Hashing Out H-2A

Recent regulatory changes to the H-2A agricultural worker program became effective March 15.
To help employers seeking temporary agricultural workers understand the application filing requirements and procedures in accordance with the new regulations, the U.S. Department of Labor’s Employment and Training Administration (ETA) held a webinar late last week through its WorkForce3 One website (http://www.workforce3one.org/) to go over some of the key points of interest. More than 150 participants signed up, many of those listening in as groups. The majority of attendees were attorneys. There also was a small percentage of farmworkers and farm operators in attendance.

In order to break down some of the details, ETA provided a fact sheet that highlighted the major features of the final rule, which include:

• The employer must provide the Department with documentation that it has complied with the prerequisites for bringing H-2A workers into the country, including the requirements related to searching for qualified U.S. workers, instead of simply attesting to compliance.
• Returns to using the USDA Farm Labor Survey as the basis for determining the required wage rate (known as the Adverse Effect Wage Rate). The 2008 rule used the Occupational Employment Statistics Survey, which resulted in a substantial reduction of worker wages (an average of approximately $1.44/hour).
• Reinstates the critical role of the State Workforce Agencies (SWA) in providing employers with expertise on local labor market conditions and recruitment patterns, thereby expanding job opportunities for U.S. workers.
• Reinstates the requirement that the SWA inspect and approve employer-provided housing before the Department issues a labor certification.
• Requires that all employer-provided transportation meets meet at a minimum, Federal standards for vehicle safety, vehicle insurance and driver licensure standards.
• Strengthens revocation and debarment procedures by providing WHD with independent debarment authority in addition to ETA, raises civil money penalties and expands audit authority to include housing.
• Continues to include loggers as H-2A workers. The NPRM proposed to add other forestry-related occupations such as tree planting and related reforestation activities as well as pine straw gathering, but this was not included in the Final Rule in response to concerns from both the industry and advocates regarding the costs and the workers’ potential loss of MSPA protections, including a private right of action.
• Creates a national electronic job registry for all H-2A job orders to improve U.S. worker access to agricultural jobs and help growers find workers from across the U.S.
• Extends H-2A program benefits to workers in “corresponding employment” (other workers employed by an H-2A employer in any work included in the job order and any work performed by the H-2A workers) to ensure that U.S. workers are not provided with less wages or fewer benefits.
• Requires employers to provide workers with copies of the job orders no later than prior to departure, including from the workers’ home countries and to display a poster describing employee rights and protections in English and another language common to the workers.
• Prohibits the use of multistate itineraries by H-2A Labor Contractors, ending the practice of moving H-2A workers to multiple sites in multiple areas of employment under one labor certification. Labor contractors participating in this program will now have the same regulatory standards as farmers with fixed sites. Required surety bonds for H-2ALCs have been increased.
• Prohibits the approval of labor certification applications for worksites where workers are on strike or locked out and protects U.S. workers who are denied employment or laid off.

One of the webinar presenters, Elissa McGovern, chief division of policy and regulations, Office of Foreign Labor Certification, ETA, stressed that final rule implementation timeframes must be understood to ensure accuracy in the filing process. No specific transition period is required. The 2010 final rule applies to all applications filed on or after effective date. According to McGovern, the following implementation rules will generally apply:

• Employers who already filed with DOL will be processed in accordance with the 2008 Final Rule’s transition procedures
• Employers who file with DOL prior to March 15 and have a start date of need before June 1st will be processed in accordance with the 2008 Final Rule’s transition procedures
• Employers who file with DOL on or after March 15 and have a start date of need before June 1 will be processed in accordance with the 2010 Final Rule’s emergency procedures
• Employers with a start date of need on or after June 1 will file under the 2010 Final Rule in accordance with normal procedures

Several other presenters from the Office of Foreign Labor Certification helped outline the four major steps in the application filing process.
1. Understanding filing requirements
2. Pre-filing procedures (including the proper filling out of the Application for Temporary Employment Certification ETA form 9142)
3. National Processing Center (NPC) processing and recruitment requirements
4. NPC issuance of final determinations

The presentation covered a lot of ground in a little time. McGovern said the hour and a half format allotted for the webinar had to accommodate what amounts to more than six hours worth of information.

For more information about the final rule and answers to frequently asked questions, visit http://www.foreignlaborcert.doleta.gov/h-2a.cfm.

For those interested in accessing the archived webinar presentation in its entirety will need to create an account on the WorkForce3 One website.