This past year brought some tweaks to the H-2A program. Employers who use the program should be aware of the changes and be prepared to ensure compliance.
In October 2022, the U.S. Department of Labor (DOL) announced the issuance of a final rule for the H-2A program, which Penn State staff attorney Brook Duer describes as a top to bottom revision. “It isn’t changing the law that authorizes the program,” he said. “The regulations flesh out the details – how things are processed and some other issues.” The new set of H-2A regulations was effective Nov. 14, 2022.
Duer said the revised regulations were first initiated by the Trump Administration in July 2019. “As the last administration was leaving in January 2021, they attempted to finalize these regulations in accordance with the way the prior administration had drafted them,” he said, “but as soon as the new administration came in, they withdrew those to take a look at them.”
The new rule outlines several important elements, including improved safety and health protections for workers housed in rental or public accommodations, streamlined and updated bond requirements for labor contractors to hold them accountable, joint-employer status, clarified housing certification process, explicit authority to debar attorneys and agents for misconduct independent of an employer’s violations, mandatory electronic filing for most applications and modernized methodology for determining prevailing wage.
One major change for employers is every part of the process will be done electronically. “It speeds everything up for you as the employer,” said Duer. “It also addresses the methodology for determining the prevailing wage. What you have to pay an H-2A worker is the higher of a set of potential wage rates. One is the adverse effect wage rate [AEWR], which is specifically determined for the H-2A program. There are also prevailing wage rates which the DOL has always done for certain job classifications, but they didn’t do them uniformly for jobs encompassed in H-2A employment.”
The changes address the AEWR and the prevailing wage rage, which could be the standard if it’s higher than the AEWR. State minimum wage may come into play if it’s higher than either of those two, and labor organizations may also influence wage rate.
“For the most part, it’s pretty universal that the AEWR is usually the highest,” said Duer, adding that this set of regulations is concentrated on prevailing wage because rates are based on survey data. “The feds are trying to encourage that to be done more regularly.” The changes also support the enforcement capacities of the department’s Wage and Hour Division to address H-2A program fraud or abuse.
To quality for H-2A non-immigrant status, the applicant must offer a job that is temporary or seasonal; demonstrate that there are not enough U.S. workers who are able, willing, qualified and available; and show that employing H-2A worker will not adversely affect wages and working conditions of similarly employed U.S. workers.
“Submit a temporary labor certification to the U.S. Department of Labor with your H-2A petition,” said Duer. “You get the temporary labor certification preliminarily from the state workforce agency and then submit it with your actual application [petition for workers] once you’ve gone through that process.” Workers are then responsible for going to the Department of State in their country to apply for their visa.
Most people understand the “period of stay” and that H-2A employment is temporary, but workers can be employed in a string of temporary jobs and work that into a three-year stay in the U.S. as long as all the paperwork continues to be filed on time for their temporary H-2A visas.
Employers are required to notify U.S. Customs and Immigration in certain cases such as employee no-show, the employee abandons the job or is terminated or if the work is completed early. Also, if an employer learns that someone charged people a fee to be hooked up with you through the interview and hiring process, that is illegal and employers have an obligation to report such activity.
Duer said the H-2A revision includes multiple “beefed up” areas for enhanced enforcement of worker health and safety and protection from exploitive business practices, and employers have more flexibility for joint employment with another employer. “There’s also the concept of ‘areas of intended employment,’ which has to do with people who may not work at one site – it may be mobile such as beekeeping for pollination.”
The joint employment provision allows employers to jointly submit an application for temporary employment certification. “Those parties will now be treated as the employer for the purpose of the compliance and enforcement responsibilities,” said Duer. “Two employers can get together, both names are on the application and they are both considered employers for all the obligations. It’s a way to assist smaller employers that have a need for workers but don’t have the ability to support a full-time position. Hopefully this will become a much more robust part of the program.” The revamp also clarifies the role of ag associations such as Farm Bureau in procuring workers.
Changes in worker housing and meal provisions codifies the idea that employers supplying housing must meet any local, state and federal health and safety requirements. This is done through the state workforce agency and the employer must submit the inspection reports for applicable housing inspections with the application.
“If there are employer-supplied meals at a price or comp, they have to meet certain nutrition requirements,” he said. “A continental breakfast at a motel doesn’t count unless it can be proven to be nutritionally adequate according to standards.”
Farm Labor Contractors (H-2ALC) also received a lot of attention, with revisions to the standards for surety bonds (bond amounts and electronic submission). “It provides standardization in bonding for labor contractors,” he said. “There’s also a beefed-up section on debarring ag labor contractors from being involved in H-2A employee procurement if there were transgressions in the past.”
Duer said that while the employer was always on the hook for intentional acts done by attorneys or other agents representing the employer, there wasn’t an independent policing of agents. Changes include increased debarment authority regarding agents and attorneys who deal with DOL and Customs and Immigration. “That was lacking,” he said. “And now everything is electronic, including electronic signature as well as an electronic scan of an ink signature.”
All interagency communication between government agencies are mandated to be electronic, which Duer said should speed up processes.
For more information on H-2A changes, visit dol.gov/agencies/whd/agriculture/h2a/final-rule.
by Sally Colby