Rule for H-2A Temporary Agricultural Worker Program Announced

March 5, 2010

The H-2A nonimmigrant visa classification applies to foreign workers coming to or already in the U.S. to perform agricultural work of a temporary or seasonal nature. The U.S. Department of Homeland Security may not approve an H-2A visa petition unless the Department of Labor, through its Employment and Training Administration, certifies that there are not sufficient U.S. workers qualified and available to perform the labor involved in the petition and that the employment of the foreign worker will not have an adverse effect on the wages and working conditions of similarly employed U.S. workers.

U.S. Secretary of Labor Hilda L. Solis announced a new rule regarding the H-2A program. The Labor Department published in the Feb. 12 edition of the Federal Register, a final rule governing the labor certification process and enforcement mechanisms for the H-2A temporary agricultural worker program. The final rule is being published to strengthen worker protections for both U.S. and foreign workers and to ensure overall H-2A program integrity. The rule will be effective March 15, 2010. Additionally, through its Wage and Hour Division, the department enforces the terms and conditions of the labor certification and enforces worker protections.

“This new rule will make it possible for all workers who are working hard on American soil to receive fair pay while at the same time expand opportunities for U.S. workers,” said Secretary Solis. “The actions that we have taken through this rulemaking also will enable us to detect and remedy different forms of worker violations.”

During fiscal year 2009, employers filed 8,150 labor certification applications requesting 103,955 H-2A workers for temporary agricultural work. The Department of Labor certified 94 percent of the applications submitted for a total of 86,014 workers.

This final rule is the result of the department's review of the policy decisions underlying a previous revision of the H-2A regulations, published in late 2008. The department's review focused on the process for obtaining labor certifications, the method for determining the H-2A Adverse Effect Wage Rate, and the protections afforded to both the temporary foreign workers as well as the domestic agricultural workforce. The final rule includes stronger mechanisms for enforcement of the worker protection provisions required by the H-2A program.

Overall benefits of the final rule include increased wages for workers and greater access to the domestic labor market. The new rule ensures that U.S. workers in the same occupation working for the same employer, regardless of date of hire, receive no less than the same wage as foreign workers; provides more transparency by creating a national electronic job registry where job orders will be posted through 50 percent of the contract period; and protects against worker abuses by prohibiting cost-shifting from the employer to the worker for recruitment fees, visa fees, border crossing fees and other U.S. government mandated fees.

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