November 9, 2022

The US Department of Labor (DOL) recently published a final rule that amends H-2A temporary labor certification regulations. The changes intend to protect agricultural workers better, update the H-2A visa application, and improve the temporary labor certification process.

The H-2A program permits employers to bring foreign national workers to the United States to fill temporary agricultural jobs if they meet specific regulatory requirements. For example, there must be a lack of willing, able, and available workers to do the job. In addition, hiring H-2A workers must not adversely affect similarly employed workers’ working conditions or wages.

The Notice of Proposed Rule-Making received publication in July 2019. However, the DOL later decided that there would be two rules associated with the proposed changes instead of one. The recently published rule does not change the Adverse Effect Wage Rate (AEWR) methodology. Instead, the DOL intends to issue another ruling that will make changes in calculating AEWR.

The new rule takes effect on November 14, 2022. However, there will be a transition period in which the previous will apply to applications submitted before November 14, 2022, or until 90 days after the law takes effect. Once the law goes into effect, it should improve the H-2A program.

According to Secretary of Labor Marty Walsh, “By improving H-2A program regulations, we are strengthening worker protections, meeting our core mission.” Marty Walsh also added, “Today’s new rule makes several improvements to enhance the integrity of the H-2A program and provide employers and other stakeholders greater clarity.”

Here are some of the more important provisions of the new rule.

• “Improves safety and health protections for workers housed in rental or public accommodations.
• Streamlines and updates bond requirements for labor contractors to better hold them accountable and clarifies joint-employer status for employers and associations.
• Clarifies the housing certification process to allow state and local authorities to conduct housing inspections.
• Establishes explicit authority to debar attorneys and agents for their misconduct, independent of an employer’s violations.
• Makes electronic filing mandatory for most applications to improve employers’ processing efficiency.
• Modernizes the methodology and procedures for determining the prevailing wage to allow state workforce agencies to produce more prevailing wage findings.”

The final rule will also improve the enforcement capacity of the Wage and Hour Division of the Department of Labor to deal with fraud and abuse in the H-2A program. There has been a significant increase in violations of the H-2A regulations over the past five years. As a result, the recovery of back wages for workers by the Wage and Hours Division also increased. The division collected over $5.8 million in back wages for over 7,000 workers in 2021 alone.

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