Here's a link to the Employment and Training Administration's list of FAQs regarding the proposed suspension of the current H-2A regulation. At this point, however, the FAQs really just say that the current regulation remains in force until the end of the comment period and until such time that the Department has had a chance to consider the submitted comments.
Yesterday's the DOL caused a good deal of confusion and anxiety by announcing the proposed suspension of the new H-2A regulation. Apparently word of the confusion and concern somehow worked its way up through the hierarchical org chart that is the DOL, because today my sources are telling me that DOL brass produced a modicum of internal clarity by further directing that all local SWAs continue to process H-2A cases under the transition rules of the new H-2A regulation...until further notice. Of course, the comment period for the proposed suspension is a whopping 10 days long. So after 10 days, we could be back to last year's H-2A regulation, or we could still be operating under the so-called transition regulation. Got it? So now that we've cleared that up we can all go back to enjoying St. Patrick's Day. Which is great, because it seems we'll definitely be needing the luck of the Irish to get us through this H-2A season.
I received word early this morning that the U.S. Department of Labor announced a 'proposed' suspension of the new rule implementing changes to the H-2A visa program. As many of my readers know, the new final H-2A rule appeared in the Federal Register on Dec. 18, 2008, and took effect on Jan. 17, 2009. I summarized the new regulation here. The formal DOL announcement concerning this sudden proposed suspension is here.
Under 'normal' circumstances the H-2A program is extremely complicated, rife with bureaucratic delays, expensive and non-user friendly. Suffice it to say, it doesn't help the situation much when the government adds this considerable dollop of confusion to the recipe.
The press release does provide a teeny tiny glimmer of helpful, instructive information in saying that, "[t]he Labor Department's Office of Foreign Labor Certification will continue to accept and process H-2A applications during the proposed suspension period." By what criteria the applications will be adjudicated and whether they'll be adjudicated on a timely, consistent basis is another matter altogether.
One would assume that the current existent rule will carry the day until the 'proposed' suspension actually takes effect. It sure would be helpful if the DOL would step to the plate and provide some much needed assurance and communication to that effect. Sigh. What a mess. Let me know what you're hearing.
This week the New York Times is putting a spotlight on a series it calls "Remade in America", which explores the impact of immigration in the United States. The first issue they tackle is on the question of how to best educate immigrants. The series also features an cool interactive map (ie., "immigration explorer") that uses 2000 census figures to show where immigrants have settled across the country, as of 2000.
Interestingly, the map indicates that 22,144 (or 5.9% of the total population) residents of Polk County (where Des Moines is located), Iowa, are foreign-born. Johnson County (where Iowa City and the University of Iowa is located) appears to have the second largest total at 7,026 (or 6.3% of the total population) foreign-born residents. I believe Buena Vista county had the largest percentage of foreign born residents in the entire state with 12.4% of their overall population (or 2,541 foreign born residents). How, you ask, does Polk County, Iowa, compare to other larger metropolitan centers in our general vicinity? Well, we are less diverse than Hennepin County, Minnesota (ie., Minneapolis/St. Paul), where 110,046 (or 9.8% of the total population) foreign-born people resided in 2000. On the other hand, Polk County is more diverse as an overall percentage than the greater Kansas City area (ie., Jackson County). As of 2000, 4.2% of Jackson County was foreign born, while 5.9% of Polk County's residents were identified as foreign born. It'll be interesting to see how these statistics change when the next census is taken in 2010.
Last summer former Agriprocessors supervisor Martin de la Rosa-Loera pleaded guilty to aiding and abetting the harboring of undocumented immigrants. The 43 year old was sentenced on Tuesday to 23 months in prison, followed by two years of supervised release. Other top managers will face trial in September 2009.
In 1996 Congress adopted the Antiterrorism and Effective Death Penalty Act and the Illegal Immigration Reform and Immigrant Responsibility Act (commonly referred to as IIRIRA). The 1996 laws changed the rules by which noncitizens could be physically removed (ie., deported) from the United States. Most notably, the laws expanded the category of crimes known as aggravated felonies by adding many types of crimes and lowering the threshold for other crimes to qualify as aggravated felonies. This monumentally changed immigration law because aggravated felonies are the category of crimes that, when alleged against a noncitizen, make that noncitizen eligible for removal (ie., deportation).
In addition to murder and drug or firearms trafficking, aggravated felonies now include all crimes of violence or theft when the term of imprisonment is one year or more. More broadly, a noncitizen alleged to have committed a crime involving “moral turpitude” is likely to be put in removal or deportation proceedings. In general terms, a crime involving moral turpitude is a crime that is inherently base, vile, depraved and contrary to the excepted rules of morality. Determining whether an alleged crime should be viewed as a crime involving moral turpitude (and thus making the accused eligible for removal) requires a thorough analysis of the state’s code under which the crime is defined. Having said that, the following crimes have regularly been categorized as crimes involving moral turpitude: murder, rape, robbery, aggravated assault, fraud, theft, spousal or child abuse, incest, voluntary manslaughter and statutory rape. If removed, aggravated felons are permanently barred from reentering the United States unless the Attorney General provides permission for them to renter.
Legal changes in the 1990s also decreased other defenses against removal, even for aliens who are not aggravated felons. Currently, aliens who have committed certain crimes may be granted a waiver under limited circumstances, the primary one of which is preventing “extreme” hardship to the alien’s U.S. citizen or permanent resident child, spouse, or parent. In practice, the standard for proving “extreme” hardship is very difficult to prove. There is no bright line for what constitutes such a hardship, but typically it means that the noncitizen, if removed, will be abandoning multiple dependents without support or with limited support in the United States. Once removed, aliens who are not aggravated felons are barred from reentering the United States for five (5) to twenty (20) years.
And finally, we come to the charging document that begins the removal and deportation processes—the Notice to Appear (ie., NTA). At a minimum, the NTA does the following:
• states the factual allegations for which the person is charged with removability;
• indicates the section of the law allegedly violated;
• gives the date and time of the hearing;
• advises the accused individual of certain rights, including the right to counsel at no expense to the government; and
• notifies the alien of his or her obligation regarding change of address and the consequences for failing to appear for a hearing.
Suffice it to say, removal and deportation law is exponentially more complicated and nuanced than what I’ve described above. With that said, if you or a loved one has received a Notice to Appear, you really ought to contact a qualified immigration attorney to analyze your situation and apprise you of your rights.
The H-2A visa program allows foreign workers to be admitted to the United States as non-immigrants (ie., those who intend to return to their home country) to perform agricultural labor of a temporary or seasonal nature. In order to bring foreign workers in under the H-2A program, a petitioner must prove that 1) there are not sufficient U.S. workers who are able, willing and qualified to perform the agricultural labor or services; and 2) there will be no adverse effect on the wages and working conditions of workers in the United States similarly employed. Generally speaking, these conditions are tested and (one hopes) proved by submitting an application for temporary labor certification to the U.S. Department of Labor. If the petitioner’s temporary labor certification application is approved by the DOL, the petitioner must then petition the USCIS for the H-2A visas.
Many H-2A workers come to the U.S. to perform job duties that are traditionally seasonal in nature, such as harvest-time activities, bean-walking or corn detasseling. Organic farms also commonly make use of H-2A workers because of the labor-intensive nature of cultivating crops that cannot be exposed to pesticides. In most cases, if the job strikes you as a traditionally agricultural job, and you can legitimately argue that it’s either temporary (ie., a maximum of 8-10 months or less) or seasonal, then the job has a good shot of qualifying as an H-2A job.
Unfortunately, it’s oftentimes difficult to obtain a temporary labor certification for agricultural labor that occurs year round. For instance, egg layering operations, milk production facilities and hog confinement lots often struggle to obtain temporary labor certifications because of the fact that those operations typically maintain a 24 hour per day, 7 day per week, 365 day per year production cycle. In other words, while the labor at these operations is clearly of an agricultural nature, oftentimes it’s difficult (though not impossible) to argue that the labor is also seasonal or temporary.
The H-2A program has always been heavily regulated and, as a result, many employers have had a difficult time operating successfully and profitably within the program. As one of its final acts, the Bush administration rolled out a new set of regulations governing the H-2A program. The full text of the H-2A regulation is here. In the press releases accompanying the roll out of the new regulation the Administration claimed that the changes to the program would make it more user-friendly for employers, while also increasing protections for both foreign and domestic workers. The regulation officially took effect on January 17, 2009.
Well, after carefully reading the new regulation, I can only say this—it should keep us employment-based immigration lawyers busy. And I’d hesitate to apply the term “user-friendly” to the legislation. The new regulation asks a lot more from employers, especially those employers who qualify under the regulation as an H-2A labor contractor. The more major changes to the regulation include: new pre-filing recruitment requirements, post-recruitment reporting requirements, surety bond requirements, document retention requirements, audit possibilities, and some seriously dangerous new debarment provisions—to mention just those new areas that come easily to mind.
Below I’ve made an effort to summarize the new H-2A regulation. Keep in mind that I’ve certainly summarized the H-2A regulation with an eye toward the needs of my existing clients. As is always the case, my summary and analysis will not apply to each employer or petitioner’s situation. Every petitioner or employer should absolutely read the full text of the new H-2A regulation.
My summary of the new H-2A regulation governing the employment of temporary agricultural laborers can be found here.
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