[Federal Register: December 18, 2008 (Volume 73, Number 244)]
[Rules and Regulations]
[Page 77109-77262]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18de08-20]
[[Page 77109]]
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Part II
Department of Labor
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Employment and Training Administration
20 CFR Part 655
Wage and Hour Division
29 CFR Parts 501, 780, and 788
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Temporary Agricultural Employment of H-2A Aliens in the United States;
Modernizing the Labor Certification Process and Enforcement; Final Rule
[[Page 77110]]
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DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Part 655
Wage and Hour Division
29 CFR Parts 501, 780, and 788
RIN 1205-AB55
Temporary Agricultural Employment of H-2A Aliens in the United
States; Modernizing the Labor Certification Process and Enforcement
AGENCY: Employment and Training Administration, and Wage and Hour
Division, Employment Standards Administration, Labor.
ACTION: Final rule.
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SUMMARY: The Department of Labor (DOL or Department) is amending its
regulations regarding the certification for the temporary employment of
nonimmigrant workers in agricultural occupations on a temporary or
seasonal basis, and the enforcement of the contractual obligations
applicable to employers of such nonimmigrant workers.
This final rule re-engineers the process by which employers obtain
a temporary labor certification from the Department for use in
petitioning the Department of Homeland Security (DHS) to employ a
nonimmigrant worker in H-2A (agricultural temporary worker) status. The
final rule utilizes an attestation-based application process based on
pre-filing recruitment and eliminates duplicative H-2A activities
currently performed by State Workforce Agencies (SWAs) and the
Department. The rule also provides enhanced enforcement, including more
rigorous penalties, to complement the modernized certification process
and to appropriately protect workers.
DATES: This final rule is effective January 17, 2009.
FOR FURTHER INFORMATION CONTACT: For further information about 20 CFR
part 655, subpart B, contact William L. Carlson, Administrator, Office
of Foreign Labor Certification, Employment and Training Administration,
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). Individuals with hearing or speech impairments may access
the telephone number above via TTY by calling the toll-free Federal
Information Relay Service at 1-800-877-8339.
For further information regarding 29 CFR part 501, contact James
Kessler, Farm Labor Team Leader, Wage and Hour Division, Employment
Standards Administration, U.S. Department of Labor, 200 Constitution
Avenue, NW., Room S-3510, Washington, DC 20210; Telephone (202) 693-
0070 (this is not a toll-free number). Individuals with hearing or
speech impairments may access the telephone number above via TTY by
calling the toll-free Federal Information Relay Service at 1-800-877-
8339.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background Leading to the NPRM
A. Statutory Standard and Current Department of Labor
Regulations
B. Overview of the Proposed Redesign of the System
C. Severability
II. Discussion of Comments on Proposed Rule
A. Revisions to 20 CFR Part 655 Subpart B
Section 655.93 Special Procedures
Section 655.100 Overview and Definitions
Section 655.101 Applications for Temporary Employment
Certification
Section 655.102 Required pre-filing activity
Section 655.103 Advertising requirements
Section 655.104 Contents of job offers
Section 655.105 Assurances and obligations of H-2A employers
Section 655.106 Assurances and obligations of H-2A labor
contractors
Section 655.107 Processing of applications
Section 655.108 Offered wage rate
Section 655.109 Labor certification determinations
Section 655.110 Validity and scope of temporary labor
certifications
Section 655.111 Required departure
Section 655.112 Audits
Section 655.113 H-2A Applications Involving Fraud or Willful
Misrepresentation
Section 655.114 Setting Meal Charges; Petition for Higher Meal
Charges
Section 655.115 Administrative Review and De Novo Hearing before
an Administrative Law Judge
Section 655.116 Job Service Complaint System; enforcement of
work contracts
Section 655.117 Revocation of H-2A certification approval
Section 655.118 Debarment
Timeline for Anticipated Training and Education Outreach
Initiative Transition
B. Revisions to 29 CFR Part 501
Section 501.0 Introduction
Section 501.1 Purpose and scope
Section 501.2 Coordination of intake between DOL agencies
Section 501.3 Discrimination
Section 501.4 Waiver of rights prohibited
Section 501.5 Investigation authority of Secretary
Section 501.6 Cooperation with DOL officials
Section 501.8 Surety bond
Section 501.10 Definitions
Section 501.15 Enforcement
Section 501.16 Sanctions and remedies
Section 501.19 Civil money penalty assessment
Section 501.20 Debarment and revocation
Section 501.21 Failure to cooperate with investigations
Section 501.30 Applicability of procedures and rules
Section 501.31 Written notice of determination required
Section 501.32 Contents of notice
Section 501.33 Requests for hearing
Section 501.42 Exhaustion of administrative remedies
C. Revisions to 29 CFR Parts 780 and 788
Section 780.115 Forest products
Section 780.201 Meaning of forestry or lumbering operations
Section 780.205 Nursery activities generally and Christmas tree
production
Section 780.208 Forestry activities
Section 788.10 Preparing other forestry products
III. Administrative Information
A. Executive Order 12866--Regulatory Planning and Review
B. Regulatory Flexibility Analysis
C. Unfunded Mandates Reform Act of 1995
D. Executive Order 13132--Federalism
E. Executive Order 13175--Indian Tribal Governments
F. Assessment of Federal Regulations and Policies on Families
G. Executive Order 12630--Protected Property Rights
H. Executive Order 12988--Civil Justice Reform
I. Plain Language
J. Executive Order 13211--Energy Supply
K. Paperwork Reduction Act
I. Background Leading to the NPRM
A. Statutory Standard and Current Department of Labor Regulations
The H-2A visa program provides a means for U.S. agricultural
employers to employ foreign workers on a temporary basis to perform
agricultural labor or services when U.S. labor is in short supply.
Section 101(a)(15)(H)(ii)(a) of the Immigration and Nationality Act
(INA or the Act) (8 U.S.C. 1101(a)(15)(H)(ii)(a)) defines an H-2A
worker as a nonimmigrant admitted to the U.S. on a temporary or
seasonal basis to perform agricultural labor or services. Section
214(c)(1) of the INA (8 U.S.C. 1184(c)(1)) mandates that the Secretary
of DHS consult with the Secretary of the Department of Labor (the
Secretary) with respect to adjudication H-2A petitions, and, by cross-
referencing Section 218 of the INA (8 U.S.C. 1188), with determining
the availability of U.S. workers and the effect on wages and working
conditions. Section 218 also sets forth further details of the H-2A
application process and the requirements to be met by the agricultural
employer.
[[Page 77111]]
Although foreign agricultural labor has contributed to the growth
and success of America's agricultural sector since the 19th century,
the modern-day agricultural worker visa program originated with the
creation, in the INA (Pub. L. 82-144), of the ``H-2 program''--a
reference to the INA subparagraph that established the program. Today,
the H-2A nonimmigrant visa program authorizes the Secretary of DHS to
permit employers to hire foreign workers to come temporarily to the
U.S. and perform agricultural services or labor of a seasonal or
temporary nature, if the need for foreign labor is first certified by
the Secretary.
Section 218(a)(1) of the INA (8 U.S.C. 1188(a)(1)) states that a
petition to import H-2A workers may not be approved by the Secretary of
Homeland Security unless the petitioner has applied to the Secretary
for a certification that:
(a) There are not sufficient U.S. workers who are able, willing,
and qualified, and who will be available at the time and place needed
to perform the labor or services involved in the petition; and
(b) The employment of the alien in such labor or services will not
adversely affect the wages and working conditions of workers in the
United States similarly employed.
The INA specifies conditions under which the Secretary must deny
certification, and establishes specific timeframes within which
employers must file--and the Department must process and either reject
or certify--applications for H-2A labor certification. In addition, the
statute contains certain worker protections, including the provision of
workers' compensation insurance and housing as well as minimum
recruitment standards to which H-2A employers must adhere. See 8 U.S.C.
1188(b) and (c). The INA does not limit the number of foreign workers
who may be accorded H-2A status each year or the number of labor
certification applications the Department may process.
The Department has regulations at 20 CFR part 655, subpart B--
``Labor Certification Process for Temporary Agricultural Employment
Occupations in the United States (H-2A Workers),'' governing the H-2A
labor certification process, and at 29 CFR part 501 implementing its
enforcement responsibilities under the H-2A program. Regulations
relating to employer-provided housing for agricultural workers appear
at 20 CFR part 654, subpart E (Housing for Agricultural Workers), and
29 CFR 1910.142 (standards set by the Occupational Safety and Health
Administration); see also 20 CFR 651.10, and part 653, subparts B and
F.
The Department was charged with reviewing the efficiency and
effectiveness of its H-2A procedures in light of the increasing
presence of undocumented workers in agricultural occupations and
because of growing concern about the stability of the agricultural
industry given its difficulty in gaining access to a legal
workforce.\1\ The Department reviewed its administration of the program
and, in light of its extensive experience in both the processing of
applications and the enforcement of worker protections, proposed
measures to re-engineer the H-2A program in a Notice of Proposed
Rulemaking on February 13, 2008 (73 FR 8538) (NPRM or Proposed Rule).
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\1\ Fact Sheet: Improving Border Security and Immigration Within
Existing Law, Office of the Press Secretary, The White House (August
10, 2007); see also Statement on Improving Border Security and
Immigration Within Existing Law, 43 Weekly Comp. Pres. Doc. (August
13, 2007).
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B. Overview of the Proposed Redesign of the System
The NPRM described a pre-filing recruitment and attestation process
as part of a re-engineered H-2A program. The Department proposed a
process by which employers, as part of their application, would attest
under threat of penalties, including debarment from the program, that
they have complied with and will continue to comply with all applicable
program requirements. In addition, employers would not be required to
file extensive documentation with their applications but would be
required to maintain all supporting documentation for their application
for a period of 5 years in order to facilitate the Department's
enforcement of program requirements. The Department's proposal also
contained new and enhanced penalties and procedures for invoking those
penalties against employers as well as their attorneys or agents who
fail to perform obligations imposed under the H-2A program. The program
also eliminates duplicative administration and processing by the State
Workforce Agencies (SWAs) and the Department by requiring filing of the
application only with the Department's National Processing Center (NPC)
in Chicago, Illinois. This program would also enable the SWAs to better
perform their mandated functions in processing H-2A agricultural
clearance orders, by enhancing their ability to conduct housing
inspections well in advance of the employer's application date. The
SWAs would also continue to clear and post intrastate job orders,
circulate them through the Employment Service interstate clearance
system and refer potential U.S. workers to employers.
Finally, the Department proposed additional processes for
penalizing employers or their attorneys or agents who fail to perform
obligations required under the H-2A program, including provisions for
debarring employers, agents, and attorneys and revoking approved labor
certifications.
C. Severability
The Department declares that, to the extent that any portion of
this Final Rule is declared to be invalid by a court, it intends for
all other parts of the Final Rule that are capable of operating in the
absence of the specific portion that has been invalidated to remain in
effect. Thus, even if a court decision invalidating a portion of this
Final Rule resulted in a partial reversion to the current regulations
or to the statutory language itself, the Department intends that the
rest of the Final Rule would continue to operate, if at all possible,
in tandem with the reverted provisions.
II. Discussion of Comments on Proposed Rule
The Department received over 11,000 comments in response to the
proposed rule, the vast majority of them form letters or e-mails
repeating the same contentions. Commenters included individual farmers
and associations of farmers, agricultural associations, law firms,
farmworker advocates, community-based organizations, and individual
members of the public. The Department has reviewed these comments and
taken them into consideration in drafting this Final Rule.
We do not discuss here those provisions of the NPRM on which we
received no comments. Those provisions were adopted as proposed. We
have also made some editorial changes to the text of the proposed
regulations, for clarity and to improve readability. Those changes are
not intended to alter the meaning or intent of the regulations.
A. Revisions to 20 CFR Part 655 Subpart B
Section 655.93 Special Procedures
The Department proposed to revise the current regulation on special
procedures to clarify its authority to establish procedures that vary
from those procedures outlined in the regulations. We received numerous
comments about this revised language on special procedures.
[[Page 77112]]
Several commenters questioned the effect the proposed language
would have on special procedures currently in use. Section 655.93(b) of
the current regulations provides for special procedures, stating that:
``the Director has the authority to establish special procedures for
processing H-2A applications when employers can demonstrate upon
written application to and consultation with the Director that special
procedures are necessary.'' The proposed rule provides that ``the OFLC
Administrator has the authority to establish or to revise special
procedures in the form of variances for processing certain H-2A
applications when employers can demonstrate upon written application to
and consultation with the OFLC Administrator that special procedures
are necessary.''
Four associations of growers/producers specifically requested
clarification of the phrase ``in the form of variances.'' These
associations asked the Department to confirm that the proposed language
does not pose a threat to the continued use of the special procedures
for sheepherders currently in place. One association expressed concern
that this revised language would require hundreds of employers engaged
in the range production of livestock to annually document their need
for special procedures.
The addition of the phrase ``in the form of variances'' is intended
to clarify that special procedures differ from those processes set out
in the regulation, which otherwise apply to employers seeking to hire
H-2A workers. The special procedures for sheepherders, for example,
arise from decades of past practices and draw upon the unique nature of
the activity that cannot be completely addressed in the generally
applicable regulations. The establishment of special procedures
recognizes the peculiarities of an industry or activity, and provides a
means to comply with the underlying program requirements through an
altered process that adequately addresses the unique nature of the
industry or activity while meeting the statutory and regulatory
requirements of the program. The special procedures do not enable
industries and employers to evade their statutory or regulatory
responsibilities but rather establish a feasible and tailored means of
meeting them while recognizing the unique circumstances of that
industry. The language in Sec. 655.93(b) affirms the Department's
authority to develop and/or revise special procedures. The Department
does not intend to require any industry currently using special
procedures to seek ratification of their current practice, nor does the
Department intend to require annual or periodic justifications of an
industry's need for special procedures. The Department does reserve the
right to make appropriate changes to those procedures after
consultation with the industry involved.
Section 655.93(b) in the NPRM enables the Administrator/OFLC ``to
establish or revise special procedures in the form of variances for
processing certain H-2A applications when employers can demonstrate
upon written application to and consultation with the OFLC
Administrator that special procedures are necessary.'' In contrast, the
current rule states that the subpart permits the Administrator/OFLC to
``continue and * * * 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.''
The Department received several comments about the proposed
language, universally expressing concern that the new language provides
the Department with broader authority for changing or revoking existing
special procedures without providing due process with respect to
altering the procedures. An association of growers/producers stated
that the proposed rule uses ``more ominous terms'' and gives the
impression that the Administrator/OFLC has unilateral authority to make
changes without safeguards, review, or democratic procedures. One
association of growers and producers expressed the view that the
revocation language gives the Department authority to revoke the
procedures without advance notice and opportunity for comment and is,
therefore, a violation of the Administrative Procedure Act.
A law firm that provides counsel to agricultural employers stated
that the new language does not adequately solidify the Department's
commitment to existing special procedures and recommended that the
Department amend the regulation to affirm its commitment to continuing
such long-standing special procedures by providing that any proposed
changes to the existing special procedures and policies can be made
only after publication in the Federal Register with at least a 120-day
period for public comment. The firm also commented that the proposal to
empower the Administrator/OFLC to revoke special procedures would
violate Section 218(c)(4) of the INA, which requires the Secretary of
Labor to issue regulations addressing the specific requirements of
housing for employees principally engaged in the range production of
livestock.
The Department has decided, following consideration of these
concerns, to retain the NPRM language in the final regulation, but has
added language similar to that in the current regulation, to enumerate
those special procedures currently in effect as examples of the use of
special procedures. It is our belief that this provision, as it now
reads, provides both the Department and employers using the H-2A
program essential flexibility regarding special procedures, thus
permitting the Department to be far more responsive to employers'
changing needs, crop mechanization, and similar concerns. In addition,
the language on special procedures in the Final Rule reaffirms the
Department's continuing commitment to use special procedures where
appropriate. The Department has no present intent to revoke any of the
special procedures that are already in place, nor does the language of
the final regulation give the Department any new power to do so. While
it is possible that at some time in the future the Department may need
to revoke or revise existing special procedures, that step would be
taken with the same level of deliberation and consultation that was
employed in the creation of those procedures. To strengthen our
commitment to continue the current consultative process, we have
changed the word ``may'' in the last sentence of paragraph (b) to
``will.'' The provision also provides the Department with the authority
to develop new procedures to meet employer needs and, additionally,
provides employers with the opportunity to request that the Department
consider additional procedures or revisions to existing special
procedures. Proposed paragraph (c) has been deleted as unnecessarily
duplicative of the language in paragraph (b).
Two associations of growers and producers requested that the
Department formulate special procedures for dairy workers, stating that
these requested special procedures should not be different from those
already established for sheepherders. The associations stated the
provisions for sheepherders have ``special relevance to the current
dairy situation'' and also stated the ``special procedures relieve the
sheepherding industry from having to make a showing of temporary or
seasonal employment.'' The longstanding special procedures that allow
sheepherders to participate in the
[[Page 77113]]
H-2A program have their origins in prior statutory provisions dating
back to the 1950s. The Department is unaware of any comparable
statutory history pertaining to the dairy industry. The Department
would, of course, consider a specific request from dairy producers or
their representatives for the development of special procedures that
would be applicable to eligible H-2A occupations (see further
discussion on this point in the discussion of the definition of
``agricultural labor or services'' below). The Department does not
believe, however, that it would be appropriate to speculatively address
the merits of a specific special procedures request in this regulation,
particularly before a request making a detailed case for the
appropriateness of such special procedures has been received.
An individual employer commented that those involved in discussing
and considering changes to the H-2A program should preserve the special
procedures for sheepherders and extend them to all occupations engaged
in the range production of other livestock (cattle and horses). A
private citizen provided suggestions for improving the handling of
certification for sheep shearers.
The Department has previously established special procedures for
open range production of livestock and sheep shearers and does not have
any plans to change those procedures at this time and does not believe
that it would be appropriate to address in this regulation the merits
of the commenters' general suggestions for revising these special
procedures. The Department would, of course, be willing to consider a
specific request from livestock producers or their representatives for
the revision or expansion of special procedures consistent with its
authority and this regulation.
Section 655.100--Overview and definitions
(a) Overview
The Department included a provision in the NPRM, similar to a
provision in the current regulation, which provides an overview of the
H-2A program. This overview provides the reader, especially readers
unfamiliar with the program, a general description of program
obligations, requirements, and processes.
Only two commenters identified concerns with the overview as
written. Both expressed concern with the proposed earlier time period
for the recruitment of U.S. workers. They questioned whether U.S.
workers who agreed to work on a date far in advance would then be
available to work for the entire contract period. The overview,
however, simply describes in broad-brush fashion the regulatory
provisions that are discussed in detail later in the NPRM, and in and
of itself has no legal effect. The concerns and observations expressed
by commenters will be addressed in the context of the relevant
regulatory provision to which they apply rather than in the overview.
The overview has also been edited for general clarity and to reflect
changes made throughout the regulatory text.
(b) Transition
The Department, due to past program experience, has decided to add
a transition period in order to provide an orderly and seamless
transition to the new system created by these regulatory revisions.
This will allow the Department to make necessary changes to program
operations, provide training to the NPC, SWAs and stakeholder groups,
and allow employers and their agents/representatives to become familiar
with the new system. Employers with a date of need for workers on or
after July 1, 2009 will be obligated to follow all of the new
procedures established by these regulations. Prior to that time, the
Department has created a hybrid system involving elements of the old
and the new regulations as delineated in the new Sec. 655.100(b).
Even though the NPRM put current and future users of H-2A workers
on some notice regarding what this Final Rule will require, the rule as
a whole implements several significant changes to the administration of
the program. Several commenters requested that the Department allow
employers some period of time to prepare and adjust their requests for
temporary agricultural workers. These regulations implement new
application forms, new processes, and new time periods for conducting
recruitment for domestic workers to which current and new users of the
program will need to become accustomed.
The Department is accordingly adopting a transition period after
the effective date of this Final Rule. The transition period
establishes procedures that will apply to any application for which the
first date of need for H-2A workers is no earlier than the effective
date of this rule and no later than June 30, 2009.
During this transition period, the Department will accept
applications in the following manner: An employer will complete and
submit Form ETA-9142, Application for Temporary Employment
Certification, in accordance with Sec. 655.107, no less than 45 days
prior to their date of need. The employer will simultaneously submit
Form ETA-790 Agricultural and Food Processing Clearance Order (job
order), with the Application for Temporary Employment Certification
(application) directly to the Chicago NPC. Activities that are required
to be conducted prior to filing an application under the Final Rule
will be conducted post-filing during this transition period, much as
they are under the current rule. The employer will also be expected to
make attestations in its application applicable to its future
recruitment activities, payment of the offered wage rate, etc.
Employers will not be required to complete an initial recruitment
report for submission with the application, but will be required to
complete a recruitment report for submission to the NPC prior to
certification, and will also be required to complete a final
recruitment report covering the entire recruitment period.
The employer will not separately request a wage determination from
the Chicago NPC. Upon receipt of Forms ETA-9142 and ETA-790, the
Chicago NPC will provide the employer with the minimum applicable wage
rate to be offered by the employer, and will process the application
and job order in a manner consistent with Sec. 655.107, issuing a
modification for any curable deficiencies within 7 calendar days. Once
the application and job order have been accepted, the Chicago NPC will
transmit a copy of the job order to the SWA(s) serving the area of
intended employment to initiate intrastate and interstate clearance,
request the SWA(s) schedule an inspection of the housing, and provide
instructions to the employer to commence positive recruitment in a
manner consistent with Sec. 655.102. The NPC will designate labor
supply States during this transition period on a case-by-case basis,
applying the basic information standard for such designations that is
set forth in Sec. 655.102(i).
This transition period process will apply only to applications
filed on or after the effective date of this regulation with dates of
need no earlier than the effective date and no later than June 30,
2009. Employers with a date of need on or after July 1, 2009 will be
expected to fully comply with all of the requirements of the Final
Rule. Moreover, after the Final Rule's effective date, the requirements
of the Final Rule will fully apply except for those modifications that
are expressly mentioned as transition period procedures in Sec.
655.100(b); all other
[[Page 77114]]
provisions of the Final Rule will apply on the effective date of the
Final Rule.
These transition period procedures are designed to ensure that
employers seeking to utilize the program immediately after its
effective date, especially those with needs early in the planting
season, will not be prejudiced by the new pre-filing requirements
regarding wage determinations and recruitment, which might otherwise
substantially impact employers' application timing. Because the
Department's seasonal H-2A workload begins to peak in January of each
year, however, the Department deems it essential to the smooth and
continuous operation of the H-2A program throughout calendar year 2009
to make the rule effective as early in the year as possible.
(c) Definitions 655.100
Definition of ``agent,'' ``attorney,'' and ``representative''
The Department did not propose any changes to the definition of
``agent'' from existing regulations but added definitions for
``attorney'' and ``representative'' in the proposed rule. A major trade
association commented that the definitions of, and references to, the
terms ``agent,'' ``attorney'' and ``representative'' are confusing. The
association found the definitions of agent and representative to be
duplicative and the distinctions between these two terms, both of which
encompass the authority to act on behalf of an employer, unclear. The
association also commented that the definition of ``attorney'' is self-
evident and appears to be a vehicle for permitting attorneys to act as
``agents'' or ``representatives.'' Further, according to the commenter,
the term ``representative'' is also problematic and the Department
should consider revising it or eliminating it entirely. The association
believes the main purpose of the definition is to deem the person who
makes the attestations on behalf of the employer a ``representative,''
but the association believes it is not clear whether the intent of the
definition of ``representative'' is to also make the representative
liable for any misrepresentations made in an attestation on behalf of
an employer. The association recommended the proposed rule should
clarify the intent of the definition of ``representative'' and also
under what circumstances an agent will be liable for activities
undertaken on behalf of an employer. The association recommended a
clear set of standards for liability and suggested such standards
should not deviate from the current standards where agents, attorneys,
and representatives (under the proposed rule) are not liable if they
perform the administrative tasks necessary to file labor certification
applications and petitions for visas and do not make attestations that
are factually based. In addition, the association recommended that the
agents, attorneys, or representatives should not be liable for program
violations by the employer.
The Department understands the need for clarity in determining who
qualifies as a representative before the Department and what
responsibilities and liabilities attach to that role and has
accordingly simplified the definition of a representative. Although the
Department does distinguish between the different roles of attorneys
and agents, both groups are held to the same standards of ethics and
honesty under the Department's rules. Under the rules, attorneys can
function as agents, and either attorneys or agents can function as a
representative of the employer. The Department has, in addition,
replaced the word ``official'' with ``person or entity'' to parallel
the definition of agent.
However, the Department disagrees with the commenter's
interpretation of the extent to which an agent or attorney can be held
accountable by the Department for their own and their clients' conduct
in filing an application for an employer. While agents and attorneys
are of course not strictly liable for all misconduct engaged in by
their clients, they do undertake a significant duty in attestations to
the Department regarding their employer-clients' obligations. They are,
therefore, responsible for exercising reasonable due diligence in
ensuring that employers understand their responsibilities under the
program and are prepared to execute those obligations. Agents and
attorneys do not themselves make the factual attestations and are not
required to have personal knowledge that the attestations they submit
are accurate. They are, however, required to inform the employers they
represent of the employers' obligations under the program, including
the employers' liability for making false attestations, and the
prohibition on submitting applications containing attestations they
know or should know are false. The debarment provisions at Sec.
655.118 of the final regulations have accordingly been clarified to
state that agents and attorneys can be held liable for their employer-
clients' misconduct when they ``participated in, had knowledge of, or
had reason to know of, the employer's substantial violation.''
The same association also questioned why the Department is
``singling out attorneys'' in the definition of ``representative'' by
requiring an attorney who acts as an employer's representative and
interviews and/or considers U.S. workers for the job offered to the
foreign worker(s) to also be the person who normally considers
applicants for job opportunities not involving labor certifications.
The association found no apparent rationale justifying why the
Department should dictate who and under what circumstances an attorney
or any other person should interview U.S. job applicants. It further
recommended that the rule eliminate the reference to attorneys or, at a
minimum, clarify that the rule does not reach attorneys who merely
advise and guide employers through the H-2A program. The Department has
accordingly clarified the definition of representative by deleting the
sentence limiting the role attorneys can play in interviewing and
considering workers, primarily because, unlike other labor
certification programs administered by the Department, the relatively
simple job qualifications that apply to most agricultural job
opportunities render it unlikely that U.S. workers would be discouraged
from applying for those jobs by the prospect of being interviewed by an
attorney.
A specialty bar association urged that the definition of ``agent''
be changed in order to prevent abuses related to foreign nationals
paying recruiters' fees. The association suggested that the Department
limit representation of employers to that recognized by DHS: attorneys
duly licensed and in good standing; law students and law graduates not
yet licensed who are working under the direct supervision of an
attorney licensed in the United States or a certified representative; a
reputable individual of good moral character who is assisting without
direct or indirect remuneration and who has a pre-existing relationship
with the person or entity being represented; and accredited
representatives, who are persons representing a nonprofit organization
which has been accredited by the Board of Immigration Appeals.
The Department acknowledges that its allowance of agents who are
not attorneys and who do not fit into the categories recognized by DHS
creates a difference of practices between the two agencies. However,
the Department has for decades permitted agents who do not meet DHS's
criteria to appear before it. Agents who are not attorneys have
adequately represented claimants before the Department in a wide
variety of
[[Page 77115]]
activities since long before the development of the H-2A program. To
change such a long-standing practice in the context of this rulemaking
would represent a major change in policy that the Department is not
prepared to make at this time. The Department has, however, added
language to the definition of both ``agent'' and ``attorney'' to
clarify that individuals who have been debarred by the Department under
Sec. 655.118 cannot function as attorneys or agents during the period
of their debarment.
Definition of ``adverse effect wage rate''
The Department proposed a revised definition of ``adverse effect
wage rate,'' limiting its application to only H-2A workers. A law firm
commented that the proposed definition of ``adverse effect wage rate''
appears to apply only to H-2A workers and not to U.S. workers who are
employed in ``corresponding employment.'' The Department has clarified
the definition to make clear that those hired into corresponding
employment during the recruitment period will also receive the highest
of the AEWR, prevailing wage, or minimum wage, as applicable. The firm
also requested the same revision to 29 CFR Part 501 regulations. The
Department believes that this requirement is adequately explained in
the text of the regulations at Sec. 655.104(l) and Sec. 655.105(g).
Definition of ``agricultural association''
The Department added a definition for ``agricultural association''
in the proposed regulation. A major trade association commented that
the proposed definition does not acknowledge that associations may be
joint employers and suggests that the definition could cause confusion
because other sections of the proposed regulation acknowledge that
associations may have joint employer status. The association
recommended the definition clarify that agricultural associations may
serve as agents or joint employers and define the circumstances under
which joint employer arrangements may be utilized. A professional
association further commented that associations should not be exempt
from Farm Labor Contractor provisions if the associations are
performing the same activities as Farm Labor Contractors.
The Department agrees that agricultural associations play a vital
role in the H-2A program and seeks to minimize potential confusion
about their role and responsibilities. The regulation has been revised
to clarify that agricultural associations may indeed serve as sole
employers, joint employers, or as agents. The definition of ``H-2A
Labor Contractors'' has also been revised to clearly differentiate
labor contractors from agricultural associations and that an
agricultural association that meets the definition in this part is not
subject to the requirements attaching to H-2A Labor Contractors.
Finally, the regulation has been clarified by specifying that
``processing establishments, canneries, gins, packing sheds, nurseries,
or other fixed-site agricultural employers'' can all be encompassed by
agricultural associations.
Definition of Application for Temporary Employment Certification
The Department has added to the Final Rule a definition of
Application for Temporary Labor Certification. An Application for
Temporary Labor Certification is an Office of Management and Budget
(OMB)-approved form that an employer submits to DOL to secure a
temporary agricultural labor certification. A complete submission is
required to include an initial recruitment report.
Definition of ``date of need''
The Department slightly modified the definition of ``date of need''
to clarify that the applicable date is the one that is specified in the
employer's Application for Temporary Employment Certification.
Definition of ``employ'' and ``employer''
In the NPRM, the Department added a definition for ``employ'' and
made revisions to the existing definition of ``employer.'' A trade
association suggested that the Department eliminate the definition of
``employ'' but retain the definition of ``employer,'' stating that the
definition of ``employ'' adds nothing to clarify status or legal
obligations under the H-2A program. The association believes the status
of an employer under the H-2A program is defined by the labor
certification and visa petition processes and that the incorporation of
the broad FLSA and MSPA definitions of ``employ'' insinuate broad legal
concepts that add unnecessary confusion. The association further
recommended that the Department eliminate the fourth criterion related
to joint employment status in its proposed definition of ``employer''
and, instead, provide a separate definition of joint employer
associations and the respective liabilities of the association and its
joint employer members.
The Department agrees with these comments and has, accordingly,
removed the definition of ``employ'' as superfluous and created a
separate definition of ``joint employment'' (using that portion of the
definition of employer which discussed joint employers) to eliminate
any confusion between the two terms. The definition of ``employer'' has
also been revised. First, the Final Rule clarifies the proposal's
statement that an employer must have a ``location'' within the U.S. to
more specifically state that it must have a ``place of business
(physical location) within the U.S.'' Second, out of recognition that
some H-2A program users, such as H-2ALCs, are itinerant by nature, and
that SWA referrals may thus occasionally need to be made to non-fixed
locations, the Final Rule states that an employer must have ``a means
by which it may be contacted for employment'' rather than a specific
location ``to which U.S. workers may be referred.'' Finally, the Final
Rule clarifies that an employer must have an employment relationship
``with respect to H-2A employees or related U.S. workers under this
subpart'' rather than less specifically referring to ``employees under
this subpart,'' and deletes the references to specific indicia of an
employment relationship because the applicable criteria are spelled out
in greater detail in the definition of ``employee.'' The definition of
``joint employer'' is modified slightly from the concept that appeared
in the NPRM to clarify that the two or more employers must each have
sufficient indicia of employment to be considered the employer of the
employee in order to meet the test for joint employment.
Definition of ``farm labor contracting activity'' and ``Farm Labor
Contractor (FLC)''
The Department proposed adding definitions for ``farm labor
contracting activity'' and ``Farm Labor Contractor (FLC)'' to this
section. In the Final Rule, the Department has eliminated the
definition for ``farm labor contracting activity'' and revised the
definition for ``Farm Labor Contractor.'' The revised definition is now
contained under the heading ``H-2A Labor Contractor.''
A law firm commented that neither agents nor attorneys should be
required to register as H-2A Labor Contractors. The commenter did not
specifically address why it believed agents and attorneys would be
required to register under the proposed definitions, so the Department
is unable to respond to this point. As a general matter, however, an
agent or attorney, if performing labor contracting activities as they
appear in the revised definition of an H-2A Labor Contractor, would be
required to register
[[Page 77116]]
as, and would be held to the standards of, an H-2A Labor Contractor.
A group of farmworker advocacy organizations commented that the
definition proposed for Farm Labor Contractor (H-2A Labor Contractor)
would exclude recruiters of foreign temporary workers from the scope of
the rule, making enforcement impossible. This organization pointed out
that under the Migrant and Seasonal Agricultural Worker Protection Act
(MSPA), H-2A workers are not migrant or seasonal agricultural workers
and, therefore, a contractor recruiting workers to become H-2A visa
holders would not fit within the proposed regulatory definition. The
organization also commented that the reference to ``fixed-site''
employers in the ``farm labor contracting activity'' definition could
present problems in some employment situations, such as employment for
a custom harvester, where the employer would not have a fixed site. An
association of growers/producers suggested the MSPA definitions for
``farm labor contracting activity'' and ``Farm Labor Contractor''
should be used.
In response to the comments, the Department has deleted the
definition of ``agricultural employer'' and included a separate
definition for ``fixed-site employer.'' The Department also deleted the
definition of ``Farm Labor Contractor'' in the final regulation and
replaced it with a new definition for ``H-2A Labor Contractor.'' This
will differentiate the two terms since the definition of an ``H-2A
Labor Contractor'' does not match the definition of a ``Farm Labor
Contractor'' as used in MSPA, and the operational differences between
the H-2A program and MSPA do not allow perfect parallels to be drawn
between the two statutory schemes. The definition of ``farm labor
contracting activity'' has been deleted as redundant since the
activities have been made part of the definitions of ``fixed-site
employer'' and ``H-2A Labor Contractor.''
Definition of ``joint employment''
The Department included in its definition of ``employment'' a
reference to what would constitute ``joint employment'' for purposes of
the H-2A program. The Department received one comment suggesting the
inclusion of the definition of ``joint employment'' within the
definition of ``employment'' was confusing. The Department has
accordingly removed the last phrase from the proposed definition of
``employer'' and provided a separate definition for ``joint
employment.''
Definition of ``prevailing''
The Department proposed a revision to the definition of
``prevailing'' to include, ``with respect to certain benefits other
than wages provided by employers and certain practices engaged in by
employers, that practice or benefit which is most commonly provided by
employers (including H-2A and non-H-2A employers) for the occupation in
the area of intended employment.'' This represented a change from the
current rule, which does not refer to ``commonly provided'' practices
or benefits but instead uses a percentage test (50 percent or more of
employers in an area and for an occupation must engage in the practice
or offer the benefit for it to be considered ``prevailing,'' and the 50
percent or more of employers must also employ in aggregate 50 percent
or more of U.S. workers in the occupation and area''). The Department
received comments on the change, specifically inquiring whether the
SWAs would continue to conduct prevailing wage and practice surveys,
and requesting that if the Department intends to no longer require SWAs
to conduct prevailing wage and practice surveys, the change should be
discussed in the preamble.
The Department has determined that, to provide greater clarity and
for ease of administration, the definition of ``prevailing'' will
revert to the definition in the current regulation that requires that
50 percent or more of employers in an area and for an occupation engage
in the practice or offer the benefit and that the 50 percent or more of
the employers in an area must also employ in aggregate 50 percent or
more of U.S. workers in the occupation and area.
The Department notes it does not intend to change the provision on
prevailing wage surveys currently undertaken by SWAs. The Department
has included specific definitions for the terms ``prevailing piece
rate'' and ``prevailing hourly rate,'' the two kinds of wage surveys
that have traditionally been undertaken by SWAs, and has included
express references to both types of surveys throughout the rule.
Definition of ``strike''
The Department has been added to the Final Rule a definition for
the term strike. The definition conforms to the changes explained in
the discussion of Sec. 655.105(c), and clarifies that the Department
will evaluate whether job opportunities are vacant because of a strike,
lockout, or work stoppage on an individualized, position-by-position
basis.
Definition of ``successor in interest''
The Department's proposal included a debarment provision allowing
for debarment of a successor in interest to ensure that violators are
not able to re-incorporate to circumvent the effect of the debarment
provisions. A national agricultural association commented that this
provision as drafted could result in an innocent third party buying the
farm of a debarred farmer and being subject to debarment, even though
the successor is free of any wrongdoing, and thus the rule would place
roadblocks on the sale of assets to innocent parties.
The Department agrees with this commenter. We have addressed this
issue by including a definition of ``successor in interest'' to make
clear that the Department will consider the facts of each case to
determine whether the successor and its agents were personally involved
in the violations that led to debarment in determining whether the
successor constitutes a ``successor in interest'' for purposes of the
rule.
Definition of ``United States''
The Consolidated Natural Resources Act of 2008, Public Law 110-229,
Title VII (CNRA), applies the INA to the Commonwealth of the Northern
Mariana Islands (CNMI) at the completion of the transition period as
provided in the CNRA, which at the earliest, would be December 31,
2014. Accordingly, the H-2A program will not apply to the CNMI until
such time. However, the CNRA amends the definition of ``United States''
in the INA to include the CNMI. It should be noted that the amendment
to the INA of the definition of ``United States'' does not take effect
until the beginning of the transition period which could be as early as
June 1, 2009, but may be delayed up to 180 days. Accordingly, the
Department has included CNMI in the definition of ``United States''
with the following qualification: ``as of the transition program
effective date, as defined in the Consolidated Natural Resources Act of
2008, Public Law 110-229, Title VII.'' The Department will publish a
notice in the Federal Register at such time that its regulations
regarding the foreign labor programs described in the INA, including
the H-2A program, will apply to the Commonwealth.
Definition of ``Within [number and type] days''
The Department has added to the Final Rule a definition of the term
within [number and type] days. The definition clarifies how the
Department will calculate timing for meeting filing
[[Page 77117]]
deadlines under the rule where that term, in some formulation, appears.
The definition specifies that a period of time described by the term
``within [number and type] days'' will begin to run on the first
business day after the Department sends a notice to the employer by
means normally assuring next-day delivery, and will end on the day that
the employer sends whatever communication is required by the rules back
to the Department, as evidenced by a postal mark or other similar
receipt.
Definition of ``Work contract''
The Department has added to the Final Rule a definition of the term
work contract. The definition was borrowed from the definition section
of 29 CFR part 501 of the NPRM, with minor modifications made for
purposes of clarification.
d. Definition of ``agricultural labor or services''
The Department proposed changes to the definition of ``agricultural
labor or services'' to clarify, as in the current regulation, that an
activity that meets either the Internal Revenue Code (IRC) or the Fair
Labor Standards Act (FLSA) definition of agriculture is considered
agricultural labor or services for H-2A program purposes and, more
significantly, to remove limitations on the performance of certain
traditional agricultural activities which, when performed for more than
one farmer, are not considered agricultural labor or services under the
IRC or the FLSA, including packing and processing.
The Department received several comments supporting these changes,
with some specific suggestions for additional changes. A major trade
association complimented the Department on providing ``bright line''
definitional guidance regarding the activities that constitute
agricultural work to be covered by the H-2A program as distinct from
the H-2B program. A number of these commenters mentioned that the
Department's inclusion of packing and processing activities in work
considered as agricultural provides an option for obtaining legal
workers, especially in light of the numerical limitations on H-2B
visas. One association of growers/producers supported the expansion of
the current definition to include packing and processing but suggested
that agricultural employers who have previously used the H-2B program
for packing or processing operations be allowed to continue using the
H-2B program. Another association of growers/producers suggested that
the definition be changed to allow product that is moving from on-farm
production directly to the end consumer be included as permissible work
for H-2A workers, and suggested that the definition provide that it is
a permissible activity for H-2A workers to work on production of a
purchased crop when the crop is purchased by a farm because of weather
damage to that farm's crops in a particular year.
The Department appreciates the general support for the proposed
changes and has retained them in the final regulation. Regarding
packing and processing activities, the proposed definition includes as
agricultural activities ``handling, planting, drying, packing,
packaging, processing, freezing, grading, storing or delivering to
storage or to market or to a carrier for transportation to market, in
its unmanufactured state, any agricultural or horticultural commodity
while in the employ of the operator of a farm.'' In response to the
request to allow employers who have used the H-2B program for packing
or processing operations to continue using the H-2B program, the
Department has revised the definition to clarify that while the
Department cannot permit H-2A workers and H-2B workers to
simultaneously perform the same work at the same establishment, the
distinctions between establishments at which operations of this nature
should be performed by H-2A workers and those at which the operations
should be performed by H-2B workers are too fine for the Department to
reasonably distinguish between them with sufficient precision to
establish a bright line test. The Department will therefore defer to
operators as to whether the ``handling, planting, drying, packing,
packaging, processing, freezing, grading, storing or delivering''
operations at their particular establishment are more properly governed
by the H-2A or the H-2B program, but will not accept applications for
both kinds of workers to simultaneously perform the same work at the
same establishment.
The Department agrees with the comment that H-2A workers should be
permitted to work in the production of a purchased crop, as well as
work in processing or packing a farm product that is moving from on-
farm production directly to the end consumer. Moreover, the Department
believes such activities are permitted by the definition in the
proposed rule and therefore the provision requires no additional
language in the Final Rule.
The Department has clarified the Final Rule to reflect existing
law, which provides that work performed by H-2A workers, or workers in
corresponding employment, which is not defined as agriculture under
Section 3(f) of the Fair Labor Standards Act, 29 U.S.C. 203(f), is
subject to the provisions of the FLSA as provided therein, including
the overtime provisions in Section 7(a)(29 U.S.C. 207(a)).
Incidental Activities
The Department also proposed clarifications to reflect that work
activity of the type typically performed on a farm and incident to the
agricultural labor or services for which an H-2A labor certification
was approved may be performed by an H-2A worker. A number of
commenters, including a professional association, a major trade
association, and several associations of growers/producers supported
this change, stating that it was positive and would provide more
flexibility for employers. A major trade association commented this
change would allow employers to include duties in H-2A certified job
opportunities that reflect the actual duties performed by farm workers
and further commented that, ``[p]resumably the provision will cover a
farm worker who engages in incidental employment in the farm's roadside
retail stand, a farm worker who assists in managing `pick your own'
activities, and a farm worker who occasionally drives a tractor pulling
a hay wagon for a hay ride, to cite a few examples of incidental
activities customarily performed by farm workers that have been
disallowed in the past.'' This commenter's understanding of the
Department's interpretation is correct.
One association of growers/producers commented that allowing H-2A
workers to perform duties typically performed on a farm benefits the
employee as well as the employer. A trade association commented that
being able to use workers in other jobs not listed on the contract is
needed, particularly when weather prevents field work.
The Department has revised the wording in the definition of
``agricultural labor or services'' provided in Sec. 655.100(d)(1)(vi)
to provide additional clarity for employers. The definition now reads:
``Other work typically performed on a farm that is not specifically
listed on the Application for Temporary Employment Certification and is
minor (i.e., less than 20 percent of the total time worked on the job
duties that are listed on the Application for Temporary Employment
Certification) and incidental to the agricultural labor or services for
which the H-2A worker was sought.'' The Department recognizes that, due
to the unpredictable nature of weather
[[Page 77118]]
conditions and agricultural work itself, employers need some
flexibility in assigning tasks, and that it would be difficult if not
impossible to list all potential minor and incidental job
responsibilities of H-2A workers on the Application for Temporary
Employment Certification. The proposed amendment of the definition is
intended to recognize the reality of working conditions at agricultural
establishments and ensure that an H-2A worker's performance of minor
and incidental activity does not violate the terms and conditions of
the worker's H-2A visa status. The further revision to the definition
will assist employers in determining whether activities or work not
included on the Application for Temporary Employment Certification can
reasonably be considered as minor and incidental.
Inclusion of Other Occupations
The Department proposed to include logging employment in its
definition of ``agricultural labor or services'' for purposes of the H-
2A program. Two commenters voiced their support for this inclusion; we
received no comments in opposition. The Department also sought comments
as to whether there are other occupations that should be included
within the definition of agriculture used in the H-2A program. The
Department received several suggestions of other industries that should
be considered, including livestock and dairy producers, fisheries,
nurseries, greenhouses, landscapers, poultry producers, wine
businesses, equine businesses, turf grass growers, mushroom producers,
maple syrup producers, and employers engaging in seasonal food
processing as well as growers who operate processing and packing
plants.
Of those requesting expansion of the definition to include other
occupations, representatives of the dairy industry submitted the most
comments. A major trade association and a number of associations of
growers/producers commented that the dairy industry is unable to use
the H-2A agricultural worker visa program and that this exclusion is
unfair. They stated dairy farmers need and deserve the same access to
legal foreign workers as other sectors of the agricultural industry.
The association suggested that H-2A visas for dairy workers should last
at least three years rather than one. Two trade association commenters
stated they understood the importance under the statutory definition of
H-2A workers needing to be temporary or seasonal, but not why the jobs
themselves needed to be temporary or seasonal. A farm bureau provided
comments suggesting dairy and livestock operations should be allowed to
designate seasonal jobs within their operations for which H-2A workers
could be employed. This association commented that current worker
patterns suggest typical milkers stay in their positions for 9 to 10
months and then voluntarily leave, but return to seek a job after 2 to
3 months.
The Department also received comments from an association of
growers/producers and from two individual employers requesting that
reforestation work be considered as agricultural labor. These
commenters assert that there are reforestation activities including
planting, weed control, herbicide application and other unskilled tasks
related to preparing the site and cultivating the soil and that workers
who perform these tasks deserve consideration for eligibility for H-2A
visas, as do workers who perform the same or similar tasks in
cultivating other agricultural and horticultural commodities on many of
the same farms. These commenters also pointed out that workers
performing reforestation tasks for farmers or on farms are clearly
agricultural employees under the FLSA and, additionally, believed the
Internal Revenue Code supports their position for considering
reforestation work performed on a farm or for a farmer as agricultural
labor or services.
Following review of the comments discussed above, the Department
has decided the definition of agriculture should not be further
expanded at this time and no additional activities have been selected
for inclusion as agricultural activities beyond those included in the
NPRM. In most cases where there was the suggestion for the inclusion of
a particular industry or activity in the definition of agriculture
there was not strong support for the inclusion by representatives of
that industry, as indicated by the number and source of the comments
received. For example, one commenter supported adding maple syrup
harvesting and ancillary activities to the definition of agricultural
labor. The suggestion did not come from someone actually involved in
the maple syrup industry, however, but rather from a State Workforce
Agency. While the Department appreciates the input of such commenters,
it would be inappropriate to impose on those industries (most of which
currently qualify for the H-2B program rather than the H-2A program)
changes that the industry itself did not seek.
The two exceptions to this pattern in the comments were the dairy
industry and the reforestation industry, both of which, as discussed
above, submitted comments evidencing industry-based support. The
Department's analysis of the comments from the dairy industry, however,
indicates it is not the program's definition of agriculture, which
already includes dairy activities, that presents a potential barrier to
the industry's use of the H-2A program, but rather the statutory
requirement for the work to be temporary or seasonal in nature.
The H-2A program, by statute, provides a means for agricultural
employers to employ foreign workers on a temporary basis. Many dairy-
related job needs, however, appear to be year-round and permanent in
nature.
While the H-2A program is specially designed for agricultural
employers, they are not limited to using only the H-2A program. The
employment-based permanent visa program is also open to agricultural
employers with a permanent need for which they are unable to secure
U.S. workers. At the same time, year-round operations are permitted to
seek certification to utilize H-2A workers for seasonal or temporary
jobs within their industries when they can substantiate the temporary
or seasonal nature of the jobs. The Department recognizes that an
employer may have both permanent and temporary jobs in the same
occupation. However, employers should be aware that the Department does
not typically approve subsequent applications requesting foreign
workers for the same position when, taken together, those applications
would cover a continuous period of time in excess of 10 months, unless
exceptional circumstances are present.
The comments from the reforestation industry, while thoughtful,
represented the input of only two individual employers and a single
employer association who do not necessarily provide a representative
sample of the entire reforestation industry. The Department is
reluctant to overturn the regulatory practices of several decades and
impose the significant obligations of an H-2A employer on an entire
industry without significant input from that industry. While the
Department is willing to further explore whether to include the
reforestation industry in the definition of agriculture, it does not
believe a decision to do so is warranted at this time.
``On a seasonal or other temporary basis''
The Department proposed a definition of the key terms ``on a
seasonal or other temporary basis'' in the definition of
[[Page 77119]]
agricultural labor or services in the NPRM that continued the
interpretation of the current regulation. We received several comments
related to the phrase ``on a seasonal or other temporary basis.'' A
trade association suggested the rule borrow the temporary and seasonal
concepts from the Migrant and Seasonal Agricultural Workers Protection
Act (MSPA) definitions that are appropriate in an H-2A context without
incorporating the MSPA regulations and related judicial precedent. It
was the association's belief that this approach would allow an H-2A
worker to be admitted for longer than a 10-month period. An association
of growers/producers suggested the definition of temporary or seasonal
should apply to the worker rather than the job and also that year-round
farming operations/nurseries should be allowed to access a workforce to
provide year-round services by rotating ``shifts'' of workers with
different contract/visa periods. Another trade association also
suggested the definition and interpretation of temporary and seasonal
could be expanded.
The Department does not agree that the definition of temporary or
seasonal should focus on the worker rather than the job. The INA is
clear that the employer must have a need for foreign labor to undertake
work of a temporary or seasonal nature for which it cannot locate U.S.
workers. The Department's position has traditionally been that job
opportunities that are permanent in nature do not qualify for the H-2A
program. The controlling factor is the employer's temporary need,
generally less than 1 year, and not the nature of the job duties. See
Matter of Artee Corp., 18 I&N Dec. 366 (Comm. 1982); see also Global
Horizons, Inc. v. DOL, 2007-TLC-1 (November 30, 2006) (upholding the
Department's position that a failure to prove a specific temporary need
precludes acceptance of temporary H-2A application); see also 11 U.S.
Op. Off. Legal Counsel 39 (1987). An H-2A worker could, however, be
employed continuously by successive H-2A employers having a temporary
need for the worker's services and thus be employed and remain in the
U.S. for a period beyond one year.
In addition, the Department has made several edits to the
Definitions section of the NPRM to provide consistency with other
changes to the regulatory text and to clarify the Final Rule. For
example, the definition of ``Application for Temporary Employment
Certification'' has been amended to help ensure the public has a clear
understanding of what this regulation requires. Other definitions, such
as ``temporary agricultural labor certification determination'' and
``unauthorized alien,'' have been eliminated because they are not used
in this regulation. We have also made non-substantive changes to
provide clarity and to comport with plain English language
requirements.
Section 655.101 Applications for Temporary Employment Certification in
Agriculture
(a) Instituting an Attestation-based Process
The Department proposed instituting an application requiring
employers to attest to their adherence to the obligations of the H-2A
program. The Department received several comments in favor of the new
process, several opposed, and others generally in favor but suggesting
changes to the process as outlined in the Department's proposal.
Some commenters believed that attestations to future events should
not be required, and that attestations should be made under the
``applicant's best knowledge and belief'' standard and not the ``under
penalty of perjury'' standard because applicants cannot know what will
happen in the future.
The Department believes that the attestations the Final Rule
requires employers to make do not require employers to predict future
events, but rather represent straightforward commitments to comply with
program requirements. Such compliance is fully in the control of the
employer. It is, therefore, not necessary to delete or modify the
manner in which attestations are made.
(1) Support for an Attestation-based Process
Those commenters who favored the shift to an attestation-based
process generally believed the new process would make the H-2A
application more efficient and less burdensome for employers. One State
government agency commented that the process would enable the SWAs to
focus on job orders, referrals, and housing inspections while relieving
them of the burden to review the applications themselves. Another
commenter supported the shift but encouraged the Department to ensure
the ``Administrator * * * acquires the agricultural expertise necessary
to provide training and guidance to those who are reviewing and
overseeing the operating of a program that is critical to future U.S.
agricultural production.''
The Department appreciates support for its proposed process. As of
June 1, 2008, the Department has centralized the Federal processing of
all applications for H-2A temporary foreign workers in the Chicago
National Processing Center. This centralization will enhance the
Department's ability to handle the expected increases in the usage of
the H-2A program and ensure consistency in application of program
requirements. The Department recognizes the unique needs and timeframes
associated with this program and anticipates that centralization will
lead to the development of greater expertise to meet those needs and
timeframes. It also believes that centralized processing of
applications will facilitate the identification of areas where program
training should be enhanced and that the centralized environment will
maximize the effectiveness of such training.
An association of growers/producers supported the attestation-based
process but found the process, as described in the proposed regulation,
confusing and duplicative. This commenter requested that all of the
attestation requirements be consolidated into one rule clearly stating
which facts are to be verified.
The Department appreciates the commenter's suggestion about
consolidation of the attestation requirements and, as provided in the
proposal, has retained the comprehensive listing of the requirements in
Sec. 655.105, ``Assurances and Obligations of H-2A Employers'' and
Sec. 655.106, ``Assurances and Obligations of H-2A Labor
Contractors.'' It was not clear if this commenter was requesting a
consolidated listing of the attestations required by both the
Departments of Labor and Homeland Security. The Department of Labor is
including in the comprehensive lists only those attestations that DOL
requires. The commenter did not include specific examples of
duplication or confusing information and the Department, therefore, is
unable to provide any further response.
(2) Legality of the Attestation-based Process
Several of the commenters who opposed the change asserted an
attestation-based process conflicts with the statutory mandate in
Section 218 of the INA (8 U.S.C. 1188). These commenters interpreted
the INA to require the Department to make a determination based upon an
active verification of the H-2A application. One group commented that
the attestation process violates the statute's Congressional mandate.
Two organizations expressed the belief that the certification process
has always been understood to require active
[[Page 77120]]
oversight by the Department of the employer's recruitment and hiring of
U.S. workers as well as the details of the job offer. One commenter, an
advocacy organization, voiced the opinion that the statutory standard
is not whether the employer has made adequate assurances that it has or
will meet the obligations of the H-2A program but is whether the
employer has actually met them. Another commenter opined that labor
certifications were not meant to be attestation-based and that this
approach will dramatically reduce government oversight of this program.
These commenters believe that the Secretary will not be able to certify
that wages and working conditions have not been adversely affected and
that this regulation is contrary to the statute.
The attestation-based process implemented by the Final Rule is not
inconsistent with any statutory requirements, but rather is a
reasonable means selected by the Department to fulfill its statutory
responsibilities. The Department does not interpret Section 218 of the
INA to specify a particular methodology that the Department must employ
to determine that all of the statutory criteria have been met, and
indeed, various aspects of the Department's methodology have changed
through the years. The attestation-based system, backed by audits, that
is implemented by the Final Rule is an acceptable means, within the
reasonable discretion of the Secretary, for the Department to ensure
that the statutory criteria for certification are met and that program
requirements are satisfied. Similar approaches have been used by the
Department in other contexts (such as approval of permanent labor
certifications) to fulfill its statutory responsibilities. Indeed, as
discussed in greater detail in various sections below, under the
statutory time limits for filing applications and issuing
certifications the Department typically makes certification
determinations on applications prior to the completion of many of the
recruitment requirements and without any direct observation or
inspection by the Department or its SWA agents that rental housing
secured by employers complies with all of the applicable legal
standards.
No system for review and approval of applications, of course, is
foolproof, and the statute prescribes appropriate penalties for
situations in which the terms of approved labor certifications are
later violated. See 8 U.S.C. 1188(b)(2)(A). There will always be bad
actors who attempt to circumvent program requirements. Employers
sometimes violate program requirements under the current H-2A
application process, and the Department has also detected violations in
other foreign worker programs it administers. Under the final rule, the
Department will have more enforcement tools at its disposal than ever
before to deal with such violations. The Department believes that the
attestation-based process fully complies with all statutory
requirements and, when utilized in concert with a strong audit and
review process, represents the best means for the Department to deploy
its limited resources in a manner that ensures that statutory timelines
are met and that the program's integrity is maintained.
(3) Protections for U.S. Workers in an Attestation-based Process
Several commenters believed the proposed attestation-based process
would not provide adequate protections for U.S. and H-2A workers
because it would reduce the oversight responsibilities of the
Department. Some of these commenters also said the current system
should be maintained to ensure that the Department oversees worker
protection, especially in the areas of housing and wages. An
organization commented that while this change may ease the application
process for employers it ignores the damage that could be caused by
false attestations and a lack of active oversight of the job terms,
recruitment, and hiring of U.S. workers. A farmworker advocacy
organization questioned the change to an attestation-based process
claiming there is a long history of labor abuse in agriculture and
saying they believed that when ``self-inspection procedures'' are
implemented they are generally based upon a prior record of compliance
and an accompanying determination that resources would be better
utilized in another pursuit. Another farmworker advocacy organization
commented that the attestation-based process, as proposed, would
further remove and diminish the Department's role in assuring all
reasonable efforts to locate U.S. workers had been exhausted before
foreign guest workers could be certified. Another commenter voiced
concern that the proposed process would eliminate the current process
of follow-up correspondence that has been instrumental in ensuring that
employers have actually undertaken the required recruitment steps. A
worker advocacy organization commented the proposed process, with its
emphasis on meeting paper requirements, would be ``ill suited to deal
with the inherent disparities in bargaining power between U.S.
agricultural employers and impoverished workers from the developing
world.''
The Department believes these commenters' concerns, while not
invalid, are substantially resolved by the safeguards that have been
built into the new process. The new program model emphasizes compliance
through enforcement mechanisms such as audits, revocation of approved
certifications, and debarment from the program. In light of these
enforcement tools, employers will have a substantial incentive to be
truthful in their representations that they cannot find U.S. workers
willing to engage in agricultural work at the appropriate wage, because
good-faith compliance with program obligations is necessary to maintain
continued access to a legal nonimmigrant workforce. Because the rule
requires pre-filing recruitment, the Department will also have an
opportunity to review recruitment reports and (through its SWA
partners) to conduct housing inspections before applications are
approved. Job orders must also be reviewed, approved, and circulated by
the SWAs before labor certifications can be granted, making it
impossible for even bad actor employers to entirely circumvent the
program's core recruitment requirements. Finally, it is worth noting
that the bulk of the program's requirements, including requirements to
pay workers at prescribed rates, maintain housing conditions, and
provide transportation that complies with applicable safety
requirements, have always been, and must necessarily be, enforced by
the Department after the labor certification has been granted.
Although not a factor in our evaluation of the comments here, the
Department also notes that many commenters who opposed the attestation-
based system in this rulemaking, claiming that it will adversely affect
U.S. workers, have enthusiastically endorsed proposed legislation
before the U.S. Congress that would in fact mandate that the Department
adopt an attestation-based application system in the H-2A program.
Those organizations in their comments on this rulemaking made no
attempt to explain their contradictory public positions regarding the
merits of an attestation-based application system.
(4) Improvements for Employers in an Attestation-based Process
Several commenters questioned whether the proposed process would
yield a simplified process for employer applicants. These commenters
believed the new process requires the same amount of paperwork and only
relieves employers of submitting documentation while at the same time
imposes
[[Page 77121]]
additional requirements including post-filing audits, increased
penalties, and a five-year records retention requirement. Several
commenters were concerned that the attestation-based process would lead
to increased liabilities for employers.
The Department does not believe that employers, attorneys, and
agents wishing to comply with program obligations will be adversely
affected by the institution of an attestation-based process. The
process is designed to give employers specific notice of the assurances
they are making to the Department and what their obligations are. Once
the employer is on notice of those assurances, it is better able to
understand what it must do to comply with H-2A requirements and to
conform its conduct to those requirements.
A trade association of agricultural employers agreed with the shift
to an attestation-based process but believed the process as outlined in
the proposed regulations was not a true attestation-based process and
recommended the process used in the H-1B program serve as a model.
Other commenters also recommended use of a process similar to the one
used in the H-1B program. Several commenters also suggested that the
Department combine the Application for Temporary Employment
Certification with the I-129 petition for simultaneous submission to
the Departments of Labor and Homeland Security.
In response to the proposals to convert the proposed attestation-
based process into a process modeled after the H-1B labor condition
application, the statutory differences between the two programs are
sufficiently substantial to make such an idea impractical. In the H-1B
program, the Department is statutorily limited to reviewing the
attestations made by an employer for ``completeness and obvious
inaccuracies.'' 8 U.S.C. 1182(n)(1)(G)(ii). The Department believes the
different H-2A statutory language suggests that a different application
and review process is appropriate for the H-2A program. The Department
appreciates the suggestion that simultaneous submissions to the
Department and DHS could lead to further application efficiencies for
employers. However, the Department believes that the complexity of the
current statutory requirements for the H-2A program would make it
unworkable to combine the Department's application with the petition
submitted to DHS. A proposal presented by the Department several years
ago to employ such a process in the H-2B program for temporary
nonagricultural workers was met with significant opposition. To attempt
to undertake a similar process with the significantly more complex H-2A
program does not appear feasible at this time.
Some commenters appeared not to understand the proposed attestation
process. The Department received comments stating that it is not clear
what should be included with the attestation. The Department has
accordingly clarified in the Final Rule that the application must be
accompanied by the prevailing wage determinations obtained in
anticipation of the recruitment for the application as well as the
initial recruitment report. The employer will be required to keep all
other supporting documentation in case of an audit, which means the
employer should keep all records relating to compliance with the H-2A
program, including advertising, job orders, recruitment logs/reports,
and housing inspection requests. To eliminate any lingering confusion
over document retention requirements, the Department has spelled these
out in a new regulatory section (Sec. 655.119) in this Final Rule.
(b) SWA Involvement/Application Submission
The NPRM revised the application submission requirements by
proposing to have employers submit applications only to the NPC rather
than to both the NPC and SWA as currently required. Most of the
comments received about this proposal were in favor of it, but a few
commenters expressed concerns about the reduced role for SWAs. One
person commented that eliminating the SWA involvement would leave
employers who seek assistance and guidance from the government in
completing applications more disposed to making errors and would
increase their potential liability. A farmworker advocacy organization
commented that SWA knowledge has proven useful to workers in the past
and that the advantage of SWA involvement is the detailed knowledge
their experienced staff can bring to bear about local agricultural
practices and the use of agricultural labor in their area. The
commenter also believed that the proposed process, which requires the
employer to place a job order with the SWA, means that the SWA must
take on faith that the employer's job offer is consistent with the
terms of the H-2A application because the SWA will no longer receive a
copy of the application. This organization recommended that
applications should be filed with the SWA as well as the NPC so the SWA
could advise the NPC if the application did not appear legitimate. A
growers and producers association believed retaining responsibility for
the substantive review by the NPC staff could remain a problem because
of their lack of expertise related to agriculture.
A State governor suggested the process could be improved by
eliminating the Department from the process. The governor believes the
States know their agricultural industry better, can resolve issues more
quickly, and are in the best position to identify and enforce sanctions
against fraud. Conversely, a professional association of immigration
attorneys recommended the SWA be eliminated from the recruitment
process and, alternatively, the employer handle all recruitment for the
positions, including accepting applications received as a result of a
job order placed by the SWA in the interstate and intrastate system.
The Department remains committed to modernizing the application
process and continues to believe the submission of applications
directly to the NPC is the most effective way of accomplishing this
goal. Eliminating the SWAs' participation in the application review
process will provide more efficient review of applications, as well as
greater consistency of review. The Department disagrees that NPC staff
have insufficient knowledge of the agricultural industry; to the
contrary, NPC reviewers who have handled H-2A applications have, in
some cases, more experience with such applications than many SWA staff.
The SWAs will, moreover, continue to play an important role in the
H-2A application process. SWAs will be responsible for posting job
orders, both intrastate and interstate, under Sec. 655.102(e) and (f)
and 20 CFR Part 653, thus reducing the risk for employers to make
mistakes with respect to job descriptions, minimum requirements, and
other application particulars. SWAs will review the job offer, its
terms and conditions, any special requirements, and the justifications
therefor. As part of their duties to post job orders pursuant to 20 CFR
Part 653, SWAs will also refer eligible workers to employers as well as
conduct housing inspections and follow up on deficiencies in the job
order. Finally, SWAs will continue an active role in conducting
prevailing hourly wage, prevailing piece rate, and prevailing practice
surveys.
Two commenters noted potential coordination or communication issues
could result when the SWA did not also receive the application. One
commenter was concerned there would be no assurance that the job order
posted by
[[Page 77122]]
the SWA would be the same as that on the application. The other
commenter pointed out the proposed regulations provided that the SWA
receive a copy of the notice of deficiency when one was issued, but the
SWA would not have a copy of the submitted application and thus could
have inadequate information to be of assistance to the involved
employer. An association of growers/producers recommended the
Department provide training to H-2A employers about the need to send a
formal request to the SWA to request a housing inspection and also
recommended the Department notify the SWA when an application was
received for processing so the SWA could, in turn, contact the
employer.
The Department appreciates the concerns about the need for
communication between the NPC and the SWA and reiterates that there was
never any intent to eliminate the SWA from all H-2A activity. As
discussed above, SWAs remain an integral partner in key respects: The
placing of the intrastate/interstate job orders, conducting prevailing
hourly wage, prevailing piece rate, and prevailing practice surveys,
referring eligible workers, and conducting housing inspections, all
activities for which SWAs will continue to receive grants from the
Department. Moreover, nothing in the regulations precludes the
Department from contacting SWAs, where there is reason to believe that
it is necessary, to verify that the terms in the employer's Application
for Temporary Employment Certification are consistent with the terms of
the job offer.\2\ However, SWAs will no longer process H-2A
applications. Accordingly, to minimize confusion about roles and
responsibilities, the Department has removed from Sec. 655.107(a)(3)
(Sec. 655.107(b) of the Final Rule) the provision requiring that SWAs
be sent deficiency notices.
---------------------------------------------------------------------------
\2\ There is also no prohibition preventing a SWA from
contacting the Department to ensure that the employer's job order
and Application for Temporary Employment Certification are
consistent. As a practical matter, a SWA will rarely be able to do
so before posting a job order, because Applications for Temporary
Employment Certification generally are not filed with the Department
under the Final Rule until at least 15 days after the job order has
been submitted to the SWA. Communication between SWAs and the
Department has always been essential to identifying and putting a
stop to deceitful employer behavior, however, and the Department
expects that such communication will continue under the Final Rule.
---------------------------------------------------------------------------
(c) Electronic Filing
The Department invited comments on the concept of a future
electronic filing process for the H-2A program and received comments
supporting the concept, although some also included suggestions for on-
line training, the establishment of a toll-free help line, and an
outreach and education component. A trade association recommended that
a paper-based option should also remain available. One commenter noted
that the Department did not provide an effective date for the
electronic filing process.
The Department appreciates the support for electronic filing and is
in the process of developing a system that will include the ability to
complete and submit an application form online with sufficient security
(PIN numbers, features to deter fraud and maintain system integrity,
electronic notifications, etc.). The Department is aware of the need to
provide outreach and training prior to the implementation of electronic
filing and will involve user groups in these efforts. Additionally, the
Department will ensure an adequate notice process and timeframe for
transitioning to a new or revised electronic application system.
(d) H-2A Labor Contractor Applications
The Final Rule has been clarified slightly to more clearly state
the obligations of H-2A Labor Contractors in filing applications. The
proposed rule stated that H-2ALCs must have a place of business in the
United States ``to which U.S. workers may be referred.'' Because H-
2ALCs may be mobile, however, and because referrals during the season
may need to be made to whatever location an H-2ALC is working at rather
than to the physical location of the H-2ALC's place of business, the
final rule has been modified to state that H-2ALCs must have a place of
business in the United States ``and a means by which it may be
contacted for employment.'' This slightly modified requirement will
ensure that referrals can be made to H-2ALCs during the course of a
season (where such referrals are provided for by the Final Rule), and
that U.S. workers will have a means of contacting the H-2ALC to secure
employment. All other changes made to the paragraph on filing
requirements for H-2ALCs were purely stylistic and made for purposes of
clarity.
(e) Master Applications
Both the current and proposed regulations require an association of
agricultural producers filing an application to identify whether the
association is the sole employer, a joint employer with its employer-
members, or the agent of its employer-members. Although the current
regulations do not specifically describe a ``master application'' that
can be filed by associations, they are clearly contemplated by 8 U.S.C.
1188(d), and the Department has permitted them to be filed as a matter
of practice. See 52 FR 20496, 20498 (Jun. 1, 1987) (cited in ETA
Handbook No. 398).
The Department received several comments objecting to the omission
of a provision in the NPRM for the filing of master applications. An
association of growers/producers commented that the Department should
encourage agricultural employers in small commodity groups or large
associations of employers to jointly participate in the H-2A program,
as this will make processing more efficient for both the Department and
farmers. Another association of growers/producers stated that using an
association application is the only possible solution for the H-2A
program to accommodate growers who need harvest workers for a short
period of time (one month or less). A major trade association also
commented that the master application significantly reduces the
paperwork and bureaucratic burden for the associations and its members,
as well as for the Department.
A major trade association and other associations of growers/
producers recommended that the Department retain and improve the master
application process and fully incorporate it into the H-2A regulatory
structure. The association recommended the master application also be
simplified as part of the new H-2A application process. It recommended
the regulations include the essential components of the master
application process that has been followed in practice, including the
filing of one application on behalf of multiple employers seeking
workers in virtually the same occupation, permitting the association to
place the required advertisements and conduct the required positive
recruitment on behalf of all participants but without the listing of
every individual employer in the advertisement as currently required,
permitting referral of workers to the association, and allowing the
association to place workers in the job opportunities. The association
further recommended the master application process also apply to
applications filed by associations acting as agents.
The statute governing the H-2A program requires that agricultural
associations be permitted to file H-2A applications, see 8 U.S.C.
1188(d), and that they be permitted to do so either as agents or as
employers, see 8 U.S.C. 1188(c)(3)(B)(iv) and (d)(2). Consequently, the
Department has, as a matter of longstanding practice,
[[Page 77123]]
accepted master applications from agricultural associations. In
response to the comments received on this subject, the Department has
decided to include specific language concerning such applications in
the regulation text at Sec. 655.101(a)(3).
The basic theory behind master applications is that agricultural
associations should be able to file a single H-2A application on behalf
of all their employer members in essentially the same manner that a
single employer controlling all the work sites and all the job
opportunities included in the application would. Two important
limitations apply to such applications. First, all the workers
requested by the application must be requested for the same date of
need. If an agricultural association needs workers at different times,
it must file a separate Application for Temporary Employment
Certification for each date of need, just as a single employer would.
Second, the combination of job duties and opportunities that are listed
in the application must be supported by a legitimate business reason,
which must be provided as part of the application. The purpose of this
limitation is to prevent agricultural associations from creating
undesirable combinations of job duties and opportunities for the sole
purpose of discouraging U.S. workers from applying for the jobs. So
long as a legitimate business reason exists supporting the combination
presented, however, the Department will deem it acceptable. An
acceptable business reason for a combination of job duties and
opportunities could include, for example, the efficiencies that closely
proximate employers expect to gain from having access to a flexible,
readily available pool of workers, even though the employers in
question do not grow the same crops, which may be necessary for
agricultural employers to deal with uncertain and weather-dependent
planting and harvesting times.
The Department is aware that this may mean that at times a U.S.
worker wishing to perform only one type of job duty, such as picking
asparagus, may be required to perform an additional job duty, such as
harvesting tobacco, in order to secure an agricultural job with that
association. It is not at all uncommon, however, for jobs in the United
States to include multiple job duties, some of which workers may view
as more desirable than others. Indeed, many job opportunities offered
under the current H-2A regulations include multiple job duties, some of
which may be more desirable than others. There is nothing in the
statute governing the H-2A program indicating that Congress intended to
require agricultural employers to allow prospective workers to
selectively choose which job duties they want to perform and which job
duties they do not, with regard to a particular job opportunity. The
Department is requiring that combinations of job duties be supported by
a legitimate business reason to prevent the deliberate and unnecessary
discouragement of U.S. workers from applying for job opportunities, but
the Department does not believe that further restrictions on job duty
combinations are warranted or necessary to fulfill the statutory
criteria for certification.
(f) Timeliness of Filing Application
As required by statute, the provision stating a completed
application is not required to be filed more than 45 calendar days
before the date of need was retained in the proposed rule. The
Department has continued that requirement in Sec. 655.101(c). The
Department received some suggestions for changes to the proposed
timeframes for submitting applications. Two commenters suggested the
Department should at least provide the employer with the option of
applying not more than 45 days before the date of need, undertaking the
recruitment after the application has been accepted, and continuing to
accept referrals under the 50 percent rule.
The Department may not require an application to be filed more than
45 calendar days before the date of need under 8 U.S.C. 1188(c). The
Department does not agree with the suggestion for offering employers
the option of applying not more than 45 days prior to the date of need,
doing post-acceptance recruitment, and continuing to accept referrals
under the 50 percent rule. Given the need to maintain consistency in
the program's requirements, the Department cannot offer varying options
for recruitment timeframes.
(g) Emergency Situations
The NPRM did not contain the current regulatory provision
(currently found at Sec. 655.101(f)(2)) allowing the Administrator/
OFLC to waive the required timeframe for application submission for
employers who did not use the H-2A program during the prior
agricultural season or for any employer for good and substantial cause.
The Department received a number of comments objecting to its
elimination. A major trade association stated the elimination would
preclude many employers from legalizing their workforce simply because
their decision to join the program was made too late to meet the
required timeframes. Another major trade association commented that a
provision allowing filing after the deadline is even more essential
because the de facto deadline for meeting requirements under the final
regulation is further in advance of the date of need than the current
requirement. One association of growers/producers cited the situation
following Hurricane Katrina when many employers needed to secure
additional H-2A workers as an example of the need for an emergency
application process.
Most of those requesting that the provision for an emergency
application be reinstated also commented that if an emergency
application is filed in an area of intended employment and for a job
opportunity for which other employers have previously been certified
for the same time frame, the emergency application should be certified
immediately. These commenters also suggested that post-application
recruitment could be extended for emergency applications to ensure that
their availability would not create an incentive to avoid the pre-
filing recruitment efforts.
The Department agrees that a provision allowing the Certifying
Officer (CO) to waive the required timeframe for submission of
applications in emergency situations is necessary and has included such
a provision in the Final Rule at Sec. 655.101(d). The provision, which
substantially replicates the current regulatory provision governing
emergency situations, requires submission of a completed application,
except for the initial recruitment report that would otherwise be
required, and a statement of the emergency situation giving rise to the
waiver request. The emergency situation giving rise to a request for a
waiver may include a lack of experience with the H-2A program
obligations (including housing and transportation requirements) or for
other good and substantial cause. The Department anticipates that
employers who were non-users of the program during the previous year
may fail to meet the filing deadline due to miscalculation of the time
needed to complete the application. The Department will entertain
waiver requests from employers in this situation but will consider them
only after first verifying that the employer did not use the program
during the prior year.
The Department is not providing an explicit definition of good and
substantial cause in order to preserve flexibility when faced with
unanticipated situations or conditions.
[[Page 77124]]
We have provided some examples in the regulatory text to assist
employers in determining what might constitute sufficient cause
warranting a waiver. One example provided is a dramatic change in the
weather conditions resulting in a substantial change to the anticipated
date of need for H-2A workers with significant attendant crop loss
unless the waiver is granted. However, the employer must be able to
demonstrate that the situation or condition leading to the request for
a waiver was genuinely outside of the control of the employer.
The Department is requiring, in the Final Rule, that the employer
who requests a waiver must conduct some recruitment as a condition for
obtaining that waiver. The employer will be required to submit a job
order to the relevant SWA(s) and conduct positive recruitment from the
time of filing the application until the date that is 30 days after the
employer's date of need. The SWA must transmit the job offer for
interstate clearance as in a normal application process. We have also
added a provision that requires the CO to specify a date upon which the
employer must submit a recruitment report consistent with the
requirements of this part.
The Department recognizes that the suggestions that waivers be
approved if other applications for similar occupations and dates of
need in the same geographic locations have been previously certified
are intended to expedite the process. However, each application is
unique and the Department must consider each request on its own merits,
and therefore does not believe it should commit to approving requests
solely because there have been prior approvals for employers with
similar job opportunities and dates of need in the same area.
Finally, the Department made changes in Sec. 655.101 to conform to
other changes made to the rule. Such changes include, but are not
limited to, changes to clarify a potential electronic filing of future
applications. In addition, the Department has made non-substantive
changes to enhance readability.
Section 655.102 Required Pre-Filing Activity
The Department has changed the title of this section from
``Required Pre-filing Recruitment'' to ``Required Pre-filing Activity''
to include the activities other than recruitment that are discussed in
this section.
(a) Section 655.102(a) Time of Filing of Application
The NPRM proposed requiring that applications be filed at least 45
days before the employer's date of need (as required by statute) with a
pre-filing recruitment period commencing no more than 120 days prior to
the date of need and not less than 60 days prior to the date of need.
The Department received a number of comments on the change to a pre-
filing recruitment framework and the related timing for that
recruitment.
The Department received multiple comments opposing this proposed
timeframe; several commenters were generally opposed to the expanded
timeframe and others raised more specific concerns. Several commenters
questioned the Department's legal authority for a shift to pre-filing
recruitment. The Department also received comments arguing that the
proposed pre-filing recruitment requirement has the effect of moving
the deadline for filing an application. Several commenters argued that
the proposed requirement that employers begin recruitment earlier than
they are required to file applications would be inconsistent with the
Congressionally set timeframes and thus beyond the Department's
statutory authority.
The Department disagrees strongly with the premise that its revised
recruitment steps are a violation of the statute. The INA is clear that
the Department may not require an application for labor certification
to be filed more than 45 days prior to the date of need. See 8 U.S.C.
1188(c)(1). The statute is silent on how the Department implements the
certification process: It does not specify when the recruitment of U.S.
workers should take place, whether prior to or subsequent to filing.
The INA clearly contemplates at 8 U.S.C. 1188 that recruiting U.S.
workers is a separate activity from filing and considering
applications, and the statute does not provide any express timeframes
during which recruitment must be conducted. There is thus nothing in
the statute that prevents the Department from requiring employers to
recruit before filing an application, much as it requires that
recruitment be conducted prior to the filing of an application in other
immigration programs. The Department has determined that program
integrity would be improved by being able to review a preliminary
recruitment report at the time the application is filed, a requirement
that is consistent with both the intent and the language of the
statute.
Several commenters opined that it was not feasible for employers to
make accurate assessments of timeframes and the number of workers
needed so far in advance and many questioned how effective an early
recruitment period would be in helping employers to locate U.S. workers
who would still be available at the time the work actually began.
Additionally, many commenters believed the earlier recruitment would
not benefit U.S. agricultural workers seeking employment because it is
inconsistent with the traditional job-seeking patterns of these
workers.
Some commenters expressed concern that extending the recruitment
time would either not increase the number of U.S. worker applicants for
a position, or would increase the number of U.S. workers who applied
for a position but would not translate into more actual workers taking
the jobs, as many would not report to work. A trade association also
commented that the employer is put at risk because, by the time the
jobs begin, U.S. applicants may have long since changed their minds or
accepted other employment. A State government agency commented that
most agricultural workers would not make a commitment to a job so far
in advance of the start date. One individual employer believed the
proposed pre-filing recruitment would actually have the opposite effect
the Department anticipates because U.S. workers would be reluctant to
make commitments so far in advance of the start date. An employer
association recommended that the final regulation specifically permit
employers to ask workers identified during the recruitment process to
attest to or affirm their intentions to actually report to work to
perform the jobs.
An association of growers/producers shared its data from the 2006-
2007 season which shows only 9 percent of U.S. applicants applied
during the first 15 days of the current 45-day recruitment period and
questioned whether a longer timeframe would yield additional
applicants. The association also reported 83 percent of the applicants
who applied during the initial 15-days of the recruitment period failed
to report for work on the date of need, as compared to a 60 percent
failure-to-report rate for applicants who applied during the last 30
days of recruitment leading up to the date of need.
Some commenters stated that the current recruitment timeframes are
adequate for identifying and hiring U.S. workers and others advocated
alternate timeframes. Commenters presented a number of options for the
recruitment timeframe, including the current
[[Page 77125]]
timeframe, and options ranging between 90 to 75 days prior to the date
of need for beginning recruitment and 60 to 45 days prior to the date
of need for filing the application. In the words of one trade
association, which was representative of the comments received on this
point: ``For the sector for which H-2A is predominantly applicable--
fruits and vegetables--the ability to predict months in advance when
labor will be required is simply impossible.''
The Department takes seriously its twin obligations, consistent
with all H-2A statutory requirements, to ensure both that an adequate
workforce is available to U.S. agricultural producers and that U.S.
workers have a meaningful opportunity to apply for all open
agricultural job opportunities. The Department believes it can best
fulfill its statutory responsibilities by requiring employers to
recruit in advance of filing, which will enable employers to submit
preliminary recruitment reports with their applications, giving the
Department better information than it has ever had before about the
availability of U.S. workers before the Department is required by the
tight statutory timeframes to make a determination on an application.
The current pattern of forcing positive recruitment combined with the
Department's near simultaneous evaluation of the application into a
substantially narrow window of only 15 days is simply inadequate to
address these workforce and program integrity needs. Based on the
comments received, however, the Department has come to believe that
requiring employers to seek and secure a workforce 120 days in advance
of need may not be practicable, given the substantial likelihood that
over such an extended period variables such as weather conditions,
competition from other industries for available workers, and
competition among farms and crops could intervene and result in
increased labor uncertainty for employers.
The Final Rule accordingly shortens the pre-filing recruitment
period described in the NPRM. Employers will be required to initiate
recruitment no more than 75 days prior and no less than 60 days prior
to the anticipated date of need. Reducing the pre-filing recruitment
time period in this manner from the time period that was proposed,
while simultaneously adjusting the Department's proposal by extending
the referral period beyond the date of need (discussed further below),
will ensure U.S. workers have access to these job opportunities, and
enable employers to recruit effectively for U.S. workers without
adversely affecting planting and harvesting schedules. This revised
recruitment schedule, which is closer in time to the employer's actual
date of need, also addresses the commenters' concerns about the job
search patterns of likely U.S. workers. The Department declines, at
this time, to implement any requirement that U.S. workers affirm in
writing their intent to show up for work when needed, as that is a
contractual matter between the worker and the employer. The Department
notes that it has afforded employers some flexibility in the Final Rule
in Sec. 655.110(e), ``Requests for determinations based on
nonavailability of able, willing, and qualified U.S. workers,'' to
address situations where U.S. workers have failed to appear as
promised.
(b) Section 655.102(b) General Attestation Obligation
(1) General Comments Regarding the Attestations
A group of farmworker advocacy organizations commented on the
language in the proposed regulation that states ``the employer shall
attest that it will continue to cooperate with the SWA by accepting
referrals of all eligible U.S. workers who apply.'' The organization
stated it is the employer's duty to hire all qualified U.S. workers who
apply and believed the proposed language did not make this clear.
An association of growers requested that the language describing
the time period for acceptance of referrals be modified by adding the
word ``first'' before ``begin to depart'' because not all foreign
workers depart on the same date. A professional association requested
the regulation be changed to permit employers to stop local recruitment
efforts no more than five days prior to the date of need rather than
three days as proposed. This change was requested to accommodate the
actual transit time required for workers to arrive from abroad. As
discussed in more detail below, the points made by these commenters
have been rendered moot by changes made to this provision.
(2) The ``50 Percent Rule'' and the Cessation of Recruitment
The Department sought comments on program users' experience with
the ``50 percent rule,'' which requires employers of H-2A workers to
hire any qualified U.S. worker who applies to the employer during the
first 50 percent of the period of the H-2A work contract. We received
numerous comments and several commenters offered alternative
approaches.
Several commenters questioned the Department's authority to make
changes to the 50 percent rule, citing the 1986 IRCA amendments which
added the 50 percent rule to the INA as a temporary 3-year statutory
requirement, pending the findings of a study that the Department was
required to conduct regarding its continuation. In 1990, pursuant to
what is now INA Sec. 218(c)(3)(B)(iii), ETA published an Interim Final
Rule to continue the 50 percent requirement. See 55 FR 29356, July 19,
1990. That rule was never finalized.
As the Department stated in the NPRM, since the 1990 publication of
the Interim Final Rule continuing the 50 percent rule, it has gained
substantial experience and additional perspective calling into question
whether the Department's 1990 decision was in fact supported by the
data contained in the 1990 study, and whether the rule is in fact a
necessary, efficient and effective means of protecting U.S. workers
from potential adverse impact resulting from the employment of foreign
workers.
The Department received several comments in support of retaining
the 50 percent rule as it is currently administered. Commenters
asserted that the rule is an important method for granting U.S. workers
job preference over foreign temporary workers and creates an incentive
for pre-season recruitment of U.S. workers. Some commenters stated
their belief that many U.S. workers gain jobs under the 50 percent rule
and that its elimination would deprive many U.S. workers of jobs
unfairly, although these commenters did not provide any data to support
their assertion.
Several commenters believed that few employers have had to lay off
H-2A workers under the 50 percent rule, and that the rule has enabled
many U.S. workers to secure jobs, and that elimination of the rule
would unfairly deprive them of those jobs. The commenters believed that
by eliminating this rule, the Department may keep U.S. farmworkers from
applying for jobs they would otherwise be able to take. Other
commenters believed that for those U.S. workers who learn of an H-2A
job, the proposal would eliminate the protections that safeguard
against employers rejecting qualified U.S. workers.
One commenter argued that the 50 percent rule provides an incentive
that should be maintained to create an attractive working environment,
and that it is critical to the integrity of the H-2A program. The
commenter asserted that it prevents growers from engaging in practices
that are tolerated by H-2A workers only because of their greater
economic vulnerability and in turn
[[Page 77126]]
ensures that labor standards are not driven down for U.S. workers
unable to compete with H-2A workers who have no choice but to endure
such conditions.
While one commenter admitted that they could not provide data
regarding the cost and benefits of the 50 percent rule, they expressed
the belief that employers will hire fewer domestic workers without it,
thereby adversely affecting an already vulnerable population. A number
of commenters noted that the elimination of the 50 percent rule would
make it more difficult for traditional farm workers who move with crops
along the traditional migrant streams to secure jobs. The commenter
believed that U.S. workers will be ``absolutely foreclosed'' from much
if not most H-2A related employment if they cannot be hired just
before, at, and past the date of need. An obligation to continue to
hire U.S. workers after the departure of any foreign workers to the
U.S. for employment was viewed by the commenter as critical to
maintaining and developing a U.S. agricultural workforce.
Finally, another commenter observed that the 50 percent rule has
served as an important tool for ensuring that the H-2A program does not
adversely affect U.S. workers, and that at a time of increasing
unemployment, the Department should not choose this particular moment
to abandon these long-standing labor protections for U.S. workers.
Several other commenters argued the 50 percent rule should be
abolished. These commenters argued that H-2A users have long considered
the 50 percent rule to be unfair and unreasonable. They observed that
no other temporary or permanent worker program has an even remotely
corresponding requirement. Commenters also observed that the 50 percent
rule was purportedly designed to enable domestic workers to accept
agricultural employment opportunities, but that its costs outweigh its
benefits. Commenters shared experiences that many of the domestic
workers who apply under the 50 percent rule do so to maintain
government benefits under the Unemployment Insurance program (the UI
program requires unemployed workers to show that they have actively
sought employment each week in order to continue benefits). They also
found that while the rule does not actually provide substantial
additional employment to domestic workers, it creates needless
insecurity and uncertainty for H-2A workers who are employed under H-2A
contracts.
A commenter from a state agency asserted that the elimination of
the rule would relieve the SWA from having to track these H-2A job
orders and would remove unnecessary burdens on employers. The commenter
believed that there is no tangible evidence that the rule produces the
desired results of increasing employment of domestic workers:
My experience is that it is rare for [U.S.] workers to search
our Internet postings for agricultural positions in the middle of a
growing season. Employers find this requirement confusing and
worrisome. Smaller employers have expressed concern that they could
lose their fully trained and settled foreign worker(s), suddenly
disrupting their operation. Unfortunately, their experience is that
U.S. workers who drop in during a season have a tendency to not stay
till the end of the contract period. If this practice had
historically produced significant results, the government-mandated
grower investment of time and money might be justifiable, but it has
not.
One commenter stated that there is no need for the 50 percent rule
where recruiting indicates that there are no or few local workers. The
commenter also found no need for the rule in situations where the
employers typically hire a large number of local workers. The commenter
went on to argue that if the Department wants to retain the rule, it
should do so only as a condition of approval of an application where
there is evidence indicating that there are a relatively large number
of local workers but the employer has indicated that it intends to hire
few if any local workers.
A number of commenters observed that all available data support the
view that relatively few U.S. workers desire employment in agriculture.
They argued that it necessarily follows from this fact that the 50
percent rule provides almost no benefit to U.S. workers, yet its
presence dissuades employers from participating in the program because
of the uncertainty it creates. These commenters concluded that the rule
should be abandoned. One commenter believed that if the Department
wished to retain the rule, it should reserve the right to do so on a
case by case basis, as a condition of approval for an application where
the CO and SWA believed that insufficient local recruiting has been
accomplished. The Department believes that this idea may have some
merit, but has not devised a means to implement it at this time.
A number of agricultural employers commented that the rule
requiring H-2A employers to hire any qualified U.S. worker during the
first 50 percent of the H-2A work contract makes it very difficult for
a producer to manage labor supply and costs over the life of the
contract. Commenters from state agencies found that the features of the
rule are seldom completely understood by the growers who need the H-2A
program, adding to their impression that the entire process is
complicated and rife with red tape. Another State commenter found the
rule to be antiquated and ineffective.
Another commenter observed that the rule has been disruptive and
non-productive for both workers and employers and that its elimination
will provide much-needed stability in the workforce obtained by the
employer. A commenter found that a cost-benefit analysis of the
situation indicates that continuing to recruit U.S. workers beyond the
date of need results in no corresponding benefit. One farmer observed,
It's just not right that after I have made the best attempt to
hire domestic workers that once halfway through the season I be
forced to replace a trained H-2A worker. I really would prefer to
hire local workers and keep that wage money at home, if I could find
them.
Commenters from various farm bureaus around the country argued that
under current conditions, the 50 percent rule is without foundation.
They argued that anecdotal evidence shows that few, if any, employees
referred for employment after the employer's date of need apply for or
maintain their work status. They believed that agricultural employers,
especially those with perishable crops, must be able to operate with
greater certainty. Once an operation begins, the success of the work
effort is the product of coordinated teamwork. Employers are willing to
make strong recruitment efforts before the date of need, but they seek
certainty and continuity once the work period has begun.
A commenter from a farming association found that the actual
benefits of the 50 percent rule for domestic workers are, to all
practical intent, illusory. The commenter strongly supported
eliminating the rule entirely, arguing that such an approach would
result in a substantial improvement in program operations. The
commenter argued that while the Department has a statutory obligation
to protect the rights of U.S. workers when implementing the program, it
is necessary to strike a balance between the priority given to U.S.
workers and the rights of employers, who have met all of the legal
obligations that attach to employing H-2A workers. It went on to argue:
The current 50 percent rule, while seemingly a provision to
protect U.S.
[[Page 77127]]
workers, is more disruptive to farm operations and a disincentive to
program participation than it is a true protection for workers.
There is no reason to mandate that a grower's obligations to find
and recruit eligible U.S. workers should extend past the recruitment
period; imposing such an obligation serves only to disrupt
operations of the producer and does little to protect U.S. workers *
* *. The fact is, and all available data support this view,
relatively few U.S. workers desire employment in agriculture * * *.
The work is arduous, episodic, taxing, requires relatively little
skill and virtually no education. Within the U.S. economy the pay--
while increasing--is relatively low. These jobs provide tremendous
economic opportunity for migrant workers but are not perceived as
offering the same benefit to U.S. workers. In fact, approximately 10
million individuals in the U.S. economy today choose to work in jobs
which pay them less than they could earn in agriculture. The 50
percent rule provides virtually no benefit to U.S. workers yet its
presence has clearly been a disincentive to program participation.
It should be abandoned.
Other commenters offered alternatives to the 50 percent rule
including a 25 percent rule, recognizing that referrals after the date
of need may serve a useful purpose but extending through 50 percent of
the contract completion might be too long. One farming association
suggested that the obligation to accept domestic referrals should
terminate not later than three days before the date of need.
A number of state agencies suggested that SWAs should leave job
orders open for 30 days after the date of need and employers should be
required to offer employment to any qualified and eligible U.S. workers
who are referred during that time, also recognizing that the current 50
percent of the contract period is too long and perhaps too uncertain to
manage.
Another commenter similarly recommended that employers be required
to begin recruitment no more than 60 days prior to the date of need and
continue until between one and 30 days after the date of need, with
adjustments made according to the expected duration of the job
opportunity. Under this commenter's proposal, the determination of the
end date for recruitment should be no earlier than the date of need,
but the 50 percent rule should be revisited and adjusted to lessen its
potential negative impact on the agricultural employer's workforce.
Finally, another commenter suggested a continued obligation of 50
percent of the work period or 30 days, whichever is longer.
It is clear to the Department from these comments that many view
the current 50 percent rule as a substantially burdensome requirement
that does not provide a corresponding benefit to U.S. workers.\3\
Others see the rule as benefiting U.S. workers by providing them
expanded job opportunities. Based on the comments it has received and
its substantial experience in operating the H-2A program, the
Department believes that the 50 percent rule clearly does provide some
benefits to U.S. workers, but that the rule creates substantial
uncertainty for employers in managing their labor supply and labor
costs during the life of an H-2A contract and serves as a substantial
disincentive to participate in the program.
---------------------------------------------------------------------------
\3\ In December 2007, the Department commissioned a survey of
stakeholder representatives to evaluate the effectiveness of the 50
percent rule as a mechanism to minimize adverse impacts of the H-2A
program on U.S. farm workers. The Department had conducted a similar
study of the impact of the 50 percent rule in 1990, but upon
reviewing that study as part of the H-2A review which led to this
recent NPRM the Department concluded that it was of limited utility
because it covered only two states--Virginia and Idaho--and because,
given the significant changes that have occurred in the field of
agricultural employment over the last two decades, it was
substantially out of date. The surveyors for the new study conducted
interviews with a number of stakeholders to gather information on
the impact of the 50 percent rule and how it is currently working.
The surveyors queried a far more representative sample of entities
affected by the 50 percent rule than the 1990 study had, including
employers, state workforce agencies, and farm worker advocacy
organizations.
While the new study identified a diversity of opinion about the
value and effectiveness of the current 50 percent rule, the
researchers found that the rule ``plays an insignificant role in the
program overall, hiring-wise, and has not contributed in a
meaningful way to protecting employment for domestic agricultural
workers.'' See ``Findings from Survey of Key Stakeholders on the H-
2A `50 Percent Rule','' HeiTech Services, Inc. Contract Number:
DOLJ069A20380, April 11, 2008. The researchers estimated that the
number of agricultural hires resulting from referrals to employers
during the 50 percent rule period was exceedingly small, with H-2A
employers hiring less than 1 percent of the legal U.S. agricultural
workforce through the 50 percent rule. All of the categories of
surveyed stakeholders, including employers, state workforce
agencies, and even farm worker assistance and advocacy
organizations, reported that U.S. workers hired under the 50 percent
rule typically do not stay on the job for any length of time when
hired, frequently losing interest in the work when they learn about
the job requirements. Many of the survey respondents, including
representatives from each of the three groups, suggested that the
rule should be either eliminated or modified.
The Department did not specifically rely on either of the two
surveys in crafting the Final Rule. It does, however, believe that
the information provided adds some additional depth to the
discussion contained in this preamble. Accordingly, it has posted
the studies on the Department's Web site.
---------------------------------------------------------------------------
Based on the comments it received, the Department has decided to
modify the rule. The requirements of 8 U.S.C. 1188(c)(3)(B)(iii) were
fully satisfied when the Department promulgated interim final
regulations on July 19, 1990. Nevertheless, the language of that
provision suggests that when issuing regulations dictating whether
agricultural employers should be required to hire U.S. workers after H-
2A workers have already departed for the place of employment, the
Department should weigh the ``benefits to United States workers and
costs to employers.'' After considering its own experience and the
experience of its SWA agents, the Department agrees, on balance, with
those commenters who argued that the costs of the 50 percent rule
outweigh any associated benefits the rule may provide to U.S. workers.
It is beyond dispute that the obligation to hire additional workers
mid-way through a season is disruptive to agricultural operations and
makes it difficult for agricultural employers to be certain that they
will have a steady, stable, properly trained, and fully coordinated
work force. It is also apparent from the comments received that the
current rule is poorly understood by employers, difficult for the SWAs
to administer, and a disincentive for employers to use the H-2A
program. Finally, the rule requires agricultural employers to incur
additional unpredictable and unnecessary expenses, forcing them to
choose between either hiring a greater number of workers than they
actually need to complete their work part-way through a season, or
discharging some or all of their H-2A workers, in which case the
employer will lose its entire investment in those workers and will be
required to incur the immediate additional expense to transport the
workers back to their home countries. It is for all of these reasons
that no other permanent or temporary worker program administered by the
Department contains such a burdensome requirement, even though most of
these programs are subject to similar statutory or regulatory
requirements that the Secretary certify (1) that there are not
sufficient workers in the United States who are able, willing, and
qualified to perform the labor or services needed and (2) that the
employment of the aliens in such labor or services will not adversely
affect the wages and working conditions of workers in the United States
similarly employed.
It is clear to the Department that the current 50-percent rule does
provide some benefits to U.S. workers, since at least some U.S. workers
secure jobs through referrals made pursuant to the rule. The number of
such hires, however, appears to be quite small. Moreover, the comments
indicate that many workers hired pursuant to the 50-
[[Page 77128]]
percent rule do not complete the entire work period, adding costs to
employers and further diminishing the total economic benefits derived
from the rule by U.S. workers. It is also relevant that under the Final
Rule, the period of time that a job order is posted by a SWA prior to
an employer's dates of need has been substantially expanded from the
current rule, which will provide U.S. workers with more up-front
information about agricultural job opportunities, rendering mandatory
post-date-of-need hiring less necessary.
In sum, after considering the best information currently available,
the Department has concluded that the benefits of the 50-percent rule
to U.S. workers are not, on balance, sufficient to outweigh its costs.
The Department has also determined that modifying or eliminating the
50-percent rule would not compromise the Department's ability to ensure
that U.S. workers are not adversely affected by the hiring of H-2A
workers, just as the absence of a 50-percent rule from the other
permanent and temporary worker programs administered by the Department
has never been thought to compromise the Department's ability to ensure
that U.S. workers are not adversely affected by the hiring of foreign
workers under those programs. If it is true, as some commenters
suggested, that some U.S. agricultural workers simply drift from
employer to employer without paying attention to actual advertising
about agricultural job opportunities, the Department is confident that
farm worker advocacy and assistance organizations will help to spread
the word about advertised agricultural job openings, much as they do
today. The available hiring and referral data strongly suggest,
however, that such workers only rarely secure their jobs through the
50-percent rule today. It is also worth noting that to the extent
workers can identify agricultural job openings before those jobs have
started, they will gain the additional benefit of a longer period of
employment.
Despite these conclusions, the Department is concerned that the
sudden and immediate elimination of the 50-percent rule might prove
disruptive to the access of some U.S. workers to agricultural
employment opportunities. If some U.S. workers have become accustomed
to the ability to secure H-2A-related employment after the jobs have
already started, those workers may benefit from a transition period
that will allow those workers to adjust their employment patterns. A
transition period would also allow the Department to collect additional
data about the costs and benefits of mandatory post-date-of-need hiring
under the new rule structure over a period of several years, allowing
the Department to assure itself that its initial conclusions regarding
the rule are sound.
For these reasons, the Department has created a five-year
transitional period under the Final Rule during which mandatory post-
date-of-need hiring of qualified and eligible U.S. worker applicants
will continue to be required of employers for a period of 30 days after
the employer's date of need. In determining precisely what form
mandatory hiring should take during this transitional period, the
Department considered all of the various options presented by
commenters. Several commenters suggested limiting the period during
which employers are required to engage in mandatory post-date-of-need
hiring to 30 days. The Department has adopted this suggestion as the
transitional period rule, both for ease of administration and to
minimize the extent to which the various costs and considerations
outlined above will burden employers during the transition. The
Department believes that the use of this 30-day post-date-of-need
mandatory hiring period during the five-year transition period will
allow a smooth adjustment of the expectations of U.S. workers and will
provide the Department additional time to collect data on the effect of
the rule. At the end of the transition period, the mandatory post-date-
of-need hiring requirements under the Final Rule will expire, and
employers will only be required to accept referrals of U.S. workers
until the first date the employer requires the services of H-2A
workers. However, the Department intends to conduct a study of the
impact of this transitional 30-day rule on U.S. workers and on
employers during the five-year transition period, and under the rule
retains the ability to indefinitely extend the 30-day rule by notice
published in the Federal Register should the Department's study
determine that the rule's benefits outweigh its costs.
We believe this framework addresses the concerns of many of the
commenters, both for and against continuation of the 50-percent rule,
and strikes an appropriate balance between the concerns of agricultural
employers and the need to protect U.S. workers' access to the
employment opportunities under the H-2A program. Having a set period of
time during the transition period, not tied to a percentage of the
contract length, will provide employers more predictability and be
easier to administer for employers, workers and SWAs making referrals.
The language of Sec. 655.102(b) as originally proposed implied that
mandatory post-date-of-need hiring would no longer be required by the
H-2A regulations. The language creating the transitional 30-day
mandatory hiring period outlined above may be found at Sec.
655.102(f)(3) of the Final Rule.
To the extent that the 30-day rule applies, the employer would
require similar safeguards as under the 50-percent rule so long as the
employer continues to have an affirmative obligation to hire U.S.
workers beyond the date of need. Accordingly, the Department has
included a provision in Sec. 655.102(f)(3)(ii) of the Final Rule on
the prohibition of withholding of U.S. workers. The provision is
similar to the provision in Sec. 655.106(g) of the current
regulations, but has been modified to reflect the centralization of the
application process with the NPC. Under the final rule, the CO, and not
the SWA, receives and investigates the complaint and makes a
determination whether the application of the 30-day rule should be
suspended with respect to the employer.
(c) Section 655.102(c) Retention of Documentation
The Department proposed in the NPRM a 5-year retention requirement
for all H-2A applications and their supporting documents. The vast
majority of commenters who provided observations on this provision
voiced concern with the proposed 5-year document retention period and
recommended 3 years, stating that they did not have adequate staff to
comply with the requirement or that it is not an industry standard and
not legally consistent with other regulations and might even discourage
use of the H-2A program. The Department has reconsidered its position
and has changed the retention requirement to 3 years.
One commenter suggested that all record retention requirements and
periods be combined into one section of the amended regulations to
provide program participants with clearer guidance for these
obligations. The Department agrees and has added a new Sec. 655.119 to
the regulatory text. The new section lists all the document retention
requirements.
Another commenter requested that the Department add a sentence to
the rule indicating that the employer is not liable for eliminating
records after the retention period expires. The Department has not
added an express provision to this effect, as we believe the cessation
of the employer's
[[Page 77129]]
responsibility to retain the records after the retention period expires
is self-evident. The Department suggests, however, that there may be
some benefits to employers keeping records beyond the required 3-year
period; if the employer later faces an allegation of fraud or some
other alleged violation that has a statute of limitations of longer
than 3 years, retained documents may help the employer defend itself.
Indeed, if a proceeding or investigation relating to the retained
records has already been initiated, it should be understood that the
employer is obligated to retain the records that are the subject of the
proceeding or investigation until it has come to a conclusion.
One commenter requested that the Department allow applicants who
are denied certification to discard records 180 days after the denial.
The Department has decided to eliminate the requirement to retain
records pertaining to denied certifications in its entirety. If an
application is denied on grounds of fraud or malfeasance, the
Department expects that it will have already obtained copies of any
documents necessary to prove the fraud or malfeasance during the
process of denying the certification, and thus the retention of such
documents by the employer would be needlessly duplicative. Under the
Final Rule, any employer who has been denied certification can discard
the records immediately upon receiving the denial notice, or, if the
employer appeals the decision, whenever the decision to deny
certification becomes final. If the denial is ultimately overturned on
appeal and certification is granted, the application of course becomes
subject to the document retention requirements for approved cases.
A SWA requested that we define who is responsible for monitoring
the documentation and ensuring compliance. This Final Rule places
responsibility squarely with the employer to maintain the
documentation. The NPC, through the audit function as well as the other
enforcement tools at its disposal, will ensure compliance. SWAs would
not be responsible for monitoring documentation or ensuring compliance
with this provision.
(d) Section 655.102(d) Positive Recruitment Steps
The Department proposed ``positive recruitment'' steps including
posting a job order with the SWA serving the area of intended
employment; placing three print advertisements; contacting former U.S.
employees who were employed within the last year; and recruiting in
additional States designated by the Secretary as States of traditional
or expected labor supply.
Many commenters, primarily employers and employer associations,
expressed concerns with the specific proposed pre-filing recruitment
steps. Many argued that the proposed longer recruitment period and
increased advertising would simply increase the cost of the recruiting
effort without increasing the benefits and that the increased steps
were duplicative. These commenters believe that their workforce
shortage problem is not due to a lack of awareness of available jobs,
but rather is because of a lack of willing and available U.S. workers.
They suggested that rules be promulgated to use only the current state
employment service system and not require agricultural employers to
perform a substantial prolonged search for U.S. workers before being
able to apply for an H-2A labor certification. According to these
commenters, the time required in the current rules is sufficient to
identify and notify the U.S. work force of the availability of
particular jobs.
Requiring pre-filing recruitment is, in the Department's view,
essential to the integrity of an attestation-based process. Only with
sufficient time for adequate recruitment can the Department ensure that
the potential U.S. worker pool is apprised of the job opportunity in
time to access that opportunity. The current recruitment time frame, in
which employers file applications 45 days prior to the date of need,
recruit for 15 days thereafter, and in which a CO must adjudicate the
application no later than 30 days prior to need, has proven unworkable.
COs are today certifying the absence of U.S. workers based on, at best,
a handful of days of recruitment activity, which is insufficient to
apprise U.S. workers of job opportunities through either the SWA
employment service system or other positive recruitment activities.
The belief of some commenters that the time allotted in the present
regulatory scheme for recruiting is sufficient to canvass the potential
U.S. workforce is, in the Department's view, incorrect. The Department
has heard significant concerns voiced by the farmworker advocate
community that there is an inability to access job opportunities within
the short recruitment period provided in the current system. The
Department takes seriously these concerns about the length of the
recruitment, particularly in light of the Department's modification of
the 50 percent rule (discussed above with respect to Sec. 655.102(b))
and the possibility that it will be phased out entirely after a period
of five years. The movement of the recruitment period to a time prior
to the filing of the application provides a clear and well-defined time
for the employer to make available and for the U.S. farmworker to
access job opportunities, and provides the Department with better
information with which to make its certification determination. The
establishment of a 30-day post-date-of-need referral period for the
next five years further ensures that the expectations of workers will
not be unduly disrupted.
A trade association recommended SWAs be removed from the
recruitment process altogether, and only be involved in the inspection
of worker housing and workplace conditions after approval of the labor
certification and visa and the commencement of work. A State agency
representative recommended the SWAs receive copies of the ETA-750
(Application for Temporary Employment Certification) and ETA-790 not
for review but to ensure the SWA would have access to accurate
information.
The Department notes that it is statutorily prohibited at this time
from amending the Wagner-Peyser regulations to remove SWAs from the H-
2A process. See Public Law 110-161, Division G, Title I, Section 110.
Nor does it believe such a step would be beneficial at this time. SWAs
provide an effective means of completing many required activities, such
as inspections of employer-provided housing. SWAs are also integral to
the process of receiving and posting agricultural job orders. The
Department declines to require that SWAs also receive the form ETA-750,
as they will receive far more significant information in the form ETA-
790 job clearance order request.
A group of farmworker advocacy organizations also claimed that the
proposed changes to the recruitment process were inconsistent with INA
requirements, portions of the Wagner-Peyser Act, and MSPA. The
organization believed the proposed regulations changed the standards
for employer recruitment efforts to the detriment of U.S. workers and
did not address recruitment violations that had been uncovered in the
past. Specifically, the organization objected to the elimination of the
standard for positive recruitment based on comparable efforts of other
employers and the H-2A applicant employer as found in the current
regulation at Sec. 655.105(a). This organization was also concerned
about the elimination of the current provision requiring that ``[w]hen
it is the prevailing practice in the area of employment and for the
occupation for
[[Page 77130]]
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.'' 20 CFR 655.103(f). The organization made several
recommendations for revisions regarding recruitment, including
preserving the burden on the employer (under Departmental review) to
identify and positively recruit in locations with potential sources of
labor, and the obligation to work with the SWA to do so; retaining
current regulatory provisions requiring that employers engage in the
same kind and degree of recruitment for U.S. workers as they utilize
for foreign workers; and requiring adequate compensation of farm labor
contractors who find U.S. workers. Additionally, it recommended
preserving the role of SWAs contained in the current regulations and
detailed in the internal Departmental H-2A Program Handbook.
Other commenters expressed concern that the Department's proposal
to reduce the scope and type of required recruitment efforts while
increasing the length of time to perform recruitment was primarily
intended to streamline the program, but would not actually benefit U.S.
workers. These commenters disagreed with the proposed rule's
elimination of the current regulatory requirement to contact farm labor
contractors, labor organizations, nonprofits and similar organizations
to recruit domestic employees. If the Department seeks to revise the
current recruitment practices, in the opinion of these commenters, it
would be more effective to maintain or increase current recruitment
standards, while giving agricultural employers additional time within
which to meet their obligations; otherwise the Department is reducing
opportunities for U.S. workers.
One commenter suggested that the Department bolster word-of-mouth
recruitment because it is, in the commenter's opinion, the only way
that U.S. workers find out about jobs in the agricultural sector and it
encourages free-market competition as long as the information is
accurate. This commenter believes too many H-2A employers do not
provide accurate information to U.S. workers because it is in their
best interests to hire H-2A workers who must stay tied to that employer
for the entire agricultural season.
While the Department appreciates the concerns expressed, it
believes these concerns are misplaced in light of the recruitment
methods that the Department will be requiring employers to undertake
under the Final Rule. The Department will continue, and in some
respects expand, those core positive recruitment requirements that have
a proven track-record of providing cost-effective information to U.S.
workers about available job opportunities. For example, the Final Rule
retains the current requirement that employers run two newspaper
advertisements in the area of intended employment, but expands that
requirement, as laid out more fully in Sec. 655.102(g), by requiring
that one of the advertisements be placed on a Sunday, which typically
is the newspaper edition that has the highest circulation. The
Department declines, however, to continue obscure and difficult-to-
administer provisions requiring employers and the Department to
abstractly measure the amount of ``effort'' that employers put into
their domestic positive recruitment, or to determine precisely what the
prevailing practice is in a given area with respect to the payment of
labor contractor override fees. Provisions that call for the
measurement of employer effort require the Department to make highly
subjective judgments and are extremely difficult to enforce. Moreover,
the Department's program experience has shown that most of the
discontinued recruitment methods cited by commenters--radio ads and
contacting fraternal organizations, for example--substantially add to
the burden of using the program, but add little to the total amount of
information about agricultural job opportunities that is made available
to U.S. workers through the positive recruitment methods that are
required by the Final Rule. The elimination of specific requirements to
contact entities such as fraternal organizations does not mean that
interested entities will be entirely deprived of information about open
agricultural job opportunities. Rather, it means that interested
entities should pay attention to newspaper advertisements and SWA job
orders.
The Department appreciates the suggestion that it should develop
methods for encouraging word-of-mouth as a recruitment tool, and that
word-of-mouth is frequently a successful way for U.S. workers to learn
about job opportunities. We do not believe that word-of-mouth
recruitment can effectively be mandated by regulation, however. Rather,
the Department anticipates that word-of-mouth communication will be
instigated by the positive recruitment efforts that the Final Rule
requires, particularly through the assistance of farm worker assistance
and advocacy organizations, which can spread the word about available
job openings.
The Department takes seriously its statutory obligation to
determine whether there are sufficient numbers of U.S. workers who are
able, available, willing, and qualified to perform the labor or
services involved in the petition and to ensure that U.S. workers'
wages and working conditions are not adversely affected by the hiring
of H-2A workers. The Department believes that the positive recruitment
methods it has selected for inclusion in the Final Rule--the use of
newspaper advertisements, the state employment service system, contact
with former workers, and recruitment in traditional or expected labor
supply States--provide notice of job opportunities to the broadest
group of potential applicants in an efficient and cost-effective
manner, while avoiding burdening employers with requirements that have
proven costly and at times difficult to administer without yielding
clear benefits. The Department notes that employers stand to gain a
great deal from recruiting eligible U.S. workers rather than incurring
the considerable time and expense of securing foreign workers from
thousands of miles away. The various provisions of these regulations,
including wage, housing, and transportation requirements, ensure that
it is virtually always more expensive for employers to hire H-2A
workers than it is for them to hire U.S. workers outside the H-2A
program. Thus, employers have significant incentives to use the
positive recruitment methods prescribed by these regulations to maximum
effect, and the Department is confident that these methods will
adequately spread the word to U.S. workers about available job
opportunities. The Department expects that many employers will also
engage in additional recruitment efforts that can, in the absence of
rigid and overly prescriptive regulatory requirements, be flexibly
tailored to the particular circumstances of local labor markets.
(e) Section 655.102(e) Job Order
Proposed Sec. 655.102(e) required that, prior to filing its
application with the NPC, the employer place a job order, consistent
with 20 CFR part 653, with the SWA serving the area of intended
employment. The NPRM also required the job order to be placed at least
75 but no more than 120 days prior to the anticipated date of need.
[[Page 77131]]
Several commenters focused on the requirements for placement of the
job order. Three commenters posited that the rule would create problems
for program users by establishing requirements for acceptable job
offers that are subject to the Department's discretion, while employers
would have to conduct the recruitment before the terms and conditions
of the employer's job offer have been reviewed and approved by the
Department. According to these commenters, the rule is silent on what
happens if, after the employer conducts the pre-filing recruitment, the
Department does not approve the employer's job offer. Under the current
program, the recruitment would be considered invalid, and the employer
would be required to revise the job offer and repeat the recruitment.
This situation, according to these commenters, introduces an
unacceptable degree of uncertainty and risk into the process. A trade
association further commented that, because there will be no prior
approval of the job offer by the NPC, all SWAs would be independently
interpreting and making decisions about the job offers, and believed
that such a process would lead to inconsistencies among SWAs. The
association was also concerned there would be inconsistency between
what a local SWA employee would accept and what the CO would later find
acceptable. The association recommended retaining the existing process
as an option for employers.
The Department requires that the employer submit an acceptable job
order (current form ETA-790) to the appropriate SWA for posting in the
intrastate and interstate clearance system. The ETA-790 describes the
job and terms and conditions of the job offer: the job duties and
activities, the minimum qualifications required for the position (if
any), any special requirements, the rate of pay (piece rate, hourly or
other), any applicable productivity standards, and whether the employee
is expected to supply tools and equipment. This form is submitted to
the SWA for acceptance prior to the employer's beginning positive
recruitment. As long as the employer's advertisements do not depart
from the descriptions contained in the accepted job order, the
advertisements will be deemed acceptable by the Department. Thus,
employers should place advertisements after the form ETA-790 has been
accepted for intrastate/interstate clearance, eliminating any chance
that recruitment will later be rejected by the NPC due to problems with
the job offer and corresponding advertisements.
The Department also does not anticipate significant problems in
uniform decision making among SWAs. SWAs will be, as they have been for
some time, the primary arbiter of whether job descriptions and job
orders are acceptable. In response to comments on the subject, however,
the Department has clarified in the text of the rule that employers may
seek review by the NPC of a SWA rejection, in whole or in part, of a
job description or job order. The regulations have also been revised to
permit the NPC to direct the SWA to place the job order where the NPC
determines that the applicable program requirements have been met and
to provide the employer with an opportunity for review if the NPC
concludes that the job order is not acceptable. This modification
renders concrete what has long been the informal practice with respect
to H-2A related job orders, as the NPC has worked hand-in-hand with the
SWAs to ensure that job orders comply with applicable requirements. It
is also implicit in the status of the SWAs as agents of the Department,
assisting the Department in the fulfillment of its statutory
responsibilities.
One trade association noted that the job order must be filed in
compliance with part 653, and that Sec. 653.501 requires that the
employer give an assurance of available housing as part of the job
offer. This commenter opined that this would be impossible to do since
employers cannot guarantee the availability of housing that far in
advance for purposes of using the proposed housing voucher. The
Department's disposition of the proposed housing voucher, discussed
below, renders this comment moot.
The same commenter noted that Sec. 653.501(d)(6) requires that the
SWA staff determine whether the housing to be provided by the employer
meets all of the required standards before accepting a job order, and
argued that this would be an impossible task 120 days before the actual
date of need, as the proposed rule purported to allow. As explained
above in the discussion of Sec. 655.102(a), the Department has amended
the timeframe for recruitment by moving the first date for advertising
and placement of the job order to no more than 75 days and no fewer
than 60 days prior to the date of need. Moreover, in response to the
comments received, the Department has specified in the Final Rule that
SWAs should place job orders into intrastate and interstate clearance
prior to the completion of the housing inspections required by 20 CFR
653.501(d)(6) where necessary to meet the timeframes required by the
governing statute and regulations. This will maximize the time that job
orders are posted, providing better information to workers. The Final
Rule further directs SWAs that have posted job orders prior to
completing a housing inspection to complete the required inspections as
expeditiously as possible thereafter. This provision is consistent with
the current regulations, which already permit job orders to be posted
prior to the completion of a housing inspection pursuant to Sec.
654.403. If a SWA notes violations during a subsequent housing
inspection, and the employer does not cure the violations after being
provided a reasonable opportunity to do so, the corresponding job order
may be revoked. With these amendments, the Department believes it has
adequately addressed the concerns contained in this comment.
In addition, a group of farmworker organizations objected to the
use of the language ``place where the work is contemplated to begin''
in describing which SWA should receive a job order when there are
multiple work locations within the same area of intended employment and
the area of intended employment is found in more than one State. It
believed this language would allow employers to choose where they
wanted to recruit U.S. workers simply by ``contemplating'' that the
work would begin in an area unlikely to have U.S. workers. The
Department received other comments that supported this requirement.
After considering these comments, the Department has revised the
language of the provision to state that an employer can submit a job
order ``to any one of the SWAs having jurisdiction over the anticipated
worksites.'' The revised language affords employers some flexibility in
determining where to initially send job orders, but it does not allow
employers to use this flexibility to avoid recruitment obligations, as
Sec. 655.102(f) provides that the SWA that receives the job order
``will promptly transmit, on behalf of the employer, a copy of its
active job order to all States listed in the job order as anticipated
worksites.'' Thus, no matter where the job order is initially sent, the
scope of required recruitment will be the same, covering all areas in
which anticipated worksites are located.
A sentence has also been added to the Final Rule, simply as a
procedural direction to the SWAs, that ``[w]here a future master
application will be filed by an association of agricultural employers,
the SWA will prepare a single job order in the name of the
[[Page 77132]]
association on behalf of all employers that will be duly named on the
Application for Temporary Employment Certification.''
(f) Section 655.102(f) Intrastate/Interstate Recruitment
The proposed regulation instructs the SWA receiving an employer's
job order to transmit a copy to all States listed as anticipated
worksites and, if the worksite is in one State, to no fewer than three
States. Each SWA receiving the order must then place the order in its
intrastate clearance system and begin referral of eligible U.S.
workers.
The Department received some general comments regarding the
referral process for U.S. workers. One group of farmworker advocacy
organizations expressed concern about the lack of referrals by SWAs to
H-2A employers in the past and believed the proposed regulation would
not cure this deficiency. One association of agricultural employers
expressed concern regarding the ability of the SWAs to adequately
handle the referral process.
The Department believes these concerns are misplaced, especially
under a modernized system in which SWA responsibilities with respect to
each H-2A application is reduced. A core function of the SWA system is
the clearance and placement of job orders and the referral of eligible
workers to the employers who placed those job orders. Past program
experience demonstrates the occurrence of a sufficient number of
referrals to sustain this requirement.
One SWA commented that although the NPRM states the purpose of
removing the SWA is to remove duplication of effort, one important
duplicative effort is retained--the requirement for sending job orders
to other labor supply States and neighboring States. This agency
suggested that if the job orders are uploaded to the national labor
exchange program, then the transmittal of job orders to other States is
unnecessarily duplicative. Other commenters recommended all
agricultural job orders be posted in an automated common national job
bank.
The Department acknowledges the potential benefits of a national
online system for posting job offers. However, automating interstate
job clearance would require regulatory reforms that the Department is
currently constrained from undertaking by Congress. See Public Law 110-
161, Division G, Title I, Section 110. There is currently no online
national exchange organized under the auspices of the Department to
which such jobs could be posted. The Department's former internet-based
labor exchange system, America's Job Bank, was disbanded in 2007
because the private sector provides much more cost-effective and
efficient job search databases than the federal government can provide.
The Department, however, does not wish to impose mandatory
participation in such job databases on SWAs or employers at this time.
Because the Department already has an existing system in place for
handling interstate job orders, and given the current legal and
operational constraints of changing that system, the Department has
determined that the only feasible and prudent approach at this time is
to continue to require SWAs to process the interstate job orders in
accordance with 20 CFR Part 653.
An association of growers/producers opposed the requirement for
transmitting job orders to additional States and recommended the job
orders be circulated only in the State where the job is located. This
association also suggested that any out of State notifications should
list only the location of the job offer and never list the employer's
name.
The Department's circulation of the job order to any States that
are designated by the Secretary as labor supply States is required by
statute. Section 218(b)(4) of the INA prohibits the Secretary from
issuing a labor certification after determining that the employer has
not ``made positive recruitment efforts within a multi-state region of
traditional or expected labor supply where the Secretary finds that
there are a significant number of qualified United States workers who,
if recruited, would be willing to make themselves available for work at
the time and place needed.'' The interstate recruitment must be
conducted ``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 Department does not have the
ability to eliminate or alter the requirement absent Congressional
amendment.
At the same time, the Department does not read the statutory
language to require the Secretary to designate traditional or expected
labor supply States with respect to all States in which H-2A
applications may be filed. Rather, the Department believes that the
statutory language is most reasonably read to require the Secretary to
make a determination for each area (which the Secretary has elected to
do on a State-by-State basis) whether, with respect to agricultural job
opportunities in that area, there are other areas (which the Secretary
has also elected to examine at the State-by-State level) in which
``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.'' In other words, the Department
reads the statute as contemplating that with respect to agricultural
job opportunities in certain States at certain times, as a factual
matter there simply will not be other States in which 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.'' Under this reading of the statute, the
word ``where'' in 8 U.S.C. 1188(b)(4) essentially means ``if'': If the
Secretary determines that the statutory criteria have been met, then
she is required by the statute to designate the area of traditional or
expected labor supply, but if the Secretary determines that the
statutory criteria have not been met, then the requirement is simply
inapplicable. This sensible reading of the statute comports with the
realities of the agricultural sector: The pattern of seasonal migrant
work has clearly changed over time, and in some cases older patterns
have become well-established while others have fallen away. The
changeable nature of the agricultural labor flow, which is highly
dependent upon weather patterns, crop distribution, the availability of
transportation, and even the price of gasoline, are all recognized
under this system of flexible, fact-specific designations by the
Secretary.
A group of farmworker advocacy organizations pointed out that the
proposed regulations do not provide a timeframe for how long the local
SWA can wait before placing the H-2A job order into interstate
clearance, and only require the SWA to ``promptly transmit'' the job
offer. The Department does not believe that its requirement of
``prompt'' transmission requires further clarification, however.
Posting job orders is one of the core functions of the SWAs, and the
Department is confident the SWAs will continue to act responsibly in
promptly transmitting and posting job orders as they have in the past.
The organization was also concerned about the clarity of the
instructions to be followed by SWAs for circulating job orders among
other States. The proposed regulations require the SWA to transmit a
copy of the open job order to all States listed in the employer's
application as anticipated worksites or, if the employer's anticipated
worksite is
[[Page 77133]]
within a single State, to no fewer than three States, including those
designated as traditional or expected labor supply States. However, the
organization believed the proposed regulation would be read to not
require any additional job order circulation by the SWA if the employer
has anticipated worksites in two States, and thus would provide less
circulation of job orders and no contact of labor supply States in such
situations. The Department agrees and has clarified the language of
Sec. 655.102(f)(1) by removing the phrase, ``If the employer's
anticipated worksite location(s) is contained within the jurisdiction
of a single State'' to make clear that job orders with locations in
more than one State must be circulated to any traditional or expected
labor supply States designated by the Secretary for either of the work
locations.
An attorney for an association of growers/producers suggested the
H-2A process could be further improved by allowing State officials to
affirm that employers need agricultural workers in their State. The
Department believes it cannot implement such an affirmation process, as
similar processes for determining the unavailability of U.S. workers
have been found to be insufficient for the factual determination
required by the Secretary. See First Girl, Inc. v. Reg. Manpower Admin.
DOL, 361 F. Supp. 1339 (N.D. Ill. 1973) (availability of U.S. workers
could not be determined by generic listing of available workers listed
with state agency).
A public legal service firm recommended that the Department require
employers to circulate all job orders in Texas, which they said is a
traditional agriculture labor surplus state. If the commenter's factual
assertions about labor availability in Texas are correct, the
Department would expect that Texas will frequently be designated as a
labor supply State. The Department is cognizant of the changeable
nature of worker flows, however, and therefore does not wish to require
the mandatory inclusion of one or more specific States in the
designation process. It is subject to question, for example, whether
significant numbers of agricultural workers in Texas would be willing
to accept seasonal employment in Alaska or Hawaii. Rather, the
Department will rely on annually updated information in designating
labor supply States to ensure the accuracy of the assertions that farm
workers are indeed available in the purported labor supply State and
that recruitment there for out of State jobs would not take needed
workers away from open agricultural jobs in the labor supply State. In
response to these concerns, however, the Department notes it will
announce, at least 120 days in advance of the Secretary's annual
designation, an opportunity for the public to offer information
regarding States to be designated.
Finally, a group of farmworker advocacy organizations expressed
concern regarding the content of job orders placed by agricultural
associations. It objected to the placement of job orders with a range
of applicable wage offers with a statement that ``the rate applicable
to each member can be obtained from the SWA.''
In promulgating this rule, the Department made no changes to
current practice. An association is permitted to pay a different wage
for each of its members, should it choose to do so, as long as that
wage meets the criteria established in the regulations (now found at
Sec. 655.108). U.S. workers seeking a job opportunity from or within
an association can acquire from the SWA a list of member locations and
the wages associated with each so that the worker can make a fully
informed decision as to which job, if any, the worker wishes to apply.
We made several minor edits that are consistent with the above
discussion to the language of Sec. 655.102(f) for purposes of clarity.
Some language was also moved to other sections or deleted, again for
purposes of clarity and without substantive effect. Section
655.102(f)(3), which describes the recruitment period during which
employers are required to accept referrals of U.S. workers, was added
to the rule for reasons described at length in the discussion of the 50
percent rule under Sec. 655.102(b).
(g) Section 655.102(g) Newspaper Advertisements
The Department proposed that in addition to the placement of a job
order with the SWA, employers be required to place three advertisements
(rather than the current two) with a newspaper or other appropriate
print medium. Most who commented on this suggestion believed the
additional advertising would result in additional costs without any
additional benefits. An association of growers/producers stated:
``Additional newspaper advertising is a very expensive alternative of
recruiting workers in today's world and should not be the only method
allowed.''
A trade association also questioned the expansion of the
advertising requirements in the proposed regulations and commented that
newspapers are not a usual or even occasional source of labor market
information for farm workers. The association and other commenters
referenced the National Agricultural Worker Survey (NAWS) which
reported that percent of seasonal crop workers (both legal and illegal)
learn about jobs from a friend or relative or already know about the
existence of the job (although how such knowledge is attained was not
reported). The association further commented that the proportion of
workers who learn about their jobs from a ``help wanted'' ad was
apparently too small even to warrant inclusion in the report. Several
of these commenters suggested it would be more efficient to simply
allow for posting to the SWA's job bank which is more practical, less
expensive, and reaches applicants more readily.
A few employers objected to the very concept of newspaper
advertising. One employer objected to having to advertise in a
newspaper, commenting that newspaper advertisement is ``not only
expensive, but doesn't find any hiding sheep shearers.'' Another
employer objected to the increase in required newspaper advertising for
U.S. workers ``when it is clear that local workers are simply not
available for seasonal jobs.'' Many commenters were particularly
concerned that increasing the number of ads from two to three in
addition to requiring that one be placed in a Sunday edition would
greatly increase employer costs. One trade association commented that
it is likely that in the typical situation an employer's advertising
costs would increase by three to four times under the proposed
regulations, adding hundreds to thousands of dollars to the employers'
application costs. That commenter did not provide data supporting this
conclusion, however.
Several commenters were in favor of the proposal to increase
advertising and expressed support for the additional ad in the
expectation it would provide additional notice to the target
population. An association of growers/producers supported the increase
in advertisements from two to three, believing it would enhance the
ability of an eligible U.S. worker to identify and apply for
agricultural job openings before the job begins. A farmworker/community
advocacy organization agreed that requiring three instead of two
advertisements would be a step toward improving the recruitment of U.S.
workers.
The Department appreciates that a newspaper ad frequently may not,
of itself, result in significant numbers of U.S. workers applying for
employment. However, such advertising has been required for decades and
remains the central mechanism by which jobs are
[[Page 77134]]
advertised, especially to workers who may have only limited access to
the Internet. The ads may not necessarily be seen by all farmworkers,
but may be, and indeed are, seen by those who participate in the
greater farm work community and who can pass along a description of the
jobs ads through ``word-of-mouth.'' Newspaper advertising remains,
along with the state employment service system network, an objective
mechanism by which notice of upcoming farm work can be assessed by the
Department and communicated to those who are interested.
The study referenced by many commenters suggesting that most
referrals in the agricultural sector take place through word-of-mouth
rather than through newspaper advertisements was actually conducted by
the Department, and, as noted above, the Department acknowledges that
word-of-mouth frequently results in U.S. workers learning about job
opportunities. However, the Department believes it would be nearly
impossible to effectively implement and enforce a word-of-mouth
regulatory standard. The Department believes the combination of job
orders and required newspaper advertisements are cost-effective, easily
administrable, and readily enforceable, and will make job information
available in ways that will result in word-of-mouth referrals.
Although it may be true that few agricultural workers themselves
read such advertisements, others do read them, including farm labor
advocacy organizations, community organizations, faith-based
organizations, and others who seek out such opportunities on behalf of
their constituents. The newspaper becomes a very visible source of
information for such organizations that are in turn able to spread the
word to workers. Through publication to this wide audience, the
information ultimately reaches those for whom it is intended.
The Department appreciates the substantial concern raised by a
number of commenters regarding the placement of multiple ads and has
thus revised its proposal on the number of ads that must be placed in
the area of intended employment. The Department has decided to revert
from the proposed three to the existing rule's requirement for two ads.
The Department is retaining its proposal, however, to require that one
of the newspaper advertisements be run on a Sunday, as that is
typically the newspaper edition with the broadest circulation and that
is most likely to be read by job-seekers.
In response to the various comments about the proposed advertising
requirements, the Department is also slightly modifying the language of
Sec. 655.102(g)(1) to provide some limited flexibility in selecting
the newspaper in which the job advertisement should be run. The Final
Rule clarifies that the newspaper must have a ``reasonable
distribution.'' Thus, advertisements need not be placed in the New York
Times, even if the New York Times is the newspaper of highest
circulation in a given area, but also cannot be placed in a local
newspaper with such a small distribution that it is unlikely to reach
local agricultural workers. The Final Rule also clarifies that the
newspaper must be ``appropriate to the occupation and the workers
likely to apply for the job opportunity,'' but deletes the modifier
requiring that the newspaper must be the ``most'' appropriate. This
change was made out of a recognition that in many areas there are
multiple newspapers with a reasonable distribution and that are likely
to reach U.S. workers interested in applying for agricultural job
opportunities, and that as long as these criteria are met, an
employer's positive recruitment should not be invalidated. If an
employer is uncertain whether a particular newspaper satisfies these
criteria, it can seek guidance from the local SWA or the NPC.
The Final Rule also instructs employers not to place the required
newspaper advertisements until after the job order has been accepted by
the SWA for intrastate/interstate clearance; this replaces the time
frame contained in the NPRM and shifts the initiation of recruitment
back to the submission to and clearance by the SWA of the job order.
This ensures that advertisements reflect the job requirements and
conditions accepted by the SWA and minimizes the risk that employers'
advertisements will later be determined to be invalid by the NPC.
One commenter suggested that a better alternative to employer-
placed advertisements would be for the Department to maintain an up-to-
date database listing advertisements for farming and ranching jobs and
directing interested workers to contact the SWA in the States where the
jobs were located. The commenter believed this approach would expand
the ability of U.S. workers to select more varied jobs in a larger
geographic area. The Department does not disagree; however, as noted
above, amending the current job order clearance process is not an
option at this time.
A private citizen commented that the SWA, not the employer, is in
the best position to know which newspaper is most likely to reach U.S.
workers, and that the SWA should, therefore, continue to have a role in
determining where advertising is conducted. Nothing, of course,
prevents an employer from consulting with the SWA regarding the most
appropriate publication in which to place advertising and thus ensure
compliance with the regulations, particularly in instances in which a
professional, trade or ethnic publication is more appropriate than a
newspaper of general circulation. In fact, a representative of a State
government agency suggested the advertising requirements should be
limited to local area media and trade publications where available, and
that the specific publications should be agreed to by the employer and
the SWA based on the potential for attracting candidates and historical
experience. While we are not incorporating this suggestion for
coordination into the regulation as a requirement, we note that the
regulation at Sec. 655.102(g)(1) already requires the ads to be placed
in the ``newspaper of general circulation serving the area of intended
employment that has a reasonable distribution and is appropriate to the
occupation and the workers likely to apply for the job opportunity.''
(h) Section 655.102(h) Contact With Former U.S. Workers
The Department proposed that employers be required to contact by
mail former U.S. workers as part of the recruitment process. A group of
farmworker organizations objected to the requirement and commented:
``if DOL had intended to come up with the least effective way of
contacting former employees, it could not have selected a better method
than by mail.'' This organization was concerned because they claimed a
majority of farm workers are not literate in English or their primary
language and, therefore, might not understand the written communication
and the regulation does not require the written communication to be in
any language other than English. The organization also recommended
contact by telephone or through crew leaders or foremen as alternative
methods of contact. In response, we have modified this provision in the
Final Rule to permit employers to also contact former U.S. workers
through alternative effective means, and document those means in some
manner (telephone bills or logs, for example).
Additionally, the organization believes many workers would be
missed by the proposed mailing effort because the proposed regulation
limits the requirement to contacting former
[[Page 77135]]
workers ``employed by the employer in the occupation at the place of
employment, during the previous year'' and does not require that H-
2ALCs contact a growers' former workers who did not work for the H-2ALC
during the previous season. The Department declines to adopt a
requirement that employers contact workers who did not work for them
during the previous season, as such a requirement would be quite
impractical, and the other positive recruitment requirement methods
included in the Final Rule are intended to reach such workers. It is
not at all clear how H-2ALCs would even gain access to the necessary
contact information for former employees of other employers, and in the
judgment of the Department such a requirement would be excessively
burdensome.
One association of growers/producers suggested the proposed rule be
modified to allow employers the ability to deny work to employees hired
in previous years who demonstrated an unsatisfactory work history/ethic
even if the worker was not terminated for cause. A trade association
and other commenters expressed concern about former employees who were
the subject of no-match letters from the Social Security Administration
and requested a safe harbor or common sense exception in such
situations.
The Department appreciates that employers that do not participate
in the H-2A program generally are not required to rehire employees who
have a poor work history. The Department also appreciates that
employers frequently may allow short-term workers who prove to be poor
performers to finish their job terms if it is easier and, in light of
potential litigation risks, less costly than firing them. There is a
countervailing concern, however, that if the Department allowed
employers to reject former workers who completed their previous job
term on the alleged ground that the workers were actually poor
performers, it would open the door for bad actor employers to reject
former workers on the basis of essentially pretextual excuses. The
Department has therefore decided to address employers' concerns about
poorly performing workers by creating an exception allowing employers
not to contact certain poor performers, but only in the narrow
circumstance where the employer provided the departing employee at the
end of the employee's last job with a written explanation of the
lawful, job-related reasons for which the employer intends not to
contact the worker during the next employment season. The employer must
retain a copy of the documentation provided to the worker for a period
of 3 years, and must make the documentation available to the Department
upon request. The Department will review the propriety of the
employer's non-contact in such situations on a case-by-case basis. The
Department believes that the insertion of this provision is responsive
to the comment in that it relieves employers from the burden of being
required to rehire truly poorly performing workers, while ensuring that
workers who will not be recontacted are aware of the employer's
intentions and reasons well in advance of the next employment season
and have the opportunity to bring reasons they regard as pretextual to
the Department's attention.
With respect to the comment about no-match letters, we note that
employers are not required to hire a worker who cannot demonstrate
legal eligibility to work. Receipt of a no-match letter may give rise
to a duty on the employer's part to inquire about work eligibility, but
the letter in and of itself is not sufficient legal justification to
refuse to hire a U.S. worker.
One trade association expressed concern about the related
requirement for documenting contact with former employees and stated,
``This requirement could reasonably be interpreted to mean that the
employer must maintain a copy of its correspondence with each former
employee demonstrating that it had been mailed. The only practical way
to do this would be to send each letter by certified mail or some other
means providing evidence of attempt to deliver. Such a requirement
would be unnecessarily burdensome and costly.'' The association
recommended this be simplified by requiring the employer to keep a copy
of the form of the letter sent and a statement attesting to the date on
which it was sent and to whom. Additionally, the association questioned
what kind of documentation would demonstrate that the employee ``was
non-responsive to the employer's request.'' The association suggested
the employer's recruitment report should be sufficient to document
which employees were responsive and requiring documentation of non-
responsiveness is unreasonable.
The Department does not intend this requirement to be overly
burdensome to employers and agrees that copies of form letters together
with the employer's attestation that the letters were mailed to a list
of former employees would be sufficient to meet the requirements of
this provision. The Department also agrees that the recruitment report
can be used to sufficiently document the non-responsiveness of former
employees. The Department inserted language into the Final Rule
clarifying the Department's expectations regarding the type of
documentation that should be maintained.
(i) Section 655.102(i) Additional Positive Recruitment
(1) Designation of Traditional or Expected Labor Supply States
In the NPRM, the Department continued to impose on employers the
requirement that the employer make ``positive recruitment efforts
within a multi-state region of traditional or expected labor supply
where the Secretary finds that there are a significant number of
qualified U.S. workers who, if recruited, would be willing to make
themselves available for work at the time and place needed,'' as
mandated by 8 U.S.C. 1188(b)(4). The Department proposed that each year
the Secretary would make a determination with respect to each State in
which employers sought to hire H-2A workers whether there are other
States in which there a significant number of eligible, able and
qualified workers who, if recruited, would be willing to make
themselves available for work in that State. The Department also
proposed to continue the current regulatory provision stating that the
Secretary will not designate a State as a State of traditional or
expected labor supply if that State had a significant number of local
employers recruiting for U.S. workers for the same types of
occupations. The Department proposed to publish an annual determination
of labor supply States to enable applicable employers to conduct
recruitment in those labor supply States prior to filing their
application. The Department received several comments on this
provision.
A group of farmworker advocacy organizations opined that the
Department's proposal contravenes the H-2A statutory requirements
regarding positive recruitment. The organization believes the
Department's proposal will result in employers not competing with one
another for migrant workers and workers not receiving job information
even though a particular job in another State may offer a longer
season, a higher wage, or better work environment. Another farmworker
advocacy organization commented that it makes no sense in a market
economy which recognizes competition as good to stop requiring
employers to recruit for farmworkers in areas where other employers are
seeking farmworkers. A labor organization commented that this
[[Page 77136]]
provision demonstrates a lack of understanding of farmworker
recruitment and what it believes is an inappropriate desire to ease the
recruitment obligations for growers at the expense of U.S. farmworkers.
This organization recommended the current positive recruitment rules
should be retained and enforced. A U.S. Senator was concerned that the
NPRM would cost American workers jobs because they would not have
access to information about jobs in other areas.
Employers seeking farmworkers are statutorily required to recruit
out-of-State if the Secretary has determined that other States contain
a significant number of workers who, if recruited, would be willing to
pick up and move in order to perform the work advertised in accordance
with all of its specifications. The commenters referenced above appear
to believe that the Department's proposal is a new regulatory
provision. That is incorrect. The current regulations at 20 CFR
655.105(a), which have been in place for 20 years, specify that
Administrator, OFLC should ``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.'' This longstanding provision reflects two judgments on
the part of the Department. First, it reflects the Department's reading
that 8 U.S.C. 1188(b)(4) was intended to require out-of-State
advertising only in areas with a surplus labor supply, and was not
intended to deleteriously impact farmers in certain areas by
instituting federal program requirements that would draw away their
local workers. Second, it reflects the Department's judgment that where
a ``significant'' number of local employers are already recruiting U.S.
workers in a given area for the same types of occupations, there is
already significant competition for workers in that area and the
addition of further out-of-State advertising would likely be futile.
The Department's program experience in applying this limitation over a
long period of time leads it to believe that it has worked well in
practice to aid program administration and avoid the imposition of
unnecessary program expense. The Department notes that this limitation
does not mean that out-of-state recruitment will cease in States where
workers are being locally recruited, since SWAs will continue to have
discretion to post job orders in those States where appropriate.
Several commenters sought more information on the methodology that
would be used in making the determinations about labor supply States. A
group of farmworker/community advocacy organizations voiced its concern
that ``The annual survey is flawed in many respects and not designed to
identify sources of labor at the time of need.'' The organization was
also concerned about the timing and specificity of the survey to be
used. A representative of a State Workforce Agency requested additional
information about the designation of labor supply States for the
logging industry in her State. A trade association commented that ``the
same types of occupations'' should mean something more than merely
agricultural work. An individual commenter believed that just because
an employer in a State may request H-2A workers for a certain crop
activity for a certain time period should not mean that State should
not be considered a labor supply State for other crop activities and
time periods.
The Department has addressed many of these concerns by modifying
the provision to allow for notice to be published in the Federal
Register at least 120 days before the announcement of the annual
determination, allowing anyone to provide the Department with
information they believe will assist the Secretary in making her
determination about labor supply states. The Department will consider
all timely submissions made in response to this notice. In addition to
the information presented by the public, the Department expects that it
will continue to consult SWAs, farmworker organizations, agricultural
employers and employer associations, and other appropriate interested
entities. As discussed above, the ``same types of occupations''
language in the Final Rule has been carried over from the current
regulations, and the Department intends to apply the term in the same
manner that it has in the past. The Department agrees that the phrase
is not intended to lump all agricultural work together as the ``same
type of occupation.''
(2) Required Out-of-State Advertising
The Department proposed that each employer would be required to
engage in positive recruitment efforts in any State designated as a
labor supply State for the State in which the employer's work would be
performed. This recruitment obligation would consist of one newspaper
advertisement in each designated State.
Several commenters felt the newspaper advertisement requirements
were too burdensome on employers and that the additional time and
expense of recruiting in traditional or expected labor supply States
should be borne by the Department rather than the employer. An
association of growers/producers recommended that the regulation only
require SWAs to send the job orders to those States designated as labor
supply States as they do now. A United States Senator recommended that
after the employer has satisfied the intrastate recruitment
requirements and has attested that insufficient domestic workers are
available, the burden of proof that U.S. workers are unavailable should
shift to the Department.
The Department does not consider a requirement to place a single
out-of-state advertisement in each designated labor supply state to be
unjustifiably onerous on employers and is of the opinion at this time
that the potential benefit to be gained in locating eligible and
available U.S. workers outweighs the costs of the advertising. This is
required in the current program and the Department has received little
negative feedback on the burden of such advertising. The Department
does not agree that this is an expense the Department should bear,
beyond the expense of the interstate agricultural clearance system that
the Department already finances. The INA at sec. 218(b)(4) is clear
that it is an employer who must engage in such out-of-state positive
recruitment, not the Department.
Several associations of growers/producers commented that placing
newspaper advertisements should be limited to no more than three
States, to avoid the possibility that the Department could require
recruitment in 50 States and the additional territories because the
language in the companion recruitment provision for SWAs at Sec.
655.102(f) reads ``no fewer than 3 States.'' A United States Senator
also endorsed a limit on the number of States in which an employer is
required to recruit and suggested the Department should provide a means
of indemnifying employers from liability associated with mandatory out-
of-State advertising.
The Department anticipates the number of States to be so designated
will be no more than three for any one State, but that the number of
States designated will vary by State. In some cases, no State or only
one or two States may meet the relevant criteria. In response to these
comments, the Department has added to the Final Rule language
specifying that ``[a]n employer will not be required to conduct
positive recruitment in more than three States designated in accordance
with paragraph (i)(1) for each area of intended employment listed on
the employer's application.'' This is
[[Page 77137]]
generally consistent with past practice concerning required out-of-
State recruitment, as employers have only very rarely been required to
conduct advertising in more than three States of traditional or
expected labor supply. Providing this modest cap will provide employers
with needed certainty regarding expected advertising costs.
A farmworker advocacy organization believed the requirement should
be for three advertisements, not one, in each designated State and also
recommended that the Department require that the language predominant
among agricultural workers in the region be used. A representative of a
State government agency commented that the proposed regulations were
not clear as to how an employer's ad in another State would be handled.
The individual commented that the advertising instructions indicate
interested applicants should contact the SWA, but asserted that this
procedure would not work well for an ad placed out of State and
recommended the ads placed out of State should advise applicants to
contact the employer directly. Another commenter recommended the
newspaper ads in other States should direct all applicants to the SWA
and the SWA should then refer them to the employer's SWA. An
association of growers/producers recommended the required newspaper
advertisements should contain only the job specifications and the SWA
contact information.
The Department agrees that more clarity on the mechanics of out-of-
state recruitment is appropriate. The Department has added language to
the regulation to clarify that one advertisement is to be placed in
each State identified for the area of intended employment as a
traditional or expected labor supply State. The Department declines to
require more than one ad in each State, which would be a significant
departure from the advertising requirements under the current
regulations and would add additional program expense. In response to
comments, and out of recognition that employers often will not be well-
versed in the characteristics of out-of-State newspapers, the
Department has included language in the Final Rule specifying that its
annual Federal Register notice will not only announce the designation
of labor supply States, but will also specify the acceptable newspapers
in the designated States that employers may utilize for their required
out-of-State advertisements. In no case will an employer be required to
place an ad in more than one newspaper in a labor supply State. In
response to comments, the Final Rule has also been modified to specify
that ads should refer interested employees to the SWA nearest the area
in which the advertisement was placed. The SWA will then refer eligible
individuals to the SWA of the employer's State. The Department believes
these procedures will provide a workable advertisement-and-referral
system to provide farmworkers information about available jobs and to
supply needed labor to prospective users of the H-2A program.
(j) Section 655.102(j) Referrals of Verified Eligible U.S. Workers
The Department proposed to require SWAs to ``refer for employment
only those individuals whom they have verified through the completion
of a Form I-9 are eligible U.S. workers.'' These provisions are
consistent with the Department's statutory mandate. Although the INA
prohibits the referral of workers where it is known that they are
unauthorized to work in the United States, this rule clarifies and
spells out the Department's expectations. Based upon comments received
and the Department's experience with this requirement, which has been
in effect administratively since the issuance of TEGL 11-07, Change 1
on November 14, 2007, and with respect to which ETA has provided recent
training webinars for SWAs, the Department believes that SWAs should be
required to verify the identity and employment authorization of
referred workers by completing USCIS Form I-9 in accordance with DHS
regulations at 8 CFR 274a.2 and 274a.6. The NPRM, ETA's written
guidance, and an opinion by the Solicitor of Labor, all of which have
been shared with SWAs over the past year, explain both the rationale
for the SWA verification requirement.
Comments on this subject were received from a national association
representing state agencies, 12 individual SWAs, several civil rights
and labor advocacy organizations, members of Congress, and numerous
employer groups and individual employers. Commenters supporting the
proposal generally cited the longstanding need for a reliable
employment service system that is based on affirmative verification and
refers only workers who are authorized to work in the U.S. Commenters
opposing the proposal raised a variety of legal, programmatic,
resource-related, and policy-based concerns.
Many commenters considered the employment verification requirement
to be a change in policy after decades of contrary Departmental
interpretation. Another argued that the requirement runs afoul of the
Department's FY08 Appropriations Act, Public Law 110-161, Division G,
Title I, Section 110, in which Congress prohibited ETA from finalizing
or implementing any rule under the Wagner-Peyser or Trade Assistance
Acts until each is reauthorized.
The Department has always required that SWAs fulfill the
requirements of the INA to refer only eligible workers by verifying
their employment authorization. Recent instructions by the Department
(including TEGL 11-07, Change 1) have clarified the way that employment
verification is required to be accomplished. To the extent that these
requirements were thought by some to represent a shift in Departmental
policy, they are now being clearly stated in the Department's
regulations. The Department has not reviewed the H-2A regulations
comprehensively since the current program's inception in 1986. After a
top-to-bottom review of the program requested by the President in
August 2007, the Department is revising and modifying a number of
established practices based on program experience, years of feedback
from stakeholders, and changing economic conditions.
As discussed in the NPRM our clarification of SWAs' obligation to
affirmatively verify employment eligibility is in direct response to
longstanding concerns about the reliability of SWA referrals. The
referral of workers not authorized to work undermines the integrity of
the H-2A program, can harm U.S. workers, and can disrupt business
operations.
Many commenters argued that the requirement is inconsistent with
INA provisions at 8 U.S.C. 1324a, and DHS regulations at 8 CFR 274a.6,
which permit but do not require SWAs to verify employment eligibility
for individuals they refer. The USCIS regulations expressly permit SWAs
to verify the identity and employment authorization of workers before
making referrals, and certainly do not prohibit such verification. See
8 CFR 274a.6. The Acting General Counsel of DHS has issued an
interpretive letter stating that while the USCIS regulations do not
require SWAs to verify the eligibility of workers before referring
them, those regulations do not prevent other agencies with independent
authority from imposing such a requirement. See November 6, 2007 letter
from Gus P. Coldebella, DHS Acting General Counsel, to Gregory F.
Jacob, Senior Advisor to the Secretary of Labor. The Department is now
exercising its independent statutory authority under
[[Page 77138]]
the INA to require through regulation that SWAs verify employment
eligibility of referrals. Further, to ensure that the regulated
community has appropriate notice of the specific requirement, and to
ensure a standard process for verification remains in place consistent
with the procedures already approved by Congress, we have clarified in
the regulatory text that states must at a minimum use the I-9 process
for purposes of verification. The Department also strongly suggests
(but does not require), as it did in the NPRM, that States utilize the
DHS-administered E-Verify system. State agencies with procedures that
do not comply with the minimum requirements of the Form I-9, however,
such as verification through scanned documents transmitted over the
Internet, must revise their processes to ensure that agricultural
referrals are made only as a result of in-person verification.
The INA requires that employers execute a Form I-9 for all new
employees. Some commenters interpreted the NPRM to shift this employer
responsibility to SWAs. A subset of these commenters raised concern
that removing responsibility for verification from agricultural
employers alone would be unfair to other, non-agricultural employers
who would still be required to complete the Form I-9 form.
This Final Rule does not govern employment eligibility
verification, nor does it seek to change, for purposes of H-2A labor
certification, the basic responsibility of employers under the INA. As
we strongly cautioned in the NPRM, a SWA's responsibility to perform
threshold, pre-referral verification exists separate from an employer's
independent obligation under the Immigration Reform and Control Act of
1986 to verify the identity and employment authorization of every
worker to whom it has extended a job offer. However, the governing
statute does permit employers to rely on an employment verification
conducted by the SWA to fulfill their statutory responsibilities. The
INA--at sec. 274A(a)(5)--exempts employers from the verification
requirement and provides a ``safe harbor'' from legal liability to
employers, regardless of industry, who unwittingly hire an unauthorized
worker where the hire is based on a SWA referral made in compliance
with 8 CFR 274a.6, requiring appropriate documentation from the SWA
certifying that verification has taken place. As discussed more fully
below, the Department requires in this Final Rule that SWAs provide
documentation meeting the requirements of sec. 274A(a)(5) of the INA
and 8 CFR 274a.6 to each employer at the time the SWA refers the
verified worker to the employer. Employers must retain a copy of the
SWA certificate of verification just as it would retain a copy of Form
I-9. Employers must still verify employment eligibility for workers who
do not have a state certification that complies with all of the
applicable statutory and regulatory requirements.
Some commenters were concerned that employers who hire SWA-referred
workers may seek to hold SWAs responsible for referring unauthorized
workers. The Department expects that any referrals a SWA makes to
individual employers will comply with the requirements of Federal law,
including those established in this Final Rule. For example, the
preamble to the proposed rule directs SWAs to provide all referred
employees with adequate documentation that verification of their
employment has taken place, and clarifies that employers may invoke
``safe harbor'' protection only where the documentation complies with
all statutory and regulatory requirements. We have clarified in the
Final Rule the SWA's obligation to complete Form I-9 and provide
evidence of such completion by providing the employer with a
certification that complies with the DHS requirements for such
certificate at 8 CFR 274a.6. However, employers have no obligation to
hire a job applicant, whether or not referred by the SWA, who does not
present the employer with appropriate documentation evidencing the
applicant's work eligibility. As stated in the NPRM, an employer will
not be penalized by the Department for turning away applicants who are
not authorized to work. Additionally, as long as a SWA complies with
the process established by DHS for State Workforce Agencies and
undertakes good faith efforts to establish the employment eligibility
of referred workers, it will not incur any potential liability.
Although the Department certainly intends to hold SWAs responsible for
complying with all program requirements, just as it has in the past,
the Department is not aware of any basis under which SWAs could be held
liable to third parties for failing to properly perform their
employment verification responsibilities in the absence of willful or
malicious conduct.
Many commenters raised a concern that these new procedures would
have an unlawful, disparate impact on a protected class, or at least
make states vulnerable to legal claims of disparate impact that would
require the expenditure of significant resources to defend. More
specifically, these commenters felt that to the extent the verification
process is not applied to non-agricultural workers, it would have a
disparate impact on agricultural workers, many of whom are Hispanic,
and that could be perceived as unlawful discrimination on the basis of
race or ethnicity. Some commenters were concerned that states would be
forced to expend significant resources to defend lawsuits or,
alternatively, that in order to protect against lawsuits, would be
forced to apply the verification procedures to all job referrals.
The requirement to verify employment eligibility does not violate
constitutional prohibitions against disparate impact. The eligibility
requirement is established by statute and is similar to verification
requirements to gain access to other similar public benefits. See,
e.g., Section 432, Personal Responsibility and Work Opportunity
Reconciliation Act of 1996, Public Law 104-193, 110 Stat. 2105
(employment eligibility verification requirement for most federal
public benefits for needy families). As this regulation governs the H-
2A foreign labor certification program, the clarification made here is
limited to that program and to agricultural job referrals, but the
Department proposed an analogous provision in the H-2B NPRM published
on May 22, 2008, seeking to extend the same procedural employment
verification requirements to that program. More generally, the
clarification of the requirement in this regulation does not mean the
Department's policy is limited only to agricultural referrals, as the
Department's expectation is that SWAs will do what they can, including
exercising their authority under 8 U.S.C. 1324a, to avoid expending
public resources to refer unauthorized workers to any job
opportunities, regardless of program area. The employment verification
provisions included in this regulation are part of a much broader,
concerted effort--one that includes regulation, written guidance, and
outreach and education--to address longstanding weaknesses in the
system and to strengthen the integrity of foreign labor certification
activities.
Some commenters opined that the employment eligibility verification
requirement presents an obstacle to employment for, and will reduce the
pool of, the U.S. workers it is designed to protect. For example, these
commenters stated that States are increasingly moving toward web-based
employment services. The commenters believe an in-person verification
requirement will require potentially
[[Page 77139]]
onerous visits by job seekers who they believe currently could be
referred to work without ever visiting a workforce center. The
commenters stated that, especially in the larger States, this will
present a greater and perhaps insurmountable hurdle for a larger number
of U.S. workers, who will be discouraged from travelling great
distances to obtain a job referral.
In practice, an in-person verification requirement will not
significantly change the operation of referrals in most States. In the
Department's program experience, States often require that agricultural
job applicants visit the workforce center to receive information on the
terms and conditions of the job, which must be provided prior to
referral. See 20 CFR 653.501(f) (placement of the form within local
offices). While we do not disagree that an in-person verification
requirement may impact the decisions of a limited number of otherwise
eligible workers, at this juncture the impact is speculative and does
not outweigh the significant value of verification. Moreover, it is a
problem that SWAs may be able to adjust to by designating or creating
additional in-person locations where eligibility can be verified. This
is not a problem unique to SWAs given that workers often must travel
great distances to reach a prospective employer, who then (absent a SWA
certification) would be required to verify work eligibility. Although
employment eligibility verification does require some amount of time
and effort, Congress has determined that simple convenience must cede
to the overarching goal of achieving a legal workforce and the
Department has drafted its regulations accordingly.
Commenters opposing the eligibility provision uniformly complained
that the verification requirement would add potentially significant
workload and strain the already inadequate resources of many State
Workforce Agencies. Many saw it as an unfunded federal mandate in
violation of the Unfunded Mandates Reform Act. More than one referred
to the Department's recent inclusion of the requirement as a condition
for receiving further labor certification grant funding.
As stated in the preamble to the NPRM, the Department is not
insensitive to the resource constraints facing state agencies in their
administration of the H-2A program. However, as we stated in the NPRM,
we do not believe that the requirement will result in a significant
increase in workload or administrative burden. We have provided
training to SWAs to meet their obligations in this context and will
continue to do so.
In addition, notwithstanding funding limitations, there is a
strong, longstanding need for a consistent and uniform verification
requirement at the state government level. Verification is a statutory
responsibility of the Department and the SWAs under the INA and the
Wagner-Peyser Act, and the Department has further determined employment
verification is a logical and necessary condition for the issuance of
foreign labor certification grants to states. Precisely to ensure that
available federal funding supports verification activities, the
Department has added the verification requirement as an allowable cost
under the foreign labor certification grant agreement. While cognizant
of the challenges posed by funding limitations, we expect states to
comply as they do with other regulatory requirements and other terms
and conditions of their grant.
Commenters raised a number of concerns with the use of E-Verify,
including potential system problems, delays and inaccuracies. The
Department strongly encourages state agencies to use the system, which
provides an additional layer of accuracy and security over and above
the basic I-9 process, but it has not mandated use of E-Verify. SWAs
can comply with this Final Rule without the use of E-Verify.
One commenter pointed out that the regulation does not describe the
penalties to SWAs for non-compliance or delayed compliance with this
requirement, or the implications for H-2A employers who may seek
services from SWAs that are not in compliance with the requirement. For
instance, the commenter inquired whether, if the Department were to
suspend Foreign Labor Certification grant funding, employers would be
required to accept referrals funded exclusively by Wagner-Peyser
funding. The commenter also inquired whether the SWA in an employer's
state would be required to verify the work eligibility of a worker that
was referred to it by a non-compliant out-of-State SWA. As the
verification requirement is implemented, the Department's guidance will
evolve in response to the experience of the regulated community and our
own. We do note that these problems already exist under the
Department's current regulations and policies, and the Department is
working through them as they arise. The problems are substantially
alleviated by the fact that virtually every State and territory
administering the H-2A program has already agreed to come into
compliance with the employment eligibility verification requirements
established by current Departmental policies, minimizing the chance
that a State will need to be de-funded due to non-compliance or that
non-compliant referrals will be made by out-of-State SWAs.
Nevertheless, we do not discount the importance of the questions posed
by the commenter, but see them as issues of implementation that should
be addressed, as they arise, through appropriate guidance.
In addition, we note that the SWA may not refuse to make a referral
and the employer may not refuse to accept a referral because of an E-
Verify tentative nonconfirmation (TNC), unless the job seeker decides
not to contest the TNC. SWAs and employers may not take any adverse
action, such as delaying a referral or start date, against a job seeker
or referred worker based on the fact that E-Verify may not yet have
generated a final confirmation of employment eligibility.
(k) Section 655.102(k) Recruitment Report
The Department proposed requiring employers to submit an initial
recruitment report with their applications and to supplement that
report with a final recruitment report documenting all recruitment
activities related to the job opportunity that took place subsequent to
the filing of the application. The Department proposed that the initial
recruitment report to be filed with the application be prepared not
more than 60 days before the date of need, and that the supplemental,
final report be completed within 48 hours of the date H-2A workers
depart for the worksite or 3 days prior to the date of need, whichever
is later. Many individuals and members of agricultural associations
expressed concern that recruitment reports will not simplify the
application process and will instead inflict an undue burden on
employees of small farms. Some agricultural associations argued that
having two recruitment reports will double the work for employers and
stated that the supplemental report is not justified because of its
limited utility in resolving compliance issues.
The Department disagrees that a supplemental recruitment report
will have limited benefit, given the Department's intended use of
supplemental reports in the event of an audit. The supplemental
recruitment report will provide assurance to the Department that an
employer has complied with all of its obligations with respect to the
domestic workforce. Compliance throughout the program, including after
filing of an application,
[[Page 77140]]
is necessary for the appropriate enforcement of the H-2A program and
its requirements. By requiring a supplemental report, the Department is
not requiring a duplicative effort but is in fact effectively requiring
employers to split the current comprehensive total report (of all
referrals that are required to be reported) into two smaller, more
manageable reports. The Department does not believe that this splitting
of the comprehensive total report will require significantly more
effort on the part of employers.
Several commenters specifically mentioned the timing of the
recruitment report as the biggest problem with the requirement. One
farm association noted that since the initial application cannot be
submitted without the recruitment report, and the recruitment report
must be prepared not more than 60 days prior to the date of need, the
application itself cannot be filed until 60 days ahead of time. In
order to rectify this issue, the commenter believed the application
itself should be required to be filed not more than 60 days prior to
the date of need. Another farm association suggested that the timeline
for the recruitment report be moved up to no later than 45 days before
the date of need, rather than 60 days before the date of need. The
Department also received comments in support of the supplemental
recruitment reports.
The Department has learned through experience that if recruitment
is begun no more than 45 days before the date of need, it is virtually
impossible for the Department to receive an adequate recruitment report
by the time it is statutorily required to make a certification
determination 30 days before the date of need. As discussed above, we
have in response to comments amended the timeframe for pre-filing
recruitment to reflect a recruitment period closer to the date the
workers are needed. In addition, in accordance with the revisions to
the time frame specified in Sec. 655.102(e) for submitting job orders,
the original proposal regarding the timing of the filing of recruitment
reports has been revised in the Final Rule and now provides that the
initial recruitment report may not be prepared more than 50 days prior
to the employer's date of need. The Final Rule also revises the
proposed timing for the completion of the supplemental recruitment
report, and now requires the employer to update the recruitment report
within 2 business days following the last date that the employer is
required to accept referrals; that is, the end of the recruitment
period as specified in Sec. 655.102(f)(3). With respect to employers
who wish to file an Application for Temporary Employment Certification
prior to 50 days before the date of need, they are welcome to do so to
initiate processing of the application, but the application will not be
considered to be complete, and thus eligible for a final determination,
until the initial recruitment report is submitted.
Finally, the Department has made additional clarifying edits to the
regulatory text. These edits are to ensure this provision comports with
other sections of this Final Rule, to improve readability, and to
clarify its requirements. These include the deletion of the redundant
phrase ``who applied or was referred to the job opportunity'' which
appeared twice in the NPRM paragraph (k)(2) (which is now (k)(1)(iii));
simplifying the reference to the contents of the supplemental
recruitment report through the use of cross-references; and placing the
paragraph regarding the updating of recruitment reports before the
paragraph regarding document retention requirements. In addition, the
Department has added a requirement that the recruitment report must
contain the original number of openings advertised. This last addition
will enable the Department to grant an employer a partial certification
in the event it can meet part but not all of its need through the
recruitment of U.S. workers.
Section 655.103 Advertising Requirements
The Department proposed detailed instructions for the content of
the newspaper advertisements to be placed by employers as part of the
required pre-filing recruitment in Sec. 655.103. A few comments were
received on the specific contents of the ads. Other comments regarding
the rule's advertising requirements are discussed in the section of the
preamble pertaining to Sec. 655.102(g).
An association of growers/producers commented that the advertising
requirements are inefficient and wasteful, particularly when ``numerous
virtually identical ads are appearing at the same time.'' Another
association suggested that employers be allowed to advertise jobs by
simply referencing the job order placed with the SWA, and suggested
that employers should not be required to include all of the detailed
information contained in the proposed regulation. Another association
suggested that if more than one grower is simultaneously recruiting in
an area covered by only one newspaper, their ads should be combined and
placed by the SWA. The association suggested that the names of the
growers could all be provided in the ad, but applicants would be
directed to the SWA to get additional information about the jobs and
referrals to the employers.
The Department has considered but declines to adopt these
suggestions at this time. The Final Rule significantly clarifies the H-
2A advertising requirements. The Department believes that it has struck
a careful and appropriate balance, based on its program experience,
between the expense of advertising to employers and workers' need for
basic job information when considering whether to pursue advertised
employment opportunities.
The Final Rule contains several clarifying and conforming changes
to the proposed text for Sec. 655.103, none of which are substantive.
The Final Rule also paraphrases in Sec. 655.103 the equal treatment
requirement already stated in Sec. 655.104(a). Section 655.103
requires that an employer's recruitment ``must contain terms and
conditions of employment which are not less favorable than those that
will be offered to the H-2A workers.''
Section 655.104 Contents of Job Offers
(a) Section 655.104(a) Preferential Treatment of Aliens
The Department's proposed regulation stated: ``The employer's job
offer shall offer no less than the same benefits, wages, and working
conditions that the employer is offering, intends to offer, or will
provide to H-2A workers.'' A group of farmworker advocacy organizations
opposed the removal of the words ``U.S. worker'' from this section of
the rule. This commenter believes that the proposed wording allows
employers to treat U.S. workers less favorably than H-2A workers.
While the Department does not agree that the new wording would have
allowed employers to treat U.S. workers any less favorably than H-2A
workers, the words ``U.S. worker'' have been reinserted.
(b) Section 655.104(b) No Less Than Minimum Offered
The NPRM proposed that the ``job duties and requirements specified
in the job offer shall be consistent with the normal and accepted
duties and requirements of non-H2A employers in the same or comparable
occupations and crops in the area of intended employment and shall not
require a combination of duties not normal to the occupation.'' Several
commenters expressed concern that the proposed requirements would prove
unworkable,
[[Page 77141]]
unadministrable, and exceedingly difficult for employers to comply
with, as what is ``normal'' and ``accepted'' are substantially
subjective determinations. All of the commenters who provided input on
this provision suggested that the Department should not second guess an
employer's business decision regarding an occupation's job duties when
they are unique to that employer. These commenters believe that the
Department's proposal would give the Department more discretion to deny
an application than is contemplated by the statute.
The Department agrees with the basic thrust of these comments.
Section 218(c)(3)(A) of the INA requires the Department, when
determining whether an employer's asserted job qualifications are
appropriate, to apply ``the normal and accepted qualifications required
by non-H-2A employers in the same or comparable occupations and
crops.'' There is a substantial difference, however, between job duties
and job qualifications; job qualifications typically describe the
minimum skills and experience that an employee must have to secure a
job, while job duties describe the tasks that qualified workers are
expected to perform. The Department agrees that, as a general matter,
employers are in a far better position than the Department to assess
what job duties workers at a particular establishment in a particular
area can reasonably be required to perform in an H-2A eligible
position.
The Department is therefore altering this provision to conform more
closely to the language of the statute, and is limiting the restriction
in Sec. 655.104(b) to job qualifications. The Department is aware that
this may mean that at times a U.S. worker wishing to perform one type
of job duty, such as picking asparagus, may be required by an employer
to perform an additional job duty, such as harvesting tobacco, in order
to secure an agricultural job. It is not at all uncommon, however, for
jobs in the United States to include multiple job duties, some of which
workers may view as more desirable than others. There is nothing in the
statute governing the H-2A program indicating that Congress intended to
require agricultural employers to allow prospective workers to
selectively choose which job duties they want to perform and which job
duties they do not, with regard to a particular job opportunity. In the
Final Rule, this provision states that ``[e]ach job qualification
listed in the job offer must not substantially deviate from the normal
and accepted qualifications required by employers that do not use H-2A
workers in the same or comparable occupations and crops.''
The Department is sensitive, however, that in certain circumstances
a listed job duty may act as a de facto job qualification, because the
listed duty requires skills or experience that agricultural workers may
not typically possess. When such circumstances arise, the Department
reserves the right to treat the listed job duty as a job qualification,
and to apply the ``normal'' and ``accepted'' standard that is set forth
in the statute and restated in the regulations in determining whether
the qualification is appropriate.
One commenter suggested that this provision should be made
consistent with those in the PERM regulations at 20 CFR 656.17. The
Department declines to apply the PERM standard to the H-2A program, as
that standard is based on a substantially different statutory
structure. The Department is confident that the revised standard for
Sec. 655.104(b) that is set forth in the Final Rule, which hews
closely to the language of sec. 218(c)(3)(A) of the INA, is
appropriately tailored to the H-2A program and will prove workable in
practice.
(c) Section 655.104(c) Minimum Benefits
A group of farmworker advocacy organizations pointed out that
proposed Sec. 655.104 does not correlate exactly to current Sec.
655.102(b). Specifically, in this commenter's opinion the proposed
section does not require the employer to 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 as required in the current regulation.
According to this commenter, under the proposed rule, H-2A workers
would have only contract law as their primary enforcement tool. With
proposed Sec. 655.104(c) stating that every job offer must include the
wage provisions listed in paragraphs (d) through (i) of this section
but no longer requiring precisely what the current Sec.
655.102(b)(9)(i) requires, this commenter argued that workers will be
left at a disadvantage if the employer fails to specify the required
wage provisions in the work contract.
The Department appreciates this commenter's analysis. However, we
do not agree that the employer will no longer be bound to pay the
employee the wage promised, nor that the only enforcement tool
available is through contract law. Under the new program the employer's
attestation required under Sec. 655.105(g) is an enforceable program
requirement. The failure of an employer to comply with any program
requirement subjects the employer to the Department's enforcement
regime.
A commenter pointed out the illogical consequences of rigid rules
governing wages for agricultural workers. It is the commenter's
contention that the Department should add a phrase at the end of Sec.
655.104(c) that would not force employers to pay the NPC prescribed
wage until the date of need and instead would allow employers to pay
U.S. workers a mutually agreed upon wage between the time they recruit
the workers and the date the H-2A workers are needed in order to train
the U.S. worker and retain them until and throughout the period of the
H-2A contract. The commenter reports that if they do not offer those
U.S. workers employment immediately, they will most likely not be
available when the H-2A work begins. The commenter believes that any
employment prior to the date of need and prior to the date that foreign
H-2A workers arrive should not be governed by the H-2A contract or its
wage provisions.
The Department agrees that the H-2A required wage takes effect on
the effective start date of the H-2A contract period. However, the
Department does not believe that any changes to the regulatory text
need to be made under this section because Sec. 655.105(g) provides
that the requirement to pay the offered wage applies only during the
valid period of the approved labor certification. U.S. workers who are
hired in response to H-2A recruitment and who perform work for an
employer before the date of need specified in the H-2A labor
certification are not required by these regulations (but may be
required by contract) to be paid the H-2A wage until the period of the
H-2A contract begins, without regard to the type of work performed.
A group of farmworker advocacy organizations argued that under the
proposed rule, employers would no longer be required to disclose in job
offers their obligation to provide housing to workers. That is
incorrect. Section 655.104(c) provides that ``[e]very job offer
accompanying an H-2A application must include each of the minimum
benefit, wage, and working condition provisions listed in paragraphs
(d) through (q) of this section.'' Paragraph (d) of that section
provides, in turn, that ``[t]he employer must provide housing at no
cost to the worker, except for those U.S. workers who are reasonably
able to return to
[[Page 77142]]
their permanent residence at the end of the work day.''
(d) Section 655.104(d) Housing
Section 218(c)(4) of the INA requires employers to furnish housing
in accordance with specific regulations. The employer may fulfill this
obligation by providing housing which meets the applicable Federal
standards for temporary labor camps or providing housing which meets
the local standards for rental and/or public accommodations or other
substantially similar class of housing. In the absence of local
standards, the rental and/or public accommodations or other
substantially similar class of housing must meet State standards, and
in the absence of State standards, such housing must meet Federal
temporary labor camp standards. By statute, the determination of
whether employer-provided housing meets the applicable standards must
be made no later than 30 days before the date of need. The Department
proposed three changes to the current housing requirements.
First, the Department proposed allowing employers to request
housing inspections no more than 75 and no fewer than 60 days before
the date of need. The Department further proposed that the NPC would,
as required by statute, make determinations on H-2A applications 30
days before the employer's date of need, even if the housing referenced
in the application had not yet been physically inspected by the SWA, so
long as (1) the employer requested a housing inspection within the time
frame specified by the regulations and (2) the SWA failed to conduct
the inspection for reasons beyond the employer's control. Under the
Department's proposal, SWAs would have the authority and the
responsibility under such circumstances to conduct post-certification
housing inspections prior to or during occupancy. If such a post-
certification housing inspection identified deficiencies that the
employer failed to act promptly to correct, the proposal provided that
the SWA would inform the NPC of the deficiencies in writing so that the
NPC could take appropriate corrective action, potentially including
revocation of the labor certification. The Department proposed these
changes in part to alleviate the problems SWAs currently face in trying
to conduct large numbers of required housing inspections during the
short 15-day window provided by the statute between the time that
applications are required to be filed (45 days before the date of need)
and the time that the Department is required to make a determination on
the application (30 days before the date of need). The changes were
also intended to avoid penalizing employers for the failure of SWAs to
comply with their legal duty to meet the timeframes established by the
statute.
The Department heard from a number of SWAs on the issue of timely
housing inspections, many of which declared their ability to conduct
housing inspections within the 15-day window. One SWA acknowledged that
at times delays may occur in conducting housing inspections, but
attributed those delays to incomplete or inaccurate information being
provided to inspectors. This SWA suggested that providing a copy of the
job order with the housing inspection request would alleviate the
problem of inspectors investigating the wrong housing. Finally, an
anonymous commenter tied the delays in housing inspections to a lack of
funding at the state level.
The Department recognizes that many SWAs conduct housing
inspections in advance of the statutory deadline of 30 days before the
date of need, but cannot ignore the fact that SWA delays in conducting
housing inspection have in many instances resulted in labor
certification determinations being made by the Department outside of
the statutorily required timeframes. This result is not acceptable to
the Department or to employers seeking H-2A certification. As one
employer commenter stated:
[u]ntimely housing inspections are one of the most common reasons
for delays in making labor certification determinations. Therefore,
the provision in the proposed regulations for making a pre-
application housing inspection, and the provision that certification
will not be delayed if a timely housing inspection is not made, and
that occupancy of the housing is permitted, are important
improvements in the program.
While employers and employer associations favored the proposed
conditional labor certifications, several commenters representing
employer interests had concerns with the proposed requirement that
housing inspections be requested no fewer than 60 days before the date
of need. Employers stated that in some parts of the U.S., housing may
still be winterized 60 days before the date of need and therefore may
be unavailable for inspection, or unable to pass inspection. In certain
areas, inspection agencies require that the employer rent the housing
before an inspection is conducted and the earlier time frame for
requesting an inspection requires employers to pay an additional month
or two of rent for the housing, substantially adding to the cost of
providing housing. Other growers stated that current inspection
procedures prohibit the inspection of occupied housing and therefore
this proposal would require that regulations be adjusted to permit
inspection of occupied housing. Some said that the earlier time frame
for requesting housing inspections may be before many farmers plant
their crops, let alone know the dates of the harvest.
Commenters representing employer interests also included questions
concerning implementation of the proposal. Many argued that employers
should be provided a specific and reasonable period of time for
abatement of violations found in post-determination inspections
conducted by SWAs, and that employers who correct violations within the
specified period should not be penalized for the violations. One
employer association argued that ``the fact that employers continue to
face consequences for having deficient housing will prevent any adverse
effects for workers.'' Employers also questioned the proposed
requirement that housing inspection requests be made in writing, and
some employers recommended that the Department provide training to SWA
staff on conducting housing inspections of occupied housing. Finally,
one employer commented that in the state in which he operates, the
state's Department of Health conducts inspections of temporary labor
camps and that to require SWAs to conduct these inspections would
result in confusion.
Employee advocacy organizations and state agencies expressed
concern that the granting of pre-inspection labor certification
determinations could potentially result in cases where housing is not
inspected prior to occupancy, which in turn could result in workers
being housed in substandard conditions. Several commenters objected to
this proposed revision stating that pre-occupancy housing inspections
are an effective incentive for employers to take corrective action,
thus ensuring that workers are housed in safe and sanitary housing.
Other commenters urged the Department to continue the requirement that
housing be inspected before workers arrive.
A few comments from both organizations representing employer
interests and from organizations representing employee interests
questioned the Department's legal authority to establish a requirement
that housing inspections be requested more than 45 days before the date
of need, which is the earliest date that the
[[Page 77143]]
Department may under the statute require applications to be filed. One
commenter asserted that the proposed changes contradict the
Department's Wagner-Peyser regulations requiring that the housing be
inspected to determine compliance with applicable housing safety and
health standards before a job order can be posted (and, thus, before
the housing can be occupied).
The Department has carefully considered the comments and has
determined that the framework of the Department's original proposal
strikes an appropriate balance between the need to ensure that housing
for H-2A workers meets all applicable safety and health standards, that
agricultural employers are able to secure H-2A workers in a timely
manner, and that the Department complies with the statutory requirement
to render a determination no fewer than 30 days before the date of
need. To ensure that SWAs have adequate time to complete housing
inspections before the statutory deadline of 30 days before the date of
need, the Final Rule requires employers to request housing inspections
no fewer than 60 days before the date of need, except when the
emergency provisions contained in Sec. 655.101(d) are used. The
Department is eliminating in the Final Rule the proposed restriction on
housing inspections being requested more than 75 days before date of
need. Eliminating this restriction will provide SWAs additional
flexibility to manage the workload of completing required inspections
with respect to those cases where an employer's housing is ready for
inspection well in advance of the date of need.
The INA at 8 U.S.C. 1188(c)(3)(A) expressly requires the Secretary
of Labor to make a determination on an employer's application for
temporary labor certification no fewer than 30 days before the
employer's date of need. The INA also requires that the Secretary make
a determination as to whether employer-provided housing meets the
applicable housing standards by the same deadline--no fewer than 30
days before the employer's date of need. Although the Department has
delegated its statutory housing inspection responsibilities to the
SWAs, the statutory deadline applicable to that responsibility
continues to apply. This is made explicit by Sec. 655.104(d)(6)(iii)
of the Final Rule, which states that ``[t]he SWA must make its
determination that the housing meets the statutory criteria applicable
to the type of housing provided prior to the date on which the
Secretary is required to make a certification determination under sec.
218(c)(3)(A) of the INA, which is 30 days before the employer's date of
need.''
Some commenters read the language of sec. 218(c)(4) of the INA as
prohibiting the Secretary from making a determination on an employer's
application for temporary labor certification until the employer's
housing has been physically inspected. The Department strongly
disagrees with that interpretation. The language of sec. 218(c)(4) is
not phrased as a limitation on the Secretary's duty under sec.
218(c)(3)(A) to make determinations on applications no later than 30
days before the employer's date of need. In fact, the language of sec.
218(c)(4) does not require that housing inspections be completed prior
to the Secretary's certification determination, although Congress
certainly could have phrased the requirement that way had it wanted to
do so. Instead, the language of sec. 218(c)(4) is most naturally read
as imposing a statutory duty on the Department to complete required
housing inspections ``prior to the date specified in paragraph
(3)(A)''--which, as noted previously, is 30 days before the employer's
date of need. The provision does not specify what consequence should
follow in the event that the Department fails to comply with this
mandate. Presumably, however, if Congress had intended that the primary
consequence of the government's failure to meet its statutory
responsibility to complete housing inspections in a timely manner would
be to penalize employers by releasing the Department from its
independent statutory responsibility to make determinations on
applications no later than 30 days before the employer's date of need--
a deadline that was indisputably established to ensure that employers
can secure needed H-2A workers in a timely fashion without undue delays
caused by the government--it would have said so explicitly.
Of course, the Department greatly prefers that housing inspections
be conducted prior to certification, as this gives the Department the
strongest possible assurance that ``the employer has complied with the
criteria for certification'' as required by sec. 218(c)(3)(A)(i) of the
INA. To this end, the Final Rule requires that employers make requests
for housing inspections no fewer than 60 days before the employer's
date of need, ensuring that SWAs have adequate time to meet the
statutory deadline for conducting housing inspections. Moreover, SWAs
remain under an express statutory and regulatory mandate to complete
housing inspections by 30 days before the employer's date of need, an
obligation that the Department expects SWAs will not take lightly. The
Department therefore believes that under the Final Rule, post-
certification housing inspections will be the very rare exception
rather than the rule.
The Department has never read sec. 218(c)(3)(A)(i), however, as
requiring that the government directly observe for itself that the
employer has satisfied all of the statutory criteria for certification.
For example, under the current regulations a substantial portion of
required recruitment takes place after a certification has been made,
and SWAs typically do not conduct pre-certifi