DOL Announces Final Rule on H-2A Visa Program

On October 6th, 2022, the U.S. Department of Labor (DOL) announced a final rule to amend regulations that govern the H-2A visa program. In brief, the final rule improves the program’s application and temporary labor certification process. In addition, the final rule supports the enforcement efforts of the DOL’s Wage and Hour Division (WHD) in H-2A visa program matters. Earlier, in August, the WHD recovered over $1 million in back wages after an investigation found H-2B visa program violations at employers in eight states. The final rule will be published in the Federal Register on October 12.

Overview of the H-2A Visa Program

The Immigration Reform and Control Act of 1986 (IRCA), which introduced the Employment Eligibility Verification Form I-9, divided the then-existing H-2 visa program for immigrant workers into two programs. The H-2A program was created for agricultural workers, while the H-2B program serviced nonagricultural workers. Specifically, the H-2A visa program allows U.S. employers or agents that meet certain regulatory requirements to bring foreign nationals into the U.S. to fill temporary jobs in the agricultural industry. Specifically, temporary services include those that are a one-time occurrence on a seasonal, peak load, or intermittent basis. Before employers can be approved to request guest workers under the H-2A program, they must submit a valid temporary labor certification from the DOL along with the H-2A petition and apply with the DOL stating that:

• an insufficient number of U.S. employees are qualified and available to work; and
• the employment of nonimmigrant, temporary workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.

Amendments to the H-2A Visa Program

Previously, in July 2019, the DOL proposed changes to the H-2A visa program regulations in a Notice of Proposed Rulemaking. After that, employers, agents, labor unions, farmworkers, and other concerned parties submitted comments on the proposed rule. The DOL will consider these leading up to the final rule’s publishing. The final rule includes several changes to the H-2A visa program, including:

• improved safety and health protections for workers who are housed in rented or public accommodations;
• streamlined bond requirements for labor contractors that better hold them accountable and clarifies joint-employer status;
• updated housing certification process that allows state and local authorities to conduct housing inspections;
• the authority to debar attorneys and agents for misconduct independent of the employer’s violations;
• mandatory electronic filing for most applications, which makes processing more efficient; and
• improved procedures for determining the prevailing wage.

The final rule will go into effect on November 14th, 2022.

H-2A Visa Program and the Wage and Hour Division

Finally, the amendments to the program bolster the WHD’s enforcement capabilities. The WHD will address fraud and abuse within the H-2A program. According to the WHD, the last five years have seen a dramatic increase in recovered back wages associated with H-2A violations. In 2021 alone, the WHD investigated 358 cases of H-2A violations, collecting over $5.8 million for 7,340 workers.