Kennedy's Immigration Law Report : Iowa Immigration Lawyer & Attorney : Austin Kennedy : Brick Gentry Law Firm : Green Cards, Permanent Residency

On Thursday, April 16, 2009, the DOL published an amendment to its current H-2A visa regulation.  My thoughts and a summary of the new Final H-2A rule can be found here.  The most recent amendment to the Final H-2A Rule states that employers requiring H-2A temporary agricultural workers to start work before January 1, 2010 (rather than July 1, 2009), will file Applications for Temporary Employment Certification in accordance with the transition period procedures in 20 CFR 655.100(b)(2)(2009).  Stated briefly, the transition procedures provide that a prospective H-2A employer should first file its temporary H-2A labor certification application and then conduct recruitment for U.S. workers.  As always, I recommend that everybody read the full text of the new, Final H-2A rule for themselves. 

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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. 

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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. 

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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. 

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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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