DOL Adopts Final Rule on H-2A Temporary Agricultural Employment
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The U.S. Department of Labor has published a final rule (pdf) in the Federal Register concerning temporary agricultural employment of foreign laborers under the H-2A visa program. The final rule:
- amends regulations governing certification of temporary employment of nonimmigrant workers in temporary or seasonal agricultural employment;
- amends regulations concerning the enforcement of the contractual obligations applicable to employers of such nonimmigrant workers; and
- provides for enhanced enforcement under the H–2A program requirements to ensure that workers are appropriately protected when employers fail to meet their obligations under the program.
The H-2A temporary agricultural program permits agricultural employers anticipating a shortage of domestic workers to bring nonimmigrant foreign workers to the U.S. to perform agricultural labor or services of a temporary or seasonal nature. Foreign workers coming to, or already in the U.S., may qualify under the program. However, before an H-2A visa petition will be granted, the U.S. Department of Labor must certify that there is an insufficient number of qualified U.S. workers for the position and that the foreign worker’s employment will not adversely effect U.S. workers’ wages and working conditions.
This final rule is a product of the department's review of policy decisions underlying a previous revision of the H-2A regulations published in late 2008. It is intended to strengthen worker protections for both U.S. and foreign workers, increase workers’ wages, and provide greater access to the U.S. labor market. Additionally, it will create a national electronic job registry where job orders will be posted through half of the contract period.
The rule, which will take effect March 15, 2010, provides that American and foreign laborers working in identical occupations for the same employer be paid equally, regardless of their hire date. It also prohibits employers from shifting to employees the costs of recruitment, visa, and border-crossing fees, as well as other U.S. government-mandated fees.
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