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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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Since posting my summary of the new H-2A regulation below, I’ve received a number of calls and notes from folks asking me whether the new H-2A regulation will—for lack of a better phrase—remain in effect. As many of you are aware, on January 26, 2009, President Obama issued a memorandum to the heads of executive departments and agencies entitled “White House Memo Calling for Halt to Midnight Regulations Published in Federal Register”. As the memo’s title implies, the new administration plans to review and possibly amend or quash regulations issued in the final hours of the Bush administration. At first blush the new H-2A regulation would certainly seem to fall within the somewhat loosely defined category of a “midnight regulation” and would therefore be subject to review.  However, after analyzing the memo, I don’t think the H-2A reg actually is subject to any further administrative review.

The directive’s first prong stipulates “…no proposed or final regulation should be sent to the Office of the Federal Register for publication unless and until it has been reviewed and approved by a department or agency head appointed or designated by the President after noon on January 20, 2009…[.]” (my emphasis). On this count, the new H-2A regulation was already published on December 18, 2008, so the directive's first prong wouldn’t apply.

The directive’s second prong requires that the agencies or departments “[w]ithdraw from the OFR all proposed or final regulations that have not been published in the Federal Register so that they can be reviewed and approved by a department or agency head…[.]”(again, my italics). Since, as I stated above, the new H-2A regulation was already published in the Federal Register on December 18, 2008, the directive’s second prong also would not apply to the new H-2A regulation.

Finally, the directive’s third prong requires agencies and departments to “[c]onsider extending for 60 days the effective date of regulations that have been published in the Federal Register but not yet taken effect, subject to the exceptions described in paragraph 1…[.]” (my italics and bolding added). The new H-2A regulation, in fact, took effect on January 17, 2009. The Obama administration’s regulatory review memo wasn’t published until January 26, 2009. As a result, the new H-2A regulation also falls outside the directive’s third prong and, therefore, should not be subject to further administrative review.

In short, based on what I’m hearing, I sadly yet fully expect the DOL and USCIS to be in a state of unbridled confusion over the issue of whether the new H-2A regulation is truly in effect. But, according to my analysis, the new regulation is definitely the law of the land. It’s clear that practitioners, employers and governmental agencies must forge ahead under the new regulation’s requirements.
 

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