary at 29 CFR part 531.
(14) 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) and (b) 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 job order and application for temporary alien agricultural labor
certification shall be the work contract.
(c) Appropriateness of required qualifications. Bona fide
occupational qualifications specified by an employer in a job offer
shall be consistent with the normal and accepted qualifications
required by non-H-2A employers in the same or comparable occupations
and
[[Page 11419]]
crops, and shall be reviewed by the OFLC Administrator for their
appropriateness. The OFLC Administrator may require the employer to
submit documentation to substantiate the appropriateness of the
qualification specified in the job offer; and shall consider
information offered by and may consult with representatives of the U.S.
Department of Agriculture.
(d) Positive recruitment plan. The employer shall submit in
writing, as a part of the application, the employer's plan for
conducting independent, positive recruitment of U.S. workers as
required by Sec. Sec. 655.103 and 655.105(a) of this part. Such a plan
shall include a description of recruitment efforts (if any) made prior
to the actual submittal of the application. The plan shall describe how
the employer will engage in positive recruitment of U.S. workers to an
extent (with respect to both effort and location(s)) no less than that
of non-H-2A agricultural employers of comparable or smaller size in the
area of employment. When it is the prevailing practice in the area of
employment and for the occupation for non-H-2A agricultural employers
to secure U.S. workers through farm labor contractors and to compensate
farm labor contractors with an override for their services, the
employer shall describe how it will make the same level of effort as
non-H-2A agricultural employers and provide an override which is no
less than that being provided by non-H-2A agricultural employers.
Sec. 655.103 Assurances.
As part of the temporary alien agricultural labor certification
application, the employer shall include in the job offer a statement
agreeing to abide by the conditions of this subpart. By so doing, the
employer makes each of the following assurances:
(a) Labor disputes. The specific job opportunity for which the
employer is requesting H-2A certification is not vacant because the
former occupant is on strike or being locked out in the course of a
labor dispute.
(b) Employment-related laws. During the period for which the
temporary alien agricultural labor certification is granted, the
employer shall comply with applicable federal, State, and local
employment-related laws and regulations, including employment-related
health and safety laws.
(c) Rejections and terminations of U.S. workers. No U.S. worker
will be rejected for or terminated from employment for other than a
lawful job-related reason, and notification of all rejections or
terminations shall be made to the SWA.
(d) Recruitment of U.S. workers. The employer shall independently
engage in positive recruitment until the foreign workers have departed
for the employer's place of employment and shall cooperate with the ES
System in the active recruitment of U.S. workers by:
(1) Assisting the ES System to prepare local, intrastate, and
interstate job orders using the information supplied on the employer's
job offer;
(2) Placing advertisements (in a language other than English, where
the OFLC Administrator determines appropriate) for the job
opportunities in newspapers of general circulation and/or on the radio,
as required by the OFLC Administrator:
(i) Each such advertisement shall describe the nature and
anticipated duration of the job opportunity; offer at least the adverse
effect wage rate; give the \3/4\ guarantee; state that work tools,
supplies and equipment will be provided by the employer; state that
housing will also be provided, and that transportation and subsistence
expenses to the worksite will be provided or paid by the employer upon
completion of 50% of the work contract, or earlier, if appropriate; and
(ii) Each such advertisement shall direct interested workers to
apply for the job opportunity at the appropriate office of the State
Workforce Agency in their area;
(3) Cooperating with the ES System and independently contacting
farm labor contractors, migrant workers and other potential workers in
other areas of the State and/or Nation by letter and/or telephone; and
(4) Cooperating with the ES System in contacting schools, business
and labor organizations, fraternal and veterans' organizations, and
nonprofit organizations and public agencies such as sponsors of
programs under the Job Training Partnership Act throughout the area of
intended employment and in other potential labor supply areas in order
to enlist them in helping to find U.S. workers.
(e) Fifty-percent rule. From the time the foreign workers depart
for the employer's place of employment, the employer, except as
provided for by Sec. 655.106(e)(1) of this part, shall provide
employment to any qualified, eligible U.S. worker who applies to the
employer until 50% of the period of the work contract, under which the
foreign worker who is in the job was hired, has elapsed. In addition,
the employer shall offer to provide housing and the other benefits,
wages, and working conditions required by Sec. 655.102 of this part to
any such U.S. worker and shall not treat less favorably than H-2A
workers any U.S. worker referred or transferred pursuant to this
assurance.
(f) Other recruitment. The employer shall perform the other
specific recruitment and reporting activities specified in the notice
from the OFLC Administrator required by Sec. 655.105(a) of this part,
and shall engage in positive recruitment of U.S. workers to an extent
(with respect to both effort and location) no less than that of non-H-
2A agricultural employers of comparable or smaller size in the area of
employment. When it is the prevailing practice in the area of
employment and for the occupation for non-H-2A agricultural employers
to secure U.S. workers through farm labor contractors and to compensate
farm labor contractors with an override for their services, the
employer shall make the same level of effort as non-H-2A agricultural
employers and shall provide an override which is no less than that
being provided by non-H-2A agricultural employers. Where the employer
has centralized cooking and eating facilities designed to feed workers,
the employer shall not be required to provide meals through an
override. The employer shall not be required to provide for housing
through an override.
(g) Retaliation prohibited. The employer shall not intimidate,
threaten, restrain, coerce, blacklist, discharge, or in any manner
discriminate against, and shall not cause any person to intimidate,
threaten, restrain, coerce, blacklist, discharge, or in any manner
discriminate against, any person who has with just cause:
(1) Filed a complaint under or related to section 216 of the INA (8
U.S.C. 1186), or this subpart or any other DOL regulation promulgated
pursuant to section 216 of the INA;
(2) Instituted or caused to be instituted any proceeding under or
related to section 216 of the INA, or this subpart or any other DOL
regulation promulgated pursuant to section 216 of the INA (8 U.S.C.
1186);
(3) Testified or is about to testify in any proceeding under or
related to section 216 of the INA (8 U.S.C. 1186), or this subpart or
any other DOL regulation promulgated pursuant to section 216 of the
INA;
(4) Consulted with an employee of a legal assistance program or an
attorney on matters related to section 216 of the INA (8 U.S.C. 1186),
or this subpart or any other DOL regulation promulgated pursuant to
section 216 of the INA; or
(5) Exercised or asserted on behalf of himself/herself or others
any right or
[[Page 11420]]
protection afforded by section 216 of the INA (8 U.S.C. 1186), or this
subpart or any other DOL regulation promulgated pursuant to section 216
of the INA.
(h) Fees. The application shall include the assurance that fees
will be paid in a timely manner, as follows:
(1) Amount. The fee for each employer receiving a temporary alien
agricultural labor certification is $100 plus $10 for each job
opportunity for H-2A workers certified, provided that the fee for an
employer for each temporary alien agricultural labor certification
received shall be no greater than $1,000. In the case of a joint
employer association receiving a temporary alien agricultural labor
certification, the fee for each employer-member receiving a temporary
alien agricultural labor certification shall be $100 plus $10 for each
job opportunity for H-2A workers certified, provided that the fee for
an employer for each temporary alien agricultural labor certification
received shall be no greater than $1,000. The joint employer
association will not be charged a separate fee. Fees shall be paid by a
check or money order made payable to ``Department of Labor'', and are
nonrefundable. In the case of employers of H-2A workers which are
members of a joint employer association applying on their behalf, the
aggregate fees for all employers of H-2A workers under the application
may be paid by one check or money order.
(2) Timeliness. Fees received by the OFLC Administrator within 30
calendar days after the date of the temporary alien agricultural labor
certification determination are timely.
Sec. 655.104 Determinations based on acceptability of H-2A
applications.
(a) State Workforce Agency activities. The State Workforce Agency
(SWA), using the job offer portion of the H-2A application, shall
promptly prepare a local job order and shall begin to recruit U.S.
workers in the area of intended employment. The OFLC Administrator
should notify the SWA by telephone no later than seven calendar days
after the application was received by the OFLC Administrator if the
application has been accepted for consideration. Upon receiving such
notice or seven calendar days after the application is received by the
SWA, whichever is earlier, the SWA shall promptly prepare an
agricultural clearance order which will permit the recruitment of U.S.
workers by the Employment Service System on an intrastate and
interstate basis.
(b) National Processing Center activities. The OFLC Administrator,
upon receipt of the H-2A application, shall promptly review the
application to determine whether it is acceptable for consideration
under the timeliness and adverse effect criteria of Sec. Sec. 655.101-
655.103 of this part. If the OFLC Administrator determines that the
application does not meet the requirements of Sec. Sec. 655.101-
655.103, the OFLC Administrator shall not accept the application for
consideration on the grounds that the availability of U.S. workers
cannot be adequately tested because the benefits, wages and working
conditions do not meet the adverse effect criteria; however, if the
OFLC Administrator determines that the application is not timely in
accordance with Sec. 655.101 of this part and that neither the first-
year employer provisions of Sec. 655.101(c)(5) nor the emergency
provisions of Sec. 655.101(f) apply, the OFLC Administrator may
determine not to accept the application for consideration because there
is not sufficient time to test the availability of U.S. workers.
(c) Rejected applications. If the application is not accepted for
consideration, the OFLC Administrator shall notify the applicant in
writing (by means normally assuring next-day delivery) within seven
calendar days of the date the application was received by the OFLC
Administrator with a copy to the SWA. The notice shall:
(1) State all the reasons the application is not accepted for
consideration, citing the relevant regulatory standards;
(2) Offer the applicant an opportunity for the resubmission within
five calendar days of a modified application, stating the modifications
needed in order for the OFLC Administrator to accept the application
for consideration;
(3) Offer the applicant an opportunity to request an expedited
administrative review of or a de novo administrative hearing before an
administrative law judge of the nonacceptance; the notice shall state
that in order to obtain such a review or hearing, the employer, within
seven calendar days of the date 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 Department
of Labor (giving the address) and simultaneously serve a copy on the
OFLC Administrator; the notice shall also state that the employer may
submit any legal arguments which the employer believes will rebut the
basis of the OFLC Administrator's action; and
(4) 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 seven calendar days no further
consideration of the employer's application for temporary alien
agricultural labor certification will be made by any DOL official.
(d) Appeal procedures. If the employer timely requests an expedited
administrative review or de novo hearing before an administrative law
judge pursuant to paragraph (c)(3) of this section, the procedures at
Sec. 655.112 of this part shall be followed.
(e) Required modifications. If the application is not accepted for
consideration by the OFLC Administrator, but the OFLC Administrator's
written notification to the applicant is not timely as required by
Sec. 655.101 of this part, the certification determination will not be
extended beyond 20 calendar days before the date of need. The notice
will specify that the OFLC Administrator's temporary alien agricultural
labor certification determination will be made no later than 20
calendar days before the date of need, provided that the applicant
submits the modifications to the application which are required by the
OFLC Administrator within five calendar days and in a manner specified
by the OFLC Administrator which will enable the test of U.S. worker
availability to be made as required by Sec. 655.101 of this part
within the time available for such purposes.
Sec. 655.105 Recruitment period.
(a) Notice of acceptance of application for consideration; required
recruitment. If the OFLC Administrator determines that the H-2A
application meets the requirements of Sec. Sec. 655.101-655.103 of
this part, the OFLC Administrator shall promptly notify the employer
(by means normally assuring next-day delivery) in writing with copies
to the State agency. The notice shall inform the employer and the State
agency of the specific efforts which will be expected from them during
the following weeks to carry out the assurances contained in Sec.
655.103 with respect to the recruitment of U.S. workers. The notice
shall require that the job order be laced into intrastate clearance and
into interstate clearance to such States as the OFLC Administrator
shall determine to be potential sources of U.S. workers. The notice may
require the employer to engage in positive recruitment efforts within a
multi-State region of traditional or expected labor supply where the
OFLC Administrator finds, based on current information provided by a
State agency and such information as may be offered and provided by
other sources, that there are a significant number of able and
qualified U.S. workers who, if
[[Page 11421]]
recruited, would likely be willing to make themselves available for
work at the time and place needed. In making such a finding, the OFLC
Administrator shall take into account other recent recruiting efforts
in those areas and will attempt to avoid requiring employers to
futilely recruit in areas where there are a significant number of local
employers recruiting for U.S. workers for the same types of
occupations. Positive recruitment is in addition to, and shall be
conducted within the same time period as, the circulation through the
interstate clearance system of an agricultural clearance order. The
obligation to engage in such positive recruitment shall terminate on
the date H-2A workers depart for the employer's place of work. In
determining what positive recruitment shall be required, the OFLC
Administrator will ascertain the normal recruitment practices of non-H-
2A agricultural employers in the area and the kind and degree of
recruitment efforts which the potential H-2A employer made to obtain H-
2A workers. The OFLC Administrator shall ensure that the effort,
including the location(s) of the positive recruitment required of the
potential H-2A employer, during the period after filing the application
and before the date the H-2A workers depart their prior location to
come to the place of employment, shall be no less than: (1) The
recruitment efforts of non-H-2A agricultural employers of comparable or
smaller size in the area of employment; and (2) the kind and degree of
recruitment efforts which the potential H-2A employer made to obtain H-
2A workers.
(b) Recruitment of U.S. workers. After an application for temporary
alien agricultural labor certification is accepted for processing
pursuant to paragraph (a) of this section, the OFLC Administrator shall
provide overall direction to the employer and the SWA with respect to
the recruitment of U.S. workers.
(c) Modifications. At any time during the recruitment effort, the
OFLC Administrator may require modifications to a job offer when the
OFLC Administrator determines that the job offer does not contain all
the provisions relating to minimum benefits, wages, and working
conditions, required by Sec. 655.102(b) of this part. If any such
modifications are required after an application has been accepted for
consideration by the OFLC Administrator, the modifications must be
made; however, the certification determination shall not be delayed
beyond the 20 calendar days prior to the date of need as a result of
such modification.
(d) Final determination. By 20 calendar days before the date of
need specified in the application, except as provided for under
Sec. Sec. 655.101(c)(2) and 655.104(e) of this part for untimely
modified applications, the OFLC Administrator, when making a
determination of the availability of U.S. workers, shall also make a
determination as to whether the employer has satisfied the recruitment
assurances in Sec. 655.103 of this part. If the OFLC Administrator
concludes that the employer has not satisfied the requirements for
recruitment of U.S. workers, the OFLC Administrator shall deny the
temporary alien agricultural labor certification, and shall immediately
notify the employer in writing with a copy to the SWA. The notice shall
contain the statements specified in Sec. 655.104(d) of this part.
(e) Appeal procedure. With respect to determinations by the OFLC
Administrator pursuant to this section, if the employer timely requests
an expedited administrative review or a de novo hearing before an
administrative law judge, the procedures in Sec. 655.112 of this part
shall be followed.
Sec. 655.106 Referral of U.S. workers; determinations based on U.S.
worker availability and adverse effect; activities after receipt of the
temporary alien agricultural labor certification.
(a) Referral of able, willing, and qualified eligible U.S. workers.
With respect to the referral of U.S. workers to job openings listed on
a job order accompanying an application for temporary alien
agricultural labor certification, no U.S. worker-applicant shall be
referred unless such U.S. worker has been made aware of the terms and
conditions of and qualifications for the job, and has indicated, by
accepting referral to the job, that she or he meets the qualifications
required and is able, willing, and eligible to take such a job.
(b)(1) Determinations. If the OFLC Administrator, in accordance
with Sec. 655.105 of this part, has determined that the employer has
complied with the recruitment assurances and the adverse effect
criteria of Sec. 655.102 of this part, by the date specified pursuant
to Sec. 655.101(c)(2) of this part for untimely modified applications
or 20 calendar days before the date of need specified in the
application, whichever is applicable, the OFLC Administrator shall
grant the temporary alien agricultural labor certification request for
enough H-2A workers to fill the employer's job opportunities for which
U.S. workers are not available. In making the temporary alien
agricultural labor certification determination, the OFLC Administrator
shall consider as available any U.S. worker who has made a firm
commitment to work for the employer, including those workers committed
by other authorized persons such as farm labor contractors and family
heads. Such a firm commitment shall be considered to have been made not
only by workers who have signed work contracts with the employer, but
also by those whom the OFLC Administrator determines are likely to sign
a work contract. The OFLC Administrator shall count as available any
U.S. worker who has applied to the employer (or on whose behalf an
application has been made), but who was rejected by the employer for
other than lawful job-related reasons or who has not been provided with
a lawful job-related reason for rejection by the employer, as
determined by the OFLC Administrator. The OFLC Administrator shall not
grant a temporary alien agricultural labor certification request for
any H-2A workers if the OFLC Administrator determines that:
(i) Enough able, willing, and qualified U.S. workers have been
identified as being available to fill all the employer's job
opportunities;
(ii) The employer, since the time the application was accepted for
consideration under Sec. 655.104 of this part, has adversely affected
U.S. workers by offering to, or agreeing to provide to, H-2A workers
better wages, working conditions or benefits (or by offering to, or
agreeing to impose on alien workers less obligations and restrictions)
than those offered to U.S. workers;
(iii) The employer during the previous two-year period employed H-
2A workers and the OFLC Administrator 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 a
temporary alien agricultural labor certification with respect to the
employment of U.S. or H-2A workers;
(iv) The employer has not complied with the workers' compensation
requirements at Sec. 655.102(b)(2) of this part; or
(v) The employer has not satisfactorily complied with the positive
recruitment requirements specified by this subpart.
Further, the OFLC Administrator, in making the temporary alien
agricultural labor certification determination, will subtract from any
temporary alien agricultural labor certification the specific verified
number of job opportunities involved which are vacant because of a
strike or other labor dispute involving a work stoppage, or a lockout,
[[Page 11422]]
in the occupation at the place of employment (and for which H-2A
workers have been requested). Upon receipt by the OFLC Administrator of
such labor dispute information from any source, the OFLC Administrator
shall verify the existence of the strike, labor dispute, or lockout and
any resulting vacancies prior to making such a determination.
(2) Fees. A temporary alien agricultural labor certification
determination granting an application shall include a bill for the
required fees. Each employer (except joint employer associations) of H-
2A workers under the application for temporary alien agricultural labor
certification shall pay in a timely manner a nonrefundable fee upon
issuance of the temporary alien agricultural labor certification
granting the application (in whole or in part), as follows:
(i) Amount. The fee for each employer receiving a temporary alien
agricultural labor certification is $100 plus $10 for each job
opportunity for H-2A workers certified, provided that the fee to an
employer for each temporary alien agricultural labor certification
received shall be no greater than $1,000. In the case of a joint
employer association receiving a temporary alien agricultural labor
certification, each employer-member receiving a temporary alien
agricultural labor certification shall pay a fee of $100 plus $10 for
each job opportunity for H-2A workers certified, provided that the fee
to an employer for each temporary alien agricultural labor
certification received shall be no greater than $1,000. The joint
employer association will not be charged a separate fee. The fees shall
be paid by check or money order made payable to ``Department of
Labor''. In the case of employers of H-2A workers which are members of
a joint employer association applying on their behalf, the aggregate
fees for all employers of H-2A workers under the application may be
paid by one check or money order.
(ii) Timeliness. Fees received by the OFLC Administrator no more
than 30 calendar days after the date of the temporary alien
agricultural labor certification determination are timely.
(c) Changes to temporary alien agricultural labor certifications;
temporary alien agricultural labor certifications involving employer
associations--(1) Changes. Temporary alien agricultural labor
certifications are subject to the conditions and assurances made during
the application process. Any changes in the level of benefits, wages,
and working conditions an employer may wish to make at any time during
the work contract period must be approved by the OFLC Administrator
after written application by the employer, even if such changes have
been agreed to by an employee. Temporary alien agricultural labor
certifications shall be for the specific period of time specified in
the employer's job offer, which shall be less than twelve months; shall
be limited to the employer's specific job opportunities; and may not be
transferred from one employer to another, except as provided for by
paragraph (c)(2) of this section.
(2) Associations--(i) Applications. If an association is requesting
a temporary alien agricultural labor certification as a joint employer,
the temporary alien agricultural labor certification granted under this
section shall be made jointly to the association and to its employer
members. Except as provided in paragraph (c)(2)(iii) of this section,
such workers may be transferred among its producer members to perform
work for which the temporary alien agricultural labor certification was
granted, provided the association controls the assignment of such
workers and maintains a record of such assignments. All temporary alien
agricultural labor certifications to associations may be used for the
certified job opportunities of any of its members. If an association is
requesting a temporary alien agricultural labor certification as a sole
employer, the temporary alien agricultural labor certification granted
pursuant to this section shall be made to the association only.
(ii) Referrals and transfers. For the purposes of complying with
the ``fifty-percent rule'' at Sec. 655.103(e) of this part, any
association shall be allowed to refer or transfer workers among its
members (except as provided in paragraph (c)(2)(iii) of this section),
and an association acting as an agent for its members shall not be
considered a joint employer merely because of such referral or
transfer.
(iii) Ineligible employer-members. Workers shall not be transferred
or referred to an association's member, if that member is ineligible to
obtain any or any additional workers, pursuant to Sec. 655.110 of this
part.
(3) Extension of temporary alien agricultural labor certification--
(i) Short-term extension. An employer who seeks an extension of two
weeks or less of the temporary alien agricultural labor certification
shall apply for such extension to DHS. If DHS grants such an extension,
the temporary alien agricultural labor certification shall be deemed
extended for such period as is approved by DHS. No extension granted
under this paragraph (c)(3)(i) shall be for a period longer than the
original work contract period of the temporary alien agricultural labor
certification.
(ii) Long-term extension. For extensions beyond the period which
may be granted by DHS pursuant to paragraph (c)(3)(i) of this section,
an employer, after 50 percent of the work contract period has elapsed,
may apply to the OFLC Administrator for an extension of the period of
the temporary alien agricultural labor 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 OFLC Administrator shall grant or deny the request
for extension of the temporary alien agricultural labor certification
based on available information, and shall notify the employer of the
decision on the request in writing. The OFLC Administrator shall not
grant an extension where the total work contract period, including past
temporary alien labor certifications for the job opportunity and
extensions, would be 12 months or more, except in extraordinary
circumstances. The OFLC Administrator shall not grant an extension
where the temporary alien agricultural labor certification has already
been extended by DHS pursuant to paragraph (c)(3)(i) of this section.
(d) Denials of applications. If the OFLC Administrator does not
grant the temporary alien agricultural labor certification (in whole or
in part) the OFLC Administrator shall notify the employer by means
reasonably calculated to assure next-day delivery. The notification
shall contain all the statements required in Sec. 655.104(c) of this
part. If a timely request is made for an administrative-judicial review
or a de novo hearing by an administrative law judge, the procedures of
Sec. 655.112 of this part shall be followed.
(e) Approvals of applications--(1) Continued recruitment of U.S.
workers. After a temporary agricultural labor certification has been
granted, the employer shall continue its efforts to recruit U.S.
workers until the actual date the H-2A workers depart for the
employer's place of employment.
(i) Unless the SWA is informed in writing of a different date, the
SWA shall deem the third day immediately preceding the employer's first
date of need to be the date the H-2A workers depart for the employer's
place of
[[Page 11423]]
employment. The employer may notify the SWA in writing if the workers
depart prior to that date.
(ii)(A) If the H-2A workers do not depart for the place of
employment on or before the first date of need (or by the stated date
of departure, if the SWA has been advised of a different date), the
employer shall notify the SWA in writing (or orally, confirmed in
writing) as soon as the employer knows that the workers will not depart
by the first date of need, and in no event later than such date of
need. At the same time, the employer shall notify the SWA of the
workers' expected departure date, if known. No further notice is
necessary if the workers depart by the stated date of departure.
(B) If the employer did not notify the SWA of the expected
departure date pursuant to paragraph (e)(1)(ii)(A) of this section, or
if the H-2A workers do not leave for the place of employment on or
before the stated date of departure, the employer shall notify the SWA
in writing (or orally, confirmed in writing) as soon as the employer
becomes aware of the expected departure date, or that the workers did
not depart by the stated date and the new expected departure date, as
appropriate.
(2) Requirement for Active Job Order. The employer shall keep an
active job order on file until the ``50-percent rule'' assurance at
Sec. 655.103(e) of this part is met, except as provided by paragraph
(f) of this section.
(3) Referrals by ES System. The ES system shall continue to refer
to the employer U.S. workers who apply as long as there is an active
job order on file.
(f) Exceptions--(1) ``Fifty-percent rule'' inapplicable to small
employers. The assurance requirement at Sec. 655.103(e) of this part
does not apply to any employer who:
(i) Did not, during any calendar quarter during the preceding
calendar year, use more than 500 ``man-days'' of agricultural labor, as
defined in section 3(u) of the Fair Labor Standards Act of 1938 (29
U.S.C. 203(u)), and so certifies to the OFLC Administrator in the H-2A
application; and
(ii) Is not a member of an association which has applied for a
temporary alien agricultural labor certification under this subpart for
its members; and
(iii) Has not otherwise ``associated'' with other employers who are
applying for H-2A workers under this subpart, and so certifies to the
OFLC Administrator.
(2) Displaced H-2A workers. An employer shall not be liable for
payment under Sec. 655.102(b)(6) of this part with respect to an H-2A
worker whom the OFLC Administrator certifies is displaced due to
compliance with Sec. 655.103(e) of this part.
(g) Withholding of U.S. workers prohibited--(1) Complaints. Any
employer who has reason to believe that a person or entity has
willfully and knowingly withheld U.S. workers prior to the arrival at
the job site of H-2A workers in order to force the hiring of U.S.
workers under Sec. 655.103(e) of this part may submit a written
complaint to the SWA. The complaint shall clearly identify the person
or entity whom the employer believes has withheld the U.S. workers, and
shall specify sufficient facts to support the allegation (e.g., dates,
places, numbers and names of U.S. workers) which will permit an
investigation to be conducted by the SWA.
(2) Investigations. The SWA shall inform the OFLC Administrator by
telephone that a complaint under the provisions of paragraph (g) of
this section has been filed and shall immediately investigate the
complaint. Such investigation shall include interviews with the
employer who has submitted the complaint, the person or entity named as
responsible for withholding the U.S. workers, and the individual U.S.
workers whose availability has purportedly been withheld. In the event
the SWA fails to conduct such interviews, the OFLC Administrator shall
do so.
(3) Reports of findings. Within five working days after receipt of
the complaint, the SWA shall prepare a report of its findings, and
shall submit such report (including recommendations) and the original
copy of the employer's complaint to the OFLC Administrator.
(4) Written findings. The OFLC Administrator shall immediately
review the employer's complaint and the report of findings submitted by
the local office, and shall conduct any additional investigation the
OFLC Administrator deems appropriate. No later than 36 working hours
after receipt of the employer's complaint and the local office's
report, the OFLC Administrator shall issue written findings to the
local office and the employer. Where the OFLC Administrator determines
that the employer's complaint is valid and justified, the OFLC
Administrator shall immediately suspend the application of Sec.
655.103(e) of this part to the employer. Such suspension of Sec.
655.103(e) of this part under these circumstances shall not take place,
however, until the interviews required by paragraph (g)(2) of this
section have been conducted. The OFLC Administrator's determination
under the provisions of this paragraph (g)(4) shall be the final
decision of the Secretary, and no further review by any DOL official
shall be given to it.
(h) Requests for new temporary alien agricultural labor
certification determinations based on nonavailability of able, willing,
and qualified U.S. workers--(1) Standards for requests. If a temporary
alien agricultural labor certification application has been denied (in
whole or in part) based on the OFLC Administrator's determination of
the availability of able, willing, and qualified U.S. workers, and, on
or after 20 calendar days before the date of need specified in the
temporary alien agricultural labor certification determination, such
U.S. workers identified as being able, willing, qualified, and
available are, in fact, not able, willing, qualified, or available at
the time and place needed, the employer may request a new temporary
alien agricultural labor certification determination from the OFLC
Administrator. The OFLC Administrator shall expeditiously, but in no
case later than 72 hours after the time a request is received, make a
determination on the request.
(2) Filing requests. The employer's request for a new determination
shall be made directly to the OFLC Administrator. The request may be
made to the OFLC Administrator by telephone, but shall be confirmed by
the employer in writing as required by paragraphs (h)(2)(i) or (ii) of
this section.
(i) Workers not able, willing, qualified, or eligible. If the
employer asserts that any worker who has been referred by the ES System
or by any other person or entity is not an eligible worker or is not
able, willing, or qualified for the job opportunity for which the
employer has requested H-2A workers, the burden of proof is on the
employer to establish that the individual referred is not able,
willing, qualified, or eligible because of lawful job-related reasons.
The employer's burden of proof shall be met by the employer's
submission to the OFLC Administrator, within 72 hours of the OFLC
Administrator's receipt of the request for a new determination, of a
signed statement of the employer's assertions, which shall identify
each rejected worker by name and shall state each lawful job-related
reason for rejecting that worker.
(ii) U.S. workers not available. If the employer telephonically
requests the new determination, asserting solely that U.S. workers are
not available, the employer shall submit to the OFLC Administrator a
signed statement confirming such assertion. If such signed statement is
not received by the
[[Page 11424]]
OFLC Administrator within 72 hours of the OFLC Administrator's receipt
of the telephonic request for a new determination, the OFLC
Administrator may make the determination based solely on the
information provided telephonically and the information (if any) from
the SWA.
(3) National Processing Center review--(i) Expeditious review. The
OFLC Administrator expeditiously shall review the request for a new
determination. The OFLC Administrator may request a signed statement
from the SWA in support of the employer's assertion of U.S. worker
nonavailability or referred U.S. workers not being able, willing, or
qualified because of lawful job-related reasons.
(ii) New determination. If the OFLC Administrator determines that
the employer's assertion of nonavailability is accurate and that no
able, willing, or qualified U.S. worker has been refused or is being
refused employment for other than lawful job-related reasons, the OFLC
Administrator shall, within 72 hours after receipt of the employer's
request, render a new determination. Prior to making a new
determination, the OFLC Administrator promptly shall ascertain (which
may be through the ES System or other sources of information on U.S.
worker availability) whether able, willing, and qualified replacement
U.S. workers are available or can be reasonably expected to be present
at the employer's establishment within 72 hours from the date the
employer's request was received.
(iii) Notification of new determination. If the OFLC Administrator
cannot identify sufficient able, willing, and qualified U.S. workers
who are or who are likely to be available, the OFLC Administrator shall
grant the employer's new determination request (in whole or in part)
based on available information as to replacement U.S. worker
availability. The OFLC Administrator's notification to the employer on
the new determination shall be in writing (by means normally assuring
next-day delivery), and the OFLC Administrator's determination under
the provisions of this paragraph (h)(3) shall be the final decision of
the Secretary, and no further review shall be given to an employer's
request for a new H-2A determination by any DOL official. However, this
does not preclude an employer from submitting subsequent requests for
new determinations, if warranted, based on subsequent facts concerning
purported nonavailability of U.S. workers or referred workers not being
eligible workers or not able, willing, or qualified because of lawful
job-related reasons.
Sec. 655.107 Adverse effect wage rates (AEWRs).
(a) Computation and publication of AEWRs. Except as otherwise
provided in this section, the AEWRs for all agricultural employment
(except for those occupations deemed inappropriate under the special
circumstances provisions of Sec. 655.93 of this part) for which
temporary alien agricultural labor certification is being sought shall
be equal to the annual weighted average hourly wage rate for field and
livestock workers (combined) for the region as published annually by
the U.S. Department of Agriculture (USDA) based on the USDA quarterly
wage survey. The OFLC Administrator shall publish, at least once in
each calendar year, on a date or dates to be determined by the OFLC
Administrator, AEWRs for each State (for which USDA publishes regional
data), calculated pursuant to this paragraph (a) as a notice or notices
in the Federal Register.
(b) Higher prevailing wage rates. If, as the result of a State
agency prevailing wage survey determination, the prevailing wage rate
in an area and agricultural activity (as determined by the State agency
survey and verified by the OFLC Administrator) is found to be higher
that the AEWR computed pursuant to paragraph (a) of this section, the
higher prevailing wage rate shall be offered and paid to all workers by
employers seeking temporary alien agricultural labor certification for
that agricultural activity and area.
(c) Federal minimum wage rate. In no event shall an AEWR computed
pursuant to this section be lower than the hourly wage rate published
in 29 U.S.C. 206(a)(1) and currently in effect.
Sec. 655.108 H-2A applications involving fraud or willful
misrepresentation.
(a) Referral for investigation. If possible fraud or willful
misrepresentation involving a temporary alien agricultural labor
certification application is discovered prior to a final temporary
alien agricultural labor certification determination or if it is
learned that the employer or agent (with respect to an application) is
the subject of a criminal indictment or information filed in a court,
the OFLC Administrator shall refer the matter to the DHS and DOL Office
of the Inspector General for investigation. The OFLC Administrator
shall continue to process the application and may issue a temporary
alien agricultural labor certification.
(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 OFLC
Administrator shall not deny the temporary alien agricultural labor
certification application on the grounds of fraud or willful
misrepresentation. The application, of course, may be denied for other
reasons pursuant to this subpart.
(c) Terminated processing. If a court or the DHS determines that
there was fraud or willful misrepresentation involving a temporary
alien agricultural labor certification application, the application is
thereafter invalid, consideration of the application shall be
terminated and the OFLC Administrator shall return the application to
the employer or agent with the reasons therefor stated in writing.
Sec. 655.110 Employer penalties for noncompliance with terms and
conditions of temporary alien agricultural labor certifications.
(a) Investigation of violations. If, during the period of two years
after a temporary alien agricultural labor certification has been
granted (in whole or in part), the OFLC Administrator has reason to
believe that an employer violated a material term or condition of the
temporary alien agricultural labor certification, the OFLC
Administrator shall, except as provided in paragraph (b) of this
section, investigate the matter. If, after the investigation, the OFLC
Administrator determines that a substantial violation has occurred, the
OFLC Administrator, shall notify the employer that a temporary alien
agricultural certification request will not be granted for the next
period of time in a calendar year during which the employer would
normally be expected to request a temporary alien agricultural labor
certification, and any application subsequently submitted by the
employer for that time period will not be accepted by the OFLC
Administrator. If multiple or repeated substantial violations are
involved, the OFLC Administrator's notice to the employer shall specify
that the prospective denial of the temporary alien agricultural labor
certification will apply not only to the next anticipated period for
which a temporary alien agricultural labor certification would normally
be requested, but also to any periods within the coming two or three
years; two years for two violations, or repetitions of the same
violations, and three years for three or more violations, or
repetitions thereof. The OFLC Administrator's notice shall be in
writing, shall state the reasons for the determinations, and shall
offer the employer an opportunity to request an expedited
administrative review or a de
[[Page 11425]]
novo hearing before an administrative law judge of the determination
within seven calendar days of the date of the notice. If the employer
requests an expedited administrative review or a de novo hearing before
an administrative law judge, the procedures in Sec. 655.112 of this
part shall be followed.
(b) Employment Standards Administration investigations. The OFLC
Administrator may make the determination described in paragraph (a) of
this section based on information and recommendations provided by the
Employment Standards Administration, after an Employment Standards
Administration investigation has been conducted in accordance with the
Employment Standards Administration procedures, that an employer has
not complied with the terms and conditions of employment prescribed as
a condition for a temporary alien agricultural labor certification. In
such instances, the OFLC Administrator need not conduct any
investigation of his/her own, and the subsequent notification to the
employer and other procedures contained in paragraph (a) of this
section will apply. Penalties invoked by the Employment Standards
Administration for violations of temporary alien agricultural labor
certification terms and conditions shall be treated and handled
separately from sanctions available to the OFLC Administrator, and an
employer's obligations for compliance with the Employment Standards
Administration's enforcement penalties shall not absolve an employer
from sanctions applied by ETA under this section (except as noted in
paragraph (a) of this section).
(c) Less than substantial violations--(1) Requirement of special
procedures. If, after investigation as provided for under paragraph (a)
of this section, or an Employment Standards Administration notification
as provided under paragraph (b) of this section, the OFLC Administrator
determines that a less than substantial violation has occurred, but the
OFLC Administrator has reason to believe that past actions on the part
of the employer may have had and may continue to have a chilling or
otherwise negative effect on the recruitment, employment, and retention
of U.S. workers, the OFLC Administrator may require the employer to
conform to special procedures before and after the temporary alien
labor certification determination (including special on-site positive
recruitment and streamlined interviewing and referral techniques)
designed to enhance U.S. worker recruitment and retention in the next
year as a condition for receiving a temporary alien agricultural labor
certification. Such requirements shall be reasonable, and shall not
require the employer to offer better wages, working conditions and
benefits than those specified in Sec. 655.102 of this part, and shall
be no more than deemed necessary to assure employer compliance with the
test of U.S. worker availability and adverse effect criteria of this
subpart. The OFLC Administrator shall notify the employer in writing of
the special procedures which will be required in the coming year. The
notification shall state the reasons for the imposition of the
requirements, state that the employer's agreement to accept the
conditions will constitute inclusion of them as bona fide conditions
and terms of a temporary alien agricultural labor certification, and
shall offer the employer an opportunity to request an administrative
review or a de novo hearing before an administrative law judge. If an
administrative review or de novo hearing is requested, the procedures
prescribed in Sec. 655.112 of this part shall apply.
(2) Failure to comply with special procedures. If the OFLC
Administrator determines that the employer has failed to comply with
special procedures required pursuant to paragraph (c)(1) of this
section, the OFLC Administrator shall send a written notice to the
employer, stating that the employer's otherwise affirmative temporary
alien agricultural labor certification determination will be reduced by
twenty-five percent of the total number of H-2A aliens requested (which
cannot be more than those requested in the previous year) for a period
of one year. Notice of such a reduction in the number of workers
requested shall be conveyed to the employer by the OFLC Administrator
in the OFLC Administrator's written temporary alien agricultural labor
certification determination required by Sec. 655.101 of this part. The
notice shall offer the employer an opportunity to request an
administrative review or a de novo hearing before an administrative law
judge. If an administrative review or de novo hearing is requested, the
procedures prescribed in Sec. 655.112 of this part shall apply,
provided that if the administrative law judge affirms the OFLC
Administrator's determination that the employer has failed to comply
with special procedures required by paragraph (c)(1) of this section,
the reduction in the number of workers requested shall be twenty-five
percent of the total number of H-2A aliens requested (which cannot be
more than those requested in the previous year) for a period of one
year.
(d) Penalties involving members of associations. If, after
investigation as provided for under paragraph (a) of this section, or
notification from the Employment Standards Administration under
paragraph (b) of this section, the OFLC Administrator determines that a
substantial violation has occurred, and if an individual producer
member of a joint employer association is determined to have committed
the violation, the denial of temporary alien agricultural labor
certification penalty prescribed in paragraph (a) shall apply only to
that member of the association unless the OFLC 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
penalty shall be invoked against the association or other association
member as well.
(e) Penalties involving associations acting as joint employers. If,
after investigation as provided for under paragraph (a) of this
section, or notification from the Employment Standards Administration
under paragraph (b) of this section, the OFLC Administrator determines
that 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 denial of temporary alien agricultural labor
certification penalty prescribed in paragraph (a) of this section shall
apply only to the association, and shall not be applied to any
individual producer member of the association unless the OFLC
Administrator determines that the member participated in, had knowledge
of, or reason to know of the violation, in which case the penalty shall
be invoked against the association member as well.
(f) Penalties involving associations acting as sole employers. If,
after investigation as provided for under paragraph (a) of this
section, or notification from the Employment Standards Administration
under paragraph (b) of this section, the OFLC Administrator determines
that a substantial violation has occurred, and if an association acting
as a sole employer is determined to have committed the violation, no
individual producer member of the association shall be permitted to
employ certified H-2A workers in the crop and occupation for which the
H-2A workers had been previously certified for the sole employer
association unless the producer member applies for temporary alien
agricultural labor certification
[[Page 11426]]
under the provisions of this subpart in the capacity of an individual
employer/applicant or as a member of a joint employer association, and
is granted temporary alien agricultural labor certification by the OFLC
Administrator.
(g) Types of violations--(1) Substantial violation. For the
purposes of this subpart, a substantial violation is one or more
actions of commission or omission on the part of the employer or the
employer's agent, with respect to which the OFLC Administrator
determines:
(i)(A) That the action(s) is/are significantly injurious to the
wages, benefits, or working conditions of 10 percent or more of an
employer's U.S. and/or H-2A workforce; and that:
(1) With respect to the action(s), the employer has failed to
comply with one or more penalties imposed by the Employment Standards
Administration for violation(s) of contractual obligations found by
that agency (if applicable), or with one or more decisions or orders of
the Secretary or a court pursuant to section 216 of the INA (8 U.S.C.
1186), this subpart, or 29 CFR part 501 (Employment Standards
Administration enforcement of contractual obligations); or
(2) The employer has engaged in a pattern or practice of actions
which are significantly injurious to the wages, benefits, or working
conditions of 10 percent or more of an employer's U.S. and/or H-2A
workforce;
(B) That the action(s) involve(s) impeding an investigation of an
employer pursuant to section 216 of the INA (8 U.S.C. 1186), this
subpart, or 29 CFR part 501 (Employment Standards Administration
enforcement of contractual obligations);
(C) That the employer has not paid the necessary fee in a timely
manner;
(D) That the employer is not currently eligible to apply for a
temporary alien agricultural labor certification pursuant to Sec.
655.210 of this part (failure of an employer to comply with the terms
of a temporary alien agricultural labor certification in which the
application was filed under subpart C of this part prior to June 1,
1987); or
(E) That there was fraud involving the application for temporary
alien agricultural labor certification of that the employer made a
material misrepresentation of fact during the application process; and
(ii) That there are no extenuating circumstances involved with the
action(s) described in paragraph (g)(1)(i) of this section (as
determined by the OFLC Administrator).
(2) Less than substantial violation. For the purposes of this
subpart, a less than substantial violation is an action of commission
or omission on the part of the employer or the employer's agent which
violates a requirement of this subpart, but is not a substantial
violation.
Sec. 655.111 Petition for higher meal charges.
(a) Filing petitions. Until a new amount is set pursuant to this
paragraph (a), the OFLC Administrator may permit an employer to charge
workers up to $6.58 for providing them with three meals per day, if the
employer justifies the charge and submits to the OFLC Administrator 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 twelve-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
OFLC 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 OFLC Administrator'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 available for inspection by
the OFLC Administrator for a period of one year.
Sec. 655.112 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 not to accept for consideration a temporary alien
agricultural labor certification application, of the denial of a
temporary alien agricultural labor certification, or of a penalty under
Sec. 655.110 of this part, the OFLC Administrator 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 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 five working days after receipt of the case
file the administrative law judge shall, on the basis of the written
record and after due consideration of any written submissions submitted
from the parties involved or amici curiae, either affirm, reverse, or
modify the OFLC Administrator's denial 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,
OFLC 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
temporary alien agricultural labor certification application or the
temporary alien agricultural labor certification determination by any
DOL 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 not to accept for consideration
a temporary alien agricultural labor certification application, of the
denial of a temporary alien agricultural labor certification, or of a
penalty under Sec. 655.110 of this part, the OFLC Administrator shall
send a certified copy of the case file to the Chief Administrative Law
Judge by
[[Page 11427]]
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 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
working days after the administrative law judge's receipt of the case
file, and
(iii) The administrative law judge's decision shall be rendered
within ten working days after the hearing.
(2) Decision. After a de novo hearing, the administrative law judge
shall either affirm, reverse, or modify the OFLC Administrator's
determination, and the administrative law judge's decision shall be
provided immediately to the employer, OFLC 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 temporary alien agricultural labor
certification application or the temporary alien agricultural labor
certification determination by any DOL official.
Sec. 655.113 Job Service Complaint System; enforcement of work
contracts.
Complaints arising under this subpart may be filed through the Job
Service Complaint System, as described in 20 CFR part 658, subpart E.
Complaints which involve worker contracts shall be referred by the
local office to the Employment Standards Administration for appropriate
handling and resolution. See 29 CFR part 501. As part of this process,
the Employment Standards Administration may report the results of its
investigation to ETA for consideration of employer penalties under
Sec. 655.110 of this part or such other action as may be appropriate.
7. Add subpart C to read as follows:
Subpart C--Labor Certification Process for Logging Employment and Non-
H-2A Agricultural Employment
Sec.
655.200 General description of this subpart and definition of terms.
655.201 Temporary labor certification applications.
655.202 Contents of job offers.
655.203 Assurances.
655.204 Determinations based on temporary labor certification
applications.
655.205 Recruitment period.
655.206 Determinations of U.S. worker availability and adverse
effect on U.S. workers.
655.207 Adverse effect rates.
655.208 Temporary labor certification applications involving fraud
or willful misrepresentation.
655.209 Invalidation of temporary labor certifications.
655.210 Failure of employers to comply with the terms of a temporary
labor certification.
655.211 Petition for higher meal charges.
655.212 Administrative-judicial reviews.
655.215 Territory of Guam.
Subpart C--Labor Certification Process for Logging Employment and
Non-H-2A Agricultural Employment
Sec. 655.200 General description of this subpart and definition of
terms.
(a) This subpart applies to applications for temporary alien
agricultural labor certification filed before June 1, 1987, and to
applications for temporary alien labor certification for logging
employment.
(b) An employer who desires to use foreign workers for temporary
employment must file a temporary labor certification application
including a job offer for U.S. workers with an appropriate State
Workforce Agency. The employer should file an application a minimum of
80 days before the estimated date of need for the workers. If filed 80
days before need, sufficient time is allowed for the 60-day recruitment
period required by the regulations and a determination by the OFLC
Administrator as to the availability of U.S. workers 20 days before the
date of need. Shortly after the application has been filed, the OFLC
Administrator makes a determination as to whether or not the
application has been filed in enough time to recruit U.S. workers and
whether or not the job offer for U.S. workers offers wages and working
conditions which will not adversely affect the wages and working
conditions of similarly employed U.S. workers, as prescribed in the
regulations in this subpart. If the application does not meet the
regulatory wage and working condition standards, the OFLC Administrator
shall deny the temporary labor certification application and offer the
employer an administrative-judicial review of the denial by an
Administrative Law Judge. If the application is not timely, the OFLC
Administrator has discretion, as set forth in these regulations, to
either deny the application or permit the process to proceed reasonably
with the employer recruiting U.S. workers upon such terms as will
accomplish the purposes of the INA and the DHS regulations. Where the
application is timely and meets the regulatory standards, the State
Workforce Agency, the employer, and the Department of Labor recruit
U.S. workers for 60 days. At the end of the 60 days, the OFLC
Administrator grants the temporary labor certification if the OFLC
Administrator finds that (1) the employer has not offered foreign
workers higher wages or better working conditions (or less
restrictions) than that offered to U.S. workers, and (2) U.S. workers
are not available for the employer's job opportunities. If the
temporary labor certification is denied, the employer may seek an
administrative-judicial review of the denial by an Administrative Law
Judge as provided in these regulations. The Department of Labor
thereafter advises the United States Citizenship and Immigration
Services of the Department of Homeland Security (DHS) of approvals and
denials of temporary labor certifications. The DHS may accept or reject
this advice. 8 CFR 214.2(h)(3). The DHS makes the final decision as to
whether or not to grant visas to the foreign workers. 8 U.S.C. 1184(a).
(c) Definitions for terms used in this subpart.
Administrative Law Judge means an official who is authorized to
conduct administrative hearings.
Administrator, Office of Foreign Labor Certification (OFLC
Administrator) means the primary official of the Office of Foreign
Labor Certification or the OFLC Administrator's designee.
Adverse effect rate means the wage rate which the OFLC
Administrator has determined must be offered and paid to foreign and
U.S. workers for a particular occupation and/or area so that the wages
of similarly employed U.S. workers will not be adversely affected. The
OFLC Administrator may determine that the prevailing wage rate in the
area and/or occupation is the adverse effect rate, if the use (or non-
use) of aliens has not depressed the wages of similarly employed U.S.
workers. The OFLC Administrator may determine that a wage rate higher
than the prevailing wage rate is the adverse effect rate if the OFLC
Administrator determines that the use of aliens has depressed the wages
of similarly employed U.S. workers.
Agent means a legal person, such as an association of employers,
which (1) is authorized to act as an agent of the employer for
temporary labor certification purposes, and (2) which is
[[Page 11428]]
not itself an employer, or a joint employer, as defined in this
section.
Area of intended employment means the area within normal commuting
distance of the place (address) of intended employment. If the place of
intended employment is within a Standard Metropolitan Statistical Area
(SMSA), any place within the SMSA is deemed to be within normal
commuting distance of the place of intended employment.
Department of Homeland Security (DHS) through the United States
Citizenship and Immigration Services (USCIS) makes the determination
under the INA on whether or not to grant visa petitions to an alien
seeking to perform temporary agricultural or logging work in the United
States.
Employer means a person, firm, corporation or other association or
organization (1) which currently has a location within the United
States to which U.S. workers may be referred for employment, and which
proposes to employ a worker at a place within the United States and (2)
which has an employer relationship with respect to employees under this
subpart as indicated by the fact that it hires, pays, fires, supervises
and otherwise controls the work of such employees. An association of
employers shall be considered an employer if it has all of the indicia
of an employer set forth in this definition. Such an association,
however, shall be considered as a joint employer with the employer
member if it shares with the employer member one or more of the
definitional indicia.
Employment and Training Administration (ETA) means the agency
within the Department of Labor (DOL) which includes the Office of
Foreign Labor (OFLC).
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.
Office of Foreign Labor Certification (OFLC) means the
organizational component within 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 alien workers seeking admission to the United States in
order to work under the Immigration and Nationality Act, as amended.
Secretary means the Secretary of Labor or the Secretary's designee.
State Workforce Agency (SWA) means the State employment service
agency.
Temporary labor certification means the advice given by the
Secretary of Labor to the United States Citizenship and Immigration
Services (USCIS) of the Department of Homeland Security (DHS), pursuant
to the regulations of that agency at 8 CFR 214.2(h)(3)(i), that (1)
there are not sufficient U.S. workers who are qualified and available
to perform the work and (2) the employment of the alien will not
adversely affect the wages and working conditions of similarly employed
U.S. workers.
United States workers means any worker who, whether U.S. national,
citizen or alien, is legally permitted to work permanently within the
United States.
Sec. 655.201 Temporary labor certification applications.
(a)(1) An employer who anticipates a labor shortage of workers for
agricultural or logging employment may request a temporary labor
certification for temporary foreign workers by filing, or by having an
agent file, in duplicate, a temporary labor certification application,
signed by the employer, with a SWA in the area of intended employment.
(2) If the temporary labor certification application is filed by an
agent, however, the agent may sign the application if the application
is accompanied by a letter from each employer the agent represents,
signed by the employer, which authorizes the agent to act on the
employer's behalf and which states that the employer assumes full
responsibility for the accuracy of the application, for all
representations made by the agent on the employer's behalf, and for the
fulfillment of all legal requirements arising under this subpart.
(3) If an association of employers files the application, the
association shall identify and submit documents to verify whether, in
accordance with the definitions at Sec. 655.200, it is: (i) The
employer, (ii) a joint employer with its member employers, or (iii) the
agent of its employer members.
(b) Every temporary labor certification application shall include:
(1) A copy of the job offer which will be used by the employer (or
each employer) for the recruitment of both U.S. and foreign workers.
The job offer for each employer shall state the number of workers
needed by the employer, and shall be signed by the employer. The job
offer shall comply with the requirements of Sec. Sec. 655.202 and
653.108 of this chapter;
(2) The assurances required by Sec. 655.203; and
(3) The specific estimated date of need of workers.
(c) The entire temporary labor certification application shall be
filed with the SWA in duplicate and in sufficient time to allow the
State agency to attempt to recruit U.S. workers locally and through the
Employment Service intrastate and interstate clearance system for 60
calendar days prior to the estimated date of need. Section 655.206
requires the OFLC Administrator to grant or deny the temporary labor
certification application by the end of the 60 calendar days, or 20
days from the estimated date of need, whichever is later. That section
also requires the OFLC Administrator to offer employers an expedited
administrative-judicial review in cases of denials of the temporary
labor certification applications. Following an administrative-judicial
review, the employer has a right to contest any denial before the DHS
pursuant to 8 CFR 214.2(h)(3)(i). Finally, employers need time, after
the temporary labor certification determination, to complete the
process for bringing foreign workers into the United States, or to
bring an appeal of a denial of an application for the labor
certification. Therefore, employers should file their temporary labor
certification applications at least 80 days before the estimated date
of need specified in the application.
(d) Applications may be amended at any time prior to OFLC
Administrator determination to increase the number of workers requested
in the original application for labor certification by not more than 15
percent without requiring an additional recruitment period for U.S.
workers. Requests for increases beyond 15 percent may be approved only
when it is determined that, based on past experience, the need for
additional workers could not be foreseen and that a critical need for
the workers would exist prior to the expiration of an additional
recruitment period.
(e) If a temporary labor certification application, or any part
thereof, does not satisfy the time requirements specified in paragraph
(c) of this section, and if the exception in paragraph (d) of this
section does not apply, the SWA shall immediately send both copies
directly to the appropriate OFLC Administrator. The OFLC Administrator
may then advise the employer and the DHS in writing that the temporary
labor certification cannot be granted because, pursuant to the
regulations at paragraph (c) of this section, there is not sufficient
time to test the availability of U.S. workers. The notice of denial to
the employer shall inform the employer of the right to administrative-
judicial review and to ultimately petition DHS for the admission of the
aliens. In emergency
[[Page 11429]]
situations, however, the OFLC Administrator may waive the time period
specified in this section on behalf of employers who have not made use
of temporary alien workers for the prior year's harvest or for other
good and substantial cause, provided the OFLC Administrator has
sufficient labor market information to make the labor certification
determinations required by 8 CFR 214.2(h)(3)(i).
(Approved by the Office of Management and Budget under control
number 1205-0015)
Sec. 655.202 Contents of job offers.
(a) So that the employment of aliens will not adversely affect the
wages and working conditions of similarly employed U.S. workers, each
employer's job offer to U.S. workers must offer U.S. workers at least
the same benefits which the employer is offering, intends to offer, or
will afford, to temporary foreign workers. Conversely, no job offer may
impose on U.S. workers any restrictions or obligations which will not
be imposed on the employer's foreign workers. For example, if the
employer intends to advance transportation costs to foreign workers
either directly or indirectly (by having them paid by the foreign
government involved), the employer must offer to advance the
transportation costs of U.S. workers.
(b) Except when higher benefits, wages or working conditions are
required by the provisions of paragraph (a) of this section, the OFLC
Administrator has determined that, in order to protect similarly
employed U.S. workers from adverse effect with respect to wages and
working conditions, every job offer for U.S. workers must always
include the following minimal benefit, wage, and working condition
provisions:
(1) The employer will provide the worker with housing without
charge to the worker. The housing will meet the full set of standards
set forth at 29 CFR 1910.142 or the full set of standards set forth at
part 654, subpart E of this chapter, whichever is applicable under the
criteria of 20 CFR 654.401; except that, for mobile range housing for
sheepherders, the housing shall meet existing Departmental guidelines.
When it is the prevailing practice in the area of intended employment
to provide family housing, the employer will provide such housing to
such workers. (2)(i) If the job opportunity is covered by the State
workers' compensation law, the worker will be eligible for workers'
compensation for injury and disease arising out of and in the course of
worker's employment; or
(ii) If the job opportunity is not covered by the 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;
(3) The employer will provide without cost to the worker all tools,
supplies and equipment required to perform the duties assigned and, if
any of these items are provided by the worker, the employer will
reimburse the worker for the cost of those so provided;
(4) The employer will provide the worker with three meals a day,
except that where under prevailing practice or longstanding arrangement
at the establishment workers prepare their meals, employers need
furnish only free and convenient cooking and kitchen facilities. Where
the employer provides the meals, the job offer shall state the cost to
the worker for such meals. Until a new amount is set pursuant to this
paragraph (b)(4), the cost shall not be more than $4.94 per day unless
the OFLC Administrator has approved a higher cost pursuant to Sec.
655.211 of this part. Each year the charge allowed by this paragraph
(b)(4) will be changed by 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 their publication by the OFLC
Administrator in the Federal Register.
(5)(i) The employer will provide or pay for the worker's
transportation and daily subsistence from the place, from which the
worker, without intervening employment, will come to work for the
employer, to the place of employment, subject to the deductions allowed
by paragraph (b)(13) of this section. The amount of the daily
subsistence payment shall be at least as much as the amount the
employer will charge the worker for providing the worker with three
meals a day during employment;
(ii) If the worker completes the work contract period, the employer
will provide or pay for the worker's transportation and daily
subsistence from the place of employment to the place, from which the
worker, without intervening employment, came to work for the employer,
unless the worker has contracted for employment with a subsequent
employer who, in that contract, has agreed to pay for the worker's
transportation and daily subsistence expenses from the employer's
worksite to such subsequent employer's worksite; and
(iii) The employer will provide transportation between the worker's
living quarters and the employer's worksite without cost to the worker,
and such transportation will be in accordance with applicable laws and
regulations;
(6)(i) The employer guarantees to offer the worker employment for
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 and ending on the termination date specified in the work
contract, or in its extensions if any. For purposes of this paragraph,
a workday shall mean any period consisting of 8 hours of work time. An
employer shall not be considered to have met the work guarantee if the
employer has merely offered work on three-fourths of the workdays. The
work must be offered for at least three-fourths of the 8 hour workdays.
(That is, \3/4\ x (number of days x 8 hours.)) Therefore, if, for
example, the contract contains 20 workdays, the worker must be offered
employment for 120 hours during the 20 workdays. A worker may be
offered more than 8 hours of work on a single workday. For purposes of
meeting the guarantee, however, the worker may not be required to work
for more than 8 hours per workday, or on the worker's Sabbath or
Federal holidays;
(ii) If the worker will be paid on a piece rate basis, the employer
will use the worker's average hourly earnings to calculate the amount
due under the guarantee; and
(iii) Any hours which the worker fails to work when the worker has
been offered an opportunity to do so pursuant to paragraph (b)(6)(i) of
this section, and all hours of work actually performed (including
voluntary work over 8 hours in a workday, or on the worker's Sabbath or
Federal holidays) may be counted by the employer in calculating whether
the period of guaranteed employment has been met;
(7)(i) The employer will keep accurate and adequate records with
respect to the workers' earnings, including 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 guarantee); the hours actually worked
each day by the worker; the time the worker began and ended each
workday; the rate of pay; the worker's
[[Page 11430]]
earnings per pay period; and the amount of and reasons for any and all
deductions made from the worker's wages;
(ii) If the number of hours worked by the worker is less than the
number offered in accordance with the guarantee, the records will state
the reason or reasons therefor;
(iii) The records, including field tally records and supporting
summary payroll records, will be made available for inspection and
copying by representatives of the Secretary of Labor, and by the worker
and the worker's representatives; and
(iv) The employer will retain the records for not less than three
years after the completion of the contract;
(8) The employer will furnish to the worker at or before each
payday, in one or more written statements:
(i) The worker's total earnings for the pay period;
(ii) The worker's hourly rate or piece rate of pay;
(iii) The hours of employment which have been offered to the worker
(broken out by offers in accordance with, and over and above, the
guarantee);
(iv) The hours actually worked by the worker;
(v) An itemization of all deductions made from the worker's wages;
and
(vi) If piece rates are used, the units produced daily;
(9)(i) If the worker will be paid by the hour, the employer will
pay the worker at least the adverse effect rate; or
(ii)(A) 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 earnings during the pay period at least equal to the amount the
worker would have earned had the worker been paid at the adverse effect
rate, the worker's pay will 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 adverse effect
rate.
(B) If the employer who pays on a piece rate basis requires one or
more minimum productivity standards of workers as a condition of job
retention,
(1) Such standards shall be no more than those applied by the
employer in 1977, unless the OFLC Administrator approves a higher
minimum; or
(2) If the employer first applied for temporary labor certification
after 1977, such standards shall be no more than those normally
required (at the time of that first application) by other employers for
the activity in the area of intended employment, unless the OFLC
Administrator approves a higher minimum.
(10) The frequency with which the worker will be paid (in
accordance with the prevailing practice in the area of intended
employment, or at least biweekly whichever is more frequent);
(11) If the worker voluntarily abandons employment before the end
of the contract period, or is terminated for cause, the employer will
not be responsible for providing or paying for the subsequent
transportation and subsistence expenses of any worker for whom the
employer would have otherwise been required to pay such expenses under
paragraph (b)(5)(ii) of this section;
(12) 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 or other Act of God which makes
the fulfillment of the contract impossible, and the OFLC Administrator
so certifies, the employer may terminate the work contract. In such
cases the employer will make efforts to transfer the worker to other
comparable employment acceptable to the worker. If such transfer is not
effected, the worker
(i) Will be returned to the place from which the worker, without
intervening employment, came to work for the employer at the employer's
expense; and
(ii) Will be reimbursed 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 borne directly or indirectly by the
employer;
(13) The employer will make those deductions from the worker's
paycheck which are 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. The employer may
deduct the cost of the worker's transportation and daily subsistence
expenses to the place of employment which were borne directly by the
employer; in such cases, however, the job offer shall state that the
worker will be reimbursed the full amount of such deductions upon the
worker's completion of 50 percent of the worker's contract period; and
(14) The employer will provide the worker 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) and (b) of
this section.
Sec. 655.203 Assurances.
As part of the temporary labor certification application, the
employer shall include assurances, signed by the employer, that:
(a) The job opportunity is not:
(1) Vacant because the former occupant is on strike or being locked
out in the course of a labor dispute; or
(2) At issue in a labor dispute involving a work stoppage;
(b) During the period for which the temporary labor certification
is granted, the employer will comply with applicable Federal, State and
local employment-related laws, including employment related health and
safety laws;
(c) The job opportunity is open to all qualified U.S. workers
without regard to race, color, national origin, sex, or religion, and
is open to U.S. workers with handicaps who are qualified to perform the
work. No U.S. worker will be rejected for employment for other than a
lawful job related reason;
(d) The employer will cooperate with the employment service system
in the active recruitment of U.S. workers until the foreign workers
have departed for the employer's place of employment by;
(1) Allowing the employment service system to prepare local,
intrastate and interstate job orders using the information supplied on
the employer's job offer;
(2) Placing at least two advertisements for the job opportunities
in local newspapers of general circulation.
(i) Each such advertisement shall describe the nature and
anticipated duration of the job opportunity; offer at least the adverse
effect wage rate; give the \3/4\ guarantee; state that work tools,
supplies and equipment will be provided by the employer; state that
housing will also be provided, and that transportation and subsistence
expenses to the worksite will be provided or paid for by the employer;
(ii) Each advertisement shall direct interested workers to apply
for the job opportunity at the appropriate office of the State
Workforce Agency in their area;
(3) Cooperating with the employment service system in contacting
farm labor contractors, migrant workers and other potential workers in
other areas of the State and/or Nation by letter and/or telephone;
(4) Cooperating with the employment service system in contacting
schools, business and labor organizations, fraternal and veterans
organizations, and non-profit organizations and public agencies such as
sponsors of programs under the Comprehensive Employment and Training
Act, throughout the area of intended employment, in order to enlist
them in helping to find U.S. workers; and
[[Page 11431]]
(5) If the employer, or an association of employers of which the
employer is a member, intends to negotiate and/or contract with the
Government of a foreign nation or any foreign association, corporation
or organization in order to secure foreign workers, making the same
kind and degree of efforts to secure U.S. workers;
(e) From the time the foreign workers depart for the employer's
place of employment, the employer will provide employment to any
qualified U.S. worker who applies to the employer until fifty percent
of the period of the work contract, under which the foreign worker who
is in the job was hired, has elapsed. In addition, the employer will
offer to provide housing, and the other benefits, wages, and working
conditions required by Sec. 655.202, to any such U.S. worker; and
(f) Performing the other specific recruitment activities specified
in the notice from the OFLC Administrator required by Sec. 655.205(a).
Sec. 655.204 Determinations based on temporary labor certification
applications.
(a) Within two working days after the temporary labor certification
application has been filed with it, the SWA shall mail the duplicate
application directly to the appropriate OFLC Administrator.
(b) The SWA, using the job offer portion of its copy of the
temporary labor certification application, shall promptly prepare a
local job order and shall begin to recruit U.S. workers in the area of
intended employment.
(c) The OFLC Administrator, upon receipt of the duplicate temporary
labor certification application, shall promptly review the application
to determine whether it meets the requirements of Sec. Sec. 655.201-
655.203 in order to determine whether the employer's application is (1)
timely, and (2) contains offers of wages, benefits, and working
conditions required to ensure that similarly employed U.S. workers will
not be adversely affected. If the OFLC Administrator determines that
the temporary labor certification application is not timely in
accordance with Sec. 655.201 of this subpart, the OFLC Administrator
may promptly deny the temporary labor certification on the grounds
that, in accordance with that regulation, there is not sufficient time
to adequately test the availability of U.S. workers. If the OFLC
Administrator determines that the application does not meet the
requirements of Sec. Sec. 655.202-655.203 because the wages, working
conditions, benefits, assurances, job offer, etc. are not as required,
the OFLC Administrator shall deny the certification on the grounds that
the availability of U.S. workers cannot be adequately tested because
the wages or benefits, etc. do not meet the adverse effect criteria.
(d) If the certification is denied, the OFLC Administrator shall
notify the employer in writing of the determination, with a copy to the
SWA. The notice shall:
(1) State the reasons for the denial, citing the relevant
regulations; and
(2) Offer the employer an opportunity to request an expedited
administrative-judicial review of the denial by an Administrative Law
Judge. The notice shall state that in order to obtain such a review,
the employer must, within five calendar days of the date of the notice,
file by facsimile (fax), telegram, or other means normally assuring
next day delivery a written request for such a review to the Chief
Administrative Law Judge of the Department of Labor (giving the
address) and simultaneously serve a copy on the OFLC Administrator. The
notice shall also state that the employer's request for review should
contain any legal arguments which the employer believes will rebut the
basis of the OFLC Administrator's denial of certification; and
(3) State that, if the employer does not request an expedited
administrative-judicial review before an Administrative Law Judge
within the five days:
(i) The OFLC Administrator will advise the DHS that the
certification cannot be granted, giving the reasons therefor, and that
an administrative-judicial review of the denial was offered to the
employer but not accepted, and enclosing, for DHS review, the entire
temporary labor certification application file; and
(ii) The employer has the opportunity to submit evidence to the DHS
to rebut the bases of the OFLC Administrator's determination in
accordance with the DHS regulation at 8 CFR 214.2(h)(3)(i) but that no
further review of the employer's application for temporary labor
certification may be made by any Department of Labor official.
(e) If the employer timely requests an expedited administrative-
judicial review pursuant to paragraph (d)(2) of this section, the
procedures of Sec. 655.212 shall be followed.
Sec. 655.205 Recruitment period.
(a) If the OFLC Administrator determines that the temporary labor
certification application meets the requirements of Sec. Sec. 655.201
through 655.203, the OFLC Administrator shall promptly notify the
employer in writing, with copies to the SWA. The notice shall inform
the employer and the SWA of the specific efforts which will be expected
from them during the following weeks to carry out the assurances
contained in Sec. 655.203 with respect to the recruitment of U.S.
workers. The notice shall require that the job order be placed both
into intrastate clearance and into interstate clearance to such States
as the OFLC Administrator shall determine to be potential sources of
U.S. workers.
(b) Thereafter, OFLC Administrator, shall provide overall direction
to the employer and the SWA with respect to the recruitment of U.S.
workers.
(c) By the 60th day of the recruitment period, or 20 days before
the date of need specified in the application, whichever is later, the
OFLC Administrator, when making a determination of the availability of
U.S. workers, shall also make a determination as to whether the
employer has satisfied the recruitment assurances in Sec. 655.203. If
the OFLC Administrator concludes that the employer has not satisfied
the requirement for recruitment of U.S. workers, the OFLC Administrator
shall deny the temporary labor certification, and shall immediately
notify the employer in writing with a copy to the State agency. The
notice shall contain the statements specified in Sec. 655.204(d).
(d) If the employer timely requests an expedited administrative-
judicial review before an Administrative Law Judge, the procedures in
Sec. 655.212 shall be followed.
Sec. 655.206 Determinations of U.S. worker availability and adverse
effect on U.S. workers.
(a) If the OFLC Administrator, in accordance with Sec. 655.205 has
determined that the employer has complied with the recruitment
assurances, the OFLC Administrator, by 60th day of the recruitment
period, or 20 days before the date of need specified in the
application, whichever is later, shall grant the temporary labor
certification for enough aliens to fill the employer's job
opportunities for which U.S. workers are not available. In making this
determination the OFLC Administrator shall consider as available for a
job opportunity any U.S. worker who has made a firm commitment to work
for the employer, including those workers committed by other authorized
persons such as farm labor contractors and family heads; such a firm
commitment shall be considered to have been made not only by workers
who have signed work contracts with the employer, but also by those
whom the OFLC Administrator determines are very likely to sign such a
work contract. The OFLC Administrator shall also
[[Page 11432]]
count as available any U.S. worker who has applied to the employer (or
on whose behalf an application has been made), but who was rejected by
the employer for other than lawful job-related related reasons unless
the OFLC Administrator determines that:
(1) Enough qualified U.S. workers have been found to fill all the
employer's job opportunities; or
(2) The employer, since the time of the initial determination under
Sec. 655.204, has adversely affected U.S. workers by offering to, or
agreeing to provide to, alien workers better wages, working conditions,
or benefits (or by offering or agreeing to impose on alien workers less
obligations and restrictions) than that offered to U.S. workers.
(b)(1) Temporary labor certifications shall be considered subject
to the conditions and assurances made during the application process.
Temporary labor certifications shall be for a limited duration such as
for ``the 1978 apple harvest season'' or ``until November 1, 1978'',
and they shall never be for more than eleven months. They shall be
limited to the employer's specific job opportunities; therefore, they
may not be transferred from one employer to another.
(2) If an association of employers is itself the employer, as
defined in Sec. 655.200, certifications shall be made to the
association and may be used for any of the job opportunities of its
employer members and workers may be transferred among employer members.
(3) If an association of employers is a joint employer with its
employer members, as defined in Sec. 655.200, the certification shall
be made jointly to the association and the employer members. In such
cases workers may be transferred among the employer members provided
the employer members and the association agree in writing to be jointly
and severally liable for compliance with the temporary labor
certification obligations set forth in this subpart.
(c) If the OFLC Administrator denies the temporary labor
certification in whole or part, the OFLC Administrator shall notify the
employer in writing by means normally assuring next-day delivery. The
notice shall contain all of the statements required in Sec.
655.204(d). If a timely request is made for an administrative-judicial
review by an Administrative Law Judge, the procedures of Sec. 655.212
shall be followed.
(d)(1) After a temporary labor certification has been granted, the
employer shall continue its efforts to actively recruit U.S. workers
until the foreign workers have departed for the employer's place of
employment. The employer, however, must keep an active job order on
file until the assurance at Sec. 655.203(e) is met.
(2) The State Workforce Agency (SWA) system shall continue to
actively recruit and refer U.S. workers as long as there is an active
job order on file.
Sec. 655.207 Adverse effect rates.
(a) Except as otherwise provided in this section, the adverse
effect rates for all agricultural and logging employment shall be the
prevailing wage rates in the area of intended employment.
(b)(1) For agricultural employment (except sheepherding) in the
States listed in paragraph (b)(2) of this section, and for Florida
sugarcane work, the adverse effect rate for each year shall be computed
by adjusting the prior year's adverse effect rate by the percentage
change (from the second year previous to the prior year) in the U.S.
Department of Agriculture's (USDA's) average hourly wage rates for
field and livestock workers (combined) based on the USDA Quarterly Wage
Survey. The OFLC Administrator shall publish, at least once in each
calendar year, on a date or dates he shall determine, adverse effect
rates calculated pursuant to this paragraph (b) as a notice or notices
in the Federal Register.
(2) List of States. Arizona, Colorado, Connecticut, Florida (other
than sugar cane work), Maine, Maryland, Massachusetts, New Hamsphire,
New York, Rhode Island, Texas, Vermont, Virginia, and West Virginia.
Other States may be added as appropriate.
(3) Transition. Notwithstanding paragraphs (b)(1) and (2) of this
section, the 1986 adverse effect rate for agricultural employment
(except sheepherding) in the following States, and for Florida
sugarcane work, shall be computed by adjusting the 1981 adverse effect
rate (computed pursuant to 20 CFR 655.207(b)(1), 43 FR 10317; March 10,
1978) by the percentage change between 1980 and 1985 in the U.S.
Department of Agriculture annual average hourly wage rates for field
and livestock workers (combined) based on the USDA Quarterly survey:
The States listed at 20 CFR 655.207(b)(2) (1985).
(c) In no event shall an adverse effect rate for any year be lower
than the hourly wage rate published in 29 U.S.C. 206(a)(1) and
currently in effect.
Sec. 655.208 Temporary labor certification applications involving
fraud or willful misrepresentation.
(a) If possible fraud or willful misrepresentation involving a
temporary labor certification application is discovered prior to a
final temporary labor certification determination, or if it is learned
that the employer or agent (with respect to an application) is the
subject of a criminal indictment or information filed in a court, the
OFLC Administrator shall refer the matter to the DHS for investigation
and shall notify the employer or agent in writing of this referral. The
OFLC Administrator shall continue to process the application and may
issue a qualified temporary labor certification.
(b) If a court finds an employer or agent innocent of fraud or
willful misrepresentation, or if the Department of Justice decides not
to prosecute an employer or agent, the OFLC Administrator shall not
deny the temporary labor certification application on the grounds of
fraud or willful misrepresentation. The application, of course, may be
denied for other reasons pursuant to this subpart.
(c) If a court or the DHS determines that there was fraud or
willful misrepresentation involving a temporary labor certification
application, the application shall be deemed invalidated, processing
shall be terminated, and the application shall be returned to the
employer or agent with the reasons therefor stated in writing.
Sec. 655.209 Invalidation of temporary labor certifications.
After issuance, temporary labor certifications are subject to
invalidation by the DHS upon a determination, made in accordance with
that agency's procedures or by a Court, of fraud or willful
misrepresentation of a material fact involving the temporary labor
certification application. If evidence of such fraud or willful
misrepresentation becomes known to the OFLC Administrator, the OFLC
Administrator shall notify the DHS in writing.
Sec. 655.210 Failure of employers to comply with the terms of a
temporary labor certification.
(a) If, after the granting of a temporary labor certification, the
OFLC Administrator has probable cause to believe that an employer has
not lived up to the terms of the temporary labor certification, the
OFLC Administrator shall investigate the matter. If the OFLC
Administrator concludes that the employer has not complied with the
terms of the labor certification, the OFLC Administrator may notify the
employer that it will not be eligible to apply for a temporary labor
certification in the coming year. The notice shall be in writing, shall
state the reasons for the determination, and shall offer the employer
an opportunity to request a
[[Page 11433]]
hearing within 30 days of the date of the notice. If the employer
requests a hearing within the 30-day period, the OFLC Administrator
shall follow the procedures set forth at Sec. 658.421(i)(1), (2) and
(3) of this chapter. The procedures contained in Sec. Sec. 658.421(j),
658.422 and 658.423 of this chapter shall apply to such hearings.
(b) No other penalty shall be imposed by the employment service on
such an employer other than as set forth in paragraph (a) of this
section.
Sec. 655.211 Petition for higher meal charges.
(a) Until a new amount is set pursuant to this paragraph (a), the
OFLC Administrator may permit an employer to charge workers up to $6.17
for providing them with three meals per day, if the employer justifies
the charge and submits to the OFLC Administrator the documentary
evidence required by paragraph (b) of this section. A denial in whole
or in part shall be reviewable as provided in Sec. 655.212 of this
part. Each year the maximum charge allowed by this paragraph (a) will
be changed by 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 their publication by the OFLC
Administrator in the Federal Register.
(b) Evidence 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 operations; 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 available for inspection by the Secretary's
representatives for a period of one year.
Sec. 655.212 Administrative-judicial reviews.
(a) Whenever an employer has requested an administrative-judicial
review of a denial of an application or a petition in accordance with
Sec. Sec. 655.204(d), 655.205(d), 655.206(c), or 655.211, the Chief
Administrative Law Judge shall immediately assign an Administrative Law
Judge to review the record for legal sufficiency, and the OFLC
Administrator shall send a certified copy of the case file to the Chief
Administrative Law Judge by means normally assuring next day delivery.
The Administrative Law Judge shall not have authority to remand the
case and shall not receive additional evidence. Any countervailing
evidence advanced after decision by the OFLC Administrator shall be
subject to provisions of 8 CFR 214.2(h)(3)(i).
(b) The Administrative Law Judge, within five working days after
receipt of the case file shall, on the basis of the written record and
due consideration of any written memorandums of law submitted, either
affirm, reverse or modify the OFLC Administrator's denial 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, OFLC Administrator, and DHS by means normally assuring
next-day delivery. The Administrative Law Judge's decision shall be the
final decision of the Department of Labor and no further review shall
be given to the temporary labor certification determination by any
Department of Labor official.
Sec. 655.215 Territory of Guam.
Subpart C of this part does not apply to temporary employment in
the Territory of Guam, and the Department of Labor does not certify to
the United States Citizenship and Immigration Services of the
Department of Homeland Security (DHS) the temporary employment of
nonimmigrant aliens under H-2B visas in the Territory of Guam. Pursuant
to DHS regulations, that function is performed by the Governor of Guam,
or the Governor's designated representative within the Territorial
Government.
Title 29--Labor
8. Redesignate part 501 as part 502 and suspend newly designated
Part 502.
9. Add part 501 to read as follows:
PART 501--ENFORCEMENT OF CONTRACTUAL OBLIGATIONS FOR TEMPORARY
ALIEN AGRICULTURAL WORKERS ADMITTED UNDER SECTION 216 OF THE
IMMIGRATION AND NATIONALITY ACT
Subpart A--General Provisions
Sec.
501.0 Introduction.
501.1 Purpose and scope.
501.2 Coordination of intake between DOL agencies.
501.3 Discrimination prohibited.
501.4 Waiver of rights prohibited.
501.5 Investigation authority of Secretary.
501.6 Prohibition on interference with Department of Labor
officials.
501.7 Accuracy of information, statements, data.
501.10 Definitions.
Subpart B--Enforcement of Work Contracts
501.15 Enforcement.
501.16 General.
501.17 Concurrent actions.
501.18 Representation of the Secretary.
501.19 Civil money penalty assessment.
501.20 Enforcement of Wage and Hour investigative authority.
501.21 Referral of findings to ETA.
501.22 Civil money penalties-payment and collection.
Subpart C--Administrative Proceedings
501.30 Applicability of procedures and rules.
Procedures Relating to Hearing
501.31 Written notice of determination required.
501.32 Contents of notice.
501.33 Request for hearing.
Rules of Practice
501.34 General.
501.35 Commencement of proceeding.
501.36 Caption of proceeding.
Referral for Hearing
501.37 Referral to Administrative Law Judge.
501.38 Notice of docketing.
501.39 Service upon attorneys for the Department of Labor--number of
copies.
Procedures Before Administrative Law Judge
501.40 Consent findings and order.
Post-Hearing Procedures
501.41 Decision and order of Administrative Law Judge.
Review of Administrative Law Judge's Decision
501.42 Procedures for initiating and undertaking review.
501.43 Responsibility of the Office of Administrative Law Judges.
501.44 Additional information, if required.
501.45 Final decision of the Secretary.
Record
501.46 Retention of official record.
501.47 Certification.
Authority: 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c), and 1188.
Subpart A--General Provisions
Sec. 501.0 Introduction.
These regulations cover the enforcement of all contractual
obligations provisions applicable to the employment of H-2A workers
under section 216 of the Immigration and Nationality Act (INA), as
amended by the Immigration Reform and Control Act of 1986 (IRCA). These
regulations are also applicable to the employment of other workers
hired by employers of H-2A workers in the occupations and for
[[Page 11434]]
the period of time set forth in the job order approved by ETA as a
condition for granting H-2A certification, including any extension
thereof. Such other workers hired by H-2A employers are hereafter
referred to as engaged in corresponding employment.
Sec. 501.1 Purpose and scope.
(a) Statutory standard. Section 216(a) of the INA provides that--
(1) A petition to import an alien as an H-2A worker (as defined
in subsection (i)(2) may not be approved by the Attorney General
unless the petitioner has applied to the Secretary of Labor for a
certification that--
(A) There are not sufficient workers who are able, willing, and
qualified, and who will be available at the time and place needed,
to perform the labor or services involved in the petition, and
(B) The employment of the alien in such labor or services will
not adversely affect the wages and working conditions of workers in
the United States similarly employed.
(b) Role of the ETA, USES. The issuance and denial of labor
certification under section 216 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 such issues as
whether U.S. workers were available, whether positive recruitment was
conducted, whether there was a strike or lockout, the methodology for
establishing adverse effect wage rates, whether workers' compensation
insurance was provided, whether employment was offered to U.S. workers
for up to 50 percent of the contract period and other similar matters.
The regulations pertaining to the issuance and denial of labor
certification for temporary alien workers by the Employment and
Training Administration are found in title 20 CFR part 655.
(c) Role of ESA, Wage and Hour Division. Section 216(g)(2) of the
INA provides that--
[T]he Secretary of Labor is authorized to take such actions
including imposing appropriate penalties and seeking appropriate
injunctive relief and specific performance of contractual
obligations, as may be necessary to assure employer compliance with
terms and conditions of employment under this section.
Certain investigation, inspection and law enforcement functions to
carry out the provisions of section 216 of the INA have been delegated
by the Secretary of Labor to the Employment Standards Administration
(ESA), Wage and Hour Division. In general, matters concerning the
obligations of the work contract between an employer of H-2A workers
and the H-2A workers and other workers in corresponding employment
hired 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,
seek injunctive relief and specific performance of contractual
obligations, including recovery of unpaid wages.
(d) Effect of regulations. The amendments to the INA made by title
III of the IRCA apply to petitions and applications filed on and after
June 1, 1987. Accordingly, the enforcement functions carried out by the
Wage and Hour Division under the INA and these regulations apply to the
employment of any H-2A worker and any other workers hired by H-2A
employers in corresponding employment as the result of any petition or
application filed with the Department on and after June 1, 1987.
Sec. 501.2 Coordination of intake between DOL agencies.
Complaints received by ETA, or any State Employment Service Agency
regarding contractual H-2A labor standards between the employer and the
employee will be immediately forwarded to the appropriate Wage and Hour
office for appropriate action under these regulations.
Sec. 501.3 Discrimination prohibited.
No person shall intimidate, threaten, restrain, coerce, blacklist,
discharge, or in any manner discriminate against any person who has:
(a) Filed a complaint under or related to section 216 of the INA or
these regulations;
(b) Instituted or caused to be instituted any proceedings related
to section 216 of the INA or these regulations;
(c) Testified or is about to testify in any proceeding under or
related to section 216 of the INA or these regulations;
(d) Exercised or asserted on behalf of himself or others any right
or protection afforded by section 216 of the INA or these regulations.
(e) Consulted with an employee of a legal assistance program or an
attorney on matters related to section 216 of the INA (8 U.S.C. 1186),
or to this subpart or any other DOL regulation promulgated pursuant to
section 216 of the INA.
Allegations of discrimination in employment against any person will
be investigated by Wage and Hour. Where Wage and Hour has determined
through investigation that such allegations have been substantiated
appropriate remedies may be sought. Wage and Hour 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 recommend to ETA that labor
certification of any violator be denied in the future.
Sec. 501.4 Waiver of rights prohibited.
No person shall seek to have an H-2A worker, or other worker
employed in corresponding employment by an H-2A employer, waive rights
conferred under section 216 of the INA or under these regulations. Such
waiver is against public policy. Any agreement by an employee
purporting to waive or modify any rights inuring to said person under
the Act or these regulations shall be void as contrary to public
policy, except that a waiver or modification of rights or obligations
hereunder in favor of the Secretary shall be valid for purposes of
enforcement of the provisions of the Act or these regulations. This
does not prevent agreements to settle private litigation.
Sec. 501.5 Investigation authority of Secretary.
(a) General. The Secretary, either pursuant to a complaint or
otherwise, shall, as may be appropriate, investigate and, in connection
therewith, enter and inspect such places and vehicles (including
housing) and such records (and make transcriptions thereof), question
such persons and gather such information as deemed necessary by the
Secretary to determine compliance with contractual obligations under
section 216 of the INA or these regulations.
(b) Failure to permit investigation. Where any person using the
services of an H-2A worker does not permit an investigation concerning
the employment of his or her workers the Wage and Hour Division shall
report such occurrence to ETA and may recommend denial of future labor
certifications to such person. In addition, Wage and Hour may take such
action as may be appropriate, including the seeking of an injunction or
assessing civil money penalties, against any person who has failed to
permit Wage and Hour to make an investigation.
[[Page 11435]]
(c) Confidential investigation. The Secretary shall conduct
investigations in a manner which protects the confidentiality of any
complainant or other person who provides information to the Secretary
in good faith.
(d) Report of violations. Any person may report a violation of the
work contract obligations of section 216 of the INA or these
regulations to the Secretary by advising any local office of the
Employment Service of the various States, any office of ETA, any office
of the Wage and Hour Division, ESA, U.S. Department of Labor, 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
Wage and Hour Division, ESA, for the area in which the reported
violation is alleged to have occurred.
Sec. 501.6 Prohibition on interference with Department of Labor
officials.
No person shall interfere with any official of the Department of
Labor assigned to perform an investigation, inspection or law
enforcement function pursuant to the INA and these regulations during
the performance of such duties. Wage and Hour will seek such action as
it deems appropriate, including an injunction to bar any such
interference with an investigation and/or assess a civil money penalty
therefor. In addition Wage and Hour may refer a report of the matter to
ETA with a recommendation that the person's labor certification be
denied in the future. (Federal statutes which 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.)
Sec. 501.7 Accuracy of information, statements, data.
Information, statements and data submitted in compliance with
provisions of the Act or these regulations are subject to title 18,
section 1001, of the U.S. Code, which provides:
Section 1001. Statements or entries generally.
Whoever, in any matter within the jurisdiction of any department or
agency of the United States knowingly and willfully falsifies,
conceals or covers up by any trick, scheme, or device a material
fact, or makes any false, fictitious or fraudulent statements or
representations, or makes or uses any false writing or document
knowing the same to contain any false, fictitious or fraudulent
statement or entry, shall be fined not more than $10,000 or
imprisoned not more than five years, or both.
Sec. 501.10 Definitions.
The definitions in paragraphs (a) through (d) are set forth for
purposes of this part. In addition, the definitions in paragraphs (e)
through (v) are promulgated at 20 CFR 655.100(b), are utilized herein,
and are incorporated and set forth for information purposes.
(a) Act and INA mean the Immigration and Nationality Act, as
amended (8 U.S.C. 1101 et seq. ), with reference particularly to
section 216.
(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 required by the
applicable regulations in subpart B of 20 CFR part 655, Labor
Certification Process for Temporary Agricultural Employment in the
United States, and those contained in the Application for Alien
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 wage rate which the
Director has determined must be offered and paid, as a minimum, to
every H-2A worker and every U.S. worker for a particular occupation
and/or area in which an employer employs or seeks to employ an H-2A
worker so that the wages of similarly employed U.S. workers will not be
adversely affected.
(f) Agricultural labor or services. Pursuant to section
101(a)(15)(ii)(a) of the INA (8 U.S.C. 1101(a)(15)(H)(ii)(a)),
``agricultural labor or services'' is defined for the purposes of this
subpart as either ``agricultural labor'' as defined and applied in
section 3121(g) of the Internal Revenue Code of 1954 (26 U.S.C.
3121(g)) or ``agriculture'' as defined and applied in section 3(f) of
the Fair Labor Standards Act of 1938 (29 U.S.C. 203(f)). An occupation
included in either statutory definition shall be ``agricultural labor
or services'', notwithstanding the exclusion of that occupation from
the other statutory definition. For informational purposes, the
statutory provisions are quoted below.
(1) Agricultural labor. Section 3121(g) of the Internal Revenue
Code of 1954 (26 U.S.C. 3121(g)) quoted as follows, defines the term
``agricultural labor'' to include all service performed:
(1) On a farm, in the employ of any person, in connection with
cultivating the soil, or in connection with raising or harvesting
any agricultural or horticultural commodity, including the raising,
shearing, feeding, caring for, training, and management of
livestock, bees, poultry, and furbearing animals and wildlife;
(2) Services performed in the employ of the owner or tenant or
other operator of a farm, in connection with the operation, or
maintenance of such farm and its tools and equipment, or in
salvaging timber or clearing land of brush and other debris left by
a hurricane, if the major part of such service is performed on a
farm;
(3) In connection with the production or harvesting of any
commodity defined as an agricultural commodity in section 15(g) of
the Agricultural Marketing Act, as amended (12 U.S.C. 1141j), or in
connection with the ginning of cotton, or in connection with the
operation or maintenance of ditches, canals, reservoirs, or
waterways, not owned or operated for profit, used exclusively for
supplying and storing water for farming purposes;
(4)(A) In the employ of the operator of a farm in handling,
planting, drying, packing, packaging, processing, freezing, grading,
storing, or delivering to storage or to market or to a carrier for
transportation to market, in its unmanufactured state, any
agricultural or horticultural commodity; but only if such operator
produced more than one-half of the commodity with respect to which
such service is performed;
(B) In the employ of a group of operators of farms (other than a
cooperative organization) in the performance of service described in
subparagraph (A), but only if such operators produced all of the
commodity with respect to which such service is performed. For
purposes of this subparagraph, any unincorporated group of operators
shall be deemed a cooperative organization if the number of
operators comprising such group is more than 20 at any time during
the calendar quarter in which such service is performed;
(C) The provisions of subparagraphs (A) and (B) shall not be
deemed to be applicable with respect to service performed in
connection with commercial canning or commercial freezing or in
connection with any agricultural or horticultural commodity after
its delivery to a terminal market for distribution for consumption;
or
(5) On a farm operated for profit if such service is not in the
course of the employer's trade or business or is domestic service in
a private home of the employer.
[[Page 11436]]
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.
(2) Agriculture. Section 203(f) of title 29, United States Code,
(section 3(f) of the Fair Labor Standards Act of 1938), quoted as
follows, defines agriculture to include:
(f) * * * farming in all its branches and among other things
includes the cultivation and tillage of the soil, dairying, the
production, cultivation, growing, and harvesting of any agricultural
or horticultural commodities (including commodities defined as
agricultural commodities in section 15(g) of the Agricultural
Marketing Act, as amended), 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.
(3) Agricultural commodity. Section 1141j(g) of title 12, United
States Code, (section 15(g) of the Agricultural Marketing Act, as
amended) quoted as follows, defines agricultural commodity to include:
(g) * * * in addition to other agricultural commodities, crude
gum (oleoresin) from a living tree, and the following products as
processed by the original producer of the crude gum (oleoresin) from
which derived: Gum spirits of turpentine, and gum rosin, as defined
in section 92 of title 7.
(iv) Gum rosin. Section 92 of title 7, United States Code, quoted
as follows, defines gum spirits of turpentine and gum rosin as--
(c) Gum spirits of turpentine means spirits of turpentine made
from gum (oleoresin) from a living tree.
(g) Gum rosin means rosin remaining after the distillation of
gum spirits of turpentine.
(g) Of a temporary or seasonal nature--(1) On a seasonal or other
temporary basis. For the purposes of this subpart of a temporary or
seasonal nature means on a seasonal or other temporary basis, as
defined in the Employment Standards Administration's Wage and Hour
Division's regulation at 29 CFR 500.20 under the Migrant and Seasonal
Agricultural Worker Protection Act (MSPA). For informational purposes
Sec. 500.20 as it pertains to seasonal or temporary basis is quoted
below.
(2) MSPA definition. For information purposes, the definition of on
a seasonal or other temporary basis, as set forth at Sec. 500.20 of
this title, is provided below:
On a seasonal or other temporary basis means:
Labor is performed on a seasonal basis, where, ordinarily, the
employment pertains to or is of the kind exclusively performed at
certain seasons or periods of the year and which, from its nature,
may not be continuous or carried on throughout the year. A worker
who moves from one seasonal activity to another, while employed in
agriculture or performing agricultural labor, is employed on a
seasonal basis even though he may continue to be employed during a
major portion of the year.
A worker is employed on other temporary basis where he is
employed for a limited time only or the performance is contemplated
for a particular piece of work, usually of short duration.
Generally, employment, which is contemplated to continue
indefinitely, is not temporary.
On a seasonal or other temporary basis does not include the
employment of any foreman or other supervisory employee who is
employed by a specific agricultural employer or agricultural
association essentially on a year round basis.
On a seasonal or other temporary basis does not include the
employment of any worker who is living at his permanent place of
residence, when that worker is employed by a specific agricultural
employer or agricultural association on essentially a year round
basis to perform a variety of tasks for his employer and is not
primarily employed to do field work.
(3) Temporary. For the purpose of this subpart, the definition of
``temporary'' in paragraph (c)(2)(ii) of this section refers to any job
opportunity covered by this subpart where the employer needs a worker
for a position, either temporary or permanent, for a limited period of
time, which shall be for less than one year, unless the original
temporary alien agricultural labor certification is extended based on
unforeseen circumstances, pursuant to Sec. 655.106(c)(3) of this
title.
(h) DOL means the U.S. Department of Labor.
(i) Employer means a person, firm, corporation or other association
or organization which suffers or permits a person to work and (1) which
has a location within the United States to which U.S. workers may be
referred for employment, and which proposes to employ workers at a
place within the United States and (2) which has an employer
relationship with respect to employees under this subpart as indicated
by the fact that it may hire, pay, fire, supervise or otherwise control
the work of any such employee. An association of employers shall be
considered the sole employer if it alone has the indicia of an employer
set forth in this definition. Such an association, however, shall be
considered as a joint employer with an employer member if it shares
with the employer member one or more of the definitional indicia.
(j) Employment Service (ES) and Employment Service (ES) System
mean, collectively, the USES, the State agencies, the local offices,
and the ETA regional offices.
(k) Employment Standards Administration means the agency within the
Department of Labor (DOL), which includes the Wage and Hour Division,
and which is charged with the carrying out certain functions of the
Secretary under the INA.
(l) Employment and Training Administration (ETA) means the agency
within the Department of Labor (DOL) which includes the U.S. Employment
Service (USES).
(m) H-2A worker means any nonimmigrant alien admitted to the United
States for agricultural labor or services of a temporary or seasonal
nature under section 101(a)(15)(H)(ii)(a) of the INA (8 U.S.C.
1101(a)(15)(H)(ii)(a)).
(n) Immigration and Naturalization Service (INS) means the
component of the U.S. Department of Justice which makes the
determination under the INA on whether or not to grant visa petitions
to employers seeking H-2A workers to perform temporary agricultural
work in the United States.
(o) Job offer means the offer made by an employer or potential
employer of H-2A workers to both U.S. and H-2A workers describing all
the material terms and conditions of employment, including those
relating to wages, working conditions, and other benefits.
(p) Secretary means the Secretary of Labor or the Secretary's
designee.
(q) State agency means the State employment service agency
designated under section 4 of the Wagner-Peyser Act to cooperate with
the USES in the operation of the ES System.
(r) Solicitor of Labor means the Solicitor, U.S. Department of
Labor, and includes employees of the Office of the Solicitor of Labor
designated by the Solicitor to perform functions of the Solicitor under
this subpart.
(s) Temporary alien agricultural labor certification means the
certification made by the Secretary of Labor with respect to an
employer seeking to file with INS a visa petition to import an alien as
an H-2A worker, pursuant to sections 101(a)(15)(H)(ii)(a), 214 (a) and
(c), and 216 of the INA that (1) there are not sufficient workers who
are able, willing, and qualified, and who will be available at the time
and place needed, to perform the agricultural labor or services
involved in the petition, and (2) the employment of the alien in such
agricultural labor or services will not
[[Page 11437]]
adversely affect the wages and working conditions of workers in the
United States similarly employed (8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184
(a) and (c), and 1186).
(t) United States Employment Service (USES) means the agency of the
U.S. Department of Labor, established under the Wagner-Peyser Act,
which is charged with administering the national system of public
employment offices and carrying out certain functions of the Secretary
under the INA.
(u) United States (U.S.) worker means any worker who, whether a
U.S. national, a U.S. citizen, or an alien, is legally permitted to
work in the job opportunity within the United States (as defined at
section 101(a)(38) of the INA (8 U.S.C. 1101(a)(38)).
(v) Wages means all forms of cash remuneration to a worker by an
employer in payment for personal services.
Subpart B--Enforcement of Work Contracts
Sec. 501.15 Enforcement.
The investigations, inspections and law enforcement functions to
carry out the provisions of section 216 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 worker
employed in corresponding employment by an H-2A employer. Such
enforcement includes those work contract provisions as defined in Sec.
501.10(d). The work contract enforced includes the employment benefits
which must be stated in the job offer, as prescribed in 20 CFR 655.102.
Sec. 501.16 General.
Whenever the Secretary believes that the H-2A provisions of the INA
or these regulations have been violated such action shall be taken and
such proceedings instituted as deemed appropriate, including (but not
limited to) the following:
(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 labor
certification. ESA 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, the enforcement of any other contractual
obligations and the assessment of a civil money penalty against any
person for a violation of the H-2A work contract obligations of the Act
or these regulations.
(c) Petition any appropriate District Court of the United States
for temporary or permanent injunctive relief, including the withholding
of unpaid wages, to restrain violation of the H-2A provisions the Act
or these regulations by any person;
(d) Petition any appropriate District Court of the United States
for specific performance of contractual obligations.
Sec. 501.17 Concurrent actions.
The taking of any one of the actions referred to above shall not be
a bar to the concurrent taking of any other action authorized by the H-
2A provisions of the Act and these regulations, or the regulations of
20 CFR part 655.
Sec. 501.18 Representation of the Secretary.
(a) Except as provided in section 518(a) of title 28, United States
Code, relating to litigation before the Supreme Court, the Solicitor of
Labor may appear for and represent the Secretary in any civil
litigation brought under the Act.
(b) The Solicitor of Labor, through the authorized representatives
shall represent the Administrator and the Secretary in all
administrative hearings under the H-2A provisions of the Act and these
regulations.
Sec. 501.19 Civil money penalty assessment.
(a) A civil money penalty may be assessed by the Administrator for
each violation of the work contract or these regulations.
(b) In determining the amount of penalty to be assessed for any
violation of the work contract as provided in the H-2A provisions of
the Act or these regulations the Administrator shall consider the type
of violation committed and other relevant factors. The matters which
may be considered include, but are not limited to, the following:
(1) Previous history of violation, or violations of the H-2A
provisions of the Act and these regulations;
(2) The number of workers affected by the violation or violations;
(3) The gravity of the violation or violations;
(4) Efforts made in good faith to comply with the H-2A provisions
of the Act and these regulations;
(5) Explanation of person charged with the violation or violations;
(6) Commitment to future compliance, taking into account the public
health, interest or safety, and whether the person has previously
violated the H-2A provisions of the Act;
(7) The extent to which the violator achieved a financial gain due
to the violation, or the potential financial loss or potential injury
to the workers.
(c) A civil money penalty for violation of the work contract will
not exceed $1,000 for each violation committed against each worker. A
civil money penalty for discrimination or interference with Wage and
Hour investigative authority will not exceed $1,000 for each such act
of discrimination or interference.
Sec. 501.20 Enforcement of Wage and Hour investigative authority.
Sections 501.5 through 501.7 of this part prescribe the
investigation authority conferred upon the Wage and Hour Division for
the purpose of enforcing the contractual obligations. These sections
indicate the actions which may be taken upon failure to permit or
interference with an investigation. 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 in 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 Wage
and Hour shall report each such occurrence to ETA and may recommend to
ETA denial of future labor certifications. The taking of any one action
shall not bar the taking of any additional action.
Sec. 501.21 Referral of findings to ETA.
Where Wage-Hour finds violations Wage and Hour shall so notify the
appropriate representative of ETA and shall forward appropriate
information, including investigative information to such representative
for review and consideration.
Sec. 501.22 Civil money penalties--payment and collection.
Where the assessment is directed in a final order by the
Administrator, by an Administrative Law Judge, or by the Secretary, the
amount of the penalty is immediately due and payable to the U.S.
Department of Labor. The person assessed such penalty shall remit
promptly the amount thereof as finally determined, to the Administrator
by certified check or by money order, made payable to the order of
``Wage and Hour Division, Labor.'' The remittance shall be delivered or
mailed to the Wage and Hour Division Regional Office for the area in
which the violations occurred.
[[Page 11438]]
Subpart C--Administrative Proceedings
Sec. 501.30 Applicability of procedures and rules.
The procedures and rules contained herein prescribe the
administrative process which will be applied with respect to a
determination to impose an assessment of civil money penalties 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, the
Secretary may, in his discretion, seek enforcement action in Federal
court without resort to any administrative proceedings.
Procedures Relating to Hearing
Sec. 501.31 Written notice of determination required.
Whenever the Administrator determines to assess a civil money
penalty 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.
Sec. 501.32 Contents of notice.
The notice required by Sec. 501.31 shall:
(a) Set forth the determination of the Administrator including the
amount of any unpaid wages due or contractual obligations required and
the amount of any civil money penalty assessment and the reason or
reasons therefor.
(b) Set forth the right to request a hearing on such determination.
(c) Inform any affected person or persons that in the absence of a
timely request for a hearing, the determination of the Administrator
shall become final and unappealable.
(d) Set forth the time and method for requesting a hearing, and the
procedures relating thereto, as set forth in Sec. 501.33.
Sec. 501.33 Request for hearing.
(a) Any person desiring to request an administrative hearing on a
determination referred to in Sec. 501.32 shall make such request in
writing to the official who issued the determination, at the Wage and
Hour Division address appearing on the determination notice, no later
than thirty (30) days after issuance of the notice referred to in Sec.
501.32.
(b) No particular form is prescribed for any request for hearing
permitted by this part. However, any such request shall:
(1) Be typewritten or legibly written;
(2) Specify the issue or issues stated in the notice of
determination giving rise to such request;
(3) State the specific reason or reasons why the person requesting
the hearing believes such determination is in error;
(4) Be signed by the person making the request or by an authorized
representative of such person; and
(5) Include the address at which such person or authorized
representative desires to receive further communications relating
thereto.
(c) The request for such hearing must be received by the official
who issued the determination, at the Wage and Hour Division address
appearing on the determination notice, within the time set forth in
paragraph (a) of this section. For the affected person's protection, if
the request is by mail, it should be by certified mail.
Rules of Practice
Sec. 501.34 General.
Except as specifically provided in these regulations, the ``Rules
of Practice and Procedure for Administrative Hearings Before the Office
of Administrative Law Judges'' established by the Secretary at 29 CFR
part 18 shall apply to administrative proceedings described in this
part.
Sec. 501.35 Commencement of proceeding.
Each administrative proceeding permitted under the Act and these
regulations shall be commenced upon receipt of a timely request for
hearing filed in accordance with Sec. 501.33.
Sec. 501.36 Caption of proceeding.
(a) Each administrative proceeding instituted under the Act and
these regulations shall be captioned in the name of the person
requesting such hearing, and shall be styled as follows:
In the Matter of --------, Respondent.
(b) For the purposes of such administrative proceedings the
Administrator shall be identified as plaintiff and the person
requesting such hearing shall be named as respondent.
Referral for Hearing
Sec. 501.37 Referral to Administrative Law Judge.
(a) Upon receipt of a timely request for a hearing filed pursuant
to and in accordance with Sec. 501.33 the Administrator, by the
Associate Solicitor for the Division of Fair Labor Standards or by the
Regional Solicitor for the Region in which the action arose, shall, by
Order of Reference, promptly refer a copy of the notice of
administrative determination complained of, and the original or a
duplicate copy of the request for hearing signed by the person
requesting such hearing or by the authorized representative of such
person, to the Chief Administrative Law Judge, for a determination in
an administrative proceeding as provided herein. The notice of
administrative determination and request for hearing shall be filed of
record in the Office of the Chief Administrative Law Judge and shall,
respectively, be given the effect of a complaint and answer thereto for
purposes of the administrative proceeding, subject to any amendment
that may be permitted under these regulations or 29 CFR part 18.
(b) A copy of the Order of Reference, together with a copy of these
regulations, shall be served by counsel for the Administrator upon the
person requesting the hearing, in the manner provided in 29 CFR 18.3.
Sec. 501.38 Notice of docketing.
Upon receipt of an Order of Reference, the Chief Administrative Law
Judge shall appoint an Administrative Law Judge to hear the case. The
Administrative Law Judge shall promptly notify all interested parties
of the docketing of the matter and shall set the time and place of the
hearing. The date of the hearing shall be not more than 60 days from
the date on which the Order of Reference was filed.
Sec. 501.39 Service upon attorneys for the Department of Labor--
number of copies.
Two copies of all pleadings and other documents required for any
administrative proceeding provided herein shall be served on the
attorneys for the Department of Labor. One copy shall be served on the
Associate Solicitor, Division of Fair Labor Standards, Office of the
Solicitor, U.S. Department of Labor, 200 Constitution Avenue, NW.,
Washington, DC 20210, and one copy on the Attorney representing the
Department in the proceeding.
Procedures Before Administrative Law Judge
Sec. 501.40 Consent findings and order.
(a) General. At any time after the commencement of a proceeding
under this part, but prior to the reception of evidence in any such
proceeding, a party may move to defer the receipt of any evidence for a
reasonable time to permit negotiation of an agreement containing
consent findings and an order disposing of the whole or any part of the
proceeding. The allowance of such deferment and the duration thereof
shall be at the discretion of the Administrative Law Judge, after
[[Page 11439]]
consideration of the nature of the proceeding, the requirements of the
public interest, the representations of the parties, and the
probability of an agreement being reached which will result in a just
disposition of the issues involved.
(b) Content. Any agreement containing consent findings and an order
disposing of a proceeding or any part thereof shall also provide:
(1) That the order shall have the same force and effect as an order
made after full hearing;
(2) That the entire record on which any order may be based shall
consist solely of the notice of administrative determination (or
amended notice, if one is filed), and the agreement;
(3) A waiver of any further procedural steps before the
Administrative Law Judge; and
(4) A waiver of any right to challenge or contest the validity of
the findings and order entered into in accordance with the agreement.
(c) Submission. On or before the expiration of the time granted for
negotiations, the parties or their authorized representatives or their
counsel may:
(1) Submit the proposed agreement for consideration by the
Administrative Law Judge; or
(2) Inform the Administrative Law Judge that agreement cannot be
reached.
(d) Disposition. In the event an agreement containing consent
findings and an order is submitted within the time allowed therefor,
the Administrative Law Judge, within thirty (30) days thereafter,
shall, if satisfied with its form and substance, accept such agreement
by issuing a decision based upon the agreed findings.
Post-Hearing Procedures
Sec. 501.41 Decision and order of Administrative Law Judge.
(a) The Administrative Law Judge shall prepare, within 60 days
after completion of the hearing and closing of the record, a decision
on the issues referred by the Administrator.
(b) The decision of the Administrative Law Judge shall include a
statement of findings and conclusions, with reasons and basis therefor,
upon each material issue presented on the record. The decision shall
also include an appropriate order which may affirm, deny, reverse, or
modify, in whole or in part, the determination of the Administrator.
The reason or reasons for such order shall be stated in the decision.
(c) The decision shall be served on all parties and the Secretary
in person or by certified mail. The decision when served by the
Administrative Law Judge shall constitute the final order of the
Administrator unless the Secretary, as provided for in Sec. 501.42
below determines to review the decision.
Review of Administrative Law Judge's Decision
Sec. 501.42 Procedures for initiating and undertaking review.
(a) A respondent, the Administrator or any other party wishing
review of the decision of an Administrative Law Judge shall, within 30
days of the decision of the Administrative Law Judge, petition the
Secretary to review the decision. Copies of the petition shall be
served on all parties and on the Administrative Law Judge. If the
Secretary 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.
(b) Whenever the Secretary either on the Secretary's own motion or
by acceptance of a party's petition, determines to review the decision
of an Administrative Law Judge, a notice of the same shall be served
upon the Administrative Law Judge and upon all parties to the
proceeding in person or by certified mail.
Sec. 501.43 Responsibility of the Office of Administrative Law
Judges.
Upon receipt of the Secretary's Notice pursuant to Sec. 501.42 of
these regulations, the Office of Administrative Law Judges shall
promptly forward a copy of the complete hearing record to the
Secretary.
Sec. 501.44 Additional information, if required.
Where the Secretary has determined to review such decision and
order, the Secretary shall notify each party of:
(a) The issue or issues raised;
(b) The form in which submission shall be made (i.e., briefs, oral
argument, etc.); and the time within which such presentation shall be
submitted.
Sec. 501.45 Final decision of the Secretary.
The Secretary's final decision shall be issued within 90 days from
the notice granting the petition and served upon all parties and the
administrative law judge, in person or by certified mail.
Record
Sec. 501.46 Retention of official record.
The official record of every completed administrative hearing
provided by these regulations shall be maintained and filed under the
custody and control of the Chief Administrative Law Judge.
Sec. 501.47 Certification.
Upon receipt of a complaint seeking review of a decision issued
pursuant to this part filed in a U.S. District Court, after the
administrative remedies have been exhausted, the Chief Administrative
Law Judge shall promptly index, certify and file with the appropriate
U.S. District Court, a full, true, and correct copy of the entire
record, including the transcript of proceedings.
PART 780--EXEMPTIONS APPLICABLE TO AGRICULTURE, PROCESSING OF
AGRICULTURAL COMMODITIES, AND RELATED SUBJECTS UNDER THE FAIR LABOR
STANDARDS ACT
10. The authority citation for part 780 is revised to read as
follows:
Authority: Secs. 1-19, 52 Stat. 1060, as amended; 75 Stat. 65;
29 U.S.C. 201-219.
11. Redesignate Sec. 780.115 as Sec. 780.159 and suspend newly
designated Sec. 780.159.
12. Add Sec. 780.115 to read as follows:
Sec. 780.115 Forest products.
Trees grown in forests and the lumber derived therefrom are not
``agricultural or horticultural commodities.'' Christmas trees, whether
wild or planted, are also not so considered. 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 which
discuss 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(a)(13) of the Act for certain forestry and logging
operations in which not more than eight employees are employed, see
part 788 of this chapter.
13. Redesignate Sec. 780.201 as Sec. 780.215 and suspend newly
designated Sec. 780.215.
14. Add Sec. 780.201 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,
[[Page 11440]]
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 or planted Christmas trees are
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(a)(13) 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.''
15. Redesignate Sec. 780.205 as Sec. 780.216 and suspend newly
designated Sec. 780.216.
16. Add Sec. 780.205 to read as follows:
Sec. 780.205 Nursery activities generally.
The employees of a nursery who are engaged in the following
activities are employed in ``agriculture'':
(a) Sowing seeds and otherwise propagating fruit, nut, shade,
vegetable, and ornamental plants or trees (but not Christmas trees),
and shrubs, vines, and flowers;
(b) Handling such plants from propagating frames to the field;
(c) Planting, cultivating, watering, spraying, fertilizing,
pruning, bracing, and feeding the growing crop.
17. Redesignate Sec. 780.208 as Sec. 780.217 and suspend newly
designated Sec. 780.217.
18. Add Sec. 780.208 to read as follows:
Sec. 780.208 Forest and Christmas tree activities.
Operations in a forest tree nursery such as seeding new beds and
growing and transplanting forest seedlings are not farming operations.
The planting, tending, and cutting of Christmas trees do not constitute
farming operations. If such operations on forest products are 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
19. Redesignate Sec. 788.10 as Sec. 788.18 and suspend newly
designated Sec. 788.18.
20. Add Sec. 788.10 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 and Christmas trees, roots, stems, leaves, Spanish moss, wild
fruit, and brush. 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 which
change the natural physical or chemical condition of the products or
which amount to extracting as distinguished from gathering, such as
shelling nuts, or mashing berries to obtain juices.
Signed in Washington, DC, this 10th day of March 2009.
Douglas F. Small,
Deputy Assistant Secretary, Employment and Training Administration.
Shelby Hallmark,
Acting Assistant Secretary, Employment Standards Administration.
[FR Doc. E9-5562 Filed 3-16-09; 8:45 am]
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