45906 Federal Register / Vol. 74, No. 171 / Friday, September 4, 2009 / Proposed Rules 

DEPARTMENT OF LABOR 

Employment and Training 

Administration 

20 CFR Part 655 

Wage and Hour Division 

29 CFR Part 501 

RIN 1205–AB55 

Temporary Agricultural Employment of 

H–2A Aliens in the United States 

AGENCY: Employment and Training 

Administration, and Wage and Hour 

Division, Employment Standards 

Administration, Labor. 

ACTION: Proposed rule; request for 

comments. 

SUMMARY: The Department of Labor (the 

Department or DOL) is proposing to 

amend its regulations governing the 

certification of temporary employment 

of nonimmigrant workers in temporary 

or seasonal agricultural employment 

and the enforcement of the contractual 

obligations applicable to employers of 

such nonimmigrant workers. This 

Notice of Proposed Rulemaking (NPRM 

or Proposed Rule) reexamines the 

process by which employers obtain a 

temporary labor certification from the 

Department for use in petitioning the 

Department of Homeland Security 

(DHS) to employ a nonimmigrant 

worker in H–2A status. The Department 

also proposes to amend the regulations 

at 29 CFR part 501 to provide for 

sufficient enforcement under the H–2A 

program so that workers are 

appropriately protected when 

employers fail to meet the requirements 

of the H–2A program. 

DATES: Interested persons are invited to 

submit written comments on the 

Proposed Rule on or before October 5, 

2009. Interested persons are invited to 

submit comments on the proposed form 

mentioned herein; such comments must 

be received on or before November 3, 

2009. 

ADDRESSES: You may submit comments, 

identified by Regulatory Information 

Number (RIN) 1205–AB55, by any one 

of the following methods: 

• Federal e-Rulemaking Portal at 

www.regulations.gov: Follow the Web 

site instructions for submitting 

comments. 

• Mail: Please submit all written 

comments (including disk and CD–ROM 

submissions) to Thomas Dowd, 

Administrator, Office of Policy 

Development and Research, 

Employment and Training 

Administration, U.S. Department of 

Labor, 200 Constitution Avenue, NW., 

Room N–5641, Washington, DC 20210. 

• Hand Delivery/Courier: Please 

submit all comments to Thomas Dowd, 

Administrator, Office of Policy 

Development and Research, 

Employment and Training 

Administration, U.S. Department of 

Labor, 200 Constitution Avenue, NW., 

Room N–5641, Washington, DC 20210. 

Please submit your comments by only 

one method. Comments that are 

received by the Department through 

means beyond those listed in this 

Proposed Rule or that are received after 

the comment period has closed will not 

be reviewed in consideration of the 

Final Rule. The Department will post all 

comments received on http:// 

www.regulations.gov without making 

any change to the comments, including 

any personal information provided. The 

http://www.regulations.gov Web site is 

the Federal e-rulemaking portal and all 

comments posted there are available 

and accessible to the public. The 

Department cautions commenters not to 

include their personal information such 

as Social Security Numbers, personal 

addresses, telephone numbers, and email addresses in their comments as 

such submitted information will become 

viewable by the public on the http:// 

www.regulations.gov Web site. It is the 

commenter’s responsibility to safeguard 

his or her information. Comments 

submitted through http:// 

www.regulations.gov will not include 

the commenter’s e-mail address unless 

the commenter chooses to include that 

information as part of his or her 

comment. 

Postal delivery in Washington, DC, 

may be delayed due to security 

concerns. Therefore, the Department 

encourages the public to submit 

comments via the http:// 

www.regulations.gov Web site. 

Docket: For access to the docket to 

read background documents or 

comments received, go to the Federal eRulemaking portal at http:// 

www.regulations.gov. The Department 

will also make all the comments it 

receives available for public inspection 

during normal business hours at the 

Employment and Training 

Administration (ETA) Office of Policy 

Development and Research at the above 

address. If you need assistance to review 

the comments, the Department will 

provide you with appropriate aids such 

as readers or print magnifiers. The 

Department will make copies of the rule 

available, upon request, in large print 

and as electronic file on computer disk. 

The Department will consider providing 

the Proposed Rule in other formats upon 

request. To schedule an appointment to 

review the comments and/or obtain the 

rule in an alternate format, contact the 

Office of Policy Development and 

Research at (202) 693–3700 (VOICE) 

(this is not a toll-free number) or 1–877– 

889–5627 (TTY/TDD). 

FOR FURTHER INFORMATION CONTACT: For 

further information on 20 CFR part 655, 

contact William L. Carlson, PhD, 

Administrator, Office of Foreign Labor 

Certification, ETA, U.S. Department of 

Labor, 200 Constitution Avenue, NW., 

Room C–4312, Washington, DC 20210; 

Telephone (202) 693–3010 (this is not a 

toll-free number). Individuals with 

hearing or speech impairments may 

access the telephone number above via 

TTY by calling the toll-free Federal 

Information Relay Service at 1–800– 

877–8339. 

For further information on 29 CFR 

part 501 contact James Kessler, Farm 

Labor Branch Chief, Wage and Hour 

Division, Employment Standards 

Administration, U.S. Department of 

Labor, 200 Constitution Avenue, NW., 

Room S–3510, Washington, DC 20210; 

Telephone (202) 693–0070 (this is not a 

toll-free number). Individuals with 

hearing or speech impairments may 

access the telephone number above via 

TTY by calling the toll-free Federal 

Information Relay Service at 1–800– 

877–8339. 

SUPPLEMENTARY INFORMATION: 

I. Revisions to 20 CFR Part 655 

Subpart B 

A. Statutory Standard and Regulatory 

History 

The H–2A nonimmigrant worker visa 

program enables United States (U.S.) 

agricultural employers to employ 

foreign workers on a temporary basis to 

perform agricultural labor or services in 

the absence of U.S. labor. Section 

101(a)(15)(H)(ii)(a) of the Immigration 

and Nationality Act (INA or the Act) 

defines an H–2A nonimmigrant as one 

admitted to the U.S. on a temporary or 

seasonal basis to perform agricultural 

labor or services. 8 U.S.C. 

1101(a)(15)(H)(ii)(a); see also 8 U.S.C. 

1184(c)(1) and 1188. The H–2A class of 

admission is rooted in the Immigration 

and Nationality Act of 1952, which 

created an H–2 visa for nonimmigrant 

admission for all types of temporary 

labor. The Immigration Reform and 

Control Act of 1986 (IRCA), three 

decades later, amended the INA to 

establish a separate H–2A visa 

classification for agricultural labor 

under INA sec. 101(a)(15)(H)(ii)(A). 

Public Law 99–603, Title III, 100 Stat. 

3359 (November 6, 1986). 


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The INA authorizes the Secretary of 

DHS to permit employers to import 

foreign workers to perform temporary 

agricultural services or labor of a 

seasonal or temporary nature if the 

Secretary of the United States 

Department of Labor (Secretary) certifies 

that: 

(A) There are not sufficient U.S. workers 

who are able, willing, and qualified, and who 

will be available at the time and place 

needed to perform the labor or services 

involved in the petition; and 

(B) The employment of the alien in such 

labor or services will not adversely affect the 

wages and working conditions of workers in 

the United States similarly employed. 

8 U.S.C. 1188(a)(1). 

The INA also sets out the conditions 

under which a certification may not be 

granted, including: 

(1) There is a strike or lockout in the course 

of a labor dispute which, under the 

regulations, precludes such certification. 

(2)(A) The employer during the previous 

two-year period employed H–2A workers and 

the Secretary of Labor has determined, after 

notice and opportunity for a hearing, that the 

employer at any time during that period 

substantially violated a material term or 

condition of the labor certification with 

respect to the employment of domestic or 

nonimmigrant workers. 

(B) No employer may be denied 

certification under subparagraph (A) for more 

than three years for any violation described 

in such subparagraph. 

(3) The employer has not provided the 

Secretary with satisfactory assurances that if 

the employment for which the certification is 

sought is not covered by State workers’ 

compensation law, the employer will 

provide, at no cost to the worker, insurance 

covering injury and disease arising out of and 

in the course of the worker’s employment 

which will provide benefits at least equal to 

those provided under the State workers’ 

compensation law for comparable 

employment. 

(4) The Secretary determines that the 

employer has not made positive recruitment 

efforts within a multi-state region of 

traditional or expected labor supply where 

the Secretary finds that there are a significant 

number of qualified United States workers 

who, if recruited, would be willing to make 

themselves available for work at the time and 

place needed. Positive recruitment under this 

paragraph is in addition to, and shall be 

conducted within the same time period as, 

the circulation through the interstate 

employment service system of the employer’s 

job offer. The obligation to engage in positive 

recruitment under this paragraph shall 

terminate on the date the H–2A workers 

depart for the employer’s place of 

employment. 

8 U.S.C. 1188(b). 

The Secretary has delegated these 

responsibilities, through the Assistant 

Secretary, Employment and Training 

Administration (ETA), to ETA’s Office 

of Foreign Labor Certification (OFLC). 

The statute applies strict timelines to 

the processing of requests for 

certification. The Secretary may not 

require that such a request, or 

Application for Temporary Labor 

Certification, be filed more than 45 days 

before the employer’s date of need, and 

certification must occur no later than 30 

days before the date of need, provided 

that all the criteria for certification are 

met. 8 U.S.C. 1188(c). If the Application 

for Temporary Labor Certification fails 

to meet threshold requirements for 

certification, notice must be provided to 

the employer within 7 days of the date 

of filing, and a timely opportunity to 

cure deficiencies must be provided to 

the employer. 

To obtain a temporary labor 

certification, the employer must 

demonstrate that the need for the 

services or labor is of a temporary or 

seasonal nature. The employer must 

also establish that the job opportunity 

for the temporary position is full-time. 

The statute also institutes certain 

employment-related protections, 

including workers’ compensation 

insurance, recruitment, and housing, to 

which H–2A employers must adhere. 8 

U.S.C. 1188(c). 

B. Current Regulatory Framework 

The Department operated the H–2A 

program for more than two decades 

under regulations promulgated in the 

wake of IRCA or earlier. For the most 

part, the regulations at title 20 of the 

Code of Federal Regulations (CFR) part 

655 were published at 52 FR 20507, Jun. 

1, 1987 (the 1987 Rule). On December 

18, 2008, the Department published 

final regulations revising these 

regulations and also revising the 

companion regulations at 29 CFR part 

501 governing the enforcement 

responsibilities of the Department’s 

Wage and Hour Division (WHD) under 

the H–2A program (the 2008 Final 

Rule). Included in that rulemaking were 

revisions to Fair Labor Standards Act 

(FLSA) regulations at 29 CFR parts 780 

and 788. 73 FR 77110, Dec. 18, 2008. 

The 2008 Final Rule made several 

significant changes in the processing of 

H–2A Application for Temporary Labor 

Certification (Application). The 2008 

Final Rule uses an attestation-based 

model, unlike the previous rule, which 

mandated a fully-supervised labor 

market test. Under the 2008 Final Rule, 

employers conduct the required 

recruitment and, based upon the results 

of that effort, apply for a number of 

needed foreign workers. Thereafter, 

employers attest that they have 

undertaken the necessary activities and 

made the required assurances to 

workers, rather than have such actual 

efforts reviewed by a Federal or State 

official, as was the process in the 1987 

Rule. The 2008 Final Rule relies largely 

on post-adjudication integrity measures 

to review selected documentation from 

a percentage of employers to 

compensate for a lack of hands-on 

review. It also reflects several significant 

policy shifts; chief among these was the 

decision to base the Adverse Effect 

Wage Rate (AEWR), which is the wage 

determined by the Department to be the 

minimum below which adverse impact 

to domestic workers would accrue, on 

the Occupational Employment Statistics 

(OES) Wage Survey collected by the 

Department’s Bureau of Labor Statistics 

(BLS), rather than data compiled by the 

U.S. Department of Agriculture (USDA), 

National Agriculture Statistics Service 

(NASS) in its quarterly Farm Labor 

Survey Reports, which was what was 

relied upon in the 1987 Rule. 

Following the issuance of the 2008 

Final Rule, a lawsuit was filed in the 

U.S. District Court for the District of 

Columbia challenging the H–2A Final 

Rule. United Farm Workers, et al. v. 

Chao, et al., Civil No. 09–00062 RMU 

(D.D.C.). The plaintiffs asserted that in 

promulgating the 2008 Final Rule, the 

Department violated 8 U.S.C. 1188 and 

the Administrative Procedures Act 

(APA). The plaintiffs requested a 

temporary restraining order and 

preliminary injunction, along with a 

permanent injunction that would 

prohibit DOL from implementing the 

2008 Final Rule. The plaintiffs’ requests 

for a temporary restraining order and 

preliminary injunction were denied and 

the 2008 Final Rule went into effect as 

scheduled on January 17, 2009. 

The Administration, however, desired 

to review the policy decisions 

emanating from the 2008 Final Rule, 

made by a prior Administration, 

particularly on the role of the H–2A 

program in supplying foreign workers in 

agricultural activities, and with specific 

review of the protections afforded under 

that rule to all agricultural workers in 

general and the domestic workforce in 

particular. This review was believed to 

be particularly timely in light of the 

rising unemployment among U.S. 

workers and their apparent increasing 

availability for these jobs. Regardless, 

the Department upon review has 

determined the current level of worker 

protections and incentives for U.S. 

workers to accept employment in 

agriculture require expansion and are 

accordingly addressed in this NPRM. 

The Department’s concern is that our 

agricultural economy should to the 

fullest extent feasible employ U.S. 

workers and they be granted a level of 

worker safety and protection 


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characterized in other occupations and 

that the need for foreign labor be when 

only there are demonstrably no 

available domestic workers for these 

jobs. 

Accordingly, the Department 

extended the transition period 

contained in the 2008 Final Rule. In 

addition, the Department proposed to 

suspend the 2008 Final Rule in a Notice 

of Proposed Suspension at 74 FR 11408, 

Mar. 17, 2009. After considering the 

comments submitted in connection with 

the Notice of Proposed Suspension, the 

Department suspended the 2008 Final 

Rule and reinstated the regulations in 

effect prior to the 2008 Final Rule in 

order to effectuate a thorough review of 

the regulatory activity undertaken and 

to determine whether a new rulemaking 

effort was appropriate. 74 FR 25972, 

May 29, 2009. The Department stated in 

the Final Suspension that it intended to 

reinstate the former regulations for a 9- 

month period, after which time it would 

revert to the suspended regulations, 

unless a new rulemaking was in place. 

On June 29, 2009, the United States 

District Court for the Middle District of 

North Carolina issued a preliminary 

injunction enjoining the 

implementation of the Final 

Suspension. North Carolina Growers’ 

Association v. Solis, 1:09–cv–00411 

(June 29, 2009). As a result of that order, 

as of the date of publication of this 

Proposed Rule, the 2008 Final Rule 

remains in effect. 

C. Need for New Rulemaking 

The Department has determined for a 

variety of reasons that a new rulemaking 

effort is necessary for the H–2A 

program. The Department, upon due 

consideration, believes that the policy 

underpinnings of the 2008 Final Rule, 

e.g. streamlining the H–2A regulatory 

process to defer many determinations of 

program compliance until after an 

Application has been fully adjudicated, 

do not provide an adequate level of 

protection for either U.S. or foreign 

workers. 

In addition, the usage of the program 

since January 2009 has demonstrated 

that the policy goals of the 2008 Final 

Rule have not been met. One of the clear 

goals of the 2008 Final Rule was to 

increase usage of the H–2A program, to 

make usage easier for the average 

employer, and more affordable. 

However, applications have actually 

decreased since the implementation of 

the new program. Employers filed 3,176 

applications in the first three and one 

half months of Fiscal Year (FY) 2009, 

prior to the implementation of the 2008 

Final Rule (October 1, 2008–January 16, 

2009). In the six and one half months 

from January 17, 2009, to July 31, 2009, 

4,214 applications were filed. When 

compared to the previous year (FY 

2008), in which 8,360 applications were 

filed, employers are not increasing their 

usage of the program. See Chart of 

Average Monthly H–2A Applications 

Received by OFLC, infra. Not only has 

usage not increased under the program 

revisions, there has actually been a 

reversal of an existing multi-year trend 

toward increased program utilization. 

While factors other than the regulatory 

changes may play a role in this 

decrease, without accomplishing the 

prior rules’ goal of increasing program 

usage, the Department can no longer 

justify the significant decrease in worker 

protections. 

The Department also feels that there 

are insufficient worker protections in 

the attestation-based model in which 

employers merely confirm, and do not 

actually demonstrate to the satisfaction 

of an objective government observer, 

that they have performed an adequate 

test of the U.S. labor market. Even in the 

first year of the attestation model it has 

come to the Department’s attention that 

employers, either from a lack of 

understanding or otherwise, are 

attesting to compliance with program 

obligations with which they have not 

complied. Specific situations have been 

reported to the Department of employers 

who have imposed obstacles in the way 

of U.S. workers seeking employment. 

Examples of this have included the 

requirement of interviewing in-person at 

remote interview sites that require 

payment to access; multiple interview 

processes for job opportunities requiring 

no skills or experience; test 

requirements that are not disclosed to 

the applicants; contact information that 

is disconnected, is located outside the 

U.S., or proves incorrect; farm labor 

contractors who attest to a valid license 

who in fact have none; and contractors 

who have not obtained surety bonds . 

This anecdotal evidence from different 

geographical sectors, representative of 

both new filers and experienced 

program users, has been obtained by the 

Department in the course of its activities 

in processing cases (in responses to 

requests for modifications), auditing 

certified cases, and in complaints from 

U.S. workers since the effective date of 

the 2008 Final Rule. Such noncompliance appears to be sufficiently 

substantial and widespread for the 

Department to revisit the use of 

attestations, even with the use of backend integrity measures for demonstrated 

non-compliance. 

The Department has also determined 

that the area in which agricultural 

workers are most vulnerable—wages— 

has been adversely impacted to a far 

more significant extent than anticipated 

by the 2008 Final Rule. As discussed 

further below, the shift from the AEWR 

as calculated under the 1987 Rule to the 

recalibration of the prevailing wage as 

the AEWR of the 2008 Final Rule 

resulted in a substantial reduction of 

farmworker wages in a number of labor 

categories, and the obvious effects of 

that reduction on the workers’ and their 

families’ ability to meet necessary costs 

is an important concern to the current 

Administration. 

In order to adequately protect U.S. 

and H–2A workers, the Department is 

proposing the changes further discussed 

in the subsections below. The 

Department is engaging in new 

rulemaking to provide the affected 

public with notice and opportunity to 

engage in dialogue with the Department 

on the H–2A program. The Department 

took into account both the regulations 

promulgated in 1987, as well as the 

significant reworking of the regulations 

in the 2008 Final Rule, in order to arrive 

at a Proposed Rule that balances the 

worker protections of the 1987 Rule and 

the program integrity measures of the 

2008 Final Rule. Much of the 2008 Final 

Rule has been retained in format, as it 

presents a more understandable 

regulatory roadmap; it has been used 

when its provisions do not conflict with 

the policies proposed in this NPRM. To 

the extent the 2008 Final Rule presents 

a conflict with the policies 

underpinning this Proposed Rule, it has 

been rewritten or the provisions of the 

1987 Rule have been adopted. To the 

extent the 1987 Rule furthers the 

policies that underlie this rule, those 

provisions have been retained. These 

changes are pointed out below. 

D. Overview of Proposed Process 

In the proposed model, an employer 

must initiate the request for H–2A 

certification 60 to 75 days prior to the 

date of need by submitting an 

Agricultural and Food Processing 

Clearance Order, Form ETA–790, to the 

State Workforce Agency (SWA) in the 

area of intended employment to be 

placed as an intrastate job order. 

Concurrent with submitting the job 

order, the employer must request a 

housing inspection. The SWA will 

review the proposed terms and 

conditions, ensure that the wage offered 

meets the required wage, and commence 

required recruitment by placing the job 

order into intrastate clearance. The 

housing inspection must be completed 

prior to the issuance of the certification, 

since this is a requirement to access to 

the interstate clearance system (see 20 

CFR 653.501(d)(2)(xv) and 654.403(e)). 


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The SWA must keep the job order 

posted and continue to refer 

employment applicants until 50 percent 

of the employer’s contract period is 

complete. See § 655.135(d). 

The employer must consider all U.S. 

worker applicants referred throughout 

the recruitment period. The employer 

may reject candidates only for lawful, 

job-related reasons. If the employer 

hires sufficient able, willing, and 

qualified U.S. workers during this prefiling recruitment period to meet its 

needs, then the employer does not need 

to file a labor certification application 

for foreign workers with the 

Department’s National Processing 

Center (NPC). 

If the employer finds an insufficient 

number of U.S. workers available to 

meet its needs, then it may seek H–2A 

workers by filing with the NPC an 

Application, ETA Form 9142, along 

with a copy of the ETA–790 form at 

least 45 days prior to the date of need 

and an initial recruitment report. See 

§ 655.130(b). Associations, labor 

contractors (known as H–2ALCs in this 

program), and agents have specific 

additional requirements, outlined 

below. Upon review by the NPC, the 

employer will either receive a Notice of 

Acceptance or a Notice of Deficiency. If 

the employer receives the latter, it will 

have no more than 12 days to modify 

the Application and return it to the 

NPC. 

Once the NPC accepts the 

Application, the employer will be 

required to begin positive recruitment as 

specified in the Notice of Acceptance. 

The employer will also be required to 

accept referrals not only from the local 

SWA, but also SWAs that the NPC has 

designated as traditional supply States 

and to which the local SWA has sent an 

interstate job order. As part of this 

positive recruitment, the employer will 

be required to place newspaper 

advertisements, which must comply 

with § 655.152. 

By the deadline set by the NPC in the 

Letter of Acceptance, the employer must 

complete a recruitment report and 

submit it to the NPC. The employer 

continues positive recruitment until the 

H–2A workers leave for the employer’s 

place of business or the first date of 

need, whichever is earlier. 8 U.S.C. 

1188(b)(4). 

During the first 50 percent of the 

contract period the employer must 

accept any referral of U.S. workers from 

the SWA and continue to update the 

recruitment report. At the end of the 50 

percent period, the employer finalizes 

the recruitment report and retains it 

along with copies of the advertisements 

placed throughout the recruitment 

period in case of an audit. The NPC 

issues either a Certification in 

accordance with § 655.161 or a Denial 

Letter in accordance with § 655.164. 

Extensions can be granted only in 

accordance with § 655.170. Should the 

NPC deny the Application, the 

employer has the right to appeal the 

decision to the Office of Administrative 

Law Judges (ALJs). See § 655.171. 

Should any integrity measures, by 

which the Department means the 

measures it uses to determine which 

employers have complied with their 

worker protection obligations and what 

actions it takes against employers who 

have failed to do so, such as audits, 

debarment, or revocation, be instituted 

against the employer by the Department 

(either by OFLC or by the WHD), the 

employer will have an opportunity to 

respond. Once a decision has been 

rendered, the employer has the right to 

appeal a negative decision to the 

Department’s ALJ as described in 

§ 655.171. 

The following time sequence occurs 

generally in the proposed H–2A 

program: 

60–75 days from date of need: 

Employer commences process by 

submitting job order for clearance. 

60–75 days from date of need: SWA 

clears job order, employer begins 

accepting referrals from SWA. 

45–75 days from date of need: 

Employer accepts referrals, conducts 

interviews, and begins to compile 

recruitment report. 

45 days from date of need: Employer 

files Application. 

38–44 days from date of need: 

Employer receives instructions from CO, 

SWA commences interstate recruitment, 

employer conducts positive recruitment, 

continues to compile recruitment report. 

Employer continues positive 

recruitment until the H–2A workers 

leave for the employer’s place of 

business or the first date of need. 

30–38 days from date of need: CO 

certifies or denies. 

50 percent of contract period (past 

date of need): Employer continues to 

accept referrals of U.S. worker 

applicants. 

II. Discussion of 20 CFR 655 Subpart B 

A. Introductory Sections 

1. § 655.100 Scope and Purpose of 

Subpart B 

This provision informs the users of 

the regulatory part of the authority of 

the H–2A labor certification process, 

drawn directly from statute. It provides 

the statutory basis for the regulatory 

process for receiving, reviewing and 

adjudicating an Application for H–2A 

job opportunities. 

2. § 655.101 Authority of the Office of 

Foreign Labor Certification (OFLC) 

Administrator 

The OFLC is the office within ETA 

that exercises the Secretary’s authority 

for determining the availability of U.S. 

workers and where there are not 

sufficient U.S. workers available, 

certifying that the employment of H–2A 

nonimmigrant workers will not 

adversely effect the wages and working 

conditions of similarly employed 

workers. Such determinations are 

arrived at by the OFLC acting through 

its Administrator. The Administrator, in 

turn, delegates to staff the responsibility 

to make these determinations. Certifying 

Officers (COs) in the Chicago National 

Processing Center (CNPC) are primarily 

responsible for the activities of 

reviewing Applications and making 

adjudicatory decisions. 

3. § 655.102 Special Procedures 

Section 655.102 proposes the 

establishment, continuation, revision, or 

revocation of special procedures. The 

H–2A regulations have, since their 

creation, included a provision for 

special procedures for variances from 

the process outlined in the regulation. 

These are situations where the 

Department recognizes that variations 

from the normal H–2A labor 

certification processes are appropriate to 

permit access to the program for specific 

industries or occupations. These 

include, for example, sheepherding, and 

occupations in range production of 

livestock, as well as custom combine 

occupations. Accordingly, the 

Department has always reserved the 

right to, in its discretion, develop and 

implement special procedures for H–2A 

Applications relating to specific 

occupations. Such special procedures 

supplement the procedures described in 

subpart B for all H–2A Applications. 

Historically, these special procedures 

have encompassed the authority to 

establish monthly, weekly, or semimonthly AEWR for particular 

occupations. That process will continue 

under this proposal. 

4. § 655.103 Overview of This Subpart 

and Definition of Terms 

Although the Department is proposing 

a number of changes to the definitions 

section, most of the changes are to 

improve clarity and do not substantively 

change the meaning of the term. 

Substantive changes to definitions are 

discussed below. 

The Department has retained the 

definition of ‘‘employee’’ from the 2008 


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Final Rule. This definition is based on 

the common law definition, as set forth 

in the Supreme Court’s holding in 

Nationwide Mutual Insurance v. 

Darden, 503 U.S. 318, 322–324 (1992), 

which is more consistent with the 

statute than the definition contained in 

the 1987 Rule. The Department is 

proposing to modify the definition of 

‘‘employer’’ from that set forth in the 

2008 rulemaking, in order to conform 

the definition to that used in most other 

Department-administered programs. The 

definition of ‘‘successor in interest’’ has 

been modified from that in the 2008 

Final Rule to make it clearer. 

Under 8 U.S.C. 1101(a)(15)(h)(ii)(A) 

the H–2A program encompasses 

agricultural services or labor defined by 

the Secretary to at least include 

agricultural labor or services as defined 

in the Internal Revenue Code (IRC) and 

the FLSA, and the pressing of apples for 

cider on a farm. Before the 2008 Final 

Rule, the Department never exercised its 

authority to expand the scope of the H– 

2A program beyond agricultural 

employment as defined in IRC or FLSA. 

In the 2008 Final Rule, the 

Department changed the regulatory 

definition of ‘‘agricultural labor or 

services’’ to include work activities of 

the type typically performed on a farm 

and incidental to the agricultural labor 

or services for which an H–2A labor 

certification was approved. Because the 

FLSA definition of agriculture already 

encompasses incidental work (‘‘and any 

practices * * * performed by a farmer 

or on a farm as an incident to or in 

conjunction with such farming 

operations’’), the Department believes 

that inclusion of a definition of 

incidental activities is duplicative. The 

Department also views as duplicative 

the clarification, included in the 2008 

Final Rule that an activity that meets 

either the IRC or the FLSA definitions 

of agriculture is considered agricultural 

labor or services for H–2A program 

purposes. Therefore, the Department 

proposes to eliminate the separate 

definition of incidental work and the 

duplicative clarification. 

The Department, however, is 

proposing to continue to include 

‘‘logging activities’’ in the definition of 

‘‘agricultural labor or services’’ for the 

same reasons discussed in the 2008 

Final Rule. Prior to 1986, the 

Department had applied the same 

standards to logging employment as it 

applied to traditional agricultural 

employment. In 1986, IRCA separated 

the H–2 visa category into agricultural 

work under the H–2A visa and 

nonagricultural work under the H–2B 

visa. As discussed above, the H–2A 

program was intended to cover 

agricultural labor or services as defined 

by the Secretary, including but not 

limited to agricultural labor or services 

as defined in the IRC and the FLSA. The 

Department chose at that time not to 

expand the definition of agriculture 

beyond the statutory minimum. 

Nevertheless, the Department 

simultaneously continued the existing 

regulatory H–2A-like standards for 

logging workers who were admitted 

under the H–2B program. Logging 

employers, therefore, have been subject 

to a substantially similar set of 

obligations and processes as H–2A 

employers, but their nonimmigrant 

employees must enter on H–2B, rather 

than H–2A, visas. 

In the 2008 Final Rule the Department 

determined that there was no longer any 

reason to maintain two substantially 

similar yet slightly divergent processes 

for agriculture and logging, and returned 

to our 1965–1986 practice of treating 

both activities alike. The types of 

activities in which the employers in 

both fields engage—i.e., harvesting of 

agricultural and horticultural 

products—and the labor certification 

requirements to which they are subject, 

are essentially the same. This proposal 

contains the identical provision as the 

2008 Final Rule. The Department has 

also added a definition of ‘‘logging 

operations’’ consistent with that used by 

the Occupational Safety and Health 

Administration (OSHA). 

In addition, the Department is now 

proposing to also include reforestation 

activities within the definition of 

‘‘agricultural labor or services.’’ For 

purposes of the H–2A program, 

‘‘reforestation activities’’ will be defined 

as predominately manual forestry work 

that includes, but is not limited to, tree 

planting, brush clearing, precommercial tree thinning, and forest fire 

fighting. Temporary foreign workers 

engaged in reforestation activities are 

currently admitted under the H–2B 

program. 

Reforestation work is commonly 

performed by migrant crews and 

overseen by labor contractors. The 

Department’s experience has been that 

contractor work performed by migrant 

crews, which carries these similar 

characteristics to reforestation, is subject 

to a higher rate of violations than that 

performed by work performed for fixedsite workers. For this and other reasons, 

the Department has imposed additional 

requirements and obligations on labor 

contractors, H–2ALCs, under the H–2A 

program. These reforestation crews 

share the same characteristics as 

traditional agricultural crews, and the 

characteristics of most reforestation 

contractors are nearly identical to the 

characteristics of farm labor contractors 

found in traditional agriculture, and 

dissimilar than other occupations found 

in the H–2B program. It is common for 

their work to be paid on a piece rate 

basis; they work in locations typically 

with no access to public transportation, 

and are often left to their own devices 

to secure housing and food. These 

workers generally reside in remote 

locations for short periods of time with 

little or no access to community or 

government resources to assist them 

with work-related problems. The 2008 

Final Rule included logging, a subindustry of forestry, within the scope of 

H–2A agricultural labor. Reforestation 

workers, another sub-industry of 

forestry, who perform work in such 

remote locations and for such short 

periods of time should have the benefit 

of the same terms and conditions of 

employment as loggers as well as other 

traditional migrant crews with whom 

they share characteristics of 

employment. Being dependent on the 

crew leader combined with being in 

remote locations, with little or no access 

to community or government resources, 

increases the potential to be exploited 

by crew leaders. Due to the isolated and 

often harsh nature of reforestation 

activities and reforestation working 

conditions, and the similarities in the 

workforce between reforestation and 

traditional agricultural activities, as well 

as the potential for exploitation of such 

transient crews, the Department is 

proposing to include reforestation 

activities in the definition of 

‘‘agricultural labor or services.’’ 

For like reasons, the Department is 

also proposing to include ‘‘pine straw 

activities’’ in its definitions. Crews 

engaged in the raking, gathering, baling, 

and loading of pine straw, activities 

typically performed manually with 

hand tools, share these same 

characteristics of traditional agriculture 

crews. This is employment typically 

controlled by labor contractors, and as 

discussed above, the Department’s 

experience has found a higher violation 

rate with labor contractors as opposed to 

fixed-site employers. These crews work 

in remote locations, often for short 

periods of time. These crews are highly 

transient and are typically dependent on 

the crew leader for all transportation, 

and typically in remote locations, are 

often left to their own devices to secure 

housing. They are also typically paid on 

a piece rate basis. Being so dependent 

on the crew leader combined with being 

in such remote locations, with little or 

no access to community or government 

resources, increases the potential to be 

exploited by crew leaders. Due to the 


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1See Preamble section IV A. Administrative 

Information, Executive Order 12866. 

nature and working conditions of these 

pine straw activities, and the 

similarities in the workforce between 

pine straw and traditional agricultural 

activities, as well as the heightened 

potential for exploitation by crew 

leaders, the Department is proposing to 

include pine straw activities in the 

definition of agricultural labor or 

services. 

The Department is proposing a 

simplified definition of a ‘‘temporary or 

seasonal nature’’, to track the definition 

found in the DHS regulations at 8 CFR 

214.2(h)(5)(iv)(A). Both the 1987 Rule 

and 2008 Final Rule used a definition 

derived from the Migrant and Seasonal 

Agricultural Worker Protection Act 

(MSPA). Upon further consideration, 

the Department has concluded that the 

MSPA definition, which is driven by the 

circumstances of individual workers, is 

not compatible with the needs of the H– 

2A program, which relates to the 

temporary/seasonal needs of employers. 

This has led to confusion under the 

previous rules, which the Department 

now seeks to rectify. 

Also in the definitional provisions of 

the proposed regulations, the 

Department proposes to define 

‘‘corresponding employment’’ to more 

accurately reflect the statutory 

requirement that, as a condition for 

approval of H–2A petitions the 

Secretary certify that the employment of 

the alien in such labor or services will 

not adversely affect the wages and 

working conditions of workers in the 

U.S. similarly employed. To ensure that 

similarly employed workers are not 

adversely affected by the employment of 

H–2A workers, the Department makes 

certain that workers engaged in 

corresponding employment are 

provided no less than the same 

protections and benefits provided to H– 

2A workers. 

‘‘Corresponding employment’’ is 

defined as the employment of workers 

who are not H–2A workers by an 

employer whose H–2A Application was 

approved by OFLC in any work 

included in the job order, or any 

agricultural work performed by the H– 

2A workers. ‘‘Corresponding 

employment’’ would include non-H–2A 

workers employed by an employer 

whose Application was approved by 

ETA who are performing work included 

in the job order or any other agricultural 

work performed by the employer’s H– 

2A workers as long as such work is 

performed during the validity period of 

the job order. The definition includes 

both non-H–2A workers hired during 

the recruitment period required under 

these regulations and non-H–2A 

workers already working for the 

employer when recruitment begins. In 

the 2008 Final Rule, only workers newly 

hired by the H–2A employer were 

considered as engaged in corresponding 

employment. However, in this NPRM 

the Department is proposing to define 

corresponding employment more in 

keeping with the statutory language 

mandating that the importation of H–2A 

workers not adversely impact the wages 

and working conditions of workers 

similarly employed in the U.S. Such 

adverse impact could include providing 

housing at no cost to H–2A workers 

while housing domestic workers 

performing the same work in the same 

housing with a housing charge or 

reducing wages of domestic workers in 

order to have more available resources 

in order to import H–2A workers. Some 

might argue that precluding domestic 

workers from being paid the higher rate 

offered to H–2A workers is an adverse 

impact. 

B. Prefiling Requirements 

1. § 655.120 Offered Wage Rate 

a. The Need for an Adverse Effect Wage 

Rate (AEWR) 

The AEWR is the minimum wage rate 

that agricultural employers seeking 

nonimmigrant alien workers must offer 

to and pay their U.S. and alien workers, 

if prevailing wages and any Federal or 

State minimum wage rates are below the 

AEWR. The AEWR is a wage floor, and 

the existence of the AEWR does not 

prevent the worker from seeking a 

higher wage or the employer from 

paying a higher wage. 

The Department continues to believe 

that the justification for the 

establishment of an AEWR cited in the 

final rule published in 1989 specifically 

on the AEWR methodology, remains 

valid: 

Even though the evidence is not conclusive 

on the existence of past adverse effect, DOL 

still believes that its statutory responsibility 

to U.S. workers will be discharged best by the 

adoption of an AEWR set at the USDA 

average agricultural wage in order to protect 

against the possibility that the anticipated 

expansion of the H–2A program will itself 

create wage depression or stagnation. 

(54 FR 28037, Jul. 5, 1989.) 

The AEWR not only addresses the 

potential adverse effect that the use of 

low-skilled foreign labor may have on 

the wages paid to native-born 

agricultural workers, but also protects 

U.S. workers whose low skills make 

them particularly vulnerable to wage 

deflation resulting from the hiring of 

immigrant labor. This is true even in the 

event of relatively mild, and thus very 

difficult to measure, wage deflation. 

Additionally, an adverse effect wage 

rate will potentially result in greater 

employment opportunities for U.S. 

workers, furthering statutory intent. 

The statute recognizes that U.S. 

agricultural workers need protection 

from potential adverse effects of the use 

of foreign temporary labor, because they 

generally comprise an especially 

vulnerable population whose low 

educational attainment, low skills, low 

rates of unionization and high rates of 

unemployment leave them with few 

alternatives in the non-farm labor 

market. Consequently, their ability to 

negotiate wages and working conditions 

with farm operators or agriculture 

services employers is quite limited. The 

Department therefore believes that its 

statutory mandate justifies returning to 

the previous methodology as it better 

ensures U.S. workers are not adversely 

affected. Additionally, it creates a floor 

below which wages cannot be 

negotiated, thereby strengthening the 

ability of this particularly vulnerable 

labor force to negotiate over wages with 

growers who are in a stronger economic 

and financial position in contractual 

negotiations for employment. 

The Department has determined that 

the area in which agricultural workers 

are most vulnerable—wages—has been 

adversely impacted to a far more 

significant extent than anticipated by 

the 2008 Final Rule. Experience with 

the 2008 Final Rule to date 

demonstrates, that on average, required 

wages under the program have declined 

by approximately $1.44 per hour.1 The 

2008 Final Rule did not anticipate such 

a precipitous drop in workers’ wages 

and as a result, the Department seeks to 

rectify this adverse effect on agricultural 

workers. 

Furthermore, exclusive reliance on 

the traditional notion of the prevailing 

wage (i.e., the wage paid for that 

occupation in area of intended 

employment) is inappropriate to the 

unique circumstances of the H–2A 

program. The other temporary foreign 

labor programs administered by the 

Department are subject to statutory visa 

caps. Historically, those programs have 

not involved the influx of large numbers 

of foreign workers into a particular labor 

market. In these other programs, it is 

realistic to conclude that payment of a 

prevailing wage to the foreign workers 

will have no adverse effect on U.S. 

workers. This assumption is not valid in 

the H–2A context. The program is 

uncapped and experience indicates that 

it can involve large numbers of foreign 

workers entering a specific labor market. 

Under these circumstances employment 


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of foreign workers may produce wage 

stagnation in the local labor market. 

Access to an unlimited number of 

foreign workers in a particular labor 

market at the current prevailing wage 

would inevitably keep the prevailing 

wage improperly low. The most 

effective way to address this problem is 

to superimpose a wage floor based on a 

survey that encompasses a wide enough 

geographic area so that the wage 

depressing effect of the use of H–2A 

workers will be ameliorated if not 

completely avoided. 

b. Determining the Adverse Effect Wage 

Rate 

In the 2008 Final Rule, the 

Department changed the data on which 

the AEWR is based from the USDA 

Farm Labor Survey (FLS) to data from 

the BLS OES. Additionally, the 

Department added a four-tiered set of 

skill levels to permit wages to be set 

based on the relative complexity of the 

job activities. As recognized in the 2008 

rulemaking, the FLS and the OES survey 

are the leading candidates among 

agricultural wage surveys potentially 

available to the Department to set 

AEWRs. Although the Department 

solicited comment on the potential for 

alternative wage surveys in 2008, it 

received no ideas for useable alternative 

wage surveys. However, the Department 

again seeks comment on whether there 

are other approaches to calculating the 

AEWR that should be considered, as 

well as on its decision to revert to what 

it considers to be, on balance, a survey 

that provides more accurate and 

targeted data. 

The OES wage survey is among the 

largest ongoing statistical survey 

programs of the Federal Government. 

The OES program surveys 

approximately 200,000 establishments 

every 6 months, and over 3 years 

collects the full sample of 1.2 million 

establishments. The OES program 

collects occupational employment and 

wage data in every State in the U.S. and 

the data are published annually. The 

Department already uses OES wage data 

to determine prevailing wages in other 

temporary worker programs. 

The OES agricultural wage data, 

however, has a number of significant 

defects. Perhaps most significantly, BLS 

OES data do not include wages paid by 

farm employers. Rather, the OES focuses 

on establishments that support farm 

production, rather than engage in farm 

production. Given that the employees of 

non-farm establishments constitute a 

minority of the overall agricultural labor 

force, it can be argued that these data 

are therefore not representative of the 

farm labor supply, does not provide an 

appropriately representative sample for 

the labor engaged by H–2A employers. 

In contrast, the USDA FLS surveys 

between 11,000 and 13,000 farms and 

ranches each quarter on multiple 

subjects, including the number of hired 

farm workers, the gross wages paid to 

workers, and their total hours worked. 

Only farms and ranches with value of 

sales of $1,000 or more are included in 

the scope of the survey. Hired farm 

workers are defined as ‘‘anyone, other 

than an agricultural service worker, who 

was paid for at least 1 hour of 

agricultural work on a farm or ranch.’’ 

The survey seeks data on four types of 

hired workers: field workers, livestock 

workers, supervisors, and other workers. 

USDA, through the National 

Association of State Departments of 

Agriculture, uses four collection 

methods for the FLS: mail, CATI 

(computer-assisted telephone 

interviews), personal visits (for larger 

operations), and online (only about 2 

percent of respondents). The FLS 

sample is distributed across the entire 

country, with the geographic detail 

covering 15 multistate regions and 3 

stand-alone States. This broader 

geographic scope makes the FLS more 

consistent with both the nature of 

agricultural employment and the 

statutory intent of the H–2A program. 

Because of the seasonal nature of 

agricultural work, much of the labor 

force continues to follow a migratory 

pattern of employment that often 

encompasses large regions of the 

country. Congress recognized this 

unique characteristic of the agricultural 

labor market with its statutory 

requirement that employers recruit for 

labor in multistate regions as part of 

their labor market, prior to receiving a 

labor certification for employing H–2A 

workers. The 2008 Final Rule did not 

sufficiently account for this labor 

market attribute and the Department 

believes that by returning to the FLS’ 

regionally-based methodology that 

inconsistency will be remedied. 

USDA calculates and publishes 

average wage rates for four categories of 

workers each quarter. Wage rates are not 

calculated and published for 

supervisors or other workers, but are for 

field workers, livestock workers, field 

and livestock workers combined, and 

total hired workers. Within the FLS, the 

wage rates, or average hourly wage, by 

category are defined as the ratio of gross 

wages to total hours worked. To the 

extent workers receive incentive pay, 

the average wage rate would exceed the 

workers actual wage rate. Because the 

ratio of gross pay to hours worked may 

be greater than a workers’ actual wage 

rate, some statistics agencies refer to the 

ratio as average hourly earnings, and not 

as hourly wages or wage rate. 

The FLS-derived wage rate estimate 

for the four categories of workers is 

published quarterly, and annual 

averages are published as well. The 

Department has in the past used these 

annual averages to arrive at the annual 

AEWR. Before the implementation of 

the 2008 Final Rule, the Department 

used the regional annual average for the 

category field and livestock workers 

combined as the annual AEWR for each 

State within a given geographic region. 

The FLS survey and publication 

schedule provides timely data for 

purposes of calculating the relevant 

State AEWRs. The FLS is the only 

source of data on farm worker earnings 

that is routinely available and published 

within 1 month of the survey date. The 

quarterly gathering of data ensures that 

the annual averages are more accurately 

reflective of the fluctuations of farm 

labor patterns, which are by definition 

seasonal and thus more subject to 

fluctuation than other occupations. This 

is in contrast to the OES data which can 

lag in wage rate reporting by up to 3 

years and may be collected from surveys 

during times of the year when 

agricultural workers are not present in 

a specific geographic area, thus 

providing less precise calculations. 

The FLS is the only annually 

available data source that actually uses 

information sourced directly from 

farmers. The majority of farm workers 

are hired directly by farm operators. The 

FLS reports for 2008, for example, 

showed that 73.4 percent (730,800 per 

quarter on average) of all hired workers 

on farms had been directly hired by 

farm operators. The FLS also collects 

data on the number of workers and 

wages of workers performing 

agricultural services on farms (i.e., 

workers supplied by services 

contractors) in California and Florida. 

California and Florida account for the 

preponderance of agricultural service 

contract labor provided to farms. In 

2008, on average, California accounted 

for 42.6 percent (112,750) of the 

estimated national total 264,700 farm 

workers supplied under agricultural 

services contracts. 

The FLS is a scientifically-conducted 

quarterly survey of the wages of farm 

and livestock workers and includes 

small farms not covered in other 

surveys. The scope and frequency of the 

survey means that all crops and 

activities covered by the H–2A program 

are included in the survey data and that 

peak work periods are also covered. The 

Department believes that the average 

hourly wage, based on the FLS data, 

compensates for any wage depression or 


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stagnation resulting from the large 

numbers of undocumented workers in 

the agricultural labor market. Using this 

methodology, regional AEWRs will be 

calculated based on the previous year’s 

annual combined average hourly wage 

rate for field and livestock workers in 

each of 15 multistate regions and 3 

stand-alone States, as compiled by the 

USDA quarterly FLS Reports. In 

contrast, while the OES is an 

appropriate wage survey for other 

industries, it was not designed for the 

purpose of calculating an hourly wage 

for agricultural labor, does not survey 

farms and therefore does not provide 

data in the agricultural sector 

appropriate to what is needed to make 

the adverse effect wage determinations 

as required under the H–2A program. 

Therefore, the Department believes that 

the USDA FLS survey of farm and 

livestock workers presents the most 

appropriate data for determining the 

adverse effect wage in the agricultural 

sector for use in the H–2A program. 

For these reasons, the Department 

proposes to return to its 1989 

methodology for the formulation of the 

AEWR. The Department proposes to 

annually publish for each State the 

AEWR based on the average combined 

hourly wage for field and livestock 

workers for the four quarters of the prior 

calendar year from the USDA’s NASS 

FLS. The Department seeks comments 

on this methodology. 

The Department is also proposing to 

discontinue the process in the 2008 

Final Rule of including within the 

AEWR four wage levels reflecting 

differences based on required skill 

levels and levels of responsibility. It is 

our experience that the majority of hired 

farm labor, and the vast majority of 

labor for which H–2A certification is 

sought, is in low-skilled positions where 

wage differences are not driven by the 

level of skill required and responsibility 

required. Such skill differences are 

difficult to discern and create 

opportunities for error, either 

intentional or inadvertent. In addition, 

and perhaps most important, to 

whatever extent such differences may 

exist, no wage data is collected that 

could reasonably be used to identify 

them. 

The Department is also proposing a 

new provision in this NPRM: if a 

prevailing hourly wage or piece rate is 

announced by the Department as 

increasing during the work contract to 

such an extent as it becomes higher than 

the AEWR or the legal Federal or State 

minimum wage, the employer must pay 

the new amount for the remaining 

duration of the contract. This change in 

policy is intended to ensure workers are 

paid throughout the life of their 

contracts at an appropriate wage 

commensurate with the baseline of the 

market value of their services. The 

Department expects that in these rare 

instances it will notify employers of the 

new wage and allow a period of time to 

ensure compliance. 

2. § 655.121 Job Orders 

The INA requires employers to engage 

in recruitment through the Employment 

Service job clearance system, 

administered by the SWAs. See 8 U.S.C. 

1188(b)(4); see also 29 U.S.C. 49 et seq., 

and 20 CFR part 653, subpart F. This 

proposal requires the employer to place 

a job order with the SWA serving the 

area of intended employment for 

intrastate clearance in order to test the 

local labor market to confirm the lack of 

U.S. workers prior to filing an 

Application. This process is consistent 

with the 2008 Final Rule. This 

eliminates the needless expenditure of 

limited government resources 

processing Applications when U.S. 

workers are actually available. If the job 

opportunity is located in more than one 

State within the same area of intended 

employment, the employer may submit 

a job order to any one of the SWAs 

having jurisdiction over the anticipated 

worksites to place the job order, but that 

SWA must forward the job order to the 

companion SWAs to have it placed in 

all locations simultaneously. 

The employer must submit the job 

order to the SWA no more than 75 

calendar days and no fewer than 60 

calendar days before the date of need. 

Upon clearance and placement of the 

job order in intrastate clearance, the 

SWA must keep the job order on its 

active file until 50 percent of the H–2A 

contract period is reached, and must 

refer each U.S. worker who applies (or 

on whose behalf an Application is 

made) for the job opportunity during 

that time period. Any issue with respect 

to whether a job order may be properly 

placed in the intrastate clearance system 

that cannot be resolved with the 

applicable SWA must be first brought to 

the attention of the CO in the NPC. 

The placement of the job order in the 

intrastate clearance system is typically a 

conditional access to the employment 

service system, given the requirement 

that the employer provide housing that 

meets applicable standards. 20 CFR 

654.403(a). When the job order is placed 

in intrastate clearance, the SWA must 

inspect the housing that is to be 

provided to H–2A workers and those 

workers in corresponding employment 

who are not reasonably able to return to 

their residence within the same day. 20 

CFR 654.403(e). 

The Department has eliminated the 

requirement in the 2008 Final Rule that 

SWAs must complete the employment 

eligibility verification process (Form I– 

9 or Form I–9 plus E–Verify) for all 

workers referred to the job order by the 

SWA. This is a reversion to the 1987 

Rule, under which workers in most 

States self-attested that they were 

eligible to take up the employment, in 

other words that they met the definition 

of a U.S. worker or were authorized to 

be employed in the U.S. The 

Department has done so for several 

reasons. The Department, upon 

reconsideration of the rationale for this 

practice after decades of not requiring 

States to verify employment eligibility 

of referrals, has decided to again place 

the responsibility for H–2A employment 

eligibility verification back on the 

employer, where the statute places it as 

a primacy. A referral is not an offer of 

employment—the individual may not 

apply for and may reject the position, 

they may not even be offered the 

position; regardless there are legal 

distinctions between refer and hire 

which are again being separated with 

this decision. While the Department 

does not desire that SWAs should refer 

any undocumented workers to any H– 

2A job opportunities they assist, it is 

also a resource (both financial and 

human) issue for States to complete, 

update and maintain Forms I–9 for 

referrals. Most States rely on an 

attestation for ensuring the eligibility of 

applicants who utilize SWA resources 

other than H–2A job referrals (such as 

job skills training), and by returning to 

this practice States will ensure that no 

worker seeking services in the public 

workforce system is treated disparately. 

The operational benefits address two 

general categories of difficulty with I–9 

verification by SWAs: SWAs have been 

at best inconsistent in operationalizing 

the requirement and have reported back 

significant difficulties in doing so. 

SWAs offer decentralized services but 

the H–2A job orders are often handled 

in a central (single) location. Due to the 

necessity of physical inspection, more 

staff—some of whom are not State merit 

staff—must be trained to perform 

document inspection, especially in 

geographically large States. In addition, 

States forwarding workforce referrals to 

other States (e.g., traditional labor 

supply States) carry a disproportionate 

share of verification because of the 

higher number of referrals they are 

charged with sending on; the receiving 

States cannot assist as the worker is not 

physically present to present the 

documentation. Employment 

verification is moreover seen as 


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discriminatory in that SWAs must verify 

eligibility of only those referrals to H– 

2A job orders and are not required to 

verify referrals for non-H–2A job orders; 

this is particularly an issue given the 

typical ethnic makeup of migrant 

agricultural referrals. Further, referrals 

are disparately impacted; individuals 

that show up (or are sent) to the farm 

as so-called gate potential hires do not 

get the benefit of employment 

verification by the SWA but must be 

verified by the employer. Accordingly, 

workers will be handled by two 

processes—the employer and the State 

referring the worker. 

The 2008 Final Rule recommended 

use of E–Verify but did not (indeed 

could not) require its use by States. 

States have been extremely slow to use 

E–Verify, despite the efforts on the part 

of United States Citizenship and 

Immigration Services (USCIS) to 

implement access to E–Verify for SWAs 

and the training efforts of the 

Department to ensure States are 

comfortable in using it. This is in part 

because USCIS requires a State to apply 

equal use of E–Verify to all workers who 

are referred, which given the mandate 

for H–2A job orders only, is difficult to 

apply unless the State is required to (or 

agrees to) verify all referrals to all job 

orders and not only those it is required 

to do. In addition, the use of E–Verify 

requires the completion of the Form I– 

9, and is an extra step requiring already 

stretched resources. 

The Department has accordingly 

determined that SWAs may choose to 

complete employment eligibility 

verification on those individuals it 

refers in accordance with USCIS 

regulatory procedures, but are not 

required to do so. The Department 

believes that the administrative burdens 

of this activity do not outweigh its 

benefits. The savings to SWAs in time 

and human capital are more effectively 

directed at the core functions of the 

nation’s public workforce system, the 

effective placement of U.S. workers in 

appropriate job opportunities. 

3. § 655.122 Contents of Job Offers 

The job offer sets out the terms and 

conditions of employment contained 

within the job order. The employer can 

give this information to the workers by 

providing a copy of the job order or a 

separate work contract. A written job 

offer is critical to inform potential 

workers of the terms and conditions of 

employment and to demonstrate 

compliance with all of the obligations of 

the H–2A program. For H–2A program 

purposes, the job offer must contain, at 

a minimum, all of the worker 

protections that apply to both domestic 

and foreign workers pursuant to these 

regulations. The Department considers 

the job offer essential for providing the 

workers sufficient information to make 

informed employment decisions. The 

job order, which is the document 

representing the terms and conditions of 

the job offer, must be provided with its 

pertinent terms in a language the worker 

understands. 

The Department is proposing to retain 

most of the 2008 Final Rule 

requirements concerning job offers. As 

these requirements are familiar to the 

regulated community, the Department’s 

discussion below focuses solely on the 

main differences between this section 

and the corresponding section in the 

2008 Final Rule as well as minor 

nuances and clarifications. 

a. Prohibition against preferential 

treatment (§ 655.122(a)). 

The Department’s statutory obligation 

in administering the H–2A program 

dictates that the employer be required to 

extend a job offer containing the same 

benefits, wages and working conditions 

for both U.S. and foreign workers. An 

employer may not impose any 

additional restrictions or obligations on 

U.S. workers. Under the proposed 

regulations, the employer is also 

responsible for providing to the H–2A 

workers at least the same minimum 

level of benefits, wages, and working 

conditions that are being offered to U.S. 

workers. This additional requirement 

levels the playing field so that 

employers offer H–2A and U.S. workers 

the same minimum levels of benefits, 

wages, and working conditions. It is 

consistent with the approach taken by 

the Department in the 1987 Rule and is 

intended to provide parallel protections 

from exploitation for H–2A workers. 

b. Job qualifications and requirements 

(§ 655.122(b)). 

The Department proposes to retain the 

same requirements as in the 2008 Final 

Rule that the job requirements be bona 

fide and consistent with the normal and 

accepted qualifications required by 

employers that do not use H–2A 

workers for the same or comparable 

occupations and crops. In addition, the 

Department has made explicit that the 

CO or the SWA has the discretion to 

require that the employer submit 

documentation to justify the 

qualifications specified in the job order. 

c. Minimum benefits, wages, working 

conditions (§ 655.122(c)). 

The Department proposes to retain the 

identical provision from the 2008 Final 

Rule. 

d. Housing (§ 655.122(d)). 

The proposed regulation clarifies the 

employer’s obligation to provide 

housing both to H–2A workers and to 

workers in corresponding employment 

who are not reasonably able to return to 

their residence within the same day, for 

the entire duration of the contract 

period. The employer’s obligation to 

provide housing ends when the worker 

departs, voluntarily abandons 

employment, or is terminated for cause. 

The employer’s obligations with respect 

to housing standards, rental or public 

accommodations, open range housing, 

deposit charges, charges for public 

housing, and family housing under the 

proposed regulations have remained the 

same as under the 2008 Final Rule. With 

respect to certified housing that 

becomes unavailable, the Department is 

retaining most of the requirements of 

the 2008 Final Rule but is also 

proposing to require the SWA to 

promptly notify the employer of its 

obligation to cure deficiencies in the 

substituted housing, if the housing is 

found to be or becomes out of 

compliance with applicable housing 

standards after an inspection. To clarify 

the Department’s available remedies, the 

NPRM provides that the Department can 

deny a pending Application as well as 

revoke an existing certification. 

e. Workers’ compensation 

(§ 655.122(e)). 

The Department is proposing to retain 

the 2008 Final Rule requirements 

regarding an employer’s obligation to 

provide workers’ compensation 

insurance coverage in compliance with 

State law. To reflect a policy change to 

a full adjudication model, the 

Department is additionally requiring 

employers to provide the CO with proof 

of workers’ compensation insurance 

coverage, including the name of the 

insurance carrier, the insurance policy 

number, and proof that the coverage is 

in effect during the dates of need. This 

requirement is a return to the 

requirements of the 1987 Rule. 

f. Employer provided items 

(§ 655.122(f)). 

It is proposed that this section on 

employer-provided items be amended 

from the 2008 Final Rule to require 

employers to provide to the worker, 

without charge, all tools, supplies and 

equipment necessary to complete the 

job offered to them. 

g. Meals (§ 655.122(g)). 

The Department is proposing to retain 

identical requirements with regard to an 

employer’s obligation to provide meals 

to workers as those outlined in the 2008 

Final Rule. 

h. Transportation; daily subsistence 

(§ 655.122(h)). 

The Proposed Rule retains the 2008 

Final Rule requirement for 

transportation and daily subsistence 


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costs incurred by the worker when 

traveling to the employer’s place of 

employment. In addition, language has 

been added to place employers on 

notice that they may be subject to the 

FLSA that operates independently of the 

H–2A program and imposes 

requirements relating to deductions 

from wages. In providing notice to 

employers of companion FLSA 

requirements, the Department hopes to 

assure better protection of U.S. and 

foreign workers. When it is the 

prevailing practice among non-H–2A 

employers in the area of intended 

employment, or the employer offers the 

benefit to foreign workers, the employer 

must advance the transportation and 

subsistence costs to U.S. workers in 

corresponding employment as well. At 

the end of the work contract or if the 

employee is terminated without cause, 

the employer must also provide or pay 

for transportation costs and daily 

subsistence from the place of 

employment to the place from which 

the worker departed for work. In 

addition, the Department proposes to 

eliminate the limitation in the 2008 

Final Rule on the employer’s obligation 

to provide for travel expenses and 

subsistence for foreign workers only to 

and from the place of recruitment, i.e. 

the appropriate U.S. consulate or port of 

entry; this Proposed Rule requires the 

employer to pay the costs of 

transportation and subsistence from the 

worker’s home to and from the place of 

employment, as was required under the 

1987 Rule. 

(i) Transportation from place of 

employment. As noted above, the 

Department is proposing to keep the 

2008 Final Rule requirement for 

employers to provide transportation 

from the place of employment for 

workers who complete their work 

contract period. In addition, the 

Department proposes to include a 

requirement from the 1987 Rule which 

obligates either the initial or subsequent 

employer to cover the transportation 

and subsistence fees for the travel 

between the initial and subsequent 

worksite. The obligation to pay remains 

with the first H–2A employer if the 

subsequent H–2A employer has not 

contractually agreed to pay the travel 

expenses. In addition, this proposed 

paragraph incorporates a 2008 Final 

Rule requirement concerning displaced 

H–2A workers and places employers on 

notice that they are not relieved of their 

obligation to provide or pay for return 

transportation and subsistence if an H– 

2A worker is displaced as a result of an 

employer’s compliance with the 50 

percent rule. 

(ii) Employer-provided transportation. 

The 2008 Final Rule imposed 

mandatory compliance with applicable 

Federal, State or local laws and 

regulations regarding vehicle safety, 

driver licensure and vehicle insurance 

on the transportation between the living 

quarters and the worksite. The 

Department is now proposing to ensure 

this provision reflects similar existing 

compliance requirements for all 

employer-provided transportation. It is 

less an expansion however, of the 

requirement as much as an 

acknowledgment that such compliance 

requirements exist elsewhere, as these 

already exist in Federal, State or local 

transportation laws and regulations. The 

Department is ensuring that the 

requirement of compliance with these 

transportation and safety laws is 

reflected in the affirmative obligations 

to the workers. The Department 

anticipates that this will further ensure 

worker safety. 

i. Three-fourths guarantee 

(§ 655.122(i)). 

The Department is proposing to retain 

the three-fourths guarantee from the 

2008 Final Rule clarifying that the 

guarantee is to offer the worker 

employment for a total number of work 

hours equal to at least three-fourths of 

the workdays of the contract period, 

beginning with the first workday after 

the arrival of the worker at the place of 

employment. The Department proposes 

to retain the provision addressing 

displaced H–2A workers from the 2008 

Final Rule, except that the provision 

now refers to the reinstated 50 percent 

rule rather than the 30 day rule 

contained in the 2008 Final Rule. 

j. Earnings records (§ 655.122(j)). 

This proposed section mirrors the 

earning records requirements in the 

2008 Final Rule with one exception. 

Under the Proposed Rule, the employer 

must keep the earning records for 5 

instead of 3 years. 

k. Hours and earnings statements 

(§ 655.122(k)). 

Under the Proposed Rule, the 

employer would be required to provide 

to each worker hours and earnings 

statements that consist of all elements 

contained in the 2008 Final Rule plus 

two additional pieces of information: 

the beginning and ending dates of the 

pay period, and the employer’s name, 

address and Federal Employment 

Identification Number. 

l. Rate of pay (§ 655.122(l)). 

The Department is proposing to keep 

the 2008 Final Rule requirements 

regarding the rate of pay and is 

introducing an additional requirement 

to the job offer (already contained in the 

assurances and obligations of the 2008 

Final Rule) that provides that the 

offered wage may not be based on 

commission, bonuses, or other 

incentives, unless the employer 

guarantees a wage paid on a weekly, 

semi-monthly or monthly basis that 

equals or exceeds the AEWR, prevailing 

hourly wage or piece rate, or the legal 

Federal or State minimum wage, 

whichever is highest. The term semimonthly replaces the term biweekly 

from the 2008 Final Rule’s obligation. 

Additionally, the Department 

proposes to retain the requirement of 

the 2008 Final Rule that if the employer 

has a productivity standard associated 

with a piece rate payment, the 

productivity standard must be disclosed 

in the job offer. The Department also 

proposes to revive the requirement of 

the 1987 Rule that the productivity 

standard must also be no more than that 

required by the employer in 1977, or, if 

the employer first filed an Application 

after 1977, the employer’s productivity 

standard when it first filed an 

Application. If the productivity 

standard is higher than required by the 

employer in 1977 or when the employer 

first filed an Application, the 

productivity standard must be approved 

by the OFLC Administrator. 

m. Frequency of pay (§ 655.122(m)). 

The Department is proposing to retain 

most of the 2008 Final Rule 

requirements on pay frequency, 

requiring employers to pay wages at 

least twice a month (semi-monthly) and 

state the pay frequency in the job offer. 

However, the Department is proposing 

to add an option from the 1987 Rule, 

whereby employers may set pay 

frequency according to the prevailing 

practice in the area of intended 

employment, and proposes to add a new 

requirement that they employers must 

pay wages when due. 

n. Abandonment of employment or 

termination for cause (§ 655.122(n)). 

The Department’s proposal retains the 

requirements of the 2008 Final Rule on 

the abandonment of employment or 

termination for cause. However, one key 

difference from the 2008 Final Rule is 

that the Department has not included 

the express exception to abandonment 

or abscondment of a short-term 

unexcused absence; the Department is 

using a purely temporal (5 day) 

calculation to provide clarity. 

o. Contract impossibility 

(§ 655.122(o)). 

The Department proposes to retain the 

2008 Final Rule requirements regarding 

contract impossibility with one 

additional obligation, taken from the 

1987 Rule, under which an employer is 

required to make efforts to transfer the 

worker to other comparable 


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employment acceptable to the worker in 

the event the employer is prevented 

from fulfilling the requirements of the 

work contract. 

p. Deductions (§ 655.122(p)). 

Under the Proposed Rule, the 

employer must make all deductions 

required by law and must specify all 

other reasonable deductions in its job 

offer, just as under the 2008 Final Rule. 

In addition, subject to an employer’s 

compliance with applicable FLSA 

requirements, the Department proposes 

to once again permit an employer to 

deduct the cost of worker’s inbound 

transportation and daily subsistence 

expenses to the place of employment 

which were paid directly by the 

employer, but only if the worker is 

reimbursed the full amount of such 

deduction when he or she completes 50 

percent of the work contract period. 

This reimbursement must be inserted in 

the job order. 

q. Disclosure of work contract 

(§ 655.122(q)). 

Under this proposal, as under the 

2008 Final Rule, the employer must 

provide a copy of the work contract (or 

the job order in the absence of the 

separate, written contract) to the worker 

no later than on the day that work 

commences. As a new requirement 

under this NPRM, this disclosure, as 

necessary and reasonable, must be 

written in a language the worker 

understands. It is appropriate in a 

program administered by the 

Department that we obligate an 

employer to provide the terms and 

conditions of employment to a 

prospective worker in a manner 

permitting the worker to understand the 

nature of the employment being offered 

and the worker’s commitment under 

that employment. 

C. Application Filing Procedures 

1. § 655.130 Application Filing 

Requirements 

This provision sets out the basic 

requirements with which employers 

need to comply in order to file an 

Application. As discussed above, the 

proposed process begins with the filing 

of an Agricultural and Food Processing 

Clearance Order (Form ETA 790) with 

the SWA 60 to 75 days before the date 

of need. As discussed above, this 

required preliminary period permits the 

SWA, with its substantial knowledge of 

the local labor market and farming 

activities, to evaluate the job’s 

requirements. As was the case in the 

2008 Final Rule, a single Application is 

filed with only the NPC. This eliminates 

the duplication of effort that occurred 

under the 1987 regulations, in which 

OFLC and the SWA both received an 

Application and both spent time 

reviewing it. By requiring a submission 

of only one Application form with the 

NPC, the proposed regulation segregates 

the process into those activities best 

handled by each entity. 

The proposed provision also 

establishes filing deadlines consistent 

with the 2008 Final Rule. The 

Department is constrained by statute 

from requiring employers to file an 

Application more than 45 days prior to 

the date of need. 8 U.S.C. 1188(c)(1). 

The Department anticipates, based on 

decades of program experience, that it 

will continue to receive requests 45 

days prior to the date of need, although 

Applications may be voluntarily filed in 

advance of that date. 

The Department proposes to continue 

to receive Applications filed in the same 

paper format as currently filed until 

such time as an electronic system can be 

fully implemented. The Department 

proposes to use the Application for 

Temporary Employment Certification, 

Form ETA 9142, to collect the necessary 

information; the form’s appendices will 

be modified slightly to reflect changes 

from the 2008 Final Rule (such as a 

change of tense to note the prerecruitment filing of the Application). 

The Department has begun efforts to 

establish an online format for the 

submission of information, but as such 

a system depends upon the resolution of 

issues in rulemaking, its 

implementation necessitates a period 

during which paper Applications will 

continue to be accepted. The 

Department contemplated in its 2008 

rulemaking an electronic submission 

process; until such is developed, it will 

continue to accept paper Applications. 

This will assist employers familiar with 

the program, who are currently filing 

paper Applications and will thus have 

a less onerous transition. 

The proposed provision also sets out 

the requirement for obtaining 

signatures. As in the 2008 Final Rule, 

the Department is proposing to require 

original forms and signatures. One 

departure from the 2008 Final Rule is 

the requirement that an association, 

filing not as an association but as an 

agent for it members, obtain the 

signatures of all its employer-members 

before submitting the Application to the 

Department, to ensure that all members 

are fully aware of the obligations of the 

Application to which each member 

must adhere. 

The rule proposes that the employer 

will file the Application with an initial 

recruitment report, outlining the results 

of its initial recruitment attempts, 

including the results of referrals from its 

intrastate job order placed with the 

SWA, and any other efforts in which it 

has engaged. The employer will also file 

with the Application a copy of its ETA 

790 clearance order, so that the NPC 

may verify the order placed with the 

SWA against the terms and conditions 

provided on the Application. 

2. § 655.131 Association Filing 

Requirements 

a. Associations (§ 655.131(a)) 

The Department has previously 

permitted associations to file on behalf 

of their members. The proposed 

provision clarifies the role of 

associations as filers, in order to assist 

both the employer-members and the 

Department in assessing the obligations 

of each party. As in the past, an 

association will identify in what 

capacity it is filing, so there is no doubt 

as to whether the association is subject 

to the obligations of an agent or an 

employer (whether individual or joint). 

Both the 1987 and 2008 regulations 

required an association of agricultural 

producers filing an Application to 

identify whether the association is the 

sole employer, a joint employer with its 

employer-members, or the agent of its 

employer-members. 

b. Master Applications (§ 655.131(b)) 

Although the 1987 Rule did not 

specifically describe a master 

application that can be filed by 

associations, they are clearly 

contemplated by 8 U.S.C. 1188(d), and 

the Department has permitted master 

applications to be filed as a matter of 

practice. See 52 FR 20496, 20498, Jun. 

1, 1987 (cited in ETA Handbook No. 

398). The 2008 Final Rule explicitly 

permitted their use. This Proposed Rule 

continues to permit their use but 

narrows the scope of what constitutes 

an acceptable master application. The 

Proposed Rule continues to require a 

single date of need as a basic element 

for a master application. The 

Department proposes to retain the longstanding requirement that a master 

application may be filed only by an 

association acting as a joint employer 

with its members; the Proposed Rule 

reiterates this joint responsibility by 

requiring that the association identify 

all employer-members that will employ 

H–2A workers. The Application must 

demonstrate that each employer has 

agreed to the conditions of H–2A 

eligibility. 

The Department also proposes to 

revert to the long-established practice of 

permitting a master application only for 

the same occupation and comparable 

work within that occupation. However, 


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the Department proposes to modify that 

practice to limit such Applications to a 

single State. Requiring comparable work 

on a master application also reduces 

overstatement of need by employers and 

the potential for idling of workers, both 

domestic and H–2A. Workers applying 

to a job opportunity that is the subject 

of a master application are thus 

provided a more accurate start date and 

can gauge their own availability 

accordingly. The Department notes that 

similar crop activities are far more likely 

to link to the single date of need that is 

required. 

3. § 655.132 H–2A Labor Contractor 

(H–2ALC) Filing Requirements 

The proposed regulation sets out 

additional filing requirements for H–2A 

Labor Contractors (H–2ALCs), building 

upon those outlined as attestations for 

H–2ALCs in the 2008 Final Rule. We are 

proposing that H–2ALCs be required to 

provide certain basic information, such 

as the names and locations of each 

fixed-site farm or agricultural operation 

to which the H–2ALC has contracted to 

send the workers, as well as information 

regarding crop activities the workers 

will be performing at each site. The 

Department also proposes to require H– 

2ALCs to submit copies of all contracts 

with each fixed-site entity identified in 

its Application. In addition, the 

Department proposes to continue to 

require the submission of the Farm 

Labor Contractor Certificate of 

Registration, if MSPA requires the H– 

2ALC to have one. 

The Department is proposing to 

continue its requirement that an H– 

2ALC post a bond to demonstrate its 

ability to meet its financial obligations 

to its employees. This permits the 

Department to ensure labor contractors 

can meet their payroll and other 

obligations contained in the terms of the 

job order and the H–2A program 

obligations. Additionally, we are 

proposing that the H–2ALC be required 

to submit documentation of its surety 

bond. 

Finally, the Department is proposing 

to require that in situations where the 

fixed-site farm with which the H–2ALC 

has a contractual relationship is the 

entity that will be providing housing 

and/or transportation, the H–2ALC must 

provide proof that the housing complies 

with the applicable standards, and has 

been approved by the SWA, and that 

transportation provided complies with 

all applicable laws and regulations. 

4. § 655.133 Requirements for Agents 

The Department has long accepted 

Applications in many of its programs 

from agents. The Proposed Rule 

continues the long-standing practice of 

allowing employers to utilize agents to 

file the Application. However, in 

recognition of the unique relationship 

an agent has with an employer it 

represents before the Department, the 

proposed rule requires an agent to 

provide, as a part of the Application, a 

copy of the agreement by which it 

undertakes the representation—contract, 

agency agreement, or other proof of the 

relationship and the authority of the 

agent to represent the employer. In 

addition, the Department is requiring, 

for those agents who are required under 

MSPA to register as a farm labor 

contractor, proof of such registration. 

5. § 655.134 Emergency Situations 

The Department proposes to retain 

from both the 2008 Final Rule and its 

predecessor Rule the criteria for 

accepting and processing Applications 

filed less than 45 days before date of 

need on an emergency basis. The 

Department is proposing that emergency 

Applications continue to be accepted for 

employers who did not use the H–2A 

program in the previous year, or for any 

employer that has good and substantial 

cause. The predicate for accepting an 

Application on an emergency basis 

continues to be sufficient time for the 

employer to undertake an expedited test 

of the labor market. To meet the good 

and substantial cause test, the employer 

must provide to the CO detailed 

information describing the reason(s) 

which led to the request. Such cause is 

outlined in the regulation in a noninclusive fashion, including factors such 

as loss of U.S. workers from weatherrelated conditions and unforeseen 

events affecting the work activities. The 

discretion to determine good and 

substantial cause rests entirely with the 

CO. 

6. § 655.135 Assurances and 

Obligations of H–2A Employers 

In addition to commitments made to 

workers through the job order, 

employers seeking H–2A workers must 

provide additional assurances designed 

to ensure that the granting of the 

certification will not adversely affect the 

wages and working conditions of 

workers similarly employed in the U.S. 

Under this Proposed Rule, the 

employer must assure that the job 

opportunity is available to any qualified 

U.S. worker regardless of race, color, 

national origin, age, sex, religion, 

handicap or citizenship. Domestic 

applicants may only be rejected for 

lawful, job related reasons. 

Additionally, the employer must assure 

that there is no work stoppage or 

lockout at the worksite. 

As under the 1987 Rule, we propose 

that employers continue to work with 

the SWA(s) and accept referrals of all 

eligible U.S. workers who apply for the 

job until the completion of 50 percent 

of the contract period. In addition, the 

employers will have to conduct positive 

recruitment until the actual date on 

which the H–2A workers depart for the 

place of work, or 3 calendar days before 

the first date the employer requires the 

services of workers. 

In this NPRM the Department is 

proposing to reinstate the 50 percent 

rule, outlined in 8 U.S.C. 

1188(c)(3)(B)(i). The 50 percent rule is a 

creation of statute; it was added in IRCA 

to enhance domestic worker access to 

job opportunities for which H–2A 

workers were recruited. In short, the 

rule provided that the Department was 

to require that an employer seeking H– 

2A certifications agree to accept 

referrals through 50 percent of the 

contract period outlined on the job 

order. The Department seeks to enhance 

protections for U.S. workers, to the 

maximum extent possible, while 

balancing the potential costs to 

employers. The Department 

acknowledges that such increased 

referral activity imposes an additional 

cost on both employers and on SWAs. 

The burden on SWAs, however, is 

already a core labor market exchange 

function which they already provide to 

the nation’s workforce pursuant to the 

Wagner-Peyser Act (29 U.S.C. 49 et 

seq.). The cost on employers is lessened, 

to large extent, by the ability to 

discharge the H–2A worker upon the 

referral of a U.S. worker. In addition, the 

Department proposes retaining from the 

1987 Rule (and U.S.C. 1188(c)(3)(B)(ii)) 

the small farm exemption to the 50 

percent rule to minimize the adverse 

effect on those operations least able to 

absorb additional workers. 

The proposed regulation at 

§ 655.135(e) requires employers to 

assure that they will comply with all 

applicable Federal, State and local laws 

and regulations, including health and 

safety laws, during the period of 

employment that is the subject of the 

labor certification. Among other 

obligations employers may be subject to 

the provisions of the FLSA. This 

proposed requirement is intended to 

emphasize the important policy 

objective of protecting both U.S. and 

foreign workers and ensuring that both 

groups are afforded the protections to 

which they are entitled. 

Among other requirements, the 

Department is proposing to require 

employers to offer only full-time 

temporary employment of at least 35 

hours per work week, an increase from 


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the 30 hours per week in the 2008 Final 

Rule. The Department believes that a 35- 

hour work week more accurately reflects 

the work patterns of farm entities and 

strikes an appropriate balance between 

the employer’s needs and the 

employment and income needs of both 

U.S. and foreign workers. 

As in the 2008 Final Rule, an 

employer must guarantee that it has not 

laid off and will not lay off any similarly 

employed U.S. worker in the occupation 

in which the employer is seeking to hire 

H–2A workers within 60 days of the 

date of need. If the employer has laid off 

U.S. workers, the Department will 

require the employer to demonstrate 

that it has offered the job opportunities 

created by the lay offs to those laid-off 

U.S. workers(s) and the U.S. worker(s) 

either refused the job opportunity or 

was rejected for lawful, job-related 

reasons. This proposed requirement is 

intended to prevent the few 

unscrupulous employers from firing 

U.S. workers, then hiring H–2A workers 

to perform the same services under less 

advantageous working conditions, 

including lower wages and benefits, 

resulting in savings for the employers. 

Proposed § 655.135(h) would prohibit 

employers from intimidating, 

threatening, coercing, blacklisting, 

discharging or in any manner 

discriminating against complaining 

workers or former workers who file a 

complaint against the employer for 

violating 8 U.S.C. 1188 or who institute 

any proceeding against the employer or 

testify in any proceeding against the 

employer, or consult with an employee 

of a legal assistance program or an 

attorney on matters related to a 

proceeding against the employer, or 

exercise or assert any right or protection 

under the same section or under the 

Department’s H–2A regulations. 

The NPRM proposes to continue to 

require an employer to inform H–2A 

workers that they are required to depart 

the U.S. at the end of the certified work 

period, or if they become separated from 

the employer before the end of that 

period. The requirement that the 

workers depart applies to all H–2A 

workers who do not have a subsequent 

offer of employment from another H–2A 

employer. This continues a standing 

requirement in the program which 

parallels DHS regulations. Requiring 

employers to notify H–2A workers of 

their obligation to depart will help to 

ensure that the workers timely depart 

the U.S. without risking negative 

immigration consequences for overstays 

of their temporary work visas. This will 

enable workers to remain eligible to 

return the following season and assist 

the same or different employers if there 

are not sufficient qualified, able and 

willing U.S. workers. In addition, the 

proposed requirement ensures that the 

employers are aware that they may not 

offer employment to foreign workers 

which exceeds the period certified by 

the Department (and that approved by 

DHS) without violating their obligations 

under the program. 

As in the 2008 Final Rule and in 

conjunction with similar DHS 

regulations, the Department proposes to 

prohibit employers from passing on fees 

associated with the recruitment of 

workers recruited under 8 U.S.C. 1188 

to those workers, such as referral fees, 

retention fees, transfer fees, or similar 

charges. The Department proposes to 

define payment as monetary payments, 

wage concessions (including deductions 

from wages, salary or benefits), 

kickbacks, bribes, tributes, in-kind 

payments, and free labor. The 

Department believes that requiring 

employers to bear costs associated with 

the recruitment of foreign and domestic 

workers will incentivize employers to 

offer the terms and conditions that 

would most likely attract U.S. workers 

who are qualified, willing and able to 

perform the work. In addition, this 

prohibition protects the workers from 

becoming heavily indebted when 

applying for the job opportunities and 

vulnerable to exploitation by 

unscrupulous employers. As before, this 

provision does not prohibit employers 

or their agents from receiving 

reimbursement for costs that are the 

responsibility of the worker, such as 

government required passport fees. The 

Department has also removed visa fees, 

border inspection, and other 

government-mandated or authorized 

fees from consideration as an acceptable 

fee attributable to the worker. A visa fee 

for an H–2A visa is one directly 

attributable to the employer’s need for 

the worker to enter the U.S. to work for 

the employer; as such it is not 

reimbursable from the employee to the 

employer. 

In addition to prohibiting employers 

and their agents from collecting or 

soliciting fees from H–2A workers for 

the cost of recruitment, the proposed 

regulations require those employers to 

contractually forbid any foreign labor 

contractor or recruiter, or agent of such 

foreign labor contractor or recruiter, 

engaged in the international recruitment 

of H–2A workers from seeking or 

receiving payments, whether directly or 

indirectly, from prospective employees. 

This provision is also intended to 

ensure that the employer’s contractual 

obligations do not permit the passing of 

recruitment fees to foreign employees. 

As an additional element of worker 

protection, the Department proposes to 

require that employers post and 

maintain in conspicuous locations at the 

worksite a poster provided by the 

Department in English, and, to the 

extent necessary, language common to a 

significant portion of the workers if they 

are not fluent in English, which 

describes the rights and protections for 

workers employed pursuant to 8 U.S.C. 

1188. Providing such notification to 

workers through a poster at the worksite 

of their rights is consistent with other 

programs administered and enforced by 

the Department. Such a posting 

requirement is even more meaningful at 

remote worksites where agricultural 

workers are often employed. The 

posting requirement ensures that both 

H–2A and corresponding workers are 

aware of their rights and are provided 

with resources (in the form of phone 

numbers or contact information) which 

they may use to notify the Department 

of any issues at the worksite or report 

employers who fail to meet their 

obligations under the program. 

D. Processing of Applications 

1. § 655.140 Review of Applications 

Under the Department’s proposed 

regulations, upon receipt of each 

Application, job order, and other 

required documentation, the CO at the 

NPC will promptly conduct a 

comprehensive review of all 

documentation provided by the 

employer to ensure that the employer 

has complied with all applicable 

requirements and obligations. The 

timing of the review process is defined 

primarily in the INA, and therefore the 

Department’s procedures remain largely 

unchanged. The Proposed Rule, 

however, now requires that the 

Application be accompanied by 

required documentation supporting 

employer assurances. Additionally, the 

CO will have a greater role in 

substantively reviewing the Application 

for compliance with the requirements. 

2. § 655.141 Notice of Acceptance 

The Proposed Rule partially 

incorporates the requirements of the 

1987 Rule with respect to the process of 

accepting an Application. Under the 

proposal, the Notice of Acceptance from 

the CO grants conditional access to the 

interstate clearance system and directs 

the SWA to circulate a copy of the job 

order to the States the CO determines to 

be potential sources of U.S. workers. 

The Notice of Acceptance also directs 

the employer to engage in positive 

recruitment of U.S. workers during the 

same time period. Finally, each Notice 


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of Acceptance informs the employer 

that the Department will adjudicate the 

certification request no later than 30 

calendar days before the date of need, 

except in the case of modified 

Applications. 

Under the proposed regulations, the 

CO will review each employer’s 

Application to determine whether the 

employer has established the need for 

agricultural services or labor to be 

performed on a temporary or seasonal 

basis by temporary H–2A workers and 

met all the requirements and obligations 

required by these regulations. The CO 

will ensure that the employer has 

submitted the Application no less than 

45 days from the date of need and that 

it has previously submitted a copy of 

the job order to the SWA serving the 

area of intended employment for 

intrastate clearance. Further, the CO 

will look for a complete and appropriate 

job description, a full number of job 

openings and the appropriate dates of 

need. Most significantly, the CO will 

ensure that the employer is offering 

prospective workers an adequate offered 

wage rate. While conducting its review 

of the employer’s Application, the CO 

will also determine whether the 

employer has included complete 

housing information, proof of workers’ 

compensation coverage, the guarantee to 

provide to the workers travel 

reimbursement and meals/cooking 

facilities, and a promise to provide tools 

or items required for the position, as 

appropriate. The CO will ensure that the 

employer has agreed to offer to workers 

a total number of work hours equal to 

at least three-fourths of the workdays of 

the total contract period. 

3. § 655.142 Electronic Job Registry 

The Department proposes to post 

employers’ H–2A job orders, including 

modifications approved by the CO, into 

a national and publicly accessible 

electronic job registry. The job registry 

will be created and maintained by the 

Department and will serve as a public 

repository of H–2A job orders for the 

duration of 50 percent of the work 

contract. The job orders will be posted 

in the registry by a CO upon the 

acceptance of each submission. The 

posting of the job orders will not require 

any additional effort on the part of the 

SWAs or H–2A employers. 

The Department intends that this new 

national job registry will serve as an 

effective, user-friendly tool for 

informing and attracting U.S. workers to 

agricultural jobs for which H–2A 

workers are being recruited. In addition, 

the Department anticipates that the job 

registry will contribute to increased 

transparency in the H–2A labor 

certification approval process. The 

Department will inform all stakeholders 

of the creation of the job registry 

through a notice in the Federal Register 

and provide access through the 

Department’s resources, including its 

One-Stop Career Centers, as well as 

through a link to the job registry on the 

OFLC’s Web site http:// 

www.foreignlaborcert.doleta.gov/. 

4. §§ 655.143 and 655.144 Notice of 

Deficiency and Submission of Modified 

Applications 

As in the 2008 Final Rule, the 

Department proposes that if the CO 

determines that the Application or job 

order is incomplete, contains errors or 

inaccuracies, or fails to meet necessary 

regulatory requirements, the CO must 

notify each employer within 7 days that 

the Application does not meet standards 

for approval. This Notice of Deficiency 

will include the reason(s) why the 

Application is deficient and provide the 

employer with an opportunity to 

resubmit a modified Application. It will 

also identify the type of modification 

that is necessary in order for the CO to 

issue a Notice of Acceptance. In 

addition, the Notice of Deficiency must 

inform the employer that the CO will 

grant or deny the certification within 30 

days of the date of need as long as the 

employer submits a modified 

application within 5 business days. 

The Notice of Deficiency will also 

give an employer the opportunity to 

request expedited administrative review 

or a de novo administrative hearing 

before an ALJ and provide instructions 

on filing a written request for a hearing 

with the ALJ. Finally, the Notice of 

Deficiency will inform the employer 

that failing to act within 5 business days 

to either modify the Application or 

request an administrative hearing or 

review will result in the denial of that 

employer’s Application. 

The employer may submit a modified 

application within 5 business days of 

receiving a Notice of Deficiency. If an 

employer timely submits a modified 

application that meets conditions for 

acceptance, the CO will issue a Notice 

of Acceptance. For each day over the 5- 

day window, the CO may take up to one 

additional day to issue a Final 

Determination on the Application, up to 

a maximum of an additional 5 days. The 

Application will be considered to be 

abandoned if the employer does not 

submit a modified Application within 

12 calendar days (allowing for two 

periods of 5 business days each) after 

the Notice of Deficiency was issued. The 

12 days, which is more time than was 

allotted under the 2008 Final Rule, is a 

reasonable maximum period, given the 

statute’s concern for prompt processing 

of Applications and the time needed to 

obtain visas and bring in the workers by 

the date of need. 

5. § 655.145 Amendments to 

Applications for Temporary 

Employment Certification 

As in the 2008 Final Rule, the 

Department proposes that amendments 

to a request for labor certification for H– 

2A workers are permitted in two limited 

instances—where an employer desires 

to increase the number of workers 

requested, and where the employer 

makes minor changes to the period of 

employment. DHS regulations at 8 CFR 

214.2(h)(5)(x) provide for a limited 

maximum of 2-week extension in 

emergent circumstances (the temporary 

labor cert will be deemed to be 

approved for up to 2 weeks under such 

emergent circumstances (upon DHS 

approval of the 2-week extension 

request)). As proposed, an employer 

will be able to amend its Application 

with the Department at any time before 

the final determination without an 

obligation to submit a new Application 

(and conduct additional recruitment), to 

increase the number of workers 

requested by not more than 20 percent 

(50 percent for employers requesting 10 

workers or less). Requests for increases 

above these percentages will be 

approved by the CO only in limited 

circumstances when the employer can 

satisfy DOL that the need could not 

have been foreseen and the crops or 

commodities would be in jeopardy 

before the expiration of any additional 

recruitment period. 

For amendments to the period of 

employment, the Department proposes 

that the employer seek written approval 

in advance from the CO. The employer’s 

request must be justified, taking into 

account the effect of the change of the 

period of employment on the adequacy 

of the labor market test. An employer 

must demonstrate that the change to the 

period of employment could not have 

been foreseen, and the crops or 

commodities will be in jeopardy prior to 

the commencement of an additional 

recruitment period. In addition, if the 

change involves a delay in the date of 

need, the employer must offer 

assurances that workers who have 

already departed for the employer’s job 

site will be provided with housing and 

subsistence without cost to the workers 

until they begin working. 

E. Positive Recruitment and PostAcceptance Requirements 

The Department proposes, under new 

§§ 655.150–655.159, that employers be 

required to conduct the majority of their 


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recruitment after filing their Application 

at the direction of the NPC. The 

proposed post-acceptance recruitment is 

similar to the process used in the 1987 

Rule. The Department has determined 

that this oversight of recruitment is 

preferable to ensure the validity and 

adequacy of the labor market test in 

which the employer will engage. 

However, because the proposal retains 

the audit system introduced in the 2008 

Final Rule, employers must maintain all 

resumes and applications filed by the 

U.S. workers. U.S. worker recruitment 

will continue to use the steps that 

program experience has shown are the 

most appropriate for agricultural 

employment. These include the 

involvement of the SWAs, placement of 

two newspaper advertisements, contact 

with former U.S. employees, advertising 

in traditional or expected labor supply 

States, and as appropriate, contacting 

local unions. 

1. § 655.150 Interstate Clearance of Job 

Order 

The Department proposes to require 

the employer to test the labor market 

before filing the Application by 

submitting a job order to the SWA in the 

area of intended employment. As 

discussed previously, the SWA will 

place this order only in the intrastate job 

clearance system. If enough U.S. 

workers apply for the positions 

available and are qualified, able, and 

willing to perform the duties, then the 

employer cannot file with the 

Department for a labor certification. 

However, if the employer still has a 

need for foreign workers, then the 

employer files an Application with the 

NPC. Once the CO issues the Notice of 

Acceptance, the NPC will instruct the 

SWA to post the Job Clearance Order on 

its interstate job clearance system. 

Likewise, the NPC will inform the SWA 

of the traditional or expected labor 

supply States and the SWA will send 

the SWAs in those States the Job 

Clearance Order. 

2. § 655.151 Newspaper 

Advertisements 

Newspapers remain a potential 

recruitment source for U.S. workers 

likely to be affected by the introduction 

of H–2A labor. As in the 2008 Final 

Rule, the Department proposes to 

require two print advertisements in the 

State of intended employment. The 

newspaper advertisements can be on 

two consecutive days, but one of which 

must be on a Sunday or the day of the 

week with the largest circulation if there 

is no Sunday edition. Employers will be 

required to list the specifics of the 

newspaper advertisement on the 

Application but will not be required to 

submit tear sheets or other documentary 

evidence of that recruitment when the 

recruitment report is submitted. 

However, the employer will be required 

to maintain documentation of the actual 

advertisement(s) published in the event 

of an audit or other review. The 

Department is not requiring advertising 

in ethnic newspapers, but allows for 

this option if, in the discretion of the 

CO, it is normal and customary in the 

area of intended employment. 

3. § 655.152 Advertising Requirements 

Proposed § 655.152 retains the 

requirements of the 2008 Final Rule for 

the information that must be contained 

in the advertisements. However, the 

Proposed Rule requires the 

advertisements to be placed at the 

direction of the CO after the Application 

has been accepted. It also proposes to 

require employers with remote 

worksites to provide physical space or 

other assistance for the interviewing of 

U.S. workers in a place other than the 

worksite that is readily accessible to the 

population that is most likely to apply 

to the job opportunity. 

4. § 655.153 Contact with Former U.S. 

Employees 

The NPRM proposes to continue to 

require employers to contact former U.S. 

employees as included in the 2008 Final 

Rule. These contacts must occur during 

the pre-filing recruitment period. 

Contact with previous employees will 

be documented by maintaining copies of 

correspondence with such employees 

(or records of attempts to contact former 

employees). The recruitment report 

must contain a description of the 

outcome of those contacts, including the 

lawful, job-related reasons for not 

rehiring a former employee. This will 

increase the likelihood that former U.S. 

workers of the employer will receive 

advance notice of available job 

opportunities, as well as provide them 

with additional information on available 

positions. 

5. § 655.154 Additional Positive 

Recruitment 

The statute requires the Secretary to 

deny a petition if the employer has not 

made positive recruitment efforts within 

a multistate region of traditional or 

expected labor supply States and the 

Secretary finds that there are a 

significant number of qualified U.S. 

workers who, if recruited, would be 

willing to make themselves available for 

work at the time and place needed. 

Positive recruitment is in addition to 

and occurs within the same time period 

as the circulation of the job order 

through the interstate employment 

service system. The NPRM proposes 

that the Notice of Acceptance will 

instruct the employer how to conduct 

positive recruitment. If such traditional 

or expected labor supply States exist for 

an area of intended employment, the 

Notice of Acceptance will designate 

such States and the employer will be 

required to perform additional positive 

recruitment in those States. The type of 

recruitment that will be required of the 

employer is left to the discretion of the 

CO, but will be no less than the normal 

recruitment efforts of non-H–2A 

agricultural employers of comparable or 

smaller size in the area of intended 

employment. Such recruitment may 

include radio advertising, additional 

newspaper advertisements, and other 

targeted efforts. 

6. § 655.155 Referrals of U.S. Workers 

The NPRM proposes to return to the 

1987 Rule standard which required the 

SWAs to refer only those individuals 

who have been apprised of all the 

material terms and conditions of 

employment. Under those provisions, 

only those individuals who had 

indicated that they were able and 

willing to perform such duties, qualified 

and eligible to take such a job and 

available at the time and place required 

in the job order were referred. 

7. § 655.156 Recruitment Report 

The reporting of recruitment results 

has always been an element of the H– 

2 program. Under the 1987 Rule, if the 

employer did not hire a referred worker, 

the employer was required to inform the 

SWA of the lawful employment-related 

reason(s) for not hiring the worker. The 

2008 Final Rule formalized this process 

and required the preparation of a 

recruitment report, but the report was 

not sent to either the SWA or the NPC; 

instead the employer maintained the 

recruitment report in its records. The 

NPRM proposes to require that 

employers begin the recruitment report 

before they file their Application and 

continue to supplement it as referrals 

and applicants come in. The employer 

will be required to submit the initial 

recruitment report at the time of filing 

the Application with the NPC and to file 

an updated report by a date certain 

specified in the Notice of Acceptance. 

Finally, the employer will be required to 

continue to update the recruitment 

report until 50 percent of the contract 

period has expired at which time the 

SWA will cease referring U.S. workers. 

The complete recruitment report and all 

supporting documentation must be 

maintained by the employer for 5 years. 


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8. § 655.157 Withholding of U.S. 

Workers Prohibited 

The statute prohibits willfully and 

knowingly withholding domestic 

workers until the arrival of H–2A 

workers in order to force the hiring of 

domestic workers under the 50 percent 

rule. Both previous rules implemented 

the statutory prohibition by describing 

the procedure for filing complaints in 

such instances. Because the Department 

has now centralized many of the 

functions formerly performed by the 

SWAs, the NPRM proposes to have such 

complaints filed directly with the CO 

rather than first going through the SWA 

and having the SWA refer complaints to 

the CO. 

F. Labor Certification Determinations 

1. § 655.160 Determinations 

This NPRM proposes to continue to 

implement the Secretary’s statutory 

mandate to make determinations on 

Applications no later than 30 days prior 

to the date of need. 

2. § 655.161 Criteria for Certification 

The NPRM sets out the criteria by 

which the CO will determine the 

availability of U.S. workers. As in the 

2008 Final Rule, the CO will count as 

available those individuals who are 

rejected by the employer for any reason 

other than a lawful, job-related reason, 

or who are rejected and are not provided 

by the employer with a lawful, jobrelated reason for the rejection. 

3. § 655.162 Approved Certification 

The Department is proposing to 

continue the requirement from the 2008 

Final Rule that the CO will send the 

certified Application to the employer by 

means assuring next-day delivery. This 

is to ensure employers receive 

expeditious handling of their 

certifications. 

4. § 655.163 Certification Fee 

The Proposed Rule continues to 

require, as outlined in the statute, that 

each employer of H–2A workers under 

the Application (except joint employer 

associations, which may not be assessed 

a fee in addition to the fees assessed to 

the members of the association) must 

pay to the Department the appropriate 

certification fee. These processing fees 

are authorized by statute and set by 

regulations originally published at 52 

FR 20507, Jun. 1, 1987. The Department 

is updating the fees to an amount that 

more nearly approaches the reasonable 

costs of administering the H–2A 

program. 

The fee for each employer receiving a 

temporary agricultural labor 

certification will continue to be $100 

plus $10 for each H–2A worker certified 

under the Application. The fee to an 

employer for an individual Application 

will be continue to be capped at $1000, 

regardless of the number of H–2A 

workers that are certified. Non-payment 

or untimely payment of fees may be 

considered a violation subject to the 

procedures under § 655.182. 

5. § 655.164 Denied Certification 

The Proposed Rule retains the general 

provisions for denying certifications 

from the 2008 Final Rule. The final 

determination letter will state the 

reasons that the certification was denied 

and cite the relevant regulatory 

provisions and/or special procedures 

that govern. The Department will 

continue to provide the applicant an 

opportunity to appeal the 

determination. 

6. § 655.165 Partial Certification 

The Proposed Rule retains in large 

part the 2008 Final Rule provision 

explicitly providing that the CO may 

issue a partial certification, reducing 

either the period of need or the number 

of H–2A workers requested or both. The 

ability to issue a partial certification is 

necessary where the Department 

receives an Application with respect to 

which eligible and qualified U.S. 

workers have been successfully 

recruited prior to certification. A partial 

certification is issued by subtracting the 

number of available U.S. workers from 

the total number of workers requested. 

In addition an employer will have the 

ability to request administrative review. 

7. § 655.167 Document Retention 

Requirements 

The Proposed Rule retains a provision 

from the 2008 Final Rule requiring the 

retention of certain documentation 

demonstrating compliance with the 

program’s requirements, but increases 

the period of retention. Documents must 

be retained in hard copy for a period of 

5 years from the date of adjudication of 

the Application, up from the 2008 Final 

Rule’s 3-year requirement. Document 

retention is a necessary component of 

the H–2A certification process to 

respond to an audit or other 

investigation. 

G. Post-Certification Activities 

Proposed §§ 655.170 through 655.173 

concern various actions an employer 

may take after its H–2A Application has 

been adjudicated, including making a 

request for extension of certification, 

appealing a decision of the CO, 

withdrawing an Application, and 

petitioning for higher meal charges. 

Section 655.174 proposes a new 

publicly-accessible electronic database 

of employers who have applied for 

H–2A certification that the Department 

will maintain. 

1. § 655.170 Extensions 

Proposed § 655.170 contains the 

provisions governing an employer’s 

request for an extension of the time 

period for which an Application has 

been certified. Aside from two 

substantive changes, the provisions of 

this proposed section are the same as 

the provisions under the 2008 Final 

Rule, which were themselves similar to 

the provisions of the 1987 Rule. 

The substantive changes in the 

proposed section would permit the CO 

to notify an employer through means 

other than writing if time does not 

permit, or in writing if time permits, of 

the CO’s decision to grant or deny an 

extension of certification. This would 

enable COs to provide a decision in the 

fastest manner possible, when a delay 

for a formal writing would otherwise 

hamper the ability of the employer to 

act on the decision. The proposed 

regulation also would not allow an 

employer to appeal a denial of an 

extension. Under this Proposed Rule, 

there is no right to appeal a denied 

extension request. While the 

Department, in its discretion, allowed 

for appeals of denied extensions in the 

2008 Final Rule, the Department does 

not see sufficient justification to 

continue this practice. 

2. § 655.171 Appeals 

This section sets out the procedures 

for ALJ review of a decision of a CO. 

The substance of this section has 

remained the same since 1987, except 

that this proposed section allows an ALJ 

to remand a case to the CO, in addition 

to the ALJ’s existing ability to affirm, 

reverse, or modify a CO’s decision. 

The proposed section reorganizes the 

text in the corresponding sections of 

previous rules to enhance clarity and 

readability. The proposed section does 

not list the various CO decisions that 

may be appealed, such as a denial of 

certification, a decision to decline to 

accept an Application for consideration, 

or a denial of an amendment of an 

Application. Rather, the Proposed Rule 

is structured so that the right to appeal 

a particular decision of the CO is 

discussed in the sections of the rule that 

discuss the CO’s authority and 

procedure for making that particular 

decision. 


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3. § 655.172 Withdrawal of Job Order 

and Application for Temporary 

Employment Certification 

Proposed § 655.172 discusses the 

withdrawal of Applications. An 

employer may withdraw a job order 

from intrastate posting if the employer 

no longer plans to file an H–2A 

Application. However, withdrawal of a 

job order does not nullify the 

obligations the employer has to any 

workers recruited in connection with 

the placement of the job order before it 

was withdrawn. 

An employer may also seek to 

withdraw an Application after it has 

been accepted by the NPC. However, the 

employer is still obligated to comply 

with the terms and conditions of 

employment contained in the 

Application for workers recruited in 

connection with that Application. 

4. § 655.173 Setting Meal Charges; 

Petition for Higher Meal Charges 

The text of proposed § 655.173 is 

substantively the same as the text of the 

section governing meal charges in the 

2008 Final Rule. The proposed section 

contains some minor changes to the 

description of an employer’s right to 

appeal a denial of a petition for higher 

meal charges, primarily to refer to 

current appeal procedures. 

5. § 655.174 Public Disclosure 

This proposed section describes a 

new initiative of the Department: DOL 

will maintain an electronic database 

accessible to the public containing 

information on all employers who apply 

for H–2A labor certifications. The 

database will include information such 

as the number of workers the employer 

requests on an Application, the date an 

Application is filed, and the final 

disposition of an Application. 

H. Integrity Measures 

Proposed §§ 655.180 through 655.185 

have been grouped together under the 

heading Integrity Measures, describing 

those actions the Department may take 

to ensure that Applications filed with 

the Department are in fact compliant 

with the requirements of this subpart. 

1. § 655.180 Audit 

This section proposes how the 

Department will conduct audits of 

applications for which certifications 

have been granted. The regulatory text 

is substantively the same as the text of 

the audit section of the 2008 Final Rule, 

with minor changes to improve 

organization and readability. Like the 

2008 Final Rule, the proposed section 

states that the Department has the 

discretion to choose which labor 

certification requests will be audited. 

When an Application is selected for 

audit, the CO will send a letter to the 

employer (and its attorney or agent) 

listing the documentation the employer 

must submit and the date by which the 

documentation must be received by the 

CO. 

An employer’s failure to comply with 

the audit process may result in the 

revocation of certification or debarment, 

under proposed §§ 655.181 and 655.182. 

A CO may provide any findings made or 

documents received in the course of the 

audit to the WHD, DHS or other 

enforcement agency. The CO will refer 

any findings that an employer 

discriminated against an eligible U.S. 

worker to the Department of Justice, 

Civil Rights Division, Office of Special 

Counsel for Unfair Immigration Related 

Employment Practices. 

2. § 655.181 Revocation 

This proposed section describes the 

Department’s power to revoke an H–2A 

labor certification. The proposed section 

expands the grounds upon which the 

Department may revoke from those 

specified in the revocation (§ 655.117) 

in the 2008 Final Rule. Under the 

proposed section, the CO may revoke 

certification if the CO finds that it was 

not justified based on the requirements 

of the INA. This will allow the CO to 

correct situations where she finds that 

the labor certification should never have 

been granted. The CO may also revoke 

if the CO finds that the employer 

substantially violated a material term or 

condition of the approved labor 

certification. The definition of 

substantial violation is in the debarment 

section of these proposed regulations, at 

proposed § 655.182(d). Finally, the CO 

may revoke if she finds that the 

employer failed to cooperate with a DOL 

investigation, inspection, audit, or law 

enforcement function, or if she finds 

that the employer failed to comply with 

any sanction(s), remedy(ies), or order(s) 

of the Department. 

The proposed procedures for 

revocation are largely the same as the 

revocation procedures in the 2008 Final 

Rule. They have been revised for clarity 

and to provide that in the event of a 

revocation, the employer may either 

take advantage of the opportunity to 

submit rebuttal evidence to the CO, or 

the employer may file an administrative 

appeal under proposed § 655.171. 

The revocation procedure begins with 

the CO sending the employer a Notice 

of Revocation if the CO determines that 

certification should be revoked. Upon 

receiving the Notice of Revocation, the 

employer has two options: It may 

submit rebuttal evidence to the CO or 

the employer may appeal the revocation 

under the procedures in proposed 

§ 655.171. The employer must submit 

rebuttal evidence or appeal within 14 

days of the Notice of Revocation, or the 

Notice will be deemed the final decision 

of the Secretary, and the revocation will 

take effect immediately at the end of the 

14-day period. 

If the employer chooses to file rebuttal 

evidence, and the employer timely files 

that evidence, the CO will review it and 

inform the employer of her final 

determination on revocation within 14 

calendar days of receiving the rebuttal 

evidence. If the CO determines that the 

certification should be revoked, the CO 

will inform the employer of its right to 

appeal under proposed § 655.171. The 

employer must file the appeal of the 

CO’s final determination within 10 

calendar days, or the CO’s 

determination becomes the final 

decision of the Secretary and takes 

effect immediately after the 10-day 

period. 

If the employer chooses to appeal 

either in lieu of submitting rebuttal 

evidence, or after the CO makes a 

determination on the rebuttal evidence, 

the appeal will be conducted under the 

procedures contained in proposed 

§ 655.171. The timely filing of either 

rebuttal evidence or an administrative 

appeal stays the revocation pending the 

outcome of those proceedings. If labor 

certification is ultimately revoked, the 

CO will notify DHS and the Department 

of State. 

Proposed § 655.181(c) lists an 

employer’s continuing obligations if the 

employer’s H–2A certification is 

revoked. These obligations are the same 

as those listed in § 655.117(d) of the 

2008 Final Rule. 

3. § 655.182 Debarment 

Proposed § 655.182 describes the 

Department’s debarment authority and 

procedures, pursuant to 8 U.S.C. 

1188(b)(2). Sections 655.182(a–c) are 

substantively the same as § 655.118(a) 

–(c) of the Debarment section of the 

2008 Final Rule; they have been revised 

to provide clarity. Section 655.182(a) 

states that the OFLC Administrator may 

debar an employer if the Administrator 

finds that the employer has committed 

a substantial violation. Section 

655.182(b) states that the OFLC 

Administrator may debar an agent or 

attorney if the Administrator finds that 

the agent or attorney participated in, 

had knowledge of, or reason to know of 

an employer’s substantial violation. The 

OFLC Administrator will not issue a 

future labor certification to any 

employer represented by a debarred 

agent or attorney. Under paragraph (b), 


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the agent or attorney is the subject of the 

debarment; the OFLC Administrator 

may issue labor certifications to the 

same employer(s) if they are not 

represented by the debarred agent or 

attorney (unless of course the employer 

itself is also debarred). The 

Administrator may not commence 

debarment proceedings against an 

employer, attorney, or agent any later 

than 2 years after the substantial 

violation occurred. The Administrator 

may not debar an employer, attorney, or 

agent for longer than 3 years from the 

date of the Department’s final 

debarment decision. 

The statute at 8 U.S.C. 1188(b)(2) 

directs the Secretary to debar any 

employer who the Secretary determines 

has committed a substantial violation. 

Proposed §§ 655.182(d) and 655.182(e) 

work together to describe the violations 

that the CO may determine are so 

substantial as to merit debarment. 

Proposed § 655.182(d) defines a 

violation for purposes of debarment. 

The text of this section is similar to the 

text of § 655.118(d) of the 2008 Final 

Rule, with the following changes: 

• The proposed text of paragraph 

(d)(1) makes clear that there need only 

be one act of commission or omission 

that fits the criteria listed in paragraphs 

(d)(1)(i) through (x) to constitute a 

substantial violation; this replaces the 

2008 Final Rule’s requirement of a 

pattern or practice of acts. 

• Proposed paragraph (d)(1)(iii) is 

changed to say failure to comply with 

recruitment obligations rather than 

willful failure. 

• A new proposed paragraph (d)(iv) 

was added. Under the Proposed Rule, an 

employer’s improper layoff or 

displacement of U.S. workers or workers 

in corresponding employment may be a 

debarrable violation. 

• A new proposed paragraph (d)(vii) 

is added. Under the Proposed Rule, 

employing an H–2A worker outside the 

area of intended employment, in an 

activity/activities not listed in the job 

order, or outside the validity period of 

employment of the job order, including 

any approved extension of the job order 

may be a debarrable violation. 

• A new proposed paragraph (d)(viii) 

is added. This will permit debarments 

based on violations of § 655.135(j) & (k) 

which address employer fee shifting and 

related matters. 

• A new proposed paragraph (d)(ix) is 

added. Under the Proposed Rule, a 

violation of any of the antidiscrimination provisions listed in 29 

CFR 501.4(a) may be a debarrable 

violation. 

Proposed § 655.182(e) adds a 

description of the factors a CO may 

consider when determining when a 

violation is substantial for purposes of 

determining whether the violation 

merits debarment. This list of factors is 

not exclusive, but it offers some 

guidance to employers, attorneys, and 

agents as to what a CO commonly 

considers when determining whether a 

substantial violation has occurred. The 

factors are the same as those factors 

used by the WHD to determine whether 

to assess civil money penalties under 29 

CFR 501.19 or whether to debar under 

29 CFR 501.20. 

The independent debarment authority 

of the WHD is a new feature of the 

Proposed Rule. See proposed language 

at 29 CFR 501.20 and the corresponding 

preamble. Because both OFLC and the 

WHD have concurrent debarment 

jurisdiction, some changes have been 

added to the OFLC debarment 

procedures in the Proposed Rule to 

ensure that the procedures are 

consistent with the WHD debarment 

procedures. 

Proposed § 655.182(f) describes the 

procedures that will be followed in the 

event of an OFLC debarment. These 

procedures are the same as the 

debarment procedures contained in the 

2008 Final Rule, but these procedures 

would eliminate the Notice of Intent to 

Debar and the employer’s option to 

submit rebuttal evidence. Instead, the 

debarment procedures will begin with 

the OFLC Administrator sending a 

Notice of Debarment, and the same 

appeal opportunities as in the 2008 

Final Rule will follow. 

The Department believes that the 

provision for the employer to submit 

rebuttal evidence in response to an 

OFLC Notice of Debarment is 

unnecessary because of the reality of 

debarment under these proposed 

regulations: Most often, debarment will 

actually be done by the WHD. Because 

the WHD has more extensive 

investigation authority than the OFLC, 

any WHD debarment will come only 

after the WHD has conducted an 

extensive investigation in which the 

employer has many opportunities to 

submit evidence and otherwise 

communicate with the WHD official. 

Further, it is highly unlikely that any 

OFLC debarment would occur without 

the OFLC Administrator conducting an 

audit of the employer under proposed 

§ 655.180, so the employer will have 

had opportunity to submit evidence 

before the Notice of Debarment occurs. 

Because of this, the Department does 

not believe that the employer would 

need an additional opportunity to 

submit further evidence. Also, because 

the employer will have already had 

opportunities to submit evidence to the 

Department, and debarment will only be 

conducted if the OFLC Administrator 

believes that the employer has 

committed a serious, substantial 

violation, the Department believes that 

giving the employer an additional 

option to submit rebuttal evidence 

would cause inappropriate delay in the 

debarment proceedings. 

Another minor change was made in 

proposed § 655.182(f)(3), describing the 

ALJ’s decision after a debarment 

hearing; it adds that the ALJ will 

prepare the decision within 60 days 

after completion of the hearing and 

closing of the record. This time 

constraint is consistent with the newlyproposed debarment hearing procedures 

of the WHD. 

Proposed § 655.182(g) clarifies that 

while the WHD and OFLC will now 

have concurrent debarment jurisdiction, 

the two agencies may coordinate their 

activities so that a specific violation for 

which debarment is imposed will be 

cited in a single debarment proceeding. 

Proposed § 655.182(h–j) state the 

impact a determination to debar a 

member of an agricultural association 

has on the rest of the association or its 

individual members, the impact that a 

debarment of an agricultural association 

acting as a joint employer has on the 

association’s individual members, or the 

impact a debarment of an agricultural 

association acting as a sole employer 

has on the association. The text of these 

provisions is substantively the same as 

the text of § 655.118(f–h) of the 2008 

Final Rule. The one substantive change 

is in proposed paragraph (i), which 

states that a debarment of an 

agricultural association acting as a joint 

employer with its members will apply 

only to that association and not to any 

individual employer-member of the 

association, unless the OFLC 

Administrator determines that an 

employer-member participated in, had 

knowledge of, or had reason to know of 

the violation. Unlike the 2008 Final 

Rule, an employer-member’s knowledge 

of or reason to know of the association’s 

debarrable violation may give rise to 

debarment of that member, in addition 

to the member’s participation in the 

violation. 

4. § 655.183 Less Than Substantial 

Violations 

Proposed § 655.183 describes the CO’s 

actions if she determines that a less than 

substantial violation has occurred. The 

text of this section is the same as the 

text of the 1987 Rule, with a few nonsubstantive editorial changes. If the 

OFLC Administrator believes that a less 

than substantial violation may have had 

or will continue to have a chilling or 


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otherwise negative effect on the 

recruitment, employment, and retention 

of U.S. workers, the OFLC 

Administrator may require the employer 

to follow special procedures before and 

after the temporary labor certification 

determination. 

The OFLC Administrator will notify 

the employer (or agent or attorney) in 

writing of the special procedures which 

will be required in the coming year. The 

employer may request review of these 

special procedures according to the 

procedures of proposed § 655.171. If the 

OFLC Administrator determines that the 

employer has failed to comply with the 

special procedures, the Administrator 

will send a written notice to the 

employer, stating that the employer’s 

otherwise affirmative H–2A certification 

determination will be reduced by 25 

percent of the total number of H–2A 

workers requested (which cannot be 

more than those requested in the 

previous year) for a period of 1 year. 

Notice of such a reduction in the 

number of workers requested will be 

conveyed to the employer by the OFLC 

Administrator in the written 

certification determination. We have 

and will continue to provide for prompt 

notification to DHS and the Department 

of State (DOS) of any such 

determination. The employer may 

appeal the reduction in the number of 

workers according to the procedures in 

§ 655.171. If the ALJ affirms the OFLC 

Administrator’s determination that the 

employer has failed to comply with the 

required special procedures, the number 

of workers requested will be reduced. 

5. § 655.184 Applications Involving 

Fraud or Willful Misrepresentation 

Proposed § 655.184(a) is the same as 

§ 655.113(a) in the 2008 Final Rule, 

discussing investigation of fraud and 

willful misrepresentation. The section 

states that if a CO discovers possible 

fraud or willful misrepresentation 

concerning an Application, the CO may 

refer the matter for investigation to the 

WHD, DHS, or to the Department’s 

Office of Inspector General. 

Proposed § 655.184(b) revises 

§ 655.113(b) of the 2008 Final Rule to 

more accurately describe the 

ramifications of a determination of fraud 

or willful misrepresentation concerning 

an Application. If the WHD, a court, or 

the DHS determines that there was fraud 

or willful misrepresentation involving 

an Application, and the CO had granted 

certification of the fraudulent 

Application, the finding of fraud or 

misrepresentation will be grounds for 

the CO to revoke that certification. The 

finding may also merit debarment 

according to proposed § 655.182. 

6. § 655.185 Job Service Complaint 

System; Enforcement of Work Contracts 

Proposed § 655.185(a) contains the 

same provisions about complaints filed 

through the Job Service Complaint 

System as were in the 1987 Rule and the 

2008 Final Rule, with one addition. 

Proposed § 655.185(b) states that 

complaints alleging that an employer 

discriminated against eligible U.S. 

workers may be referred to the U.S. 

Department of Justice, Civil Rights 

Division, Office of Special Counsel for 

Unfair Immigration Related 

Employment Practices and was also 

included in the 2008 Final Rule. 

The Department has added a 

provision permitting allegations of fraud 

that are part of a complaint through the 

Job Service Complaint System to be 

brought to the CO. This will permit the 

CO to take any such actions as necessary 

to determine whether such allegations 

have any validity, such as an audit, and 

if such further inquiry has yielded 

information so as to call a certification 

into question, to determine whether 

there are any actions (revocation and/or 

debarment) that can be taken as a result. 

III. Revisions to 29 CFR Part 501 

Section 218(g)(2) of the INA 

authorizes the Secretary to take such 

actions, including imposing appropriate 

penalties and seeking appropriate 

injunctive relief and specific 

performance of contractual obligations, 

as may be necessary to ensure 

compliance with terms and conditions 

of employment under this section of the 

statute. The Secretary determined that 

enforcement of the contractual 

obligations of employers under the H– 

2A program is the responsibility of the 

WHD. Regulations at 29 CFR part 501 

were issued to implement the WHD’s 

responsibilities under the H–2A 

program; amendment of these 

regulations is part of this proposed 

rulemaking. 

Concurrent with the Department’s 

proposed regulations in 20 CFR part 

655, subpart B amending the 

certification of temporary employment 

of nonimmigrant H–2A workers, the 

Department proposes to amend its 

regulations at 29 CFR part 501 on 

enforcement under the H–2A program. 

Changes are proposed for enhanced 

enforcement to complement the 

certification process so that workers are 

appropriately protected when 

employers fail to meet the requirements 

of the H–2A program. Since this NPRM 

would make changes to the existing 

regulations in 29 CFR part 501, we have 

included the entire text of the regulation 

and not just the sections with proposed 

changes. 

A. General Provisions and Definitions 

Proposed § 501.2 has been broadened 

to allow broader information sharing 

and coordination between agencies both 

within and outside of DOL. Both WHD 

and OFLC will now have the express 

authority to share information for 

enforcement purposes, both with each 

other and with other agencies such as 

DHS and DOS which play a role in 

immigration enforcement. In addition, 

because ETA and WHD will have 

concurrent debarment authority under 

the proposal, the new regulation 

provides that a specific violation for 

which debarment is imposed will be 

cited in a single debarment proceeding, 

and that OFLC and the WHD may 

coordinate their activities to accomplish 

this result. It also provides that copies 

of final debarment decisions will be 

forwarded to DHS so that it can take 

appropriate action. 

Section 501.3 of the proposed 

regulations sets forth the definitions 

used in part 501, most of which are 

carried forward from § 501.10 of the 

2008 Final Rule. As in the 2008 Final 

Rule, proposed § 501.3 sets forth the 

same definitions in 20 CFR part 655, 

subpart B that pertain to 29 CFR part 

501. The discussion of definitions that 

are common to both 20 CFR 655.103 and 

501.3 can be found in the preamble for 

20 CFR part 655, subpart B above. 

The Department is proposing to 

modify language used in the 2008 Final 

Rule that defined ‘‘corresponding 

employment’’ as including only U.S. 

workers who are newly hired by the 

employer in the occupations and during 

the period of time set forth in the 

Application and thereby excluding U.S. 

workers who were already employed by 

the H–2A employer at the time the 

Application was filed. The Department 

is proposing to define ‘‘corresponding 

employment’’ more in keeping with the 

statutory language mandating that the 

importation of H–2A workers not 

adversely impact the wages and working 

conditions of workers similarly 

employed in the U.S. Corresponding 

employment would include non-H–2A 

workers employed by an employer 

whose Application was approved by 

ETA who are performing work included 

in the job order or any other agricultural 

work performed by the employer’s H– 

2A workers as long as such work is 

performed during the validity period of 

the job order. The definition includes 

both non-H–2A workers hired during 

the recruitment period required under 

these regulations and non-H–2A 


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workers already working for the 

employer when recruitment begins. 

In defining an H–2A worker, the INA 

gives the Secretary the authority to 

define in regulations the term 

‘‘agricultural labor or services,’’ with the 

requirement that the definition include 

agricultural labor or services as defined 

in the IRC, the FLSA, and the pressing 

of apples for cider on a farm. The work 

must also be of a temporary or seasonal 

nature. See 8 U.S.C. 

1101(a)(15)(h)(ii)(A). The activity of 

‘‘pressing apples for cider on a farm’’ 

was added to the statute by Public Law 

109–90, (October 18, 2005). As in the 

2008 Final Rule, the Department again 

proposes that the regulatory definition 

reflect the 2005 amendment, and the 

proposal adds an explanation of the 

term. 

The Department is also proposing to 

expand the regulatory definition of 

‘‘agricultural labor or services’’ to 

include certain reforestation activities 

and also pine straw activities. In 

addition, the Department proposes to 

retain the addition of logging 

employment that was included in the 

2008 Final Rule and seeks to clarify 

which logging employment activities 

qualify for H–2A status. Finally, the 

proposal deletes the 2008 Final Rule’s 

inclusion of minor and incidental work 

not listed on the Application and the 

handling, packing, processing, etc. of 

any agricultural or horticultural 

commodity. These changes are more 

fully discussed in the preamble for 20 

CFR part 655, subpart B above. Section 

501.6 (formerly § 501.5) has been 

substantially shortened and revised for 

clarity and to eliminate duplication. 

Section 501.7 (former § 501.6) is 

proposed to be broadened to require 

cooperation with any Federal official 

investigating, inspecting, or enforcing 

compliance with the statute or 

regulations. Section 501.8 has been 

renumbered from § 501.7 but is 

otherwise unchanged. 

B. Surety Bonds for H–2ALCs 

The number of Farm Labor 

Contractors (FLCs) applying for labor 

certifications enabling them to hire and 

employ H–2A workers has risen in 

recent years and is expected to continue 

to increase. The WHD’s enforcement 

experience demonstrates that FLCs are 

generally more likely to violate 

applicable requirements than fixed-site 

agricultural employers. To address this 

higher violation rate of FLCs and given 

the transient nature of FLCs, as well as 

to ensure compliance with H–2A 

obligations and to protect the safety and 

security of workers, WHD proposes to 

continue the 2008 Final Rule’s 

requirement that FLCs (called H–2ALCs 

in this Proposed Rule) must obtain and 

maintain a surety bond, based on the 

number of workers employed as listed 

on the Application, throughout the 

period the temporary labor certification 

is in effect, including any extensions 

thereof. WHD will have authority to 

make a claim against the surety bond to 

secure unpaid wages or other benefits 

due to workers employed under the 

labor certification. 

The proposed text of this section is 

similar to the text of the 2008 Final Rule 

discussing the bonding requirement; 

however, in addition to the surety bond 

amounts specified in the 2008 Final 

Rule, the Department proposes to add 

larger bonding requirements applicable 

to H–2ALCs with larger crews. Under 

this proposal, H–2ALCs seeking to 

employ 75 to 99 workers will be 

required to obtain a surety bond in the 

amount of $50,000, and H–2ALCs 

seeking to employ 100 or more workers 

will be required to obtain a surety bond 

in the amount of $75,000. 

Hypothetically, the proposed increased 

amount would address 2 weeks where 

no wages have been paid for crews of 

100 (40 hours × 2) × 9.25 (assumed 

AEWR) × 100 workers = $74,000. The 

Department specifically requests 

comments addressing the implications 

for H–2ALCs who may be subject to this 

requirement. 

The Department also proposes to 

change the requirement that H–2ALCs 

provide written notice to the WHD 

Administrator of cancellation or 

termination of the surety bonds from a 

30-day to a 45-day notice period. 

Finally, the proposal clarifies that the 

bond must remain in effect for at least 

2 years. However, if WHD has 

commenced any enforcement 

proceedings by that date, the bond must 

remain in effect until the conclusion of 

those proceedings and any appeals. 

The Department has not created a 

form specific to this bonding 

requirement, but instead proposes that 

documentation from the bond issuer be 

provided with the Application, 

identifying the name, address, phone 

number, and contact person for the 

surety, as well as providing the amount 

of the bond, date of its issuance and 

expiration and any identifying 

designation utilized by the surety for the 

bond. This requirement can be met by 

the applicant attaching a copy of the 

signed and dated document issued from 

the surety that shows the information 

required. This request for information is 

in keeping with the information that 

was required in the appendix for the 

ETA 9142 in the 2008 Final Rule. 

C. Enforcement Provisions 

In order to deter significant violations 

of the H–2A worker protection 

provisions, a number of changes and 

clarifications are proposed in the 

sanctions and remedies available under 

part 501 as discussed below. Most of 

these changes are consistent with those 

in the 2008 Final Rule. 

Proposed § 501.16 has been amended 

to provide WHD with express authority 

to pursue reinstatement and makewhole relief in cases of discrimination, 

or in cases in which U.S. workers have 

been improperly rejected, laid off, or 

displaced. In addition, the proposal 

would allow WHD to pursue recovery of 

recruiter fees or other costs improperly 

deducted or paid in violation of 

regulations forbidding such payments, 

including where the employer has not 

properly contractually prohibited its 

recruiter and agents from seeking or 

receiving such payments, directly or 

indirectly, as set forth in proposed 20 

CFR 655.135(j) and (k). Proposed 

§ 501.17 has been changed to clarify the 

differing roles and responsibilities of 

OFLC and WHD, and to note that both 

agencies have concurrent jurisdiction to 

impose debarment. However, as 

explained above, § 501.2 is designed to 

protect an employer from being 

debarred twice for a single violation. 

Proposed § 501.18 has been changed 

to conform to the statute, which 

provides for administrative appeals, but 

does not grant the Secretary 

independent litigating authority in civil 

litigation. 

Proposed § 501.19 is amended to 

increase the maximum civil money 

penalty (CMP) amount from $1,000 to 

$1,500 for each violation, in most cases. 

This amount has not been adjusted 

since 1987. The CMP of up to $5,000 for 

failure to meet a condition of the work 

contract, or for discrimination against a 

U.S. or H–2A worker who, in 

connection with the INA or these 

regulations has filed a complaint, has 

testified or is about to testify, has 

exercised or asserted a protected right, 

has been retained from the 2008 Final 

Rule. The Proposed Rule increases the 

penalty amount to no more than $15,000 

for a failure to meet a condition of the 

work contract that results in displacing 

a U.S. worker employed by the 

employer during the period of 

employment on the employer’s 

Application, or during the period of 60 

days preceding such period of 

employment. The Proposed Rule adds a 

penalty of an amount up to $15,000 for 

improperly rejecting a U.S. worker who 

has made application for employment. 


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These proposed penalties for violators 

who disregard their obligations would 

provide the Department with an 

effective tool to discourage potential 

abuse of the program. Such penalties 

will deter violations, discrimination and 

interference with investigations, and 

strengthen necessary enforcement of 

laws that protect workers who may be 

unlikely to approach government 

agencies to intercede on their behalf. 

The increase in certain penalties 

demonstrates the Department’s 

commitment to protecting workers. 

Further, if a violation of an applicable 

housing or transportation safety and 

health provision of the work contract 

causes the death or serious injury of any 

worker, the Department proposes a 

penalty of up to $50,000 per worker. 

Where the violation of safety and health 

provision involving death or serious 

injury is repeated or willful, the 

Department proposes to increase the 

maximum penalty to up to $100,000 per 

worker. 

The proposed penalties for such 

violations of applicable safety and 

health provisions would provide a 

meaningful assurance that participants 

meet their obligation to see that housing 

and/or transportation provided to the 

workers meets all applicable safety and 

health requirements and that housing 

and/or vehicles used in connection with 

employment do not endanger workers. 

The assessment of the maximum 

penalties available under proposed 

§ 501.19 would not be mandatory, but 

rather would be based on regulatory 

guidelines found in paragraph (b) of this 

section and the facts of each individual 

case. 

D. Debarment by the WHD 

The current regulations provide OFLC 

the authority to deny access to future 

certifications (i.e., debarment) and 

require the WHD to report findings in 

order to make a recommendation to 

OFLC to deny future certifications. 

Under proposed § 501.20, OFLC and 

WHD would have concurrent debarment 

authority, with WHD primarily 

concerned with issues arising from 

WHD investigations, while OFLC would 

focus on issues arising out of the 

application process. Both agencies may 

coordinate their activities whenever 

debarment is considered. The proposed 

standards for debarment within the 

WHD’s purview are identical to those 

proposed by OFLC for debarment 

actions under 20 CFR part 655, thus 

ensuring consistency in Application. 

This change will allow administrative 

hearings and appeals relating to back 

wages or other relief to employees or 

CMP’s assessed by the WHD to be 

consolidated with the debarment 

actions that arise from the same facts. 

This will not affect OFLC’s ability to 

institute its own debarment proceedings 

on issues that arise from the Application 

or OFLC’s proposed audits. Conforming 

changes are proposed to other sections 

in part 501 to reflect the proposed WHD 

debarment authority. 

The Department proposes to modify 

the criteria for debarment to eliminate 

the multiple thresholds in the 2008 

Final Rule, which required a pattern 

and practice of a violation that also 

must be significant. The proposed 

criteria require a substantial violation 

that includes a significant failure to 

comply with one or more of the 

provisions of the H–2A program. The 

criteria found in § 501.19(b) will be used 

in determining if a violation is 

substantial. 

Section 501.20 (j) and (k) are 

proposed to conform to the proposed 

changes in 20 CFR part 655, which 

provide OFLC the authority to revoke an 

existing certification, by allowing the 

WHD to recommend revocation to OFLC 

based upon the WHD’s investigative 

determinations. 

E. Administrative Proceedings 

The NPRM proposes few changes to 

the administrative proceedings set forth 

in §§ 501.30–501.47 of the 2008 Final 

Rule. Because the NPRM proposes to 

authorize the WHD to pursue debarment 

proceedings, rather than simply 

recommending debarment to OFLC, the 

NPRM adds references to debarment in 

§§ 501.30, 501.31, 501.32(a), and 

501.41(d). Those sections of the 

proposal also specify that these 

procedures will govern any hearing on 

an increase in the amount of a surety 

bond pursuant to proposed § 501.9(c). 

Finally, those sections of the proposal 

replace the term unpaid wages with the 

term monetary relief to reflect the fact 

that WHD may seek to recover other 

types of relief, such as if an employer 

fails to provide housing or meet the 

three-fourths guarantee. 

Proposed § 501.33 would permit 

hearing requests to be filed by overnight 

delivery, as well as by certified mail, 

and would reiterate that surety bonds 

must remain in force throughout any 

stay pending appeal. Section 501.34(b) 

provides discretion to the ALJ to ensure 

the production of relevant and probative 

evidence while excluding evidence that 

is immaterial, irrelevant or unduly 

repetitive without resort to the formal 

strictures of the Federal Rules of 

Evidence. This section conforms H–2A 

procedures to those used in the H–1B 

program. 

Other than very minor editorial 

changes or corrections of typographical 

errors, the NPRM proposes no other 

changes to §§ 501.30–501.47. 

IV. Administrative Information 

A. Executive Order 12866 

Under Executive Order (E.O.) 12866, 

the Department must determine whether 

a regulatory action is significant and 

therefore, subject to the requirements of 

the E.O. and subject to review by the 

Office of Management and Budget 

(OMB). Section 3(f) of the E.O. defines 

a ‘‘significant regulatory action’’ as an 

action that is likely to result in a rule 

that: (1) Has an annual effect on the 

economy of $100 million or more or 

adversely and materially affects a sector 

of the economy, productivity, 

competition, jobs, the environment, 

public health or safety, or State, local or 

Tribal governments or communities 

(also referred to as ‘‘economically 

significant’’); (2) creates serious 

inconsistency or otherwise interferes 

with an action taken or planned by 

another agency; (3) materially alters the 

budgetary impacts of entitlement grants, 

user fees, or loan programs or the rights 

and obligations of recipients thereof; or 

(4) raises novel legal or policy issues 

arising out of legal mandates, the 

President’s priorities, or the principles 

set forth in the E.O. 

The Department has determined that 

this NPRM is not an economically 

significant regulatory action under sec. 

3(f)(1) of E.O. 12866. The time frames 

and procedures for fixed-site 

agricultural employers, H–2ALCs, or an 

association of agricultural producermembers to file a job offer and 

Application, prepare supporting 

documentation, and satisfy the required 

assurances and obligations under the H– 

2A visa category, proposed under this 

regulation, are substantially similar to 

those under the 2008 Final Rule and 

would not have an annual economic 

impact of $100 million or more. The 

proposed regulation would not 

adversely affect the economy or any 

sector thereof, productivity, 

competition, jobs, the environment, nor 

public health or safety in a material 

way. In fact, this NPRM is intended to 

provide to agricultural employers clear 

and consistent guidance on the 

requirements for participation in the H– 

2A temporary agricultural worker 

program. The Department, however, has 

determined that this NPRM is a 

significant regulatory action under sec. 

3(f)(4) of the E.O. and accordingly OMB 

has reviewed this NPRM. 

The Department anticipates that the 

changes in this NPRM would have 


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2Source: H–2A Case Management System. Data 

extracted on July 10, 2009. 

limited net direct impact on employers, 

above and beyond the baseline of the 

current costs required by the program as 

it is currently implemented. Further, the 

Department does not anticipate that this 

NPRM would result in significant 

processing delays on its part or the 

SWAs, as the Department continues to 

operate under the statutory mandate to 

make a determination of whether or not 

the Application meets the threshold 

requirements for certification within 7 

days of filing. The Department is 

requesting comment on the benefits and 

costs of these policies, with the goal of 

ensuring a thorough consideration and 

discussion at the Final Rule stage. 

1. Need for Regulation 

The Department has determined that 

there are significant defects in the 2008 

Final Rule that necessitate new 

rulemaking. First, the Department has 

determined that there are insufficient 

worker protections in the attestationbased model in which employers do not 

actually demonstrate that they have 

performed an adequate test of the U.S. 

labor market. Even in the first year of 

the attestation model it has come to the 

Department’s attention that employers, 

either from a lack of understanding or 

otherwise, are attesting to compliance 

with program obligations with which 

they have not complied. This anecdotal 

evidence appears to be sufficiently 

substantial and widespread for the 

Department to revisit the use of 

attestations, even with the use of backend integrity measures for demonstrated 

non-compliance. 

The Department has also determined 

that the area in which agricultural 

workers are most vulnerable—wages— 

has been adversely impacted to a far 

more significant extent than anticipated 

by the 2008 Final Rule. As discussed 

further below, the shift from the AEWR 

as calculated under the 1987 Rule to the 

recalibration of the prevailing wage as 

the AEWR of the 2008 Final Rule 

resulted in a reduction of farmworker 

wages in a number of labor categories, 

and an increase in a few others. 

The 2008 Final H–2A Rule based the 

estimation of the AEWR on the OES 

Wage Survey collected by BLS. This 

NPRM changes the methodology for 

estimating the AEWR to the USDA 

survey. 

Using data from the OES Wage Survey 

for the States with the top-ten largest 

numbers of H–2A workers in the job 

classification of farmworkers and crop 

laborers (SOC–OES Code 45–2092.02), 

the Department estimates a weighted 

average hourly wage rate of $7.92. Using 

data from the USDA’s NASS FLS for the 

same States, the Department estimates a 

weighted average hourly wage rate of 

$9.36. Thus, the 2008 Final Rule is 

associated with a lower average hourly 

wages of approximately $1.44, 

equivalent to an 18 percent decrease. 

The table below displays the hourly 

wage rates under the two wage 

methodologies for the top 10 

agricultural states based on the total 

workers certified. The estimated wage 

rates for each of the top ten States 

would be higher under the NPRM where 

the Department proposes to base the 

methodology for calculating the AEWR 

on the USDA’s NASS FL survey. 

2008 Final rule 

Average hourly wage from 

OES survey 

Proposed 

NPRM 

average hourly 

wage from 

2009 AEWR 

USDA survey 

Differential 

wage 

decrease for 

workers under 

2008 final rule 

North Carolina .............................................................................................................................. $7.57 $9.34 ¥$1.77 

Kentucky ...................................................................................................................................... 7.39 9.41 ¥2.02 

Georgia ........................................................................................................................................ 7.44 8.77 ¥1.33 

Louisiana ...................................................................................................................................... 8.07 8.92 ¥0.85 

Tennessee ................................................................................................................................... 7.54 9.41 ¥1.87 

Virginia ......................................................................................................................................... 7.46 9.34 ¥1.88 

South Carolina ............................................................................................................................. 7.33 8.77 ¥1.44 

New York ..................................................................................................................................... 9.37 10.20 ¥0.83 

California ...................................................................................................................................... 9.37 10.16 ¥0.79 

Colorado ...................................................................................................................................... 8.72 9.88 ¥1.16 

The graph below displays program 

participation in the H–2A program for 

FY 2006, 2007, and 2008, as well as FY 

2009 before and after implementation of 

the 2008 Final Rule (through the end of 

June 2009). As shown in the graph, the 

H–2A program experienced increased 

participation from approximately 560 

Applications per month on average in 

FY 2006 to 903 Applications per month 

immediately prior to the 

implementation of the 2008 Final Rule. 

After the implementation of the 2008 

Final Rule, agricultural employer 

participation in the H–2A program 

decreased to approximately 773 

Applications per month.2 The 

Department is not certain of the source 

of this decrease, noting it has multiple 

origins, including economic 

weaknesses, including the relatively 

high rate of unemployment at that time; 

the presence of enhanced worker 

protections in the 2008 Final Rule that 

may have disincentivized employers 

from participation, the litigation to 

which the 2008 Final Rule was subject 

since prior to its implementation; and 

simple confusion on the part of 

potential program participants 

stemming from the new requirements. 


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3Source: 2007 Census of Agriculture, United 

States Department of Agriculture. 

4For the purposes of the cost-benefit analysis, the 

10-year period starts in the next fiscal year on 

October 1, 2009. 

To adequately protect U.S. and H–2A 

workers, the Department is proposing 

the changes discussed in the 

subsections below. The Department is 

engaging in new rulemaking to provide 

the affected public with notice and 

opportunity to engage in dialogue with 

the Department on the H–2A program. 

The Department took into account both 

the regulations promulgated in 1987, as 

well as the substantive reworking of the 

regulations in the 2008 Final Rule, in 

order to arrive at an NPRM that balances 

the worker protections of the 1987 Rule 

and the program integrity measures of 

the 2008 Final Rule. 

Much of the 2008 Final Rule has been 

retained in format, as it presents a more 

understandable regulatory roadmap; it 

has been used when its provisions do 

not conflict with the policies proposed 

in this NPRM. To the extent the 2008 

Final Rule presents a conflict with the 

policies underpinning this NPRM, it has 

been rewritten or the provisions of the 

1987 Rule have been adopted. To the 

extent the 1987 Rule furthers the 

policies that underlie this rule, those 

provisions have been retained. These 

changes are pointed out below. 

2. Alternatives 

The Department has considered three 

alternatives: (1) To make the policy 

changes contained in this NPRM; (2) to 

take no action, that is, to leave the 2008 

Final Rule intact; and (3) to revert to the 

1987 Rule. The Department believes that 

the first alternative—the policies 

contained in this NPRM—represents 

retention of the best features of both the 

1987 Rule and 2008 Final Rule. The 

Department has, for the reasons 

enunciated above, chosen not to retain 

the 2008 Final Rule. It has also rejected 

the reversion to the 1987 Rule as 

inefficient and ineffective given societal 

and economic changes that have 

occurred since its promulgation. 

The Department is requesting 

comment on other possible alternatives 

to consider, including alternatives on 

the specific provisions contained in this 

NPRM with the goal of ensuring a 

thorough consideration and discussion 

at the Final Rule stage. 

3. Analysis Considerations 

The economic analysis presented 

below covers the following economic 

sectors: crop production; animal 

production; activities for agriculture and 

forestry; logging; reforestation; and 

fishing, hunting, and trapping. In 2007, 

there were over 2.2 million farms of 

which 78 percent had annual sales of 

less than $50,000, 17 percent had 

annual sales of $50,000 to $499,999, and 

the remaining 5 percent had annual 

sales in excess of $500,000.3

The Department derives its estimates 

by comparing the baseline, that is, the 

program benefits and costs under the 

2008 Final Rule, against the benefits and 

costs associated with implementation of 

provisions contained in this NPRM. For 

a proper evaluation of the benefits and 

costs of the NPRM, we explain how the 

required actions of workers, employers, 

government agencies, and other related 

entities under the NPRM are linked to 

the expected benefits and costs. We also 

consider, where appropriate, the 

unintended consequences of the 

provisions introduced by the NPRM. 

The Department makes every effort, 

where feasible, to quantify and monetize 

the benefits and costs of the NPRM. 

Where we are unable to quantify them— 

for example, due to data limitations— 

we describe the benefits and costs 

qualitatively. Following OMB Circular 

A–4 and consistent with the 

Department’s practice in previous labor 

certification rulemaking, this analysis 

focuses on benefits and costs that accrue 

to citizens and residents of the U.S. The 

analysis covers 10 years to ensure it 

captures all major benefits and costs.4 In 

addition, the Department provides a 

qualitative assessment of transfer 

payments associated with the increased 

wages and protections of U.S. workers. 

Transfer payments are payments from 

one group to another that do not affect 

total resources available to society. 

When summarizing the benefits or costs 

of specific provisions of the NPRM, we 

present the 10-year averages to represent 

the typical annual effect or 10-year 

discounted totals to represent the 

overall effects. 

4. Subject-by-Subject Analysis 

The Department’s analysis below 

covers expected impacts of the 

following proposed provisions of the 

NPRM against the baseline: New 

methodology for estimating the AEWR, 

an enhanced U.S. worker referral period 

for employers after certification, 

increased costs to the Department for 

developing and maintaining an 

Electronic Job Registry, changes in 

administrative burdens placed on SWAs 

by increased time frames for recruitment 

and benefits from eliminating 

employment verification requirements, 

enhanced worker protections through 

compliance certification, enhanced 


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5See Julie L. Hotchkiss and Myriam QuispeAgnoli, ‘‘Employer Monopsony Power in the Labor 

Market for Undocumented Workers,’’ Federal 

Reserve Bank of Atlanta, Working Paper 2009–14a, 

June 2009. 

6See Source: Duffield, J.A. and R. Coltrane, 1992, 

‘‘Testing for Disequilibrium in the Hired Farm 

Labor Market,’’ American Journal of Agricultural 

Economics, 74: 412–20. 

7A recent study finds that the wage elasticity of 

labor demand in U.S. agriculture is ¥0.42. This 

indicates that for each 1 percent increase in wages 

for U.S. workers, the demand for their labor 

decreases by 0.42 percent. See Orachos 

Napasintuwong and Robert D. Emerson, ‘‘Induced 

Innovations and Foreign Workers in U.S.,’’ Institute 

of Food and Agricultural Sciences, University of 

Florida, Working Paper 05–03, March 2005. It is 

possible that this elasticity over-estimates the 

potential reduction in demand for U.S. workers as 

a result of the new methodology for estimating the 

AEWR because, in the context of the H–2A 

program, there are legal constraints (and associated 

potential penalties) for agricultural employers who 

would turn to undocumented workers as a result of 

the wage increase. The Department estimates that 

average wages will increase by 18.2 percent for U.S. 

workers. 

coverage of transportation expenses to 

and from the worker’s place of 

residence, and changes in the 

requirement for housing inspections. 

a. New Methodology for Estimating the 

AEWR 

The 2008 Final Rule based the 

estimation of the AEWR on the OES 

Wage Survey collected by BLS, rather 

than data compiled by the USDA, 

NASS, which was what was relied upon 

in the 1987 Rule. This NPRM changes 

the methodology for estimating the 

AEWR to the USDA survey. As 

explained above, the wage survey 

methodology proposed in this NPRM is 

associated with an hourly wage that is 

$1.44 higher than that under the 2008 

Final Rule. 

1. Benefits to U.S. Workers 

The higher wages for workers 

associated with the new methodology 

for estimating the AEWR represents a 

direct benefit to workers improving 

their ability to meet costs of living and 

spend money in local communities in 

which they are employed, and 

important concern to the current 

Administration and a key aspect of the 

Department’s mandate to ensure the 

wages and working conditions of 

similarly employed U.S. workers are not 

adversely affected. 

Labor market research indicates that 

as agricultural wages for U.S. workers 

increase, a larger number of U.S. 

workers decide it is economically 

feasible or desirable to participate in the 

agricultural labor force. Some of these 

workers would otherwise remain 

unemployed or out of the labor force 

entirely, earning no salary. This effect is 

captured by the so-called wage elasticity 

of the U.S. agricultural labor supply. A 

recent study finds that this elasticity is 

0.43, that is, for each 1 percent increase 

in wages, there is a 0.43 percent 

increase in labor supply by U.S. 

agricultural workers.5 Another study 

finds that the elasticity is 0.36.6

Although the increase in wages for 

documented workers in agriculture will 

lead to complex, hard-to-quantify labor 

market dynamics involving both labor 

supply and demand, the Department 

believes that the net effect may be 

increased employment opportunities for 

U.S. workers, which represent a U.S. 

societal benefit by engaging U.S. human 

resources in productive activity that 

may not otherwise occur. This impact is 

also a transfer in the sense the U.S. 

workers may displace temporary foreign 

workers in providing agricultural 

services or labor to employers. 

2. Transfers 

Transfer payments are payments from 

one group to another that do not affect 

total resources available to society. The 

increase in the wage rates for some 

workers also represents an important 

transfer from agricultural employers to 

H–2A and corresponding U.S. workers. 

As noted previously, the higher wages 

for workers associated with the new 

methodology for estimating the AEWR 

represents an improved ability on the 

part of workers and their families to 

meet costs of living and spend money in 

local communities. On the other hand, 

higher wages represent an increase in 

costs of production from the perspective 

of employers which on the margin 

creates a disincentive to hire H–2A and 

corresponding U.S. workers. There may 

also be a transfer resulting from a 

reduction in unemployment 

expenditures. Some previously 

unemployed individuals who were not 

willing to accept a job at the lower wage 

may now be willing to accept the job 

and would not need to seek new or 

continued unemployment insurance 

benefits. The Department, however, is 

not able to quantify these transfer 

payments with a high degree of 

precision. The factors that make the 

calculation uncertain include the actual 

entries of H–2A workers, the unknown 

quantity of corresponding U.S. workers, 

the types of occupations to be included 

in future filings; the ranges of wages in 

the areas of actual employment; and the 

point at which any occupation in any 

given area is subject to the prevailing 

wage (hourly or piece rate) or Federal or 

State minimum wage rather than the 

application of the OES or FLS survey to 

the calculation of the AEWR. The 

Department cannot assume the number 

of workers will remain constant for any 

given entity for its wage transfer. 

3. Costs 

In standard models of supply and 

demand an increase in the wage rate 

will lead to a reduction in the demand 

for agricultural labor. This is a loss in 

profits for agricultural employers that is 

not gained by anyone and is known as 

a deadweight loss. The deadweight loss 

is essentially the profits that employers 

were getting from being able to hire 

more workers at a lower wage. When the 

wage is reduced they will hire fewer 

workers overall and the benefit that 

those workers had produced will be lost 

to society. In order to estimate that lost 

benefit we would have to calculate the 

estimated reduction in employment 

assuming an elasticity of labor 

demand—the extent to which employers 

respond to an increase in wages by 

lowering employment. Using standard 

estimates of this elasticity the 

deadweight loss is not projected to be 

large.7

b. Enhanced U.S. Worker Referral 

Period 

Although the recruitment 

requirements of employers will not 

change substantively, this NPRM 

requires employers to accept referrals of 

qualified U.S. workers for temporary 

agricultural opportunities for a longer 

period of time after the job begins than 

the current regulation. Specifically, 

during the same time period as the 

employer places the advertisements, the 

NPRM requires SWAs to extend their 

job advertising efforts, on behalf of 

employers, to keep the job order on 

active status through 50 percent of the 

period of employment, as opposed to 30 

calendar days after the date of need 

under the current regulation. 

1. Benefits to U.S. Workers 

The enhanced referral period for 

employers after certification represents 

a benefit to society by expanding the 

period in which agricultural jobs are 

available to U.S. workers and, therefore, 

improving their employment 

opportunities. Here again, this is a U.S. 

societal benefit because it represents 

engaging U.S. human resources in 

productive activity that may not 

otherwise occur. 

2. Costs 

The extension of the referral period 

imposed by the NPRM will result in 

increased SWA staff time to maintain 

job orders for the new U.S. worker 

referrals. SWAs will need to maintain 

additional job orders for the new 

applicants to the H–2A program in the 


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8The Department assumes that it takes SWA staff 

30 additional minutes per application to maintain 

a job order. We assume that a State employee with 

a job title of ‘‘Compensation, Benefits, and Job 

Analysis Specialists’’ conducts this activity. Their 

median hourly wage is $21.69, which we increased 

by 1.53 to account for employee benefits (source: 

Bureau of Labor Statistics). 

9The Department assumes that Department staff 

(GS–12, step 5) spend one additional hour to review 

each application. The hourly salary for a GS–12, 

step 5 staff was multiplied by an index of 1.69 to 

account for employee benefits and proportional 

operating costs, resulting in an hourly rate of 

$52.96. The 1.69 index is derived by using the 

Bureau of Labor Statistics’ index for salary and 

benefits plus the Department’s analysis of overhead 

costs averaged over all employees of the 

Department’s Office of Foreign Labor Certification. 

10The Department assumes that one additional 

file drawer will be required per employer. 

11A benefit to U.S. workers could still exist even 

if these workers were employed elsewhere: Their 

departure from their old jobs will open up new 

employment opportunities for other U.S. workers. 

12The Department assumes the following firstyear development, testing, and implementation staff 

time for the following labor categories: Project 

Manager II—1,253 hours, Computer Systems 

Analyst II—1,253 hours, Computer Systems Analyst 

III—2,037 hours, Computer Programmer III—3,995 

hours, Computer Programmer IV—3,995 hours. For 

out-year maintenance costs, the Department 

assumes that 376 hours will be required for the 

following labor categories: Program Manager, 

Computer Systems Analyst II & III, Computer 

Programmer III & IV, Computer Programmer 

Manager, Data Architect, Web Designer, Database 

Analyst, Technical Writer II, Help Desk Support 

Analyst, and Production Support Manager. Finally, 

the Department uses the following loaded rates 

based on an Independent Government Cost Estimate 

(ICGE) produced by OFLC and inclusive of direct 

labor and overhead costs for each labor category: 

Program Manager—$138.34, Project Manager II— 

$106.90, Computer Systems Analyst II—$92.14, 

Computer Systems Analyst III—$109.84, Computer 

Programmer III—$89.63, Computer Programmer 

IV—$107.72, Computer Programmer Manager— 

$123.88, Data Architect—$104.99, Web Designer— 

$124.76, Database Analyst—$77.80, Technical 

Writer II—$84.81, Help Desk Support Analyst— 

$55.28, Production Support Manager—$125.76. 

States in which temporary workers are 

expected to perform work and for all 

applicants to the H–2A program in the 

States designated as States of traditional 

or expected labor supply. The 

Department estimates the average 

annual cost associated with this activity 

to be $0.4 million.8

The Department recognizes a cost to 

employers is the requirement that they 

accept more referrals through a longer 

time period of the contract. The 

Department does not, however, have 

sufficient data on the number of average 

additional referrals (and the ensuing 

additional cost in terms of contractual 

obligations to a greater number of 

workers) to accurately monetize such a 

cost to employers, and invites comment 

from employers who may have such 

data. The Department recognizes 

however that the cost to employers of 

additional work-related expenses may 

be offset to a certain extent by increased 

productivity. 

The expansion of DOL oversight of 

the H–2A program will result in 

increased time for the Department to 

review Applications. We estimate this 

cost by multiplying the total number of 

new Applications by the time required 

for Department staff to review each 

Application, and then by the average 

hourly compensation of this staff. The 

Department estimates the average 

annual cost associated with this activity 

to be $0.6 million.9

The NPRM proposes to require that 

employers maintain a complete 

recruitment report and all supporting 

documentation for 5 years (rather than 

3 years under the 2008 Final Rule. The 

Department assumes that this will 

require all H–2A employers to purchase 

additional file storage in the first year of 

the Proposed Rule.10 After the first year, 

the Department assumes that only new 

applicants to the H–2A program will be 

required to purchase additional storage. 

The Department estimates average 

annual costs of increased storage to be 

approximately $0.06 million. 

3. Transfers 

In addition, U.S. workers hired who 

were previously unemployed will no 

longer need to seek new or continued 

unemployment insurance benefits.11

Other things constant, we expect the 

States to experience a reduction in 

unemployment insurance expenditures 

as a consequence of U.S. workers being 

hired. The Department, however, is not 

able to quantify these transfer payments 

due to a lack of adequate data. 

c. New Electronic Job Registry 

Under the NPRM, the Department will 

create and maintain an electronic job 

registry. The Department will post and 

maintain employers’ H–2A job orders, 

including modifications approved by 

the CO, in a national and publicly 

accessible electronic job registry. The 

job registry will serve as a public 

repository of H–2A job orders for the 

duration of the enhanced U.S. worker 

referral period: 50 percent of the 

certified period of employment. The job 

orders will be posted in the registry by 

a CO upon the acceptance of each 

submission. The posting of the job 

orders will not require any additional 

effort on the part of the SWAs or H–2A 

employers. 

1. Benefits 

The job registry will improve the 

visibility of agricultural jobs to U.S. 

workers. Thus, the job registry 

represents a benefit to U.S. society by 

expanding the period in which 

agricultural jobs are available to U.S. 

workers and, therefore, improving their 

employment opportunities. In addition, 

the establishment of a job registry will 

provide greater transparency with 

respect to the Department’s 

administration of the H–2A program to 

the public, members of Congress, and 

other related stakeholders. Transferring 

these agricultural job orders (Form ETA 

790 and attachments) into electronic 

records for the job registry will 

eliminate unnecessary paper records 

currently being maintained by the CO 

and result in a better and more complete 

record of jobs petitioned for H–2A labor 

certification. Finally, since the Form 

ETA 790 and attachments are some of 

the most commonly requested 

documents by members of the public, 

Congress, and other stakeholders, the 

Department anticipates some reduction 

in FOIA requests for these agricultural 

job orders thereby saving staff time and 

resources. 

2. Costs 

The establishment of an electronic job 

registry in the NPRM imposes several 

costs directly on the Department: The 

increased costs for developing business 

requirements and design documentation 

outlining the functional components of 

the job registry; increased costs for 

application programming, testing, and 

implementation of the Electronic Job 

Registry into a production environment; 

increased costs to maintain and 

continuously improve the Electronic Job 

Registry; and additional staff time to 

maintain job orders placed on the 

registry. The Department expects that 

the majority of costs to develop and 

implement the new Electronic Job 

Registry will occur within the first 12 

months of implementing the regulation. 

Out-year costs will include maintenance 

and additional staff time to maintain job 

orders on the registry. The Department 

estimates average annual costs of 

maintaining an electronic job registry to 

be approximately $0.5 million.12

d. Reduced SWA Administrative 

Burden by Eliminating Employment 

Verification 

Under this NPRM, SWA’s will no 

longer be responsible for conducting 

employment eligibility verification 

activities. These activities include the 

completion of the Form I–9 and the 

vetting of Application documents by 

SWA personnel. There will, however, be 

additional costs to employers as they 

resume the function of their own 

employment eligibility verification for 

all employees, not only those for whom 

a certification is received from the SWA. 


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13The cost estimate assumes the use of the Form 

I–9 rather than the E-Verify system. The most recent 

count indicates that only four SWAs are using EVerify. 

14To estimate the cost per application, the 

Department sums the time for the SWA staff to 

complete the Form I–9, the time required to review 

employment eligibility documents, and the time to 

file the completed form in a systematic manner. The 

Department then divides this result by 60 to 

approximate the fraction of an hour required to 

process each application and multiplies this 

fraction by the hourly compensation of an SWA 

Compensation, Benefits, and Job Analysis Specialist 

scaled by 1.52 to account for employee benefits. 

15The Department estimates the cost of staff time 

by multiplying the number of U.S. farm workers 

who are referred to H–2A jobs through One-Stop 

Career Centers by the time required to print the 

form (5 minutes) and the hourly labor 

compensation of an SWA Compensation, Benefits, 

and Job Analysis Specialist scaled by 1.52 to 

account for employee benefits. The Department 

then adds the cost per application by the number 

of U.S. farm workers who are referred to H–2A jobs 

through One-Stop Career Centers by the cost per 

application, assuming that the cost of a sheet of 

paper, cost of an envelope, and cost of postage per 

envelope are $0.02, $0.04, and $0.42, respectively. 

16The Department estimates the cost of staff time 

by multiplying the total number of H–2A workers 

requested by the time required to copy, organize, 

and store all relevant documents (5 minutes) and 

the hourly labor compensation of an SWA 

Compensation, Benefits, and Job Analysis Specialist 

scaled by 1.52 to account for employee benefits. 

The Department then adds the cost per record by 

multiplying the total number of H–2A workers by 

the cost per record, assuming the number of sheets 

photocopied is 5 and cost per photocopy is $0.12. 

17The Department estimates the avoided costs of 

attending training courses by multiplying the 

number of One-Stop Career Centers (1,794) by the 

number of workers trained per center (2), the length 

of training (3 hours), and the hourly labor 

compensation of an SWA Compensation, Benefits, 

and Job Analysis Specialist scaled by 1.52 to 

account for employee benefits. The Department 

estimates the avoided costs of trainer workload by 

multiplying the number of trainers (1 per 5 OneStop Career Centers, or 359 trainers) by the length 

of training (3 hours) and the hourly labor 

compensation of an SWA Compensation, Benefits, 

and Job Analysis Specialist scaled by 1.52 to 

account for employee benefits. The Department 

estimates the avoided cost of producing training 

manuals by multiplying the number of One-Stop 

Career Centers (1,794) by the number of workers 

trained per center (2), the pages per training manual 

(30) and the cost per photocopy ($0.12). 

18The Department estimates that 150 additional 

pages will need to be photocopied at a cost of $0.12 

per photocopy. The additional pages weigh 

approximately 17.6 ounces and require $0.80 in 

postage per application. This cost estimate is based 

on mailing the additional 150 pages via Priority 

Mail (2-day delivery) from Topeka, Kansas to the 

NPC in Chicago (source: http://postcalc.usps.gov). 

19The Department projects the annual number of 

applications to be approximately 9,785 in 2009 and 

increase to 26,427 by 2018, of which approximately 

3,262 and 2,787 of the applications submitted in 

2009 and 2018, respectively, would not have been 

previously submitted. For applications that would 

not have been previously submitted, the 

Department assumes that preparing an application 

using the certification application process, as 

compared to the attestation process, will result in 

Continued 

1. Benefits 

Under the 2008 Final Rule, SWAs are 

required to complete Form I–9 for 

agricultural job orders and inspect and 

verify the employment eligibility 

documents furnished by the 

applicants.13 Under the NPRM, SWAs 

will no longer be required to complete 

this process, resulting in cost savings. 

To estimate the avoided costs of 

employment eligibility verification 

activities, the Department multiplies the 

estimated number of U.S. farm workers 

that are referred to H–2A jobs through 

One-Stop Career Centers by the cost per 

Application.14 The Department 

estimates average annual avoided costs 

of employment eligibility verification 

activities to be $ 0.03 million. 

After the adjudication of employment 

eligibility, SWAs issue certifications for 

eligible workers. Under the NPRM, 

SWAs will no longer be required to 

issue such certifications. The avoided 

costs include the staff time to prepare 

and print the certification form as well 

as the costs of paper, envelopes, and 

postage. The Department estimates 

average annual avoided costs of 

certification issuance to be $0.02 

million.15

SWAs are also required to retain 

records for the employment eligibility 

decisions. Under the NPRM, SWAs will 

no longer be required to retain the 

records. The avoided costs include the 

staff time to copy, organize, and store all 

relevant documents as well as the 

material costs of paper and photocopy 

machine use. The Department estimates 

average annual avoided costs equal to 

approximately $0.02 million.16

The employment eligibility 

verification activities currently in place 

require the training of SWA to properly 

complete the process. Under the NPRM, 

SWAs will no longer incur the costs of 

this training. These costs include the 

staff time to attend training courses, the 

staff time to teach training courses, and 

the material costs of producing training 

manuals. The Department estimates 

average annual avoided costs of SWA 

staff training equal to approximately 

$0.4 million.17

2. Costs 

The Department acknowledges the 

increase in cost faced by employers to 

perform employment eligibility 

verification on referred employees who 

will, under this NPRM, no longer be 

verified by SWAs. The cost to 

employers is, however, not a 

corresponding number to the number 

representing the benefit to SWAs, as 

employers are not required to also 

complete the certification required of 

SWAs. 

e. Enhancing Worker Protections 

through Compliance Certification 

The 2008 Final Rule uses an 

attestation-based model, unlike the 1987 

Rule, which mandated a fullysupervised labor market test and 

required the submission of important 

documentation, such as workers’ 

compensation, housing certification 

issued by the SWA, and proof of 

registration and surety bond for H– 

2ALCs. Employers conduct the required 

recruitment in advance of Application 

filing and, based upon the results of that 

effort, apply for certification from the 

Department for a number of needed 

foreign workers. That is, under the 2008 

Final Rule, employers attest that they 

have undertaken the necessary activities 

and made the required assurances to 

workers rather than have such actual 

efforts or documentation reviewed by a 

Federal or State official to ensure 

compliance. The Department has 

determined that there are insufficient 

worker protections in the attestationbased model in which employers merely 

confirm, and do not actually 

demonstrate, that they have performed 

an adequate test of the U.S. labor 

market. 

1. Costs 

The certification of compliance will 

represent some costs to employers 

because they will need to submit copies 

of recruitment activities, details of job 

offers, workers’ compensation 

documentation, and for H–2ALCs, 

registration, surety bond, and work 

contracts, rather than attesting that they 

have complied with the required 

elements of the H–2A program. Under 

the 2008 Final Rule, employers are 

already required to obtain and retain 

these documents and the NPRM simply 

requires the submission of those 

documents, particularly workers’ 

compensation and housing inspections, 

to the Department in order to satisfy the 

underlying statutory assurances. The 

Department estimates the cost by 

multiplying the total number of 

Applications by the difference in time to 

prepare the new H–2A Application as 

compared to that under the 2008 Final 

Rule. We then multiply this product by 

the average compensation of a human 

resources manager at an agricultural 

business. Because the H–2A Application 

in the Proposed Rule requires more to 

be submitted than the application under 

the 2008 Final Rule, we add the 

incremental costs of photocopying the 

additional pages and the postage 

required to ship them to the DOL.18 This 

calculation yields an average annual 

cost to employers of $0.7 million.19


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increased agricultural employer staff time of 30 

minutes per application. For applications that 

would have been previously submitted under the 

H–2A program, the Department assumes there will 

be a 20-minute increased in staff time using the 

certification application process. The Department 

estimates that the median hourly wage for a human 

resources manager is $42.15 (as published by the 

Department’s OES survey, O*Net Online), which 

we increased by 1.43 to account for employee 

benefits (source: Bureau of Labor Statistics). 

20The Department also notes that such inspection 

is mandated by other regulations governing the 

H–2A program. Pursuant to 20 CFR 654.400, SWAs 

must deny intrastate and interstate recruitment 

services unless, among other things, a 

preoccupancy inspection has been conducted (with 

conditional access permitted for H–2A employers 

for a limited time period). These regulations govern 

all migrant seasonal worker housing inspections. 

f. Changes in the Requirement for 

Housing Inspections 

The NPRM retains most of the 2008 

Final Rule provisions governing housing 

inspections. The employer’s obligations 

with respect to housing standards, 

rental or public accommodations, open 

range housing, deposit charges, charges 

for public housing, and family housing 

under the proposed regulations have 

remained the same as under the 2008 

Final Rule. One notable difference, 

however, is the timeframe in which an 

inspection of the employer’s housing 

must occur. 

In the NPRM, when an employer 

places an Agricultural and Food 

Processing Clearance Order (Form ETA 

790) with the SWA serving the area of 

intended employment 60 to 75 days 

before the date of need, the employer is 

required to disclose the location and 

type of housing to be provided to 

domestic and H–2A workers. Upon 

receipt of the Form ETA 790, the SWA 

will schedule and conduct an 

inspection of the employer’s housing. 

Unlike the 2008 Final Rule, this NPRM 

requires that the pre-occupancy 

inspection of the employer’s housing be 

completed prior to the issuance of a 

temporary labor certification, which is 

30 days before the date of need.20

The Department expects that this 

change in timing will have a minimal 

economic impact on employers. Because 

employers are required to place the job 

order with the SWA between 60 and 75 

days prior to the date of need, the SWA 

will have between 30 and 55 days to 

schedule and conduct a timely 

inspection of the housing. The 

Department believes that this enhanced 

recruitment time frame will also provide 

a sufficient amount of time for SWAs to 

conduct the required pre-occupancy 

housing inspection. Prior to the 2008 

Final Rule, the Department’s experience 

is that most employers who routinely 

utilize the H–2A program prepare their 

housing in advance of inspection and/ 

or communicate with SWA staff with 

respect to changes in the location(s) or 

type(s) of housing before Application 

filing occurred at 45 days prior to the 

date of need. This past practice was 

necessary, particularly among large 

grower associations, in allowing SWAs 

to schedule and conduct pre-occupancy 

housing inspections in a timely manner, 

thereby minimizing any negative 

impacts on employers’ ability to obtain 

labor certification, petition for workers 

at USCIS, obtain visas through the U.S. 

consulate, and bring foreign workers to 

the worksite by the certified date of 

need. 

The Department examined program 

activity data for FY 2007 and 2008 to 

determine if the NPRM’s change 

requiring completion of a preoccupancy housing inspection prior to 

the issuance of a temporary labor 

certification would have a significant 

negative impact on employers. For 

employer Applications certified in FY 

2007 and 2008, the Department issued 

determinations, on average, 

approximately 27 calendar days before 

the employer’s certified start date of 

need; the median in both years was 29 

calendar days before the employer’s 

certified start date of need. This 

processing timeframe provided 

employers with sufficient time to 

petition USCIS and obtain visas from 

the U.S. consulate in order to bring 

foreign workers from their place of 

residence to the worksite by the 

certified start date of need. Any 

downstream delays in processing at 

either the USCIS or U.S. consulate, such 

as scheduling and conducting 

interviews for foreign workers, cannot 

be attributed to the Department’s 

processing of the temporary labor 

certification. 

The Department also examined the 

percentage of H–2A labor certifications 

that were issued during FY 2007 and 

2008 beyond the statutory 30 days 

timeframe such that the issuance of the 

determination would have negatively 

impacted the employer’s ability to 

obtain foreign workers by the certified 

start date of need. To do this, the 

Department assumed that employers, 

following issuance of the temporary 

labor certification, would receive the 

labor certification within 2 days, file an 

I–129 petition for non-premium 

processing and receive approval from 

the USCIS within 5 days, file 

appropriate Applications with DOS and 

obtain visas within 5 days, and 

transport foreign workers from the place 

of residence to the worksite in the U.S 

over the course of 3 days. Using these 

assumptions, the Department 

determined that any labor certification 

issued later than 15 days before the 

employer’s certified start date of need 

would have negatively impacted the 

employer’s ability to obtain foreign 

workers. 

For FY 2007, approximately 6 percent 

of the H–2A labor certification 

Applications approved between October 

1, 2006 and September 30, 2007 (273 

out of 4,526 certifications), for 

employers and associations of employer 

producers were issued by the 

Department later than 15 days before the 

certified start date of need. For FY 2008, 

approximately 5.4 percent of the H–2A 

labor certification Applications 

approved between October 1, 2007 and 

September 30, 2008 (271 out of 5,014 

certifications), for employers and 

associations of employer producers 

were issued by the Department later 

than 15 days before the certified start 

date of need, thus having a potential 

adverse impact. Some percentage of this 

number was as a result of delays in the 

housing inspection; the Department 

cannot quantify how many were 

delayed for this reason alone, as other 

reasons exist independent of housing 

inspections (for example, a failure of the 

employer to provide the Department 

with evidence of the coverage of 

workers by workers’ compensation). 

Even if the entire group of such 

Applications were delayed solely for the 

lack of a valid housing certificate, the 

Department’s program experience has 

demonstrated that the change 

contemplated in the NPRM requiring a 

pre-occupancy housing prior to issuance 

of a temporary labor certification has 

not and will not have a significant 

impact on employers’ ability to obtain 

foreign workers by the certified start 

date of need. 

Because of data limitations, we were 

not able to monetize the costs and 

benefits associated with this provision. 

While the Department believes such 

costs will be minimal, it invited 

interested parties to comment on the 

costs associated with this change. 

g. Enhanced Coverage of Transportation 

Expenses 

Under the 2008 Final Rule, the 

employer provides for travel expenses 

and subsistence for foreign workers only 

to and from the place of recruitment, i.e. 

the appropriate U.S. consulate or port of 

entry. Under the NPRM, the employer is 

required to pay the costs of 

transportation from the worker’s home 

to and from the place of employment. 

The Department examined the increase 

in the costs to employers from the 

current costs of travel from the 

appropriate U.S. consulate to the place 

of employment, adding to that cost the 


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21The Department estimates these costs by 

multiplying the total number of H–2A workers 

certified by the cost of bus fare from the worker’s 

home to the consulate and back. The Department 

assumes one-way cost of bus fare of $31.50 based 

on the cost of a bus trip from Oaxaca to Mexico 

City. Source: http://www.ticketbus.com.mx. 

22The Department estimates that employers will 

spend 1 hour to read the new rule and outreach and 

educational materials explaining the program. In 

addition, the Department estimates that the median 

hourly wage for a human resources manager is 

$42.15 (as published by the Department’s OES 

survey, O*Net Online), which we increased by 1.43 

to account for employee benefits (source: Bureau of 

Labor Statistics). 23Approximately 0.6 percent of H–2A workers do 

not speak English or Spanish. Source: http://

www.dhs.gov/xlibrary/assets/statistics/yearbook/ 

2008/table32d.xls. 24The Department assumes that the average 

number of pages per contract is 50, and the cost per 

page for translation is $19.50. Source: http://

www.languagescape.com. 25The Department estimates that approximately 

20 percent of H–2A employers are foreign labor 

contractors. 26The Department estimates that the average 

number of pages per employer contract is 50, the 

average number of pages per surety bond is 5, and 

the cost per photocopy is $0.12. 

27The Department estimates that Department staff 

(GS–12 step 5) will spend 160 hours during the first 

year of the program to develop educational and 

outreach materials. For every subsequent year, the 

Department estimates that staff will spend 40 hours 

to review and update educational materials, as 

appropriate. The hourly salary for Department staff 

was multiplied by an index of 1.69 to account for 

employee benefits and proportional operating costs, 

resulting in an hourly rate of $52.96 for a GS–12, 

step 5 and $74.43 for GS–14, step 5. 

cost of travel from the home to the 

consulate city. The Department 

estimates average annual costs of these 

additional transportation expenditures 

to be approximately $10.8 million.21

h. Other 

During the first year that this NPRM 

would be in effect, all employers would 

need to learn about the new application 

process and how compliance will be 

judged. We estimate this cost by 

multiplying the number of applications 

submitted by employers by the time 

required to read the new rule and any 

educational and outreach materials that 

explain the H–2A application process 

under this NPRM by the average 

compensation of a human resources 

manager at an agricultural business. The 

Department estimates this one-time cost 

to employers at $0.5 million.22

This NPRM requires that contracts be 

translated into the languages of 

employees who do not speak English. 

Employers are already required to 

provide contract translation for Spanish 

workers. The Department multiplies the 

percent of H–2A workers who do not 

speak English or Spanish by the total 

number of H–2A Applications to 

estimate the number of contract 

translations required.23 The Department 

then multiplies the resulting value by 

the average number of pages per 

contract and the cost per page for 

translation.24 The Department estimates 

average annual costs of contract 

translation at $0.1 million. 

This NPRM also requires that H– 

2ALCs submit photocopies of contracts 

with fixed agricultural sites as well as 

documentation of surety bonds. To 

estimate the number of H–2ALCs that 

will be subject to this requirement, the 

Department multiplies the total number 

of H–2A Applications by the percent of 

H–2A employers who are foreign labor 

contractors.25 To estimate the cost of 

submitting photocopies of contracts, the 

Department multiplies the resulting 

value by the average number of pages 

per employer contract and the cost per 

photocopy, resulting in average annual 

costs of contract submission of $0.02 

million. To estimate the cost of 

documenting the surety bond, the 

Department multiplies the number of 

H–2ALCs that will be subject to this 

requirement by the average number of 

pages per surety bond and the cost per 

photocopy, resulting in average annual 

costs of surety bond documentation of 

$0.002 million.26

To inform the public about this 

NPRM, the Department will produce 

and deliver outreach and education 

materials to employers in order to 

explain the new application process and 

how compliance will be judged. We 

estimate this cost by multiplying the 

hours required to develop, maintain, 

and distribute such materials by the 

average compensation of Department 

staff and find average annual cost to the 

Department equal to $0.06 million.27

5. Summary of Cost-Benefit Analysis 

Exhibit 1 presents a summary of the 

cost-benefit analysis of this NPRM. The 

monetized costs and benefits displayed 

are the yearly summations of the 

calculations described above. In some 

cases, the totals for 1 year are less than 

the totals of the annual averages 

described above. For example, the 

annual average cost of enhanced 

transportation expenses—the largest 

cost component of this NPRM—is $10.8 

million across the 10-year time horizon, 

but the individual yearly values range 

from $7.6 million in 2009 to $14.6 

million in 2018. This is due to increased 

program participation across the time 

horizon of the cost-benefit analysis. The 

monetized costs exceed the monetized 

benefits both at a 7 percent and a 3 

percent discount rate. The size of the 

net benefits, the absolute difference 

between the projected benefits and 

costs, is negative. 

EXHIBIT 1—SUMMARY OF MONETIZED BENEFITS AND COSTS

Year Monetized benefits 

($millions/year) 

Monetized costs 

($millions/year) 

1. 2009 ..................................................................................................................................................... 0.47 10.56 

2. 2010 ..................................................................................................................................................... 0.47 9.75 

3. 2011 ..................................................................................................................................................... 0.47 10.52 

4. 2012 ..................................................................................................................................................... 0.47 11.35 

5. 2013 ..................................................................................................................................................... 0.47 12.25 

6. 2014 ..................................................................................................................................................... 0.47 13.23 

7. 2015 ..................................................................................................................................................... 0.47 14.30 

8. 2016 ..................................................................................................................................................... 0.47 15.45 

9. 2017 ..................................................................................................................................................... 0.47 16.70 

10. 2018 ................................................................................................................................................... 0.47 18.07 

Undiscounted total ............................................................................................................................ 4.68 132.17 

Total with 7% discounting ................................................................................................................ 3.29 89.34 

Total with 3% discounting ................................................................................................................ 3.99 110.86 

Totals may not add because of rounding. 


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28The analysis in this section does not include 

the impact of the higher wages for U.S. workers 

because they represent a transfer rather than an 

economic cost from a societal perspective. Transfer 

payments are payments from one group to another 

that do not affect total resources available to 

society. The increase in the wage rates for U.S. 

workers represents an important transfer from 

agricultural employers to U.S. workers. The higher 

wages for U.S. workers associated with the new 

methodology for estimating the AEWR represent an 

improved ability on the part of workers and their 

families to meet the costs of living, an important 

concern to the current Administration and a key 

aspect of the Department’s mandate to ensure the 

wages and working conditions of similarly 

employed U.S. workers are not adversely affected. 

29Based on the number of farms in 2007 and 

assuming that the number of farms will decline at 

the same average annual rate as it has in the past 

10 years, the Department estimates that in 2018 

there will be approximately 1,917,300 farms. 

30Based on the average duration of temporary 

agricultural workers’ stay, the Department estimates 

that these workers work, on average, 198 days. As 

already discussed, temporary agricultural workers 

will be paid, on average, $9.36 per hour. Given this 

hourly rate and 1,584 working hours per year, a 

small entity hiring 12 temporary workers incurs 

hired farm labor costs of $130,395. Based on the 

2002 Census of Agriculture, hired farm labor costs 

account, on average, for 41.2 percent of total farm 

costs while total costs represent, on average, 86.3 

percent of total revenues. Applying these rates to 

the estimated hired labor costs, we estimate that a 

small farm employing 12 temporary agricultural 

workers would have total production expenses of 

$316,777, revenues of $366,936, and net farm 

income (i.e., revenues minus production expenses) 

of $50,159 per year. 

31The Department estimates that employers will 

spend 1 hour to read the new rule and outreach and 

educational materials explaining the program. In 

addition, the Department estimates that the median 

hourly wage for a human resources manager is 

$42.15 (as published by the Department’s OES 

survey, O*Net Online), which we increased by 1.43 

to account for private-sector employee benefits 

(source: Bureau of Labor Statistics). 

32The Department estimates these costs by 

multiplying the total number of H–2A workers 

certified by the cost of bus fare from the worker’s 

home to the consulate and back. The Department 

assumes one-way cost of bus fare of $31.50. 

Due to lack of adequate data, 

however, the Department is not able to 

provide monetary estimates of several 

important benefits to society, including 

the increased employment opportunities 

for U.S. workers and the enhancement 

of worker protections for U.S. and H–2A 

workers. In addition, this NPRM has 

distributional effects that improve the 

ability of the part of workers and their 

families to meet the basic costs of living. 

The Department has concluded that 

after consideration of both the 

quantitative and qualitative impacts of 

this NPRM, the societal benefits of the 

NPRM justify the societal costs. 

B. Regulatory Flexibility Analysis 

The Regulatory Flexibility Act (RFA) 

at 5 U.S.C. 603 requires agencies to 

prepare a regulatory flexibility analysis 

to determine whether a regulation will 

have a significant economic impact on 

a substantial number of small entities. 

Section 605 of the RFA allows an 

agency to certify a rule in lieu of 

preparing an analysis if the regulation is 

not expected to have a significant 

economic impact on a substantial 

number of small entities. Further, under 

the Small Business Regulatory 

Enforcement Fairness Act of 1996, 5 

U.S.C 801 (SBREFA), an agency is 

required to produce a compliance 

guidance for small entities if the rule 

has a significant economic impact. The 

Assistant Secretary of ETA has notified 

the Chief Counsel for Advocacy, Small 

Business Administration (SBA), under 

the RFA at 5 U.S.C. 605(b), and certified 

that this rule will not have a significant 

economic impact on a substantial 

number of small entities. 

The Department is requesting 

comment on the costs of these proposed 

policies on small entities, with the goal 

of ensuring a thorough consideration 

and discussion at the Final Rule stage. 

1. Definition of a Small Business 

A small entity is one that is 

‘‘independently owned and operated 

and which is not dominant in its field 

of operation.’’ The definition of small 

business varies from industry to 

industry to the extent necessary to 

properly reflect industry size 

differences. An agency must either use 

the SBA definition for a small entity, or, 

establish an alternative definition for 

the agricultural industry. The 

Department has adopted the SBA 

definition, which is an establishment 

with annual revenues of less than $0.75 

million. The SBA also defines a 

reforestation small business as one that 

has annual revenues of less than $7.0 

million. The Department has also 

adopted that definition for its 

reforestation and pine straw activity 

establishments. 

2. Impact on Small Businesses 

The Department has estimated the 

incremental costs for small businesses 

from the 2008 Final Rule (the baseline) 

to this NPRM. We have estimated the 

costs of reading and reviewing the new 

Application and compliance processes, 

the enhanced coverage of transportation 

expenses, the enhanced worker 

protections through compliance 

certification, the changes in the 

requirement for housing inspections, 

and the enhanced U.S. worker referral 

period.28

Approximately 98 percent of U.S. 

farms have revenues of less than $0.75 

million and, therefore, fall within the 

SBA’s definition of small entity. The 

Department estimates that by 2018 there 

will be approximately 26,427 

Applications (not necessarily 

applicants) to the H–2A program. Even 

if all 26,427 Applications are filed by 

unique small farms, the percentage of 

small farms applying for temporary 

agricultural worker certification will be 

only 1.4 percent of the total number of 

small U.S. farms.29

To examine the impact of the 

proposed rule on small entities, the 

Department evaluates the impact of the 

incremental costs on the average small 

entity, which is assumed to apply for 12 

temporary workers. The Department 

estimates that these farms have annual 

revenues of about $367,000.30

The Department recognizes that 

transfers constitute an increase in wage 

costs in order to comply with this rule 

for small businesses choosing to 

participate in the H–2A program. While 

we lack the data to know how many 

H–2A participants are small entities, the 

Department does not believe, based on 

program experience, that it constitutes a 

significant number of small entities. The 

Department seeks comments on these 

costs, and the number of small entities 

involved, so it can gauge this cost and 

thus the effect on these businesses. 

a. Reading and Reviewing the New 

Application and Compliance Processes 

During the first year that this 

proposed rule would be in effect, 

employers would need to learn about 

the new application process and how 

compliance will be determined. We 

estimate this cost by multiplying the 

time required to read the new rule and 

any educational and outreach materials 

that explain the H–2A application 

process under this NPRM by the average 

compensation of a human resources 

manager at an agricultural business. In 

the first year of the proposed rule, the 

Department estimates that the average 

small farm will spend approximately 1 

hour of staff time to read and review the 

new application and compliance 

processes, which amounts to 

approximately $60.27 in labor costs.31

b. Enhanced Coverage of Transportation 

Expenses 

Under the 2008 Final Rule, the 

employer provides for travel expenses 

and subsistence for foreign workers only 

to and from the place of recruitment, i.e. 

the appropriate U.S. consulate or port of 

entry. Under the proposed rule, the 

employer is required to pay the costs of 

transportation from the worker’s home 

to and from the place of employment. 

The Department estimates that the 

average small farm would incur costs of 

$63.00 per worker related the enhanced 

coverage of transportation expenses.32


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33The Department estimates that an average of 

150 additional pages will need to be photocopied 

at a cost of $0.12 per photocopy. The additional 

pages weigh approximately 17.6 ounces and require 

$0.80 in postage per application. 

34Approximately 0.6 percent of H–2A workers do 

not speak English or Spanish. Source: http://

www.dhs.gov/xlibrary/assets/statistics/yearbook/ 

2008/table32d.xls. The Department assumes that 

the average number of pages per contract is 50, and 

the cost per page for translation is $19.50. Source: 

http://www.languagescape.com 

35We assume that the average small farm will 

purchase one additional file drawer for document 

storage. 

36We assume that the average number of pages 

per contract is 50, the number of pages per surety 

bond is 5, and the cost per photocopy is $0.12. 

37The Department received applications from 173 

employers in reforestation activities, including pine 

straw gathering, in the Department’s H–2B program 

in FY 2008. 

c. Enhancing Worker Protections 

Through Compliance Certification 

The certification of compliance will 

represent minimal costs to employers 

because they will need to submit copies 

of recruitment activities, details of job 

offers, workers’ compensation 

documentation, and for H–2ALCs, 

registration, surety bond, and work 

contracts, rather than attesting that they 

have complied with the required 

elements of the H–2A program. Under 

the 2008 Final Rule, employers are 

already required to obtain and retain 

these documents and the proposed rule 

simply requires the submission of those 

existing documents, particularly 

workers’ compensation and housing 

inspections, to the Department in order 

to satisfy the program’s underlying 

statutory assurances. The Department 

estimates this cost by multiplying the 

difference in time to prepare the new 

H–2A Application as compared to that 

under the 2008 Final Rule for both new 

H–2A applicants and previous 

applicants. We then multiply these 

products by the average compensation 

of a human resources manager at an 

agricultural business. 

For small employers applying to the 

program for the first time, the 

Department estimates that the 

Application will take approximately 

one-half hour more to complete. This 

results in additional labor costs equal to 

$30.14. For applicants familiar with the 

process, the Department estimates that 

the Application will require 

approximately 20 additional minutes to 

complete. The result is additional labor 

costs of $20.09 for applicants familiar 

with the program. Because the 

Application will be longer, the 

Department adds the costs of 

photocopying additional pages and 

additional postage required to the labor 

costs above.33 In total, the Department 

estimates that the average small farm 

that is a new H–2A applicant would 

incur costs of $48.94, and the average 

small farm that is a previous H–2A 

applicant would incur costs of $38.89. 

This NPRM also requires that 

contracts be translated into the 

languages of employees who do not 

speak English. Employers are already 

required to provide contract translations 

for employees who speak Spanish. We 

multiply the percent of H–2A workers 

who do not speak English or Spanish by 

the average number of pages per 

contract and the cost per page for 

translation.34 The Department estimates 

the average small farm would incur 

costs of contract translation of $5.96. 

d. Changes in the Requirement for 

Housing Inspections 

The proposed rule retains most of the 

2008 Final Rule provisions governing 

housing inspections. The employer’s 

obligations with respect to housing 

standards, rental or public 

accommodations, open range housing, 

deposit charges, charges for public 

housing, and family housing under the 

proposed regulations have remained the 

same as under the 2008 Final Rule. 

One notable difference, however, is 

the timeframe in which an inspection of 

the employer’s housing must occur. 

Unlike the 2008 Final Rule, this NPRM 

requires that the pre-occupancy 

inspection of the employer’s housing be 

completed prior to the issuance of a 

temporary labor certification, which is 

30 days before the date of need for the 

workers. 

The Department expects that this 

change in timing will have a minimal 

economic impact on employers. Prior to 

the effective date of the 2008 Final Rule, 

the Department’s experience was that 

the majority of employers who routinely 

utilized the H–2A program prepared 

their housing in advance of inspection 

and/or communicated with SWA staff 

with respect to changes in the 

location(s) or type(s) of housing before 

Application filing occurred at 45 days 

prior to the date of need. Because of 

data limitations, we were not able to 

monetize the costs and benefits 

associated with this provision. 

e. Enhanced U.S. Worker Referral Period 

The NPRM proposes to require that 

employers maintain a complete 

recruitment report and all supporting 

documentation for 5 years (rather than 

3 years as required by the 2008 Final 

Rule). The Department estimates that 

the additional record retention 

requirements will add costs equal to 

$21.99 to the average small farm for the 

retention of the Application and 

supporting documents.35

f. Additional Costs for Small Employers 

Who are H–2ALCs 

Employers who are H–2ALCs will 

incur additional costs related to the 

submission of contracts and the 

documentation of the surety bond. For 

both categories, we estimate the cost by 

multiplying the additional photocopies 

required by the cost per photocopy. The 

Department estimates that the average 

small H–2ALC will incur costs of $6.00 

for the submission of contract 

photocopies and $0.60 for the 

documentation of the surety bond.36

g. Reforestation and Pine Straw Activity 

The Department has proposed to 

include reforestation crews and pine 

straw gathering activities in the 

categories of agricultural activities for 

which H–2A visas would be 

appropriate.37 The Department 

acknowledges that the transfer of 

reforestation and pine straw gathering 

industries from H–2B to H–2A will 

impose additional costs on such 

employers, such as housing, 

transportation, meals, and the threefourths guarantee. The Department is, 

however, unable to quantify these costs 

as it is unknown how many of the 

employers who currently apply for H– 

2B visa status for their workers actually 

provide such benefits already as a 

condition of employment. As mentioned 

above, the Department believes that 

some percentage of employers in these 

industries already provide some, if not 

all, of these benefits, and thus is unable 

to estimate the cost to those employers 

who do not. The Department invites 

comment from reforestation and pine 

straw employers and others on the 

benefits currently provided in those 

industries, so it can gauge this cost and 

thus the effect on these businesses. 

h. Other Issues 

The Department does not anticipate 

that the increased SWA activity under 

this Proposed Rule will result in 

significant processing delays, as the 

Department continues to operate under 

the statutory mandate to make a 

determination of whether or not the 

Application meets the threshold 

requirements for certification within 7 

days of filing. The Department’s 

analysis pursuant to E.O. 12866, supra., 

contains an analysis of potential delays 

for all employers, including small 

employers, incurred for all reasons, not 

just for the reason of delays that may 

happen as a result of increased SWA 

activity. The conclusion that the 

Department has drawn from this 


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analysis is that the increased SWA 

activity, which the department believes 

is required by statute, will not result in 

increased delays to employers. The 

Department invites comment on this 

issue. 

3. Total Cost Burden for Small Entities 

The Department’s calculations 

indicate that the total average annual 

cost of this NPRM is $911 for the 

average small entity applying to the 

program for the first time and $901 for 

the average small entity that has 

previous program familiarity. Both of 

these costs represent less than 0.3 

percent of annual revenues. 

For small entities that apply for 1 

worker instead of 12 (representing the 

smallest of the small farms that hire 

workers), the Department estimates that 

the total average annual cost of the rule 

ranges from $143 (for those that have 

previous program familiarity) to $153 

(for small entities new to the program). 

These values represent approximately 

0.5 percent of annual revenues for these 

very small farms. 

Therefore, the Department believes 

that this NPRM is expected to have a 

limited net direct cost impact on small 

farm employers, above and beyond the 

baseline of the current costs required by 

the program as it is currently 

implemented under the 2008 Final 

Regulation. 

C. Unfunded Mandates Reform Act of 

1995 

Title II of the Unfunded Mandates 

Reform Act of 1995 (2 U.S.C. 1531) 

directs agencies to assess the effects of 

Federal regulatory actions on State, 

local, and Tribal governments, and the 

private sector. This Proposed Rule has 

no Federal mandate, which is defined in 

2 U.S.C. 658(6) to include either a 

‘‘Federal intergovernmental mandate’’ 

or a ‘‘Federal private sector mandate.’’ A 

Federal mandate is any provision in a 

regulation that imposes an enforceable 

duty upon State, local, or Tribal 

governments, or imposes a duty upon 

the private sector which is not 

voluntary. A decision by a private entity 

to obtain an H–2A worker is purely 

voluntary and is, therefore, excluded 

from any reporting requirement under 

the Act. 

The SWAs are mandated to perform 

certain activities for the Federal 

Government under this program, and 

are compensated for the resources used 

in performing these activities. While the 

SWA role was altered under the 2008 

Final Rule, before that time employers 

filed Applications for H–2A labor 

certifications concurrently with the 

Department and the SWA having 

jurisdiction over the area of intended 

employment. The SWA and the 

Department through the NPCs both 

receive the Application and review the 

terms of the job offer. The SWA then 

placed the job order to initiate local 

recruitment. The SWA directly 

supervised and assisted employer 

recruitment, and the making of referrals 

of U.S. workers. The NPC directed the 

SWA to place job orders into intrastate/ 

interstate clearance ensuring employers 

meet advertising and recruitment 

requirements. The SWA was responsible 

for processing the employer’s 

certification request for H–2A labor 

certification, overseeing the recruitment 

and directing referrals to the employer. 

SWAs coordinated all activities 

regarding the processing of H–2A 

Applications directly with the 

appropriate NPC for their jurisdiction, 

including transmittal to the NPC of 

housing inspection results, prevailing 

wage surveys, prevailing practice 

surveys or any other material bearing on 

the Application. Once the Application 

was reviewed by the SWA and after the 

employer demonstrated that it 

conducted its required recruitment, the 

SWA then sent the complete 

Application to the appropriate NPC for 

final certification or denial. 

This NPRM proposes to return to a 

more active SWA role in the application 

process as had been in place from 1987– 

2008. SWA activities under the H–2A 

program are currently funded by the 

Department through grants provided 

under the Wagner-Peyser Act. 29 U.S.C. 

49 et seq. The Department anticipates 

continuing funding under the WagnerPeyser Act. As a result of this NPRM 

and the publication of a final regulation, 

the Department will analyze the 

amounts of such grants made available 

to each State to fund the activities of the 

SWAs. 

D. Small Business Regulatory 

Enforcement Fairness Act of 1996 

The Department has determined that 

this rulemaking did not impose a 

significant impact on a substantial 

number of small entities under the RFA; 

therefore, the Department is not 

required to produce any Compliance 

Guides for Small Entities as mandated 

by the SBREFA. The Department has 

similarly concluded that this Proposed 

Rule is not a major rule requiring review 

by the Congress under the SBREFA 

because it will not likely result in: (1) 

An annual effect on the economy of 

$100 million or more; (2) a major 

increase in costs or prices for 

consumers, individual industries, 

Federal, State or local Government 

agencies, or geographic regions; or (3) 

significant adverse effects on 

competition, employment, investment, 

productivity, innovation, or on the 

ability of U.S.-based enterprises to 

compete with foreign-based enterprises 

in domestic or export markets. 

E. Executive Order 13132—Federalism 

The Department has reviewed this 

Proposed Rule in accordance with E.O. 

13132 regarding federalism and has 

determined that it does not have 

federalism implications. The Proposed 

Rule does not have substantial direct 

effects on States, on the relationship 

between the States, or on the 

distribution of power and 

responsibilities among the various 

levels of Government as described by 

E.O. 13132. Therefore, the Department 

has determined that this Proposed Rule 

will not have a sufficient federalism 

implication to warrant the preparation 

of a summary impact statement. 

F. Executive Order 13175—Indian 

Tribal Governments 

This rule was reviewed under the 

terms of E.O. 13175 and determined not 

to have Tribal implications. The rule 

does not have substantial direct effects 

on one or more Indian Tribes, on the 

relationship between the Federal 

Government and Indian Tribes, or on 

the distribution of power and 

responsibilities between the Federal 

Government and Indian Tribes. As a 

result, no Tribal summary impact 

statement has been prepared. 

G. Assessment of Federal Regulations 

and Policies on Families 

Section 654 of the Treasury and 

General Government Appropriations 

Act, enacted as part of the Omnibus 

Consolidated and Emergency 

Supplemental Appropriations Act of 

1999 (Pub. L. 105–277, 112 Stat. 2681) 

requires the Department to assess the 

impact of this Proposed Rule on family 

well-being. A rule that is determined to 

have a negative effect on families must 

be supported with an adequate 

rationale. 

The Department has assessed this 

Proposed Rule and determines that it 

will not have a negative effect on 

families. 

H. Executive Order 12630—Government 

Actions and Interference With 

Constitutionally Protected Property 

Rights 

This Proposed Rule is not subject to 

E.O. 12630, Governmental Actions and 

Interference with Constitutionally 

Protected Property Rights, because it 

does not involve implementation of a 

policy with takings implications. 


pwalker on DSK8KYBLC1PROD with PROPOSALS2
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I. Executive Order 12988—Civil Justice 

This regulation has been drafted and 

reviewed in accordance with E.O. 

12988, Civil Justice Reform, and will not 

unduly burden the Federal court 

system. The regulation has been written 

to minimize litigation and provide a 

clear legal standard for affected conduct, 

and has been reviewed carefully to 

eliminate drafting errors and 

ambiguities. 

J. Plain Language 

The Department drafted this NPRM in 

plain language. 

K. Executive Order 13211—Energy 

Supply 

This rule is not subject to E.O. 13211. 

It will not have a significant adverse 

effect on the supply, distribution, or use 

of energy. 

L. Paperwork Reduction Act 

As part of its continuing effort to 

reduce paperwork and respondent 

burden, DOL conducts a preclearance 

consultation program to provide the 

general public and Federal agencies 

with an opportunity to comment on 

proposed and continuing collections of 

information in accordance with the 

Paperwork Reduction Act of 1995 (PRA) 

(44 U.S.C. 3506(c)(2)(A)). This helps to 

ensure that the public understands the 

Department’s collection instructions; 

respondents can provide the requested 

data in the desired format, reporting 

burden (time and financial resources) is 

minimized, collection instruments are 

clearly understood, and the Department 

can properly assess the impact of 

collection requirements on respondents. 

The PRA requires all Federal agencies 

to analyze proposed regulations for 

potential time burdens on the regulated 

community created by provisions in the 

proposed regulations, which require the 

submission of information. The 

information collection requirements 

must be submitted to the OMB for 

approval. Persons are not required to 

respond to a collection of information 

unless it displays a currently valid OMB 

control number as required in 5 CFR 

1320.11(l) or is exempt from the PRA. 

The majority of the information 

collection (IC) requirements for the 

current H–2A program are approved 

under two OMB control numbers—OMB 

Control Number 1205–0466 (which 

includes ETA Form 9142) and OMB 

Control Number 1205–0134 (which 

includes Form ETA 790). The IC for 

1205–0466 will need to be modified to 

account for sections of the proposed 

regulation that are similar to the current 

regulation, but were not accounted for 

previously. The IC for 1205–0134 was 

recently modified as part of the regular 

extension process, which is still 

pending with OMB at the time of this 

publication. Many other provisions 

under this Proposed Rule are either 

exempt from a burden analysis or have 

been accounted for by other OMB 

control numbers. Below is a section by 

section analysis of the PRA burden. Any 

necessary adjustments to the burden 

calculations have been submitted to 

OMB for review under section 3507(d) 

of the PRA. For an additional 

explanation of how the Department 

calculated the burden hours and related 

costs, the PRA package for information 

collection 1205–0466 may be obtained 

by contacting the PRA addressee shown 

below or at http://www.RegInfo.gov. 

PRA Addressee: Sherril Hurd, Office 

of Policy Development and Research, 

U.S. Department of Labor, Employment 

& Training Administration, 200 

Constitution Avenue, NW., Room 

N–5641, Washington, DC 20210. 

Telephone: 202–693–3700 (this is not a 

toll-free number). 

Comments should be sent to (1) the 

Office of Information and Regulatory 

Affairs, Office of Management and 

Budget, Room 10235, New Executive 

Office Building, Washington, DC 20503; 

Attention: Desk Officer for the 

Employee Benefits Security 

Administration; and a copy to (2) Office 

of Foreign Labor Certification, Room C– 

4312, 200 Constitution Ave., NW., 

Washington, DC 20210 or fax: 202–693– 

2768. Comments to OMB may be 

submitted by using the Federal eRulemaking portal at http:// 

www.regulations.gov (follow 

instructions for submission of 

comments) or by fax: 202–395–5806. 

OMB requests that comments be 

received within 60 days of publication 

of the Proposed Rule to ensure their 

consideration. Please note that 

comments submitted to OMB are a 

matter of public record. 

When submitting comments on the 

information collections, your comments 

should address one or more of the 

following four points. 

• Evaluate whether the proposed 

collection of information is necessary 

for the proper performance of the 

functions of the agency, including 

whether the information will have 

practical utility; 

• Evaluate the accuracy of the 

agency’s estimate of the burden of the 

proposed collection of information, 

including the validity of the 

methodology and assumptions used; 

• Enhance the quality, utility, and 

clarity of the information to be 

collected; and 

• Minimize the burden of the 

collection of information on those who 

are to respond, including through the 

use of appropriate automated, 

electronic, mechanical, or other 

technological collection techniques or 

other forms of information technology, 

e.g., permitting electronic submissions 

of responses. 

Summary 

The IC is required by secs. 214(c) and 

218 of the INA (8 U.S.C. 1184(c), and 

1188) and 8 CFR 214.2(h)(1), (2), and 

(5). The INA requires employers who 

wish to hire foreign labor to receive a 

certification from the Secretary that 

there are not sufficient U.S. workers for 

the job opportunity and that hiring the 

foreign worker will not adversely affect 

wages and working conditions of U.S. 

workers similarly employed. This 

Proposed Rule is designed to obtain the 

necessary information for the Secretary 

to make an informed decision in 

meeting her statutory obligation. The IC 

will be used, among other things, to 

inform U.S. workers of the job 

opportunity thereby testing the labor 

market, to determine whether or not the 

employer is offering the proper wage to 

all employees, to ensure that the 

employers, agents, or associations are 

qualified to receive foreign workers, to 

have written assurances from the 

employer of its intent to comply with 

program requirements, and to ensure 

program integrity. 

Hourly Burden 

NPRM Section IC Action Obligation to 

respond 38

Covered 

under OMB 

No. 

Total No. 

resp. 

Hourly 

burden 

Total 

hours 

655.130, 131, & 132 ..... Fill out 9142 ..................................................... M .................. 1205–0466 8,356 1 hour ...... 8,356 

655.130, 131, & 132 ..... Send in 790 ...................................................... M .................. 1205–0134 8,356 1 hour ...... 8,356 

655.132(b)(1) ................ List of fixed site employers (FSE) .................... M .................. 1205–0466 559 30 min ...... 280 

655.132(b)(2) ................ Submit FLC certificate ...................................... M .................. 1205–0466 559 5 min ........ 47 

655.132(b)(3) ................ Submit proof of bond ....................................... M .................. 1205–0466 559 5 min ........ 47 


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38Obligation to respond to this information 

collection is mandatory (M), required for benefit 

(R), or voluntary (V). 

39See 5 CFR 1320.3. 

40See 5 CFR 1320.3(b). 

41See 29 CFR 1602.14 (OMB 3046–0040); 29 CFR 

1627.3(b)(3) (OMB 3046–0018); 29 CFR 

1627.3(b)(3). 

42See 5 CFR 1320.3(h)(6) & (9); 5 CFR 

1320.4(a)(2). 

43Complaints can be filed on DOJ’s ‘‘Charge 

Complaint’’ form, which has no OMB control 

number or called in to the Office of Special 

Counsel. 

44Source: Bureau of Labor Statistics 2009 OES 

wage data. 

NPRM Section IC Action Obligation to 

respond 38

Covered 

under OMB 

No. 

Total No. 

resp. 

Hourly 

burden 

Total 

hours 

655.132(b)(4) ................ Submit contracts with FSE ............................... M .................. 1205–0466 559 30 min ...... 280 

655.132(b)(5)(i) ............. Submit housing approval ................................. M .................. 1205–0466 559 5 min ........ 47 

655.132(b)(5)(ii) ............ Drivers’ licenses & Auto Insurance .................. M .................. 1205–0466 559 5 min ........ 47 

655.133(a) .................... Letter of Representation .................................. M .................. 1205–0466 4,574 30 min ...... 2,287 

655.133(b) .................... Agent’s FLC certificate ..................................... M .................. 1205–0466 309 5 min ........ 26 

655.134(b) .................... Request waiver of 45-day filing ....................... R .................. 1205–0466 151 30 min ...... 76 

655.135(i) ...................... Notify of duty to depart .................................... M .................. 1205–0466 8,356 2 min ........ 278 

655.135(j) & (k) ............. Inform of fee prohibition ................................... M .................. 1205–0466 8,356 5 min ........ 696 

655.135(l) ...................... Workers’ rights poster ...................................... M .................. 39Exempt 

655.144 ......................... Modify application ............................................ R .................. 1205–0466 1,151 30 min ...... 576 

655.145 ......................... Amend application ............................................ R .................. 1205–0466 668 30 min ...... 334 

655.150 ......................... SWA posts & refers ......................................... M .................. 1205–0134 8,356 25 min ...... 3,482 

655.151 & 152 .............. Advertising ........................................................ R .................. 40Exempt 

655.153 ......................... Contact old employees .................................... R .................. 1205–0466 8,356 1 hour ...... 8,356 

655.154 ......................... Proof of recruitment ......................................... M .................. 41Exempt 

655.156 ......................... Recruitment report ........................................... R .................. 1205–0466 8,356 1 hour ...... 8,356 

655.157 ......................... Withholding workers complaints ...................... V ................... 1205–0466 0 30 min ...... 0 

655.167 ......................... Document retention .......................................... M .................. 1205–0466 8,356 10 min ...... 1,393 

655.170 ......................... Extension application ....................................... R .................. 1205–0466 418 30 min ...... 209 

655.171 ......................... Notice of Appeal ............................................... R .................. 1205–0466 70 20 min ...... 23 

655.172 ......................... Request withdrawal .......................................... R .................. 1205–0466 226 10 min ...... 38 

655.173 ......................... Petition to increase meal charges ................... R .................. 1205–0466 84 1 hour ...... 84 

655.180,181, & 182 ...... Audit, revocation, debarment ........................... R .................. 42Exempt 

655.185 & 501.2 ........... Job service complaint system .......................... V ................... 1205–0039 

655.185 ......................... DOJ complaints ................................................ V ................... (43) 

501.4(b) & 501.6(c) ...... Filing complaints .............................................. V ................... 1215–0001 

Annual Hourly Burden 

In order to estimate the potential 

hourly burden of the information 

required to apply for a labor 

certification as described in this 

Proposed Rule, the Department used 

program experience and program data 

from fiscal year 2008. Based on 

information on program usage from FY 

2008 the Department received 8,356 

Applications requesting more than 

100,000 foreign workers. This is an 

increase over the 7,725 Applications 

received in previous years used to 

calculate the burden in 1205–0466 

originally. This is also more than the 

4,600 responses accounted for in the 

1205–0134 IC approved in 2006. The 

current extension request has adjusted 

the burden calculation. 

For the number of appeals, 

modifications, requests for waivers of 

the filing time, extensions, and other 

program components requiring 

information collection under the PRA, 

the Department also used program 

experience to determine annual hourly 

burdens described in the chart above. 

The total annual hourly burdens for 

the two ICs requiring adjustments due to 

this NPRM have been calculated as 

follows: 

Hours 

1205–0466 ............................ 31,833 

1205–0134 ............................ 10,688 

Monetized Hourly Burden 

Employers filing Applications for 

temporary alien employment 

certification may be from a wide variety 

of industries. Salaries for employers 

and/or their employees who perform the 

reporting and recordkeeping functions 

required by this regulation may range 

from several hundred dollars to several 

hundred thousand dollars where the 

corporate executive office of a large 

company performs some or all of these 

functions themselves. However, the 

Department believes that in most 

companies a Human Resources Manager 

will perform these activities. In 

estimating employer staff time costs, the 

Department used the hourly wage rate 

for a Human Resources Manager 

($39.50), as published by the DOL’s OES 

OnLine,44 and increased by a factor of 

1.43 to account for employee benefits 

and other compensation for a total 

hourly cost of $56.50. The SWA 

employees required to help employers 

with reviewing and translating the Form 

ETA 790 and referring workers to the 

employer are based on a Labor Relations 

Specialists ($23.70) as published by the 

DOL’s OES OnLine and increased by a 

factor of 1.52 to account for employee 

benefits and other compensation for a 

total hourly cost of $36.02. Total annual 

respondent hour costs for the two main 

information collections are estimated as 

follows: 

1205–0466 ........... 33,256 hours × $56.09 = 

$1,865,329 

1205–0134 ........... 8,356 hours × $56.09 = 

$468,688 

3,482 hours × $36.02 = 

$125,422 


pwalker on DSK8KYBLC1PROD with PROPOSALS2
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Cost Burden to Respondents 

The Proposed Rule stipulates that the 

applicant who receives an approved 

labor certification must pay $150 plus 

$15 for each foreign worker requested 

with an overall cap of $2,000 per 

Application. Assuming a 95 percent 

approval rate and the same amount of 

approved foreign workers as in previous 

years at 94,445, the Department 

estimates the maximum cost to 

employers will be $2,607,405 [(8,356 

applicants × .95 × $150) + (94,445 

foreign workers × $15)]. 

Affected Public: Farms, business or 

other for-profit; not-for-profit 

institutions, and State governments. 

Estimated Number of Respondents: 

8,408 (8,356 employers and 52 SWAs). 

Estimated Number of Responses: 

77,853. 

Frequency of Response: Annually; 

occasionally. 

Estimated Annual Burden Hours: 

43,674. 

Estimated Annual Hourly Burden 

Cost: $2,459. 

Estimated Annual Cost Burden: 

$2,607,405. 

List of Subjects in 20 CFR Part 655 

Administrative practice and 

procedure, Foreign workers, 

Employment, Employment and training, 

Enforcement, Forest and forest products, 

Fraud, Health professions, Immigration, 

Labor, Passports and visas, Penalties, 

Reporting and recordkeeping 

requirements, Unemployment, Wages, 

Working conditions. 

List of Subjects in 29 CFR Part 501 

Administrative practice and 

procedure, Agriculture, Aliens, 

Employment, Housing, Housing 

standards, Immigration, Labor, Migrant 

labor, Penalties, Transportation, Wages. 

For the reasons stated in the 

preamble, the Department of Labor 

proposes that 20 CFR part 655 and 29 

CFR part 501 be amended as follows: 

TITLE 20—EMPLOYEES’ BENEFITS 

PART 655—TEMPORARY 

EMPLOYMENT OF FOREIGN 

WORKERS IN THE UNITED STATES 

1. Revise the authority citation for 

part 655 to read as follows: 

Authority: Section 655.0 issued under 8 

U.S.C. 1101(a)(15)(E)(iii), 1101(a)(15)(H)(i) 

and (ii), 1182(m), (n) and (t), 1184(c), (g), and 

(j), 1188, and 1288(c) and (d); sec. 3(c)(1), 

Pub. L. 101–238, 103 Stat. 2099, 2102 (8 

U.S.C. 1182 note); sec. 221(a), Pub. L. 101– 

649, 104 Stat. 4978, 5027 (8 U.S.C. 1184 

note); sec. 303(a)(8), Pub. L. 102–232, 105 

Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 

323(c), Pub. L. 103–206, 107 Stat. 2428; sec. 

412(e), Pub. L. 105–277, 112 Stat. 2681 (8 

U.S.C. 1182 note); sec. 2(d), Pub. L. 106–95, 

113 Stat. 1312, 1316 (8 U.S.C. 1182 note); 

Pub. L. 109–423, 120 Stat. 2900; and 8 CFR 

214.2(h)(4)(i). 

Section 655.00 issued under 8 U.S.C. 

1101(a)(15)(H)(ii), 1184(c), and 1188; and 8 

CFR 214.2(h). 

Subparts A and C issued under 8 CFR 

214.2(h). 

Subpart B issued under 8 U.S.C. 

1101(a)(15)(H)(ii)(a), 1184(c), and 1188; and 8 

CFR 214.2(h). 

Subparts D and E authority repealed. 

Subparts F and G issued under 8 U.S.C. 

1288(c) and (d); and sec. 323(c), Pub. L. 103– 

206, 107 Stat. 2428. 

Subparts H and I issued under 8 U.S.C. 

1101(a)(15)(H)(i)(b) and (b)(1), 1182(n) and 

(t), and 1184(g) and (j); sec. 303(a)(8), Pub. L. 

102–232, 105 Stat. 1733, 1748 (8 U.S.C. 1101 

note); sec. 412(e), Pub. L. 105–277, 112 Stat. 

2681; and 8 CFR 214.2(h). 

Subparts J and K authority repealed. 

Subparts L and M issued under 8 U.S.C. 

1101(a)(15)(H)(i)(c) and 1182(m); sec. 2(d), 

Pub. L. 106–95, 113 Stat. 1312, 1316 (8 U.S.C. 

1182 note); Pub. L. 109–423, 120 Stat. 2900; 

and 8 CFR 214.2(h). 

2. Revise the heading of part 655 to 

read as set forth above. 

3. Revise § 655.1 to read as follows: 

§ 655.1 Purpose and scope of Subpart A. 

This subpart sets forth the procedures 

governing the labor certification process 

for the temporary employment of 

nonimmigrant foreign workers in the 

United States (U.S.) in occupations 

other than agriculture or registered 

nursing. 

4. Revise subpart B to read as follows: 

Subpart B—Labor Certification 

Process for Temporary Agricultural 

Employment in the United States 

(H–2A Workers) 

Sec. 

655.100 Scope and purpose of Subpart B. 

655.101 Authority of the Office of Foreign 

Labor Certification (OFLC) 

Administrator. 

655.102 Special procedures. 

655.103 Overview of this Subpart and 

definition of terms. 

Prefiling Procedures 

655.120 Offered wage rate. 

655.121 Job orders. 

655.122 Contents of job offers. 

Application for Temporary Employment 

Certification Filing Procedures 

655.130 Application filing requirements. 

655.131 Association filing requirements 

655.132 H–2A Labor contractor (H–2ALC) 

filing requirements. 

655.133 Requirements for agents. 

655.134 Emergency situations. 

655.135 Assurances and obligations of H– 

2A employers. 

Processing of Application for Temporary 

Employment Certification 

655.140 Review of applications. 

655.141 Notice of acceptance. 

655.142 Electronic job registry. 

655.143 Notice of deficiency. 

655.144 Submission of modified 

application. 

655.145 Amendments to applications for 

temporary employment certification. 

Post-Acceptance Requirements 

655.150 Interstate clearance of job order. 

655.151 Newspaper advertisements. 

655.152 Advertising requirements. 

655.153 Contact with former U.S. 

employees. 

655.154 Additional positive recruitment. 

655.155 Referrals of U.S. workers. 

655.156 Recruitment report. 

655.157 Withholding of U.S. workers 

prohibited. 

655.158 Duration of positive recruitment. 

Labor Certification Determinations 

655.160 Determinations. 

655.161 Criteria for certification. 

655.162 Approved certification. 

655.163 Certification fee. 

655.164 Denied certification. 

655.165 Partial certification. 

655.166 Appeal procedures. 

655.167 Document retention requirements. 

Post Certification 

655.170 Extensions. 

655.171 Appeals. 

655.172 Withdrawal of job order and 

application for temporary employment 

certification. 

655.173 Setting meal charges; petition for 

higher meal charges. 

655.174 Public disclosure. 

Integrity Measures 

655.180 Audit. 

655.181 Revocation. 

655.182 Debarment. 

655.183 Less than substantial violations. 

655.184 Applications involving fraud or 

willful misrepresentation. 

655.185 Job service complaint system; 

enforcement of work contracts. 

§ 655.100 Scope and purpose of Subpart 

B. 

This subpart sets out the procedures 

established by the Secretary of the 

United States Department of Labor (the 

Secretary) under the authority given in 

8 U.S.C. 1188 to acquire information 

sufficient to make factual 

determinations of: 

(a) Whether there are sufficient able, 

willing, and qualified United States 

(U.S.) workers available to perform the 

temporary and seasonal agricultural 

employment for which an employer 

desires to import nonimmigrant foreign 

workers (H–2A workers); and 

(b) Whether the employment of H–2A 

workers will adversely affect the wages 

and working conditions of workers in 

the U.S. similarly employed. 


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§ 655.101 Authority of the Office of 

Foreign Labor Certification (OFLC) 

Administrator. 

The Secretary has delegated her 

authority to make determinations under 

8 U.S.C. 1188 to the Assistant Secretary 

for the Employment and Training 

Administration (ETA), who in turn has 

delegated that authority to the Office of 

Foreign Labor Certification (OFLC). The 

determinations are made by the OFLC 

Administrator who, in turn, may 

delegate this responsibility to 

designated staff members; e.g., a 

Certifying Officer (CO). 

§ 655.102 Special procedures. 

To provide for a limited degree of 

flexibility in carrying out the Secretary’s 

responsibilities under the Immigration 

and Nationality Act (INA), while not 

deviating from statutory requirements, 

the OFLC Administrator has the 

authority to establish, continue, revise, 

or revoke special procedures for 

processing certain H–2A Application for 

Temporary Employment Certification. 

Employers must demonstrate upon 

written application to the OFLC 

Administrator that special procedures 

are necessary. These include special 

procedures currently in effect for the 

handling of applications for 

sheepherders in the Western States (and 

adaptation of such procedures to 

occupations in the range production of 

other livestock), and for custom 

combine harvesting crews. Similarly, for 

work in occupations characterized by 

other than a reasonably regular workday 

or workweek, such as the range 

production of sheep or other livestock, 

the OFLC Administrator has the 

authority to establish monthly, weekly, 

or semi-monthly adverse effect wage 

rates (AEWR) for those occupations for 

a statewide or other geographical area. 

Prior to making determinations under 

this section, the OFLC Administrator 

may consult with affected employer and 

worker representatives. 

§ 655.103 Overview of this Subpart and 

definition of terms. 

(a) Overview. In order to bring 

nonimmigrant workers to the U.S. to 

perform agricultural work, an employer 

must first demonstrate to the Secretary 

that there are not sufficient U.S. workers 

able, willing, and qualified to perform 

the work in the area of intended 

employment at the time needed and that 

the employment of foreign workers will 

not adversely affect the wages and 

working condition of U.S. workers 

similarly employed. This rule describes 

a process by which the Department of 

Labor (Department or DOL) makes such 

a determination and certifies her 

determination to the Department of 

Homeland Security (DHS). 

(b) Definitions. 

Administrative Law Judge (ALJ). A 

person within the Department’s Office 

of Administrative Law Judges appointed 

pursuant to 5 U.S.C. 3105. 

Adverse effect wage rate (AEWR). The 

annual weighted average hourly wage 

for field and livestock workers 

(combined) in the States or regions as 

published annually by the U.S. 

Department of Agriculture (USDA) 

based on its quarterly wage survey. 

Agent. A legal entity or person, such 

as an association of agricultural 

employers, or an attorney for an 

association, that: 

(1) Is authorized to act on behalf of 

the employer for temporary agricultural 

labor certification purposes; 

(2) Is not itself an employer, or a joint 

employer, as defined in this subpart 

with respect to a specific application; 

and 

(3) Is not under suspension, 

debarment, expulsion, or disbarment 

from practice before any court, the 

Department, the Executive Office for 

Immigration Review, or DHS under 8 

CFR 292.3 or 1003.101. 

Agricultural association. Any 

nonprofit or cooperative association of 

farmers, growers, or ranchers (including 

but not limited to processing 

establishments, canneries, gins, packing 

sheds, nurseries, or other similar fixedsite agricultural employers), 

incorporated or qualified under 

applicable State law, that recruits, 

solicits, hires, employs, furnishes, 

houses, or transports any worker that is 

subject to 8 U.S.C. 1188. An agricultural 

association may act as the agent of an 

employer, or may act as the sole or joint 

employer of any worker subject to 8 

U.S.C. 1188. 

Area of intended employment. The 

geographic area within normal 

commuting distance of the place of the 

job opportunity for which the 

certification is sought. There is no rigid 

measure of distance that constitutes a 

normal commuting distance or normal 

commuting area, because there may be 

widely varying factual circumstances 

among different areas (e.g., average 

commuting times, barriers to reaching 

the worksite, quality of the regional 

transportation network). If the place of 

intended employment is within a 

Metropolitan Statistical Area (MSA), 

including a multistate MSA, any place 

within the MSA is deemed to be within 

normal commuting distance of the place 

of intended employment. The borders of 

MSAs are not controlling in the 

identification of the normal commuting 

area; a location outside of an MSA may 

be within normal commuting distance 

of a location that is inside (e.g., near the 

border of) the MSA. 

Attorney. Any person who is a 

member in good standing of the bar of 

the highest court of any State, 

possession, territory, or commonwealth 

of the U.S., or the District of Columbia. 

Such a person is also permitted to act 

as an agent under this subpart. No 

attorney who is under suspension, 

debarment, expulsion, or disbarment 

from practice before any court, the 

Department, the Executive Office for 

Immigration Review under 8 CFR 

1003.101, or DHS under 8 CFR 292.3 

may represent an employer under this 

subpart 

Certifying Officer (CO). The person 

who makes determination on an 

Application for Temporary Labor 

Certification filed under the H–2A 

program. The OFLC Administrator is the 

national CO. Other COs may be 

designated by the OFLC Administrator 

to also make the determinations 

required under this subpart. 

Corresponding employment. The 

employment of workers who are not 

H–2A workers by an employer who has 

an approved H–2A Application for 

Temporary Labor Certification in any 

work included in the job order, or in 

any agricultural work performed by the 

H–2A workers. To qualify as 

corresponding employment the work 

must be performed during the validity 

period of the job order, including any 

approved extension thereof. 

Date of need. The first date the 

employer requires the services of H–2A 

workers as indicated in the Application 

for Temporary Labor Certification. 

Employee. A person who is engaged 

to perform work for an employer, as 

defined under the general common law 

of agency. Some of the factors relevant 

to the determination of employee status 

include: The hiring party’s right to 

control the manner and means by which 

the work is accomplished; the skill 

required to perform the work; the source 

of the instrumentalities and tools for 

accomplishing the work; the location of 

the work; the hiring party’s discretion 

over when and how long to work; and 

whether the work is part of the regular 

business of the hiring party. Other 

applicable factors may be considered 

and no one factor is dispositive. 

Employer. A person (including any 

individual, partnership, association, 

corporation, cooperative, firm, joint 

stock company, trust, or other 

organization with legal rights and 

duties) that: 

(1) Has a place of business (physical 

location) in the U.S. and a means by 


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which it may be contacted for 

employment; 

(2) Has an employer relationship 

(such as the ability to hire, pay, fire, 

supervise or otherwise control the work 

of employee) with respect to an H–2A 

worker or a worker in corresponding 

employment; and 

(3) Possesses, for purposes of filing an 

Application for Temporary Employment 

Certification, a valid Federal Employer 

Identification Number (FEIN). 

Federal holiday. Legal public holiday 

as defined at 5 U.S.C. 6103. 

Fixed-site employer. Any person 

engaged in agriculture who meets the 

definition of an employer, as those 

terms are defined in this subpart, who 

owns or operates a farm, ranch, 

processing establishment, cannery, gin, 

packing shed, nursery, or other similar 

fixed-site location where agricultural 

activities are performed and who 

recruits, solicits, hires, employs, houses, 

or transports any worker subject to 8 

U.S.C. 1188, 29 CFR part 501, or this 

subpart as incident to or in conjunction 

with the owner’s or operator’s own 

agricultural operation. 

H–2A Labor Contractor (H–2ALC). 

Any person who meets the definition of 

employer under this subpart and is not 

a fixed-site employer, an agricultural 

association, or an employee of a fixedsite employer or agricultural 

association, as those terms are used in 

this part, who recruits, solicits, hires, 

employs, furnishes, houses, or 

transports any worker subject to 8 

U.S.C. 1188, 29 CFR part 501, or this 

subpart. 

H–2A worker. Any temporary foreign 

worker who is lawfully present in the 

U.S. and authorized by DHS to perform 

agricultural labor or services of a 

temporary or seasonal nature pursuant 

to 8 U.S.C. 1101(a)(15)(H)(ii)(a), as 

amended. 

Job offer. The offer made by an 

employer or potential employer of H–2A 

workers to both U.S. and H–2A workers 

describing all the material terms and 

conditions of employment, including 

those relating to wages, working 

conditions, and other benefits. 

Job opportunity. Full-time 

employment at a place in the U.S. to 

which U.S. workers can be referred. 

Job Order. The document containing 

the terms and conditions of employment 

that is posted by the State Workforce 

Agency (SWA) on its inter- and intraState job clearance systems based on the 

employer’s Form ETA–790, as 

submitted to the SWA. 

Joint employment. Where two or more 

employers each have sufficient 

definitional indicia of being an 

employer to be considered the employer 

of a worker, those employers will be 

considered to jointly employ that 

worker. Each employer in a joint 

employment relationship to a worker is 

considered a joint employer of that 

worker. 

Master application. An Application 

for Temporary Labor Certification filed 

by an association of agricultural 

producers as a joint employer with its 

employer-members. A master 

application must cover the same 

occupations and comparable 

agricultural employment; the same start 

date of need for all employer-members 

listed on the Application for Temporary 

Employment Certification; and may 

cover multiple areas of intended 

employment within a single State. 

National Processing Center (NPC). 

The office within OFLC in which the 

COs operate and which are charged with 

the adjudication of Applications for 

Temporary Employment Certification. 

Office of Foreign Labor Certification 

(OFLC). OFLC means the organizational 

component of the ETA that provides 

national leadership and policy guidance 

and develops regulations and 

procedures to carry out the 

responsibilities of the Secretary under 

the INA concerning the admission of 

foreign workers to the U.S. to perform 

work described in 8 U.S.C. 

1101(a)(15)(H)(ii)(a). 

OFLC Administrator. The primary 

official of the Office of Foreign Labor 

Certification (OFLC), or the OFLC 

Administrator’s designee. 

Positive recruitment. The active 

participation of an employer or its 

authorized hiring agent, performed 

under the auspices and direction of the 

OFLC, in recruiting and interviewing 

individuals in the area where the 

employer’s job opportunity is located 

and any other State designated by the 

Secretary as an area of traditional or 

expected labor supply with respect to 

the area where the employer’s job 

opportunity is located, in an effort to fill 

specific job openings with U.S. workers. 

Prevailing practice. A practice 

engaged in by employers, that: 

(1) Fifty percent or more of employers 

in an area and for an occupation engage 

in the practice or offer the benefit; and 

(2) This 50 percent or more of 

employers also employs 50 percent or 

more of U.S. workers in the occupation 

and area (including H–2A and non-H– 

2A employers) for purposes of 

determinations concerning the 

provision of family housing, and 

frequency of wage payments, but nonH–2A employers only for 

determinations concerning the 

provision of advance transportation and 

the utilization of labor contractors. 

Prevailing wage. Wage established 

pursuant to 20 CFR 653.501(d)(4). 

State Workforce Agency (SWA). State 

government agency that receives funds 

pursuant to the Wagner-Peyser Act (29 

U.S.C. 49 et seq.) to administer the 

State’s public labor exchange activities. 

Strike. A concerted stoppage of work 

by employees as a result of a labor 

dispute, or any concerted slowdown or 

other concerted interruption of 

operation (including stoppage by reason 

of the expiration of a collective 

bargaining agreement). 

Successor in interest. Where an 

employer has violated 8 U.S.C. 1188, 29 

CFR part 501, or these regulations, and 

has ceased doing business or cannot be 

located for purposes of enforcement, a 

successor in interest to that employer 

may be held liable for the duties and 

obligations of the violating employer in 

certain circumstances. The following 

factors, as used under Title VII of the 

Civil Rights Act and the Vietnam Era 

Veterans’ Readjustment Assistance Act, 

may be considered in determining 

whether an employer is a successor in 

interest; no one factor is dispositive, but 

all of the circumstances will be 

considered as a whole: 

(1) Substantial continuity of the same 

business operations; 

(2) Use of the same facilities; 

(3) Continuity of the work force; 

(4) Similarity of jobs and working 

conditions; 

(5) Similarity of supervisory 

personnel; 

(6) Whether the former management 

or owner retains a direct or indirect 

interest in the new enterprise; 

(7) Similarity in machinery, 

equipment, and production methods; 

(8) Similarity of products and 

services; and 

(9) The ability of the predecessor to 

provide relief. 

For purposes of debarment only, the 

primary consideration will be the 

personal involvement of the firm’s 

ownership, management, supervisors, 

and others associated with the firm in 

the violation(s) at issue. 

Temporary agricultural labor 

certification. Certification made by the 

OFLC Administrator with respect to an 

employer seeking to file with DHS a visa 

petition to employ one or more foreign 

nationals as an H–2A worker, pursuant 

to 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(a) 

and (c), and 1188. 

United States (U.S.). The continental 

U.S., Alaska, Hawaii, the 

Commonwealth of Puerto Rico, and the 

territories of Guam, the Virgin Islands, 

and, as of the transition program 

effective date, as defined in the 

Consolidated Natural Resources Act of 


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2008, Pub. L. 110–229, Title VII, the 

Commonwealth of the Northern Mariana 

Islands. 

United States worker (U.S. worker). A 

worker who is: 

(1) A citizen or national of the U.S.; 

or 

(2) An alien who is lawfully admitted 

for permanent residence in the U.S., is 

admitted as a refugee under 8 U.S.C. 

1157, is granted asylum under 8 U.S.C. 

1158, or is an immigrant otherwise 

authorized (by the INA or by DHS) to be 

employed in the U.S.; or 

(3) An individual who is an 

authorized alien (as defined in 8 U.S.C. 

1324a(h)(3)) with respect to the 

employment in which the worker is 

engaging. 

Wages. All forms of cash 

remuneration to a worker by an 

employer in payment for personal 

services. 

Work contract. All the material terms 

and conditions of employment relating 

to wages, hours, working conditions, 

and other benefits, including those 

required by 8 U.S.C. 1188, 29 CFR part 

501, or this subpart. The contract 

between the employer and the worker 

may be in the form of a separate written 

document. In the absence of a separate 

written work contract incorporating the 

required terms and conditions of 

employment, agreed to by both the 

employer and the worker, the work 

contract at a minimum will be the terms 

of the job order and any obligations 

required under 8 U.S.C. 1188, 28 CFR 

part 501, or this subpart. 

(c) Definition of agricultural labor or 

services. For the purposes of this 

subpart, agricultural labor or services, 

pursuant to 8 U.S.C. 

1101(a)(15)(H)(ii)(a), is defined as: 

agricultural labor as defined and 

applied in sec. 3121(g) of the Internal 

Revenue Code of 1986 at 26 U.S.C. 

3121(g); agriculture as defined and 

applied in sec. 3(f) of the Fair Labor 

Standards Act of 1938 (FLSA) at 29 

U.S.C. 203(f); the pressing of apples for 

cider on a farm; logging employment; 

reforestation activities; or pine straw 

activities. 

(1) Agricultural labor for the purpose 

of paragraph (c) of this section means all 

service performed: 

(i) On a farm, in the employ of any 

person, in connection with cultivating 

the soil, or in connection with raising or 

harvesting any agricultural or 

horticultural commodity, including the 

raising, shearing, feeding, caring for, 

training, and management of livestock, 

bees, poultry, and fur-bearing animals 

and wildlife; 

(ii) In the employ of the owner or 

tenant or other operator of a farm, in 

connection with the operation, 

management, conservation, 

improvement, or maintenance of such 

farm and its tools and equipment, or in 

salvaging timber or clearing land of 

brush and other debris left by a 

hurricane, if the major part of such 

service is performed on a farm; 

(iii) In connection with the 

production or harvesting of any 

commodity defined as an agricultural 

commodity in section 15(g) of the 

Agricultural Marketing Act, as amended 

(12 U.S.C. 1141j), or in connection with 

the ginning of cotton, or in connection 

with the operation or maintenance of 

ditches, canals, reservoirs, or 

waterways, not owned or operated for 

profit, used exclusively for supplying 

and storing water for farming purposes; 

(iv) In the employ of the operator of 

a farm in handling, planting, drying, 

packing, packaging, processing, 

freezing, grading, storing, or delivering 

to storage or to market or to a carrier for 

transportation to market, in its 

unmanufactured state, any agricultural 

or horticultural commodity; but only if 

such operator produced more than onehalf of the commodity with respect to 

which such service is performed; 

(v) In the employ of a group of 

operators of farms (other than a 

cooperative organization) in the 

performance of service described in 

paragraph (c)(1)(iv) but only if such 

operators produced all of the 

commodity with respect to which such 

service is performed. For purposes of 

this paragraph, any unincorporated 

group of operators shall be deemed a 

cooperative organization if the number 

of operators comprising such group is 

more than 20 at any time during the 

calendar year in which such service is 

performed; 

(vi) The provisions of paragraphs 

(c)(1)(iv) and (c)(1)(v) shall not be 

deemed to be applicable with respect to 

service performed in connection with 

commercial canning or commercial 

freezing or in connection with any 

agricultural or horticultural commodity 

after its delivery to a terminal market for 

distribution for consumption; or 

(vii) On a farm operated for profit if 

such service is not in the course of the 

employer’s trade or business or is 

domestic service in a private home of 

the employer. 

As used in this section, the term farm 

includes stock, dairy, poultry, fruit, furbearing animal, and truck farms, 

plantations, ranches, nurseries, ranges, 

greenhouses or other similar structures 

used primarily for the raising of 

agricultural or horticultural 

commodities, and orchards. 

(2) Agriculture. For purposes of 

paragraph (c) of this section, agriculture 

means farming in all its branches and 

among other things includes the 

cultivation and tillage of the soil, 

dairying, the production, cultivation, 

growing, and harvesting of any 

agricultural or horticultural 

commodities (including commodities 

defined as agricultural commodities in 

1141j(g) of title 12, the raising of 

livestock, bees, fur-bearing animals, or 

poultry, and any practices (including 

any forestry or lumbering operations) 

performed by a farmer or on a farm as 

an incident to or in conjunction with 

such farming operations, including 

preparation for market, delivery to 

storage or to market or to carriers for 

transportation to market. See sec. 29 

U.S.C. 203(f), as amended (sec. 3(f) of 

the FLSA, as codified). Under 12 U.S.C. 

1141j(g) agricultural commodities 

include, in addition to other agricultural 

commodities, crude gum (oleoresin) 

from a living tree, and the following 

products as processed by the original 

producer of the crude gum (oleoresin) 

from which derived: gum spirits of 

turpentine and gum rosin. In addition as 

defined in 7 U.S.C. 92, gum spirits of 

turpentine means spirits of turpentine 

made from gum (oleoresin) from a living 

tree and gum rosin means rosin 

remaining after the distillation of gum 

spirits of turpentine. 

(3) Apple pressing for cider. The 

pressing of apples for cider on a farm, 

as the term farm is defined and applied 

in sec. 3121(g) of the Internal Revenue 

Code at 26 U.S.C. 3121(g) or as applied 

in sec. 3(f) of the FLSA at 29 U.S.C. 

203(f), pursuant to 29 CFR Part 780. 

(4) Logging employment. Operations 

associated with felling and moving trees 

and logs from the stump to the point of 

delivery, such as, but not limited to, 

marking danger trees and trees/logs to 

be cut to length, felling, limbing, 

bucking, debarking, chipping, yarding, 

loading, unloading, storing, and 

transporting machines, equipment and 

personnel to, from and between logging 

sites. 

(5) Reforestation activities. 

Predominately manual forestry work 

that includes, but is not limited to, tree 

planting, brush clearing and precommercial tree thinning. 

(6) Pine straw activities. Certain 

activities predominately performed 

using hand tools, including but not 

limited to the raking, gathering, baling, 

and loading of pine straw that is a 

product of pine trees that are managed 

using agricultural or horticultural/ 

silvicultural techniques. 

(d) Definition of a temporary or 

seasonal nature. For the purposes of 


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this subpart, employment is of a 

seasonal nature where it is tied to a 

certain time of year by an event or 

pattern, such as a short annual growing 

cycle or a specific aspect of a longer 

cycle, and requires labor levels far above 

those necessary for ongoing operations. 

Employment is of a temporary nature 

where the employer’s need to fill the 

position with a temporary worker will, 

except in extraordinary circumstances, 

last no longer than 1 year. 

Prefiling Procedures 

§ 655.120 Offered wage rate. 

(a) To comply with its obligation 

under § 655.122 (l), an employer must 

offer, advertise in its recruitment, and 

pay a wage that is the highest of the 

AEWR, the prevailing hourly wage or 

piece rate, or the Federal or State 

minimum wage, except where a special 

procedure is approved for an occupation 

or specific class of agricultural 

employment. 

(b) If the prevailing hourly wage rate 

or piece rate is adjusted during a work 

contract, and is higher than the highest 

of the AEWR, the prevailing wage, or 

the Federal or State minimum wage, the 

employer must pay that higher 

prevailing wage or piece rate, upon 

notice to the employer by the 

Department. 

(c) The OFLC Administrator will 

publish, at least once in each calendar 

year, on a date to be determined by the 

OFLC Administrator, the AEWRs for 

each State as a notice in the Federal 

Register. 

§ 655.121 Job orders. 

(a) Area of intended employment. 

(1) Prior to filing an Application for 

Temporary Employment Certification, 

the employer must submit a job order to 

the SWA serving the area of intended 

employment for intrastate clearance, 

identifying it as a job order to be placed 

in connection with a future Application 

for Temporary Labor Certification for H– 

2A workers. The employer must submit 

this job order no more than 75 calendar 

days and no fewer than 60 calendar 

days before the date of need. If the job 

opportunity is located in more than one 

State within the same area of intended 

employment, the employer may submit 

a job order to any one of the SWAs 

having jurisdiction over the anticipated 

worksites. 

(2) Where the job order is being 

placed in connection with a future 

master application to be filed by an 

association of agricultural employers as 

a joint employer, the association may 

submit a single job order to be placed 

in the name of the association on behalf 

of all employers that will be duly named 

on the Application for Temporary 

Employment Certification. 

(3) The job order submitted to the 

SWA must satisfy the requirements for 

agricultural clearance orders in 20 CFR 

part 653, subpart F and the 

requirements set forth in § 655.122. 

(b) SWA review. The SWA will review 

the contents of the job order for 

compliance with the requirements 

specified in 20 CFR part 653, subpart F 

and this subpart and work with the 

employer to address any noted 

deficiencies. Any issue with respect to 

whether a job order may properly be 

placed in the job order system that 

cannot be resolved with the applicable 

SWA must be first brought to the 

attention of the CO(s) in the NPC and, 

if necessary, the OFLC Administrator 

who may direct that the job order be 

placed following a written 

determination that the applicable 

program requirement(s) has been met. If 

the Department concludes that the job 

order is not acceptable, it will so inform 

the employer using the procedures 

applicable to a denial of certification set 

forth in § 655.164. 

(c) Intrastate clearance. Upon its 

clearance of the job order, the SWA 

must promptly place the job order in 

intrastate clearance and commence 

recruitment of U.S. workers. 

(d) Duration of job order posting. The 

SWA must keep the job order on its 

active file until the end of the 

recruitment period, as set forth in 

§ 655.135(d), and must refer each U.S. 

worker who applies (or on whose behalf 

an Application for Temporary Labor 

Certification is made) for the job 

opportunity. 

(e) Modifications to the job order. 

(1) Prior to the issuance of the final 

determination, the CO may require 

modifications to the job order when the 

CO determines that the offer of 

employment does not contain all the 

minimum benefits, wages, and working 

condition provisions. If any such 

modifications are required after a Notice 

of Acceptance has been issued by the 

CO as described in § 655.141 of this 

subpart, the modifications must be 

made or certification will be denied 

pursuant to § 655.164 of this subpart; 

however, the certification determination 

will not be delayed beyond 30 calendar 

days prior to the date of need as a result 

of such modification. 

(2) The employer may request a 

modification of the job order prior to the 

submission of an Application for 

Temporary Employment Certification. 

However, the employer may not reject 

referrals against the job order based 

upon a failure on the part of the 

applicant to meet the amended criteria, 

if such referral was made prior to the 

amendment of the job order. The 

employer may not amend the job order 

on or after the date of filing an 

Application for Temporary Employment 

Certification. 

§ 655.122 Contents of job offers. 

(a) Prohibition against preferential 

treatment of aliens. The employer’s job 

offer must offer to U.S. workers no less 

than the same benefits, wages, and 

working conditions that the employer is 

offering, intends to offer, or will provide 

to H–2A workers. Job offers may not 

impose on U.S. workers any restrictions 

or obligations that will not be imposed 

on the employer’s H–2A workers. This 

does not relieve the employer from 

providing to H–2A workers at least the 

same minimum level of benefits, wages, 

and working conditions which are being 

offered to U.S. workers consistent with 

this section. 

(b) Job qualifications and 

requirements. Each job qualification and 

requirement listed in the job offer must 

be bona fide and consistent with the 

normal and accepted qualifications 

required by employers that do not use 

H–2A workers in the same or 

comparable occupations and crops. 

Either the CO or the SWA may require 

the employer to submit documentation 

to substantiate the appropriateness of 

any job qualification specified in the job 

offer. 

(c) Minimum benefits, wages, and 

working conditions. Every job offer 

accompanying an Application for 

Temporary Employment Certification 

must include each of the minimum 

benefit, wage, and working condition 

provisions listed in paragraphs (d) 

through (p) of this section. 

(d) Housing. 

(1) Obligation to provide housing. The 

employer must provide housing at no 

cost to the H–2A workers and those 

workers in corresponding employment 

who are not reasonably able to return to 

their residence within the same day. 

Housing must be provided through one 

of the following means: 

(i) Employer-provided housing. 

Employer-provided housing must meet 

the full set of DOL Occupational Safety 

and Health Administration (OSHA) 

standards set forth at 29 CFR 1910.142, 

or the full set of standards at §§ 654.404 

through 654.417 of this chapter, 

whichever are applicable under 

§ 654.401 of this chapter. Requests by 

employers whose housing does not meet 

the applicable standards for conditional 

access to the interstate clearance system, 

will be processed under the procedures 

set forth at § 654.403 of this chapter; or 


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(ii) Rental and/or public 

accommodations. Rental or public 

accommodations or other substantially 

similar class of habitation must meet 

local standards for such housing. In the 

absence of applicable local standards, 

State standards will apply. In the 

absence of applicable local or State 

standards, DOL OSHA standards at 29 

CFR 1910.142 will apply. Any charges 

for rental housing must be paid directly 

by the employer to the owner or 

operator of the housing. The employer 

must document to the satisfaction of the 

CO that the housing complies with the 

local, State, or Federal housing 

standards. 

(2) Standards for range housing. 

Housing for workers principally 

engaged in the range production of 

livestock must meet standards of DOL 

OSHA for such housing. In the absence 

of such standards, range housing for 

sheepherders and other workers 

engaged in the range production of 

livestock must meet guidelines issued 

by OFLC. 

(3) Deposit charges. Charges in the 

form of deposits for bedding or other 

similar incidentals related to housing 

must not be levied upon workers. 

However, employers may require 

workers to reimburse them for damage 

caused to housing by the individual 

worker(s) found to have been 

responsible for damage which is not the 

result of normal wear and tear related to 

habitation. 

(4) Charges for public housing. If 

public housing provided for migrant 

agricultural workers under the auspices 

of a local, county, or State government 

is secured by the employer, the 

employer must pay any charges 

normally required for use of the public 

housing units directly to the housing’s 

management. 

(5) Family housing. When it is the 

prevailing practice in the area of 

intended employment and the 

occupation to provide family housing, it 

must be provided to workers with 

families who request it. 

(6) Certified housing that becomes 

unavailable. If after a request to certify 

housing, such housing becomes 

unavailable for reasons outside the 

employer’s control, the employer may 

substitute other rental or public 

accommodation housing that is in 

compliance with the local, State, or 

Federal housing standards applicable 

under this section. The employer must 

promptly notify the SWA in writing of 

the change in accommodations and the 

reason(s) for such change and provide 

the SWA evidence of compliance with 

the applicable local, State or Federal 

safety and health standards, in 

accordance with the requirements of 

this section. If, upon inspection, the 

SWA determines the substituted 

housing does not meet the applicable 

housing standards, the SWA must 

promptly provide written notification to 

the employer to cure the deficiencies 

with a copy to the CO. An employer’s 

failure to comply with the applicable 

standards will result in either a denial 

of a pending Application for Temporary 

Employment Certification or revocation 

of the temporary labor certification 

under this subpart. 

(e) Workers’ compensation. 

(1) The employer must provide 

workers’ compensation insurance 

coverage in compliance with State law 

covering injury and disease arising out 

of and in the course of the worker’s 

employment. If the type of employment 

for which the certification is sought is 

not covered by or is exempt from the 

State’s workers’ compensation law, the 

employer must provide, at no cost to the 

worker, insurance covering injury and 

disease arising out of and in the course 

of the worker’s employment that will 

provide benefits at least equal to those 

provided under the State workers’ 

compensation law for other comparable 

employment. 

(2) Prior to issuance of the temporary 

labor certification, the employer must 

provide the CO with proof of workers’ 

compensation insurance coverage 

meeting the requirements of this 

paragraph, including the name of the 

insurance carrier, the insurance policy 

number, and proof of insurance for the 

dates of need, or, if appropriate, proof 

of State law coverage. 

(f) Employer-provided items. The 

employer must provide to the worker, 

without charge or deposit charge, all 

tools, supplies, and equipment required 

to perform the duties assigned. 

(g) Meals. The employer either must 

provide each worker with three meals a 

day or must furnish free and convenient 

cooking and kitchen facilities to the 

workers that will enable the workers to 

prepare their own meals. Where the 

employer provides the meals, the job 

offer must state the charge, if any, to the 

worker for such meals. The amount of 

meal charges is governed by § 655.173. 

(h) Transportation; daily subsistence. 

(1) Transportation to place of 

employment. If the employer has not 

previously advanced such 

transportation and subsistence costs to 

the worker or otherwise provided such 

transportation or subsistence directly to 

the worker by other means and if the 

worker completes 50 percent of the 

work contract period, the employer 

must pay the worker for reasonable 

costs incurred by the worker for 

transportation and daily subsistence 

from the place from which the worker 

has come to work for the employer, 

whether in the U.S. or abroad to the 

place of employment. When it is the 

prevailing practice of non-H–2A 

agricultural employers in the 

occupation in the area to do so, or when 

the employer extends such benefits to 

similarly situated H–2A workers, the 

employer must advance the required 

transportation and subsistence costs (or 

otherwise provide them) to workers in 

corresponding employment who are 

traveling to the employer’s worksite. 

The amount of the transportation 

payment must be no less (and is not 

required to be more) than the most 

economical and reasonable common 

carrier transportation charges for the 

distances involved. The amount of the 

daily subsistence payment must be at 

least as much as the employer would 

charge the worker for providing the 

worker with three meals a day during 

employment (if applicable), but in no 

event less than the amount permitted 

under paragraph (f) of this section. Note 

that the FLSA applies independently of 

the H–2A requirements and imposes 

obligations on employers regarding 

payment of wages. 

(2) Transportation from place of 

employment. If the worker completes 

the work contract period, or if the 

employee is terminated without cause, 

and the worker has no immediate 

subsequent H–2A employment, the 

employer must provide or pay for the 

worker’s transportation and daily 

subsistence from the place of 

employment to the place from which 

the worker, disregarding intervening 

employment, departed to work for the 

employer. If the worker has contracted 

with a subsequent employer who has 

not agreed in such work contract to 

provide or pay for the worker’s 

transportation and daily subsistence 

expenses from the employer’s worksite 

to such subsequent employer’s worksite, 

the employer must provide or pay for 

such expenses. If the worker has 

contracted with a subsequent employer 

who has agreed in such work contract 

to provide or pay for the worker’s 

transportation and daily subsistence 

expenses from the employer’s worksite 

to such subsequent employer’s worksite, 

the subsequent employer must provide 

or pay for such expenses. The employer 

is not relieved of its obligation to 

provide or pay for return transportation 

and subsistence if an H–2A worker is 

displaced as a result of the employer’s 

compliance with the 50 percent rule as 

described in § 655.135(d) of this subpart 


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with respect to the referrals made after 

the employer’s date of need. 

(3) Transportation between living 

quarters and worksite. The employer 

must provide transportation between 

housing provided or secured by the 

employer and the employer’s worksite 

at no cost to the worker. 

(4) Employer-provided transportation. 

All employer-provided transportation 

must comply with all applicable 

Federal, State or local laws and 

regulations, and must provide, at a 

minimum, the same transportation 

safety standards, driver licensure, and 

vehicle insurance as required under 29 

U.S.C. 1841 and 29 CFR 500.105 and 29 

CFR 500.120 to 500.128. If workers’ 

compensation is used to cover 

transportation, in lieu of vehicle 

insurance, the employer must either 

ensure that the workers’ compensation 

covers all travel or that vehicle 

insurance exists to provide coverage for 

travel not covered by workers’ 

compensation and they must have 

property damage insurance. 

(i) Three-fourths guarantee. 

(1) Offer to worker. The employer 

must guarantee to offer the worker 

employment for a total number of work 

hours equal to at least three-fourths of 

the workdays of the total period 

beginning with the first workday after 

the arrival of the worker at the place of 

employment or the advertised 

contractual first date of need, whichever 

is later, and ending on the expiration 

date specified in the work contract or in 

its extensions, if any. 

(i) For purposes of this paragraph a 

workday means the number of hours in 

a workday as stated in the job order and 

excludes the worker’s Sabbath and 

Federal holidays. The employer must 

offer a total number of hours to ensure 

the provision of sufficient work to reach 

the three-fourths guarantee. The work 

hours must be offered during the work 

period specified in the work contract, or 

during any modified work contract 

period to which the worker and 

employer have mutually agreed and that 

has been approved by the CO. 

(ii) The work contract period can be 

shortened by agreement of the parties 

only with the approval of the CO. In the 

event the worker begins working later 

than the specified beginning date of the 

contract, the guarantee period begins 

with the first workday after the arrival 

of the worker at the place of 

employment, and continues until the 

last day during which the work contract 

and all extensions thereof are in effect. 

(iii) Therefore, if, for example, a work 

contract is for a 10-week period, during 

which a normal workweek is specified 

as 6 days a week, 8 hours per day, the 

worker would have to be guaranteed 

employment for at least 360 hours (10 

weeks × 48 hours/week = 480 hours × 

75 percent = 360). If a Federal holiday 

occurred during the 10-week span, the 

8 hours would be deducted from the 

total hours for the work contract, before 

the guarantee is calculated. Continuing 

with the above example, the worker 

would have to be guaranteed 

employment for 354 hours (10 weeks × 

48 hours/week = 480 hours ¥8 hours 

(Federal holiday) × 75 percent = 354 

hours). 

(iv) A worker may be offered more 

than the specified hours of work on a 

single workday. For purposes of meeting 

the guarantee, however, the worker will 

not be required to work for more than 

the number of hours specified in the job 

order for a workday, or on the worker’s 

Sabbath or Federal holidays. However, 

all hours of work actually performed 

may be counted by the employer in 

calculating whether the period of 

guaranteed employment has been met. If 

during the total work contract period 

the employer affords the U.S. or H–2A 

worker less employment than that 

required under this paragraph, the 

employer must pay such worker the 

amount the worker would have earned 

had the worker, in fact, worked for the 

guaranteed number of days. An 

employer will not be considered to have 

met the work guarantee if the employer 

has merely offered work on threefourths of the workdays if each workday 

did not consist of a full number of hours 

of work time as specified in the job 

order. 

(2) Guarantee for piece rate paid 

worker. If the worker is paid on a piece 

rate basis, the employer must use the 

worker’s average hourly piece rate 

earnings or the AEWR, whichever is 

higher, to calculate the amount due 

under the guarantee. 

(3) Failure to work. Any hours the 

worker fails to work, up to a maximum 

of the number of hours specified in the 

job order for a workday, when the 

worker has been offered an opportunity 

to work in accordance with paragraph 

(i)(1) of this section, and all hours of 

work actually performed (including 

voluntary work over 8 hours in a 

workday or on the worker’s Sabbath or 

Federal holidays), may be counted by 

the employer in calculating whether the 

period of guaranteed employment has 

been met. An employer seeking to 

calculate whether the number of hours 

has been met must maintain the payroll 

records in accordance with this subpart. 

(4) Displaced H–2A worker. The 

employer is not liable for payment of 

the three-fourths guarantee to an H–2A 

worker whom the CO certifies is 

displaced because of the employer’s 

compliance with the 50 percent rule 

described in § 655.35(d) with respect to 

referrals made during that period. 

(5) Obligation to provide housing and 

meals. Notwithstanding the threefourths guarantee contained in this 

section, employers are obligated to 

provide housing and meals in 

accordance with paragraphs (d) and (g) 

of this section for each day of the 

contract period up until the day the 

workers depart for other H–2A 

employment, depart to the place outside 

of the U.S. from which the worker came, 

or, if the worker voluntarily abandons 

employment or is terminated for cause, 

the day of such abandonment or 

termination. 

(j) Earnings records. 

(1) The employer must keep accurate 

and adequate records with respect to the 

workers’ earnings, including but not 

limited to field tally records, supporting 

summary payroll records, and records 

showing the nature and amount of the 

work performed; the number of hours of 

work offered each day by the employer 

(broken out by hours offered both in 

accordance with and over and above the 

three-fourths guarantee at paragraph 

(i)(3) of this section); the hours actually 

worked each day by the worker; the 

time the worker began and ended each 

workday; the rate of pay (both piece rate 

and hourly, if applicable); the worker’s 

earnings per pay period; the worker’s 

home address; and the amount of and 

reasons for any and all deductions taken 

from the worker’s wages. 

(2) Each employer must keep the 

records required by this part, including 

field tally records and supporting 

summary payroll records, safe and 

accessible at the place or places of 

employment, or at one or more 

established central recordkeeping 

offices where such records are 

customarily maintained. All records 

must be available for inspection and 

transcription by the Secretary or a duly 

authorized and designated 

representative, and by the worker and 

representatives designated by the 

worker as evidenced by appropriate 

documentation (an Entry of Appearance 

as Attorney or Representative, Form G– 

28, signed by the worker, or an affidavit 

signed by the worker confirming such 

representation). Where the records are 

maintained at a central recordkeeping 

office, other than in the place or places 

of employment, such records must be 

made available for inspection and 

copying within 72 hours following 

notice from the Secretary, or a duly 

authorized and designated 

representative, and by the worker and 


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designated representatives as described 

in this paragraph. 

(3) To assist in determining whether 

the three-fourths guarantee in paragraph 

(i) of this section has been met, if the 

number of hours worked by the worker 

on a day during the work contract 

period is less than the number of hours 

offered, as specified in the job offer, the 

records must state the reason or reasons 

therefor. 

(4) The employer must retain the 

records for not less than 5 years after the 

date of the certification. 

(k) Hours and earnings statements. 

The employer must furnish to the 

worker on or before each payday in one 

or more written statements the 

following information: 

(1) The worker’s total earnings for the 

pay period; 

(2) The worker’s hourly rate and/or 

piece rate of pay; 

(3) The hours of employment offered 

to the worker (showing offers in 

accordance with the three-fourths 

guarantee as determined in paragraph (i) 

of this section, separate from any hours 

offered over and above the guarantee); 

(4) The hours actually worked by the 

worker; 

(5) An itemization of all deductions 

made from the worker’s wages; 

(6) If piece rates are used, the units 

produced daily; 

(7) Beginning and ending dates of the 

pay period; and 

(8) The employer’s name, address and 

FEIN. 

(l) Rates of pay. If the worker is paid 

by the hour, the employer must pay the 

worker at least the AEWR in effect at the 

time work is performed, the prevailing 

hourly wage rate, the prevailing piece 

rate, or the Federal or State minimum 

wage rate, whichever is highest, for 

every hour or portion thereof worked 

during a pay period. 

(1) The offered wage may not be based 

on commission, bonuses, or other 

incentives, unless the employer 

guarantees a wage paid on a weekly, 

semi-monthly, or monthly basis that 

equals or exceeds the AEWR, prevailing 

hourly wage or piece rate, or the legal 

Federal or State minimum wage, 

whichever is highest; or 

(2) If the worker is paid on a piece rate 

basis and at the end of the pay period 

the piece rate does not result in average 

hourly piece rate earnings during the 

pay period at least equal to the amount 

the worker would have earned had the 

worker been paid at the appropriate 

hourly rate: 

(i) The worker’s pay must be 

supplemented at that time so that the 

worker’s earnings are at least as much 

as the worker would have earned during 

the pay period if the worker had instead 

been paid at the appropriate hourly 

wage rate for each hour worked; 

(ii) The piece rate must be no less 

than the piece rate prevailing for the 

activity in the area of intended 

employment; and 

(iii) If the employer who pays by the 

piece rate requires one or more 

minimum productivity standards of 

workers as a condition of job retention, 

such standards must be specified in the 

job offer and be no more than those 

required by the employer in 1977, 

unless the OFLC Administrator 

approves a higher minimum, or, if the 

employer first applied for H–2A 

temporary labor certification after 1977, 

such standards must be no more than 

those normally required (at the time of 

the first Application for Temporary 

Labor Certification) by other employers 

for the activity in the area of intended 

employment. 

(m) Frequency of pay. The employer 

must state in the job offer the frequency 

with which the worker will be paid, 

which must be at least twice monthly or 

according to the prevailing practice in 

the area of intended employment, 

whichever is more frequent. Employers 

must pay wages when due. 

(n) Abandonment of employment or 

termination for cause. If the worker 

voluntarily abandons employment 

before the end of the contract period, or 

is terminated for cause, and the 

employer notifies the NPC, and DHS in 

the case of an H–2A worker, in writing 

or by any other method specified by the 

Department or DHS in a manner 

specified in a notice published in the 

Federal Register not later than 2 

working days after such abandonment 

occurs, the employer will not be 

responsible for providing or paying for 

the subsequent transportation and 

subsistence expenses of that H–2A 

worker under this section, and that 

worker is not entitled to the threefourths guarantee described in 

paragraph (i) of this section. 

Abandonment will be deemed to begin 

after an H–2A worker fails to report for 

work at the regularly scheduled time for 

5 consecutive working days without the 

consent of the employer. 

(o) Contract impossibility. If, before 

the expiration date specified in the work 

contract, the services of the worker are 

no longer required for reasons beyond 

the control of the employer due to fire, 

weather, or other Act of God that makes 

the fulfillment of the contract 

impossible, the employer may terminate 

the work contract. Whether such an 

event constitutes a contract 

impossibility will be determined by the 

CO. In the event of such termination of 

a contract, the employer must fulfill a 

three-fourths guarantee for the time that 

has elapsed from the start of the work 

contract to the time of its termination, 

as described in paragraph (i)(1) of this 

section. The employer must make efforts 

to transfer the worker to other 

comparable employment acceptable to 

the worker, consistent with existing 

immigration law, as applicable. If such 

transfer is not affected, the employer 

must: 

(1) Return the worker, at the 

employer’s expense, to the place from 

which the worker (disregarding 

intervening employment) came to work 

for the employer, or transport the 

worker to the worker’s next certified H– 

2A employer (but only if the worker can 

provide documentation that would be 

acceptable for Form I–9 purposes 

supporting such employment as being 

authorized pursuant to 8 CFR 

274a.12(b)(21) upon transfer), 

whichever the worker prefers; 

(2) Reimburse the worker the full 

amount of any deductions made from 

the worker’s pay by the employer for 

transportation and subsistence expenses 

to the place of employment; and 

(3) Pay the worker for any costs 

incurred by the worker for 

transportation and daily subsistence to 

that employer’s place of employment. 

Daily subsistence must be computed as 

set forth in paragraph (h) of this section. 

The amount of the transportation 

payment must not be less (and is not 

required to be more) than the most 

economical and reasonable common 

carrier transportation charges for the 

distances involved. 

(p) Deductions. The employer must 

make all deductions from the worker’s 

paycheck required by law. The job offer 

must specify all deductions not required 

by law which the employer will make 

from the worker’s paycheck. All 

deductions must be reasonable. The 

employer may deduct the cost of the 

worker’s transportation and daily 

subsistence expenses to the place of 

employment which were borne directly 

by the employer. In such circumstances, 

the job offer must state that the worker 

will be reimbursed the full amount of 

such deduction upon the worker’s 

completion of 50 percent of the work 

contract period. However, an employer 

subject to the FLSA may not make 

deductions that would violate the FLSA. 

(q) Disclosure of work contract. The 

employer must provide to the worker, 

no later then on the day the work 

commences, a copy of the work contract 

between the employer and the worker in 

a language understood by the worker as 

necessary or reasonable. At a minimum, 

the work contract must contain all of the 


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provisions required by this section. In 

the absence of a separate, written work 

contract entered into between the 

employer and the worker, the required 

terms of the job order and the certified 

Application for Temporary Employment 

Certification will be the work contract. 

Application for Temporary 

Employment Certification Filing 

Procedures 

§ 655.130 Application filing requirements. 

All agricultural employers who desire 

to hire H–2A foreign agricultural 

workers must apply for a certification 

from the Secretary by filing an 

Application for Temporary Employment 

Certification with the NPC designated 

by the OFLC Administrator. The 

following section provides the 

procedures employers must follow 

when filing. 

(a) What to file. An employer, whether 

individual, association, or H–2ALC, that 

desires to apply for temporary 

employment certification of one or more 

nonimmigrant foreign workers must file 

a completed Application for Temporary 

Employment Certification form and, 

unless a specific exemption applies, a 

copy of the DOL Agricultural and Food 

Processing Clearance Order form 

submitted to the SWA serving the area 

of intended employment, as set forth in 

§ 655.121(a). 

(b) Timeliness. A completed 

Application for Temporary Employment 

Certification must be filed no less than 

45 calendar days before the employer’s 

date of need. 

(c) Location and method of filing. The 

employer may send the Application for 

Temporary Employment Certification 

and all required supporting 

documentation by U.S. Mail or private 

mail courier to the NPC. The 

Department will publish a Notice in the 

Federal Register identifying the 

address(es), and any future address 

changes, to which Applications for 

Temporary Labor Certification must be 

mailed, and will also post these 

addresses on the OFLC Internet Web site 

at http:// 

www.foreignlaborcert.doleta.gov/. The 

Department may also require 

Applications for Temporary Labor 

Certification, at a future date, to be filed 

electronically in addition to or instead 

of by mail, notice of which will be 

published in the Federal Register. 

(d) Original signature. The 

Application for Temporary Employment 

Certification must bear the original 

signature of the employer (and that of 

the employer’s authorized attorney or 

agent if the employer is represented by 

an attorney or agent). An association 

filing a master application as a joint 

employer may sign on behalf of its 

employer members. An association 

filing as an agent may not sign on behalf 

of its members but must obtain each 

member’s signature on each Application 

for Temporary Labor Certification prior 

to filing. 

(e) Information received in the course 

of processing Applications for 

Temporary Labor Certification and 

program integrity measures such as 

audits may be forwarded from OFLC to 

Wage and Hour Division (WHD) for 

enforcement purposes. 

§ 655.131 Association filing requirements. 

If an association files an Application 

for Temporary Labor Certification, in 

addition to complying with all the 

assurances, guarantees, and other 

requirements contained in this subpart 

and in part 653, subpart F, of this 

chapter, the following requirements also 

apply. 

(a) Individual applications. 

Associations of agricultural employers 

may file an Application for Temporary 

Employment Certification for H–2A 

workers as a sole employer, a joint 

employer, or agent. The association 

must identify in the Application for 

Temporary Employment Certification in 

what capacity it is filing. The 

association must retain documentation 

substantiating the employer or agency 

status of the association and be prepared 

to submit such documentation in 

response to a Notice of Deficiency from 

the CO prior to issuing a Final 

Determination, or in the event of an 

audit. 

(b) Master applications. An 

association may file a master 

application on behalf of its employermembers. The master application is 

available only when the association is 

filing as a joint employer. An 

association of agricultural producers 

may submit a master application 

covering the same occupation and 

comparable work available with a 

number of its employer-members in 

multiple areas of intended employment, 

just as though all of the covered 

employers were in fact a single 

employer, as long as a single date of 

need is provided for all workers 

requested by the Application for 

Temporary Labor Certification and all 

employer-members are located in the 

same State. The association must 

identify on the Application for 

Temporary Employment Certification by 

name, address, total number of workers 

needed, and the crops and agricultural 

work to be performed, each employer 

that will employ H–2A workers. The 

association, as appropriate, will receive 

a certified Application for Temporary 

Employment Certification that can be 

copied and sent to the United States 

Citizenship and Immigration Services 

(USCIS) with each employer-member’s 

petition. 

§ 655.132 H–2A Labor contractor (H–2ALC) 

filing requirements. 

If an H–2ALC intends to file an 

Application for Temporary Employment 

Certification, the H–2ALC must meet all 

of the requirements of the definition of 

employer in § 655.100(b), and comply 

with all the assurances, guarantees, and 

other requirements contained in this 

part, including Assurances and 

Obligations of H–2A Employers, and in 

part 653, subpart F, of this chapter. 

(a) Scope of H–2ALC Applications. An 

Application for Temporary Employment 

Certification filed by an H–2ALC must 

be limited to a single area of intended 

employment in which the fixed-site 

employer(s) to whom the H–2ALC is 

furnishing employees will be utilizing 

the employees. 

(b) Required information and 

submissions. In filing the Application 

for Temporary Employment 

Certification, the H–2ALC must include 

the following: 

(1) Identify on the Application for 

Temporary Employment Certification 

and job offer the name and location of 

each fixed-site agricultural business to 

which the H–2ALC expects to provide 

H–2A workers, the expected beginning 

and ending dates when the H–2ALC 

will be providing the workers to each 

fixed-site, and a description of the crops 

and activities the workers are expected 

to perform at such fixed-site. 

(2) Provide a copy of the Migrant and 

Seasonal Agricultural Worker Protection 

Act (MSPA) Farm Labor Contractor 

(FLC) Certificate of Registration, if 

required under MSPA at 29 U.S.C. 1801 

et seq., identifying the specific farm 

labor contracting activities the H–2ALC 

is authorized to perform as an FLC. 

(3) Provide proof of its ability to 

discharge financial obligations under 

the H–2A program through a surety 

bond as required by 29 CFR 501.9, with 

documentation from the issuer 

identifying the name, address, phone 

number, and contact person for the 

surety, and providing the amount of the 

bond (as calculated pursuant to 29 CFR 

501.9) and any identifying designation 

utilized by the surety for the bond. 

(4) Provide copies of the fullyexecuted work contracts with each 

fixed-site agricultural business 

identified under paragraph (b)(1) of this 

section. 

(5) Where the fixed-site agricultural 

business will provide housing or 


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transportation to the workers, provide 

proof that: 

(i) All housing used by workers and 

owned, operated or secured by the 

fixed-site agricultural business complies 

with the applicable standards as set 

forth in § 655.122(d) and certified by the 

SWA; and 

(ii) All transportation between the 

worksite and the workers’ living 

quarters that is provided by the fixedsite agricultural business complies with 

all applicable Federal, State, or local 

laws and regulations and must provide, 

at a minimum, the same vehicle safety 

standards, driver licensure, and vehicle 

insurance as required under 29 U.S.C. 

1841 and 29 CFR 500.105 and 500.120 

to 500.128, except where workers’ 

compensation is used to cover such 

transportation as described in 

§ 655.125(h). 

§ 655.133 Requirements for agents. 

(a) An agent filing an Application for 

Temporary Employment Certification on 

behalf of an employer must provide a 

copy of the agent agreement or other 

document demonstrating the agent’s 

authority to represent the employer. 

(b) In addition the agent must provide 

a copy of the MSPA FLC Certificate of 

Registration, if required under MSPA at 

29 U.S.C. 1801 et seq., identifying the 

specific farm labor contracting activities 

the agent is authorized to perform. 

§ 655.134 Emergency situations. 

(a) Waiver of time period. The CO may 

waive the time period for filing for 

employers who did not make use of 

temporary alien agricultural workers 

during the prior year’s agricultural 

season or for any employer that has 

other good and substantial cause (which 

may include unforeseen changes in 

market conditions), provided that the 

CO has sufficient time to test the 

domestic labor market on an expedited 

basis to make the determinations 

required by § 655.100. 

(b) Employer requirements. The 

employer requesting a waiver of the 

required time period must concurrently 

submit to NPC and to the SWA serving 

the area of intended employment a 

completed Application for Temporary 

Employment Certification, a completed 

job offer on the Agricultural and Food 

Processing Clearance Order form, and a 

statement justifying the request for a 

waiver of the time period requirement. 

The statement must indicate whether 

the waiver request is due to the fact that 

the employer did not use H–2A workers 

during the prior agricultural season or 

whether the request is for good and 

substantial cause. If the waiver is 

requested for good and substantial 

cause, the employer’s statement must 

also include detailed information 

describing the good and substantial 

cause which has necessitated the waiver 

request. Good and substantial cause may 

include, but is not limited to, such 

things as the substantial loss of U.S. 

workers due to weather-related 

activities or other reasons, unforeseen 

events affecting the work activities to be 

performed, pandemic health issues, or 

similar conditions. 

(c) Processing of emergency 

applications. The CO will process 

emergency Applications for Temporary 

Labor Certification in a manner 

consistent with the provisions set forth 

in §§ 655.140–145 and make a 

determination on the Application for 

Temporary Employment Certification in 

accordance with §§ 655.160–167. The 

CO may advise the employer in writing 

that the certification cannot be granted 

because, pursuant to paragraph (a) of 

this section, the request for emergency 

filing was not justified and there is not 

sufficient time to test the availability of 

U.S. workers such that the CO can make 

a determination on the Application for 

Temporary Labor Certification in 

accordance with § 655.161. Such 

notification will so inform the employer 

using the procedures applicable to a 

denial of certification set forth in 

§ 655.164. 

§ 655.135 Assurances and obligations of 

H–2A employers. 

An employer seeking to employ H–2A 

workers must agree as part of the 

Application for Temporary Employment 

Certification and job offer that it will 

abide by the requirements of this 

subpart and make each of the following 

additional assurances: 

(a) Non-discriminatory hiring 

practices. The job opportunity is, and 

through the recruitment period must 

continue to be, open to any qualified 

U.S. worker regardless of race, color, 

national origin, age, sex, religion, 

handicap, or citizenship. Rejections of 

any U.S. workers who applied or apply 

for the job must be only for lawful, job 

related reasons, and those not rejected 

on this basis have been or will be hired. 

In addition, the employer has and will 

continue to retain records of all hires 

and rejections as required by § 655.167. 

(b) No strike or lockout. The worksite 

for which the employer is requesting H– 

2A certification does not currently have 

workers on strike or being locked out in 

the course of a labor dispute. 

(c) Recruitment requirements. The 

employer has and will continue to 

cooperate with the SWA by accepting 

referrals of all eligible U.S. workers who 

apply (or on whose behalf an 

Application for Temporary Employment 

Certification is made) for the job 

opportunity until the end of the 

recruitment period as specified in 

paragraph (d) and must independently 

conduct the positive recruitment 

activities, as specified in § 655.154, 

until the actual date on which the H–2A 

workers depart for the place of work, or 

3 calendar days prior to the first date the 

employer requires the services of the 

H–2A workers, whichever occurs first. 

(d) Fifty percent rule. From the time 

the foreign workers depart for the 

employer’s place of employment, the 

employer must provide employment to 

any qualified, eligible U.S. worker who 

applies to the employer until 50 percent 

of the period of the work contract has 

elapsed. Start of the work contract 

timeline is calculated from the first date 

of need stated on the Application for 

Temporary Employment Certification, 

under which the foreign worker who is 

in the job was hired. This provision will 

not apply to any employer who certifies 

to the CO in the Application for 

Temporary Employment Certification 

that the employer: 

(1) Did not, during any calendar 

quarter during the preceding calendar 

year, use more than 500 man-days of 

agricultural labor, as defined in sec. 

203(u) of Title 29; 

(2) Is not a member of an association 

which has petitioned for certification 

under this subpart for its members; and 

(3) Has not otherwise associated with 

other employers who are petitioning for 

temporary foreign workers under this 

subpart. 

(e) Comply with applicable laws. 

During the period of employment that is 

the subject of the Application for 

Temporary Employment Certification, 

the employer must comply with all 

applicable Federal, State and local laws 

and regulations, including health and 

safety laws. H–2A employers may also 

be subject to the FLSA. The FLSA 

operates independently of the H–2A 

program and has specific requirements 

that address payment of wages, 

including deductions from wages, the 

payment of Federal minimum wage and 

payment of overtime. 

(f) Job opportunity is full-time. The 

job opportunity is a full-time temporary 

position, calculated to be at least 35 

hours per work week. 

(g) No recent or future layoffs. The 

employer has not laid off and will not 

lay off any similarly employed U.S. 

worker in the occupation that is the 

subject of the Application for 

Temporary Employment Certification in 

the area of intended employment except 

for lawful, job related reasons within 60 

days of the date of need, or if the 


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employer has laid off such workers, it 

has offered the job opportunity that is 

the subject of the Application for 

Temporary Labor Certification to those 

laid-off U.S. worker(s) and the U.S. 

worker(s) either refused the job 

opportunity or was rejected for the job 

opportunity for lawful, job-related 

reasons. 

(h) No unfair treatment. The employer 

has not and will not intimidate, 

threaten, restrain, coerce, blacklist, 

discharge or in any manner discriminate 

against, and has not and will not cause 

any person to intimidate, threaten, 

restrain, coerce, blacklist, or in any 

manner discriminate against, any person 

who has: 

(1) Filed a complaint under or related 

to 8 U.S.C. 1188, or this subpart or any 

other Department regulation 

promulgated thereunder; 

(2) Instituted or caused to be 

instituted any proceeding under or 

related to 8 U.S.C. 1188 or this subpart 

or any other Department regulation 

promulgated thereunder; 

(3) Testified or is about to testify in 

any proceeding under or related to 8 

U.S.C. 1188 or this subpart or any other 

Department regulation promulgated 

thereunder; 

(4) Consulted with an employee of a 

legal assistance program or an attorney 

on matters related to 8 U.S.C. 1188 or 

this subpart or any other Department 

regulation promulgated thereunder; or 

(5) Exercised or asserted on behalf of 

himself/herself or others any right or 

protection afforded by 8 U.S.C. 1188 or 

this subpart or any other Department 

regulation promulgated thereunder. 

(i) Notify workers of duty to leave 

United States. 

(1) The employer must inform H–2A 

workers of the requirement that they 

leave the U.S. at the end of the period 

certified by the Department or 

separation from the employer, 

whichever is earlier, as required under 

paragraph (2) below, unless the H–2A 

worker is being sponsored by another 

subsequent H–2A employer. 

(2) As defined further in DHS 

regulations, a temporary labor 

certification limits the validity period of 

an H–2A petition, and therefore, the 

authorized period of stay for an H–2A 

worker. See 8 CFR 214.2(h)(5)(vii). A 

foreign worker may not remain beyond 

his or her authorized period of stay, as 

established by DHS, which is based 

upon the validity period of the labor 

certification under which the H–2A 

worker is employed, nor beyond 

separation from employment prior to 

completion of the H–2A contract, absent 

an extension or change of such worker’s 

status under DHS regulations. See 8 CFR 

214.2(h)(5)(viii)(B). 

(j) Comply with the prohibition 

against employees paying fees. The 

employer and its agents have not sought 

or received payment of any kind from 

any employee subject to 8 U.S.C. 1188 

for any activity related to obtaining 

H–2A labor certification, including 

payment of the employer’s attorneys’ 

fees, application fees, or recruitment 

costs. For purposes of this paragraph, 

payment includes, but is not limited to, 

monetary payments, wage concessions 

(including deductions from wages, 

salary, or benefits), kickbacks, bribes, 

tributes, in-kind payments, and free 

labor. Subject to the provisions of the 

FLSA, this provision does not prohibit 

employers or their agents from receiving 

reimbursement for costs that are the 

responsibility of the worker, such as 

government-required passport fees. 

(k) Contracts with third parties 

comply with prohibitions. The employer 

has contractually forbidden any foreign 

labor contractor or recruiter (or any 

agent of such foreign labor contractor or 

recruiter) whom the employer engages, 

either directly or indirectly, in 

international recruitment of H–2A 

workers to seek or receive payments or 

other compensation from prospective 

employees, except as provided for in 

DHS regulations at 8 CFR 

214.2(h)(5)(xi)(A). This documentation 

is available upon request by the CO or 

another Federal party. 

(l) Notice of worker rights. The 

employer must post and maintain in a 

conspicuous location at the place of 

employment, a poster provided by the 

Secretary in English, and, to the extent 

necessary, language common to a 

significant portion of the workers if they 

are not fluent in English, which sets out 

the rights and protections for workers 

employed pursuant to 8 U.S.C. 1188. 

Processing of Applications for 

Temporary Employment Certification 

§ 655.140 Review of applications. 

(a) NPC review. The CO will promptly 

review the Application for Temporary 

Employment Certification and job order 

for compliance with all applicable 

program requirements, including 

compliance with the requirements set 

forth in this subpart. 

(b) Mailing and postmark 

requirements. Any notice or request sent 

by the CO(s) to an employer requiring a 

response will be sent using the provided 

address via traditional methods to 

assure next day delivery. The 

employer’s response to such a notice or 

request must be filed using traditional 

methods to assure next day delivery and 

be sent by the date due or the next 

business day if the due date falls on a 

Sunday or Federal Holiday. 

§ 655.141 Notice of acceptance. 

(a) Notification timeline. When the 

CO determines the Application for 

Temporary Labor Certification and job 

order are complete and meet the 

requirements set forth in this subpart, 

the CO will notify the employer within 

7 calendar days of the CO’s receipt of 

the Application for Temporary Labor 

Certification. A copy will be sent to the 

SWA serving the area of intended 

employment. 

(b) Notice content. The notice must: 

(1) Authorize conditional access to 

the interstate clearance system and 

direct the SWA to circulate a copy of the 

job order to other such States the CO 

determines to be potential sources of 

U.S. workers; 

(2) Direct the employer to engage in 

positive recruitment of U.S. workers in 

a manner consistent with § 655.154 and 

to submit a report of its positive 

recruitment efforts as specified in 

§ 655.156 prior to making a Final 

Determination on the Application for 

Temporary Employment Certification; 

(3) State that positive recruitment is 

in addition to and will occur during the 

period of time that the job order is being 

circulated by the SWA(s) for interstate 

clearance under § 655.150 of this 

subpart and will terminate on the actual 

date on which the H–2A workers depart 

for the place of work, or 3 calendar days 

prior to the first date the employer 

requires the services of the H–2A 

workers, whichever occurs first; 

(4) State that the CO will make a 

determination either to grant or deny 

the Application for Temporary 

Employment Certification no later than 

30 calendar days before the date of 

need, except as provided for under 

§ 655.144 for modified Applications for 

Temporary Labor Certification; and 

(5) Will specify the time frames when 

positive recruitment must occur, 

including newspaper advertisements. 

§ 655.142 Electronic job registry. 

(a) Location of and placement in the 

electronic job registry. Upon acceptance 

of the Application for Temporary Labor 

Certification under § 655.141, the CO 

will promptly place for public 

examination a copy of the job order on 

an electronic job registry maintained by 

the Department, including any required 

modifications approved by the CO, as 

specified in § 655.144. 

(b) Length of posting on electronic job 

registry. Unless otherwise noted, the 

Department must keep the job order 

posted on the Electronic Job Registry 


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until the end of 50 percent of the 

contract period as set forth in 

§ 655.135(d). 

§ 655.143 Notice of deficiency. 

(a) Notification timeline. When the 

CO determines the Application for 

Temporary Labor Certification and job 

order are incomplete, contain errors or 

inaccuracies, or do not meet the 

requirements set forth in this subpart, 

the CO will notify the employer within 

7 calendar days of the CO’s receipt of 

the Application for Temporary 

Employment Certification. A copy of 

this notification will be sent to the SWA 

serving the area of intended 

employment. 

(b) Notice content. The notice will: 

(1) State the reason(s) why the 

Application for Temporary Employment 

Certification or job order fails to meet 

the criteria for acceptance, citing the 

relevant regulatory standard(s); 

(2) Offer the employer an opportunity 

to submit a modified Application for 

Temporary Employment Certification 

within 5 business days from date of 

receipt stating the modification that is 

needed for the CO to issue the Notice of 

Acceptance; 

(3) Except as provided for under the 

expedited review or de novo 

administrative hearing provisions of this 

section, state that the CO’s 

determination on whether to grant or 

deny the Application for Temporary 

Employment Certification will be made 

no later than 30 calendar days before the 

date of need, provided that the 

employer submits the requested 

modification to the Application for 

Temporary Employment Certification 

within 5 business days and in a manner 

specified by the CO; 

(4) Offer the employer an opportunity 

to request an expedited administrative 

review or a de novo administrative 

hearing before an Administrative Law 

Judge (ALJ), of the Notice of Deficiency. 

The notice will state that in order to 

obtain such a review or hearing, the 

employer, within 5 business days of the 

receipt of the notice, must file by 

facsimile or other means normally 

assuring next day delivery a written 

request to the Chief ALJ of DOL and 

simultaneously serve a copy on the CO. 

The notice will also state that the 

employer may submit any legal 

arguments that the employer believes 

will rebut the basis of the CO’s action; 

and 

(5) State that if the employer does not 

comply with the requirements under 

this section or request an expedited 

administrative judicial review or a de 

novo hearing before an ALJ within the 

5 business days the CO will deny the 

Application for Temporary Employment 

Certification in accordance with the 

labor certification determination 

provisions in § 655.164. 

(c) Appeal from notices of deficiency. 

The employer may timely request an 

expedited administrative review or de 

novo hearing before an ALJ by following 

the procedures set forth in § 655.171. 

§ 655.144 Submission of modified 

applications. 

(a) Submission requirements and 

certification delays. If the employer 

chooses to submit a modified 

Application for Temporary Employment 

Certification, the CO’s Final 

Determination will be postponed by 1 

calendar day for each day that passes 

beyond the 5 business-day period 

allowed under § 655.143(b) to submit a 

modified Application for Temporary 

Labor Certification, up to maximum of 

5 days. The Application for Temporary 

Employment Certification will be 

deemed abandoned if the employer does 

not submit a modified Application for 

Temporary Labor Certification within 12 

calendar days after the notice of 

deficiency was issued. 

(b) Provisions for denial of modified 

Application for Temporary Employment 

Certification. If the modified 

Application for Temporary Employment 

Certification is not approved, the CO 

will deny the Application for 

Temporary Labor Certification in 

accordance with the labor certification 

determination provisions in § 655.164. 

(c) Appeal from denial of modified 

Application for Temporary Employment 

Certification. The procedures for 

appealing a denial of a modified 

Application for Temporary Labor 

Certification are the same as for a nonmodified Application for Temporary 

Labor Certification as long as the 

employer timely requests an expedited 

administrative review or de novo 

hearing before an ALJ by following the 

procedures set forth in § 655.171. 

§ 655.145 Amendments to applications for 

temporary employment certification. 

(a) Increases in number of workers. 

Application for Temporary Labor 

Certification may be amended at any 

time before the CO’s certification 

determination to increase the number of 

workers requested in the initial 

Application for Temporary Labor 

Certification by not more than 20 

percent (50 percent for employers 

requesting less than 10 workers) without 

requiring an additional recruitment 

period for U.S. workers. Requests for 

increases above the percent prescribed, 

without additional recruitment, may be 

approved by the CO only when the 

request is submitted in writing, and the 

employer demonstrates that the need for 

additional workers could not have been 

foreseen, and the crops or commodities 

will be in jeopardy prior to the 

expiration of an additional recruitment 

period. 

(b) Minor changes to the period of 

employment. Applications for 

Temporary Labor Certification may be 

amended to make minor changes in the 

total period of employment. Changes 

may not be effected until submitted in 

written form to the CO and the 

employer receives approval from the 

CO. In considering whether to approve 

the request, the CO will review the 

reason(s) for the request, determine 

whether the reason(s) are on the whole 

justified, and take into account the 

effect any change(s) would have on the 

adequacy of the underlying test of the 

domestic labor market for the job 

opportunity. An employer must 

demonstrate that the change to the 

period of employment could not have 

been foreseen, and the crops or 

commodities will be in jeopardy prior to 

the expiration of an additional 

recruitment period. If the request is for 

a delay in the start date and is made 

after workers have departed for the 

employer’s place of work, the CO may 

only approve the change if the employer 

includes with the request a written 

assurance signed and dated by the 

employer that all workers who are 

already traveling to the job site will be 

provided housing and subsistence, 

without cost to the workers, until work 

commences. Upon acceptance of an 

amendment, the CO will submit to the 

SWA any necessary modification to the 

job order. 

Post-Acceptance Requirements 

§ 655.150 Interstate clearance of job order. 

(a) SWA posts in interstate clearance 

system. The SWA, on behalf of the 

employer, must promptly place the job 

order in interstate clearance to all States 

designated by the CO. At a minimum, 

the CO will instruct the SWA to 

transmit a copy of its active job order to 

all States listed in the job order as 

anticipated worksites covering the area 

of intended employment. 

(b) Duration of posting. Each of the 

SWAs to which the job order was 

transmitted must keep the job order on 

its active file until 50 percent of the 

contract term has elapsed, and must 

refer each U.S. worker who applies (or 

on whose behalf an Application for 

Temporary Labor Certification is made) 

for the job opportunity. 

§ 655.151 Newspaper advertisements. 

(a) How to place advertisements. 


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(1) The employer must place an 

advertisement (in a language other than 

English, where the CO determines 

appropriate) on 2 separate days, which 

may be consecutive, one of which must 

be a Sunday (except as provided in 

paragraph (b) of this section), in a 

newspaper of general circulation serving 

the area of intended employment that 

has a reasonable distribution and is 

appropriate to the occupation and the 

workers likely to apply for the job 

opportunity. Newspaper advertisements 

must satisfy the requirements set forth 

in § 655.152. 

(2) If the job opportunity is located in 

a rural area that does not have a 

newspaper with a Sunday edition, the 

CO may direct the employer, in place of 

a Sunday edition, to advertise in the 

regularly published daily edition with 

the widest circulation in the area of 

intended employment. 

(b) When to place advertisements. The 

employer’s obligation to place 

newspaper advertisements must occur 

during the period of time that the job 

order is being circulated by the SWA(s) 

for interstate clearance under § 655.150. 

§ 655.152 Advertising requirements. 

All advertising conducted to satisfy 

the required recruitment activities 

under § 655.151 must meet the 

requirements set forth in this section 

and must contain terms and conditions 

of employment which are not less 

favorable than those offered to the H–2A 

workers. All advertising must contain 

the following information: 

(a) The employer’s name, or in the 

event that a master application will be 

filed by an association, a statement 

indicating that the name and location of 

each member of the association can be 

obtained from the SWA of the State in 

which the advertisement is run; 

(b) The geographic area of intended 

employment with enough specificity to 

apprise applicants of any travel 

requirements and where applicants will 

likely have to reside to perform the 

services or labor; 

(c) A description of the job 

opportunity for which certification is 

sought with sufficient information to 

apprise U.S. workers of services or labor 

to be performed and the anticipated 

start and end dates of employment of 

the job opportunity; 

(d) The wage offer, or in the event that 

there are multiple wage offers (such as 

where a master application will be filed 

by an association and/or where there are 

multiple crop activities for a single 

employer), the range of applicable wage 

offers and, where a master application 

will be filed by an association, a 

statement indicating that the rate(s) 

applicable to each employer can be 

obtained from the SWA of the State in 

which the advertisement is run; 

(e) The three-fourths guarantee 

specified in § 655.122(i); 

(f) If applicable, a statement that work 

tools, supplies, and equipment will be 

provided at no cost to the worker; 

(g) A statement that housing will be 

made available at no cost to workers, 

including U.S. workers who cannot 

reasonably return to their permanent 

residence at the end of each working 

day; 

(h) If applicable, a statement that 

transportation and subsistence expenses 

to the worksite will be provided by the 

employer or paid by the employer upon 

completion of 50 percent of the work 

contract, or earlier, if appropriate; 

(i) A statement that the position is 

temporary and a specification of the 

total number of job openings the 

employer intends to fill; 

(j) A statement directing applicants to 

report or apply for the job opportunity 

at the nearest office of the SWA of the 

State in which the advertisement; and if 

the worksite is remote relative to the 

population that is most likely to apply 

to the job opportunity, a alternative 

accessible to that population where an 

employer may conduct interviews; and 

(k) Contact information for the 

applicable SWA and, if available, the 

job order number. 

§ 655.153 Contact with former U.S. 

employees. 

The employer must contact by mail or 

other effective means its former U.S. 

workers (except those who were 

dismissed for cause or abandoned the 

worksite) employed by the employer in 

the occupation at the place of 

employment during the previous year 

and solicit their return to the job. This 

contact must occur during the period of 

time that the job order is being 

circulated by the SWA(s) for interstate 

clearance and documentation 

maintained in the event of an audit. 

§ 655.154 Additional positive recruitment. 

(a) Where to conduct additional 

recruitment. The employer must 

conduct positive recruitment within a 

multistate region of traditional or 

expected labor supply where the CO 

finds that there are a significant number 

of qualified U.S. workers who, if 

recruited, would be willing to make 

themselves available for work at the 

time and place needed. 

(b) Additional requirements should be 

comparable to non-H–2A employers in 

the area. The CO will ensure that the 

effort, including the location(s) and 

method(s) of the positive recruitment 

required of the potential H–2A 

employer must be no less than the 

normal recruitment efforts of non-H–2A 

agricultural employers of comparable or 

smaller size in the area of intended 

employment, and the kind and degree of 

recruitment efforts which the potential 

H–2A employer made to obtain foreign 

workers. 

(c) CO discretion to order additional 

positive recruitment. The CO may 

require such additional recruitment as 

determined necessary. 

(d) Proof of recruitment. The CO will 

specify the documentation or other 

supporting evidence that must be 

maintained by the employer as proof 

that the positive recruitment 

requirements were met. 

§ 655.155 Referrals of U.S. workers. 

SWAs may only refer for employment 

individuals who have been apprised of 

all the material terms and conditions of 

employment and have indicated, by 

accepting referral to the job opportunity, 

that he or she is qualified, able, willing, 

and available for employment. 

§ 655.156 Recruitment report. 

(a) Requirements of a recruitment 

report. The employer must prepare, 

sign, and date a written recruitment 

report. The recruitment report must be 

submitted on a date specified by the CO 

in the Notice of Acceptance set forth in 

§ 655.141 and contain the following 

information: 

(1) Identify the name of each 

recruitment source; 

(2) State the name and contact 

information of each U.S. worker who 

applied or was referred to the job 

opportunity up to the date of the 

preparation of the recruitment report, 

and the disposition of each worker; 

(3) Confirm that former U.S. 

employees were contacted and by what 

means; and 

(4) If applicable, for each U.S. worker 

who applied for the position but was 

not hired, explain the lawful job-related 

reason(s) for not hiring the U.S. worker. 

(b) Duty to update recruitment report. 

The employer must continue to 

maintain the recruitment report 

throughout the recruitment period 

including the 50 percent period. The 

updated report is not automatically 

submitted to the Department, but must 

be made available in the event of a postcertification audit or upon request by 

authorized representatives of the 

Secretary. 

§ 655.157 Withholding of U.S. workers 

prohibited. 

(a) Filing a complaint. Any employer 

who has reason to believe that a person 


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or entity has willfully and knowingly 

withheld U.S. workers prior to the 

arrival at the worksite of H–2A workers 

in order to force the hiring of U.S. 

workers during the recruitment period, 

as set forth in § 655.135(d), may submit 

a written complaint to the CO. The 

complaint must clearly identify the 

person or entity who the employer 

believes has withheld the U.S. workers, 

and must specify sufficient facts to 

support the allegation (e.g., dates, 

places, numbers and names of U.S. 

workers) which will permit an 

investigation to be conducted by the CO. 

(b) Duty to investigate. Upon receipt, 

the CO must immediately investigate 

the complaint. The investigation must 

include interviews with the employer 

who has submitted the complaint, the 

person or entity named as responsible 

for withholding the U.S. workers, and 

the individual U.S. workers whose 

availability has purportedly been 

withheld. 

(c) Duty to suspend the recruitment 

period. Where the CO determines, after 

conducting the interviews required by 

paragraph (b), that the employer’s 

complaint is valid and justified, the CO 

will immediately suspend the 

Application for Temporary Labor 

Certification of the recruitment period, 

as set forth in § 655.135(d), to the 

employer. The CO’s determination is the 

final decision of the Secretary. 

§ 655.158 Duration of positive recruitment. 

Except as otherwise noted, the 

obligation to engage in positive 

recruitment described in §§ 655.150– 

655.154 shall terminate on the date 

H–2A workers depart for the employer’s 

place of work. 

Labor Certification Determinations 

§ 655.160 Determination. 

Except as otherwise noted in this 

paragraph, the CO will make a 

determination either to grant or deny 

the Application for Temporary 

Employment Certification no later than 

30 calendar days before the date of need 

identified in the Application for 

Temporary Labor Certification. An 

Application for Temporary Employment 

Certification that are modified under 

§ 655.144 or that otherwise does not 

meet the requirements for certification 

in this subpart are is not subject to the 

30-day timeframe for certification. 

§ 655.161 Criteria for certification. 

(a) The criteria for certification 

include whether the employer has 

established the need for the agricultural 

services or labor to be performed on a 

temporary or seasonal basis; complied 

with the requirements of parts 653 and 

654 of this chapter; complied with all of 

this subpart, including but not limited 

to the timeliness requirements in 

§ 655.130(b); complied with the offered 

wage rate criteria in § 655.120; made all 

the assurances in § 655.135; and met all 

the recruitment obligations required by 

§ 655.121 and § 655.152. 

(b) In making a determination as to 

whether there are insufficient U.S. 

workers to fill the employer’s job 

opportunity, the CO will count as 

available any U.S. worker referred by 

the SWA or any U.S. worker who 

applied (or on whose behalf an 

Application for Temporary Employment 

Certification is made) directly to the 

employer, but who was rejected by the 

employer for other than a lawful jobrelated reason or who has not been 

provided with a lawful job-related 

reason for rejection by the employer. 

§ 655.162 Approved certification. 

If temporary labor certification is 

granted, the CO will send the certified 

Application for Temporary Employment 

Certification and a Final Determination 

letter to the employer by means 

normally assuring next-day delivery and 

a copy, if appropriate, to the employer’s 

agent or attorney. 

§ 655.163 Certification fee. 

A determination by the CO to grant an 

Application for Temporary Employment 

Certification in whole or in part will 

include a bill for the required 

certification fees. Each employer of H– 

2A workers under the Application for 

Temporary Employment Certification 

(except joint employer associations, 

which may not be assessed a fee in 

addition to the fees assessed to the 

members of the association) must pay in 

a timely manner a non-refundable fee 

upon issuance of the certification 

granting the Application for Temporary 

Employment Certification (in whole or 

in part), as follows: 

(a) Amount. The Application for 

Temporary Employment Certification 

fee for each employer receiving a 

temporary agricultural labor 

certification is $100 plus $10 for each 

H–2A worker certified under the 

Application for Temporary Labor 

Certification, provided that the fee to an 

employer for each temporary 

agricultural labor certification received 

will be no greater than $1,000. There is 

no additional fee to the association 

filing the Application for Temporary 

Employment Certification. The fees 

must be paid by check or money order 

made payable to United States 

Department of Labor. In the case of an 

agricultural association acting as a joint 

employer applying on behalf of its 

H–2A employer members, the aggregate 

fees for all employers of H–2A workers 

under the Application for Temporary 

Employment Certification must be paid 

by one check or money order. 

(b) Timeliness. Fees must be received 

by the CO no more than 30 days after 

the date of the certification. Nonpayment or untimely payment may be 

considered a substantial violation 

subject to the procedures in § 655.182. 

§ 655.164 Denied certification. 

If temporary labor certification is 

denied, the Final Determination letter 

will be sent to the employer by means 

normally assuring next-day delivery and 

a copy, if appropriate, to the employer’s 

agent or attorney. The Final 

Determination Letter will: 

(a) State the reason(s) certification is 

denied, citing the relevant regulatory 

standards and/or special procedures; 

(b) Offer the applicant an opportunity 

to request an expedited administrative 

review, or a de novo administrative 

hearing before an ALJ, of the denial. The 

notice must state that in order to obtain 

such a review or hearing, the employer, 

within 7 calendar days of the date of the 

notice, must file by facsimile (fax), or 

other means normally assuring next day 

delivery, a written request to the Chief 

ALJ of DOL (giving the address) and 

simultaneously serve a copy on the CO. 

The notice will also state that the 

employer may submit any legal 

arguments which the employer believes 

will rebut the basis of the CO’s action; 

and 

(c) State that if the employer does not 

request an expedited administrative 

judicial review or a de novo hearing 

before an ALJ within the 7 calendar 

days, the denial is final and the 

Department will not further consider 

that Application for Temporary 

Employment Certification. 

§ 655.165 Partial certification. 

The CO may issue a partial 

certification, reducing either the period 

of need or the number of H–2A workers 

being requested or both for certification, 

based upon information the CO receives 

during the course of processing the 

Application for Temporary Employment 

Certification, an audit, or otherwise. The 

number of workers certified will be 

reduced by one for each referred U.S. 

worker who is able, willing, and 

qualified, and who will be available at 

the time and place needed and has not 

been rejected for lawful job-related 

reasons, to perform the services or labor. 

If a partial labor certification is issued, 

the Final Determination letter will: 

(a) State the reason(s) why either the 

period of need and/or the number of H– 


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2A workers requested has been reduced, 

citing the relevant regulatory standards 

and/or special procedures; 

(b) Offer the applicant an opportunity 

to request an expedited administrative 

review, or a de novo administrative 

hearing before an ALJ, of the decision. 

The notice will state that in order to 

obtain such a review or hearing, the 

employer, within 7 calendar days of the 

date of the notice, will file by facsimile 

or other means normally assuring next 

day delivery a written request to the 

Chief ALJ of DOL (giving the address) 

and simultaneously serve a copy on the 

CO. The notice will also state that the 

employer may submit any legal 

arguments which the employer believes 

will rebut the basis of the CO’s action; 

and 

(c) State that if the employer does not 

request an expedited administrative 

judicial review or a de novo hearing 

before an ALJ within the 7 calendar 

days, the partial certification is final and 

the Department will not further consider 

that Application for Temporary 

Employment Certification. 

§ 655.166 Appeal procedures. 

If the employer timely requests an 

expedited administrative review or de 

novo hearing before an ALJ under 

§ 655.165(c), the procedures at § 655.171 

will be followed. 

§ 655.167 Document retention 

requirements. 

(a) Entities required to retain 

documents. All employers filing an 

Application for Temporary Employment 

Certification requesting H–2A 

agricultural workers under this subpart 

are required to retain the documents 

and records proving compliance with 

this subpart. 

(b) Period of required retention. 

Records and documents must be 

retained for a period of 5 years from the 

date of certification of the Application 

for Temporary Employment 

Certification or from the date of 

determination if the Application for 

Temporary Labor Certification is denied 

or withdrawn. 

(c) Documents and records to be 

retained by all applicants. 

(1) Proof of recruitment efforts, 

including: 

(i) Job order placement as specified in 

§ 655.121; 

(ii) Advertising as specified in 

§ 655.152, or, if used, professional, 

trade, or ethnic publications; 

(iii) Contact with former U.S. workers 

as specified in § 655.153; or 

(iv) Additional positive recruitment 

efforts (as specified in § 655.154). 

(2) Substantiation of information 

submitted in the recruitment report 

prepared in accordance with § 655.156, 

such as evidence of nonapplicability of 

contact of former employees as specified 

in § 655.153. 

(3) The final recruitment report and 

any supporting resumes and contact 

information as specified in § 655.156(b). 

(4) Proof of workers’ compensation 

insurance or State law coverage as 

specified in § 655.122(e). 

(5) Records of each worker’s earnings 

as specified in § 655.122(j). 

(6) The work contract or a copy of the 

Application for Temporary Employment 

Certification as defined in 29 CFR 

501.10 and specified in § 655.122(q). 

(d) Additional retention requirement 

for associations filing Application for 

Temporary Employment Certification. 

In addition to the documents specified 

in paragraph (c) above, Associations 

must retain documentation 

substantiating their status as an 

employer or agent, as specified in 

§ 655.131. 

Post Certification 

§ 655.170 Extensions. 

An employer may apply for 

extensions of the period of employment 

in the following circumstances. 

(a) Short-term extension. Employers 

seeking extensions of 2 weeks or less of 

the certified Application for Temporary 

Employment Certification must apply 

directly to DHS for approval. If granted, 

the Application for Temporary 

Employment Certification will be 

deemed extended for such period as is 

approved by DHS. 

(b) Long-term extension. Employers 

seeking extensions of more than 2 weeks 

may apply to the CO. Such requests 

must be related to weather conditions or 

other factors beyond the control of the 

employer (which may include 

unforeseen changes in market 

conditions). Such requests must be 

supported in writing, with 

documentation showing that the 

extension is needed and that the need 

could not have been reasonably foreseen 

by the employer. The CO will notify the 

employer of the decision in writing if 

time allows, or will otherwise notify the 

employer of the decision. The CO will 

not grant an extension where the total 

work contract period under that 

Application for Temporary Employment 

Certification and extensions would be 

12 months or more, except in 

extraordinary circumstances. The 

employer may not appeal a denial of a 

request for an extension. 

§ 655.171 Appeals. 

Where authorized in this subpart, 

employers may request an 

administrative review or de novo 

hearing before an ALJ of a decision by 

the CO. In such cases, the CO will send 

a copy of the OFLC administrative file 

to the Chief ALJ by means normally 

assuring next-day delivery. The Chief 

ALJ will immediately assign an ALJ 

(which may be a panel of such persons 

designated by the Chief ALJ from the 

Board of Alien Labor Certification 

Appeals (BALCA). 

(a) Administrative review. Where the 

employer has requested administrative 

review, within 5 business days after 

receipt of the ETA administrative file 

the ALJ will, on the basis of the written 

record and after due consideration of 

any written submissions (which may 

not include new evidence) from the 

parties involved or amici curiae, either 

affirm, reverse, or modify the CO’s 

decision, or remand to the CO for 

further action. The decision of the ALJ 

must specify the reasons for the action 

taken and must be immediately 

provided to the employer, the CO, the 

OFLC Administrator and DHS by means 

normally assuring next-day delivery. 

The ALJ’s decision is the final decision 

of the Secretary. 

(b) De novo hearing. 

(1) Conduct of hearing. Where the 

employer has requested a de novo 

hearing the procedures in 29 CFR part 

18 apply to such hearings, except that: 

(i) The appeal will not be considered 

to be a complaint to which an answer 

is required; 

(ii) The ALJ will ensure that the 

hearing is scheduled to take place 

within 5 calendar days after the ALJ’s 

receipt of the OFLC administrative file, 

if the employer so requests, and will 

allow for the introduction of new 

evidence; and 

(iii) The ALJ’s decision must be 

rendered within 10 calendar days after 

the hearing. 

(2) Decision. After a de novo hearing, 

the ALJ must affirm, reverse, or modify 

the CO’s determination, or remand to 

the CO for further action. The decision 

of the ALJ must specify the reasons for 

the action taken and must be 

immediately provided to the employer, 

CO, OFLC Administrator and DHS by 

means normally assuring next-day 

delivery. The ALJ’s decision is the final 

decision of the Secretary. 

§ 655.172 Withdrawal of job order and 

application for temporary employment 

certification. 

(a) Employers may withdraw a job 

order from intrastate posting if the 

employer no longer plans to file an 

H–2A Application for Temporary Labor 

Certification. However, a withdrawal of 

a job order does not nullify existing 

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connection with the placement of a job 

order pursuant to this subpart or the 

filing of an Application for Temporary 

Employment Certification. 

(b) Employers may withdraw an 

Application for Temporary Labor 

Certification once it has been formally 

accepted by the NPC. However, the 

employer is still obligated to comply 

with the terms and conditions of 

employment contained in the 

Application for Temporary Labor 

Certification with respect to workers 

recruited in connection with that 

application. 

§ 655.173 Setting meal charges; petition 

for higher meal charges. 

(a) Meal charges. Until a new amount 

is set under this paragraph, an employer 

may charge workers up to $9.90 for 

providing them with three meals per 

day. The maximum charge allowed by 

this paragraph (a) will be changed 

annually by the same percentage as the 

12 month percentage change for the 

Consumer Price Index for all Urban 

Consumers for Food between December 

of the year just concluded and 

December of the year prior to that. The 

annual adjustments will be effective on 

the date of their publication by the 

OFLC Administrator as a Notice in the 

Federal Register. When a charge or 

deduction for the cost of meals would 

bring the employee’s wage below the 

minimum wage set by the FLSA at 29 

U.S.C. 206 the charge or deduction must 

meet the requirements of 29 U.S.C. 

203(m) of the FLSA, including the 

recordkeeping requirements found at 29 

CFR 516.27. 

(b) Filing petitions for higher meal 

charges. The employer may file a 

petition with the CO to charge more 

than the applicable amount for meal 

charges if the employer justifies the 

charges and submits to the CO the 

documentation required by paragraph 

(b)(1) of this section. 

(1) Documentation submitted must 

include the cost of goods and services 

directly related to the preparation and 

serving of meals, the number of workers 

fed, the number of meals served and the 

number of days meals were provided. 

The cost of the following items may be 

included: Food; kitchen supplies other 

than food, such as lunch bags and soap; 

labor costs that have a direct relation to 

food service operations, such as wages 

of cooks and dining hall supervisors; 

fuel, water, electricity, and other 

utilities used for the food service 

operation; and other costs directly 

related to the food service operation. 

Charges for transportation, depreciation, 

overhead and similar charges may not 

be included. Receipts and other cost 

records for a representative pay period 

must be retained and must be available 

for inspection by the CO for a period of 

1 year. 

(2) The employer may begin charging 

the higher rate upon receipt of a 

favorable decision from the CO unless 

the CO sets a later effective date in the 

decision. 

(c) Appeal rights. In the event the 

employer’s petition for a higher meal 

charge is denied in whole or in part, the 

employer may appeal the denial. 

Appeals will be filed with the Chief 

ALJ, pursuant to § 655.171. 

§ 655.174 Public disclosure. 

The Department will maintain an 

electronic file accessible to the public 

with information on all employers 

applying for temporary agricultural 

labor certifications. The database will 

include such information as the number 

of workers requested, the date filed, the 

date decided, and the final disposition. 

Integrity Measures 

§ 655.180 Audit. 

The Department will conduct audits 

of Application for Temporary 

Employment Certification for which 

certifications have been granted. 

(a) Discretion. The Application for 

Temporary Employment Certification 

selected for audit will be chosen within 

the sole discretion of the Department. 

(b) Audit letter. Where an Application 

for Temporary Employment 

Certification is selected for audit, the 

CO will issue an audit letter to the 

employer and a copy, if appropriate, to 

the employer’s agent or attorney. The 

audit letter will: 

(1) State the documentation that must 

be submitted by the employer; 

(2) Specify a date no more than 30 

days from the date of the audit letter by 

which the required documentation must 

be received by the CO; and 

(3) Advise that failure to comply with 

the audit process may result in the 

revocation of the certification or 

program debarment. 

(c) Supplemental information request. 

During the course of the audit 

examination, the CO may request 

supplemental information and/or 

documentation from the employer in 

order to complete the audit. 

(d) Potential referrals. In addition to 

steps in this subpart, the CO may 

determine to provide the audit findings 

and underlying documentation to DHS 

or another appropriate enforcement 

agency. The CO will refer any findings 

that an employer discouraged an eligible 

U.S. worker from applying, or failed to 

hire, discharged, or otherwise 

discriminated against an eligible U.S. 

worker, to the Department of Justice, 

Civil Rights Division, Office of Special 

Counsel for Unfair Immigration Related 

Employment Practices. 

§ 655.181 Revocation. 

(a) Basis for DOL revocation. The CO, 

in consultation with the OFLC 

Administrator, may revoke a temporary 

agricultural labor certification approved 

under this subpart, if the CO finds: 

(1) The issuance of the temporary 

agricultural labor certification was not 

justified based on criteria set forth 

under 8 U.S.C. 1188; 

(2) The employer substantially 

violated a material term or condition of 

the approved temporary agricultural 

labor certification, as defined in 

§ 655.182(d); 

(3) The employer failed to cooperate 

with a DOL investigation or with a DOL 

official performing an investigation, 

inspection, audit (as discussed in 

§ 655.180), or law enforcement function 

under 8 U.S.C. 1188, 29 CFR part 501, 

or this subpart; or 

(4) The employer failed to comply 

with one or more sanctions or remedies 

imposed by the WHD, or with one or 

more decisions or orders of the 

Secretary or a court order secured by the 

Secretary under 8 U.S.C. 1188, 29 CFR 

part 501, or this subpart. 

(b) DOL procedures for revocation. 

(1) Notice of Revocation. If the CO 

makes a determination to revoke an 

employer’s temporary labor 

certification, the CO will send to the 

employer (and its attorney or agent) a 

Notice of Revocation. The Notice will 

contain a detailed statement of the 

grounds for the revocation, and it will 

inform the employer of its right to 

submit rebuttal evidence or to appeal. If 

the employer does not file rebuttal 

evidence or an appeal within 14 days of 

the date of the Notice of Revocation, the 

Notice is the final decision of the 

Secretary and will take effect 

immediately at the end of the 14-day 

period. 

(2) Rebuttal. The employer may 

submit evidence to rebut the grounds 

stated in the Notice of Revocation 

within 14 calendar days of the date the 

Notice is issued. If rebuttal evidence is 

timely filed by the employer, the CO 

will inform the employer of the CO’s 

final determination on the revocation 

within 14 calendar days of receiving the 

rebuttal evidence. If the CO determines 

that the certification should be revoked, 

the CO will inform the employer of its 

right to appeal according to the 

procedures of § 655.171. The employer 

must file the appeal within 10 calendar 

days after the CO’s final determination, 

or the CO’s determination is the final 


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decision of the Secretary and will take 

effect immediately at the end of the 10- 

day period. 

(3) Appeal. An employer may appeal 

a Notice of Revocation, or a final 

determination of the CO after the review 

of rebuttal evidence, according to the 

appeal procedures of § 655.171. The 

ALJ’s decision is the final decision of 

the Secretary. 

(4) Stay. The timely filing of rebuttal 

evidence or an administrative appeal 

will stay the revocation pending the 

outcome of those proceedings. 

(5) Decision. If the temporary 

agricultural labor certification is 

revoked, the CO will send a copy of the 

final decision of the Secretary to DHS 

and the Department of State (DOS). 

(c) Employer’s obligations in the event 

of revocation. If an employer’s 

temporary agricultural labor 

certification is revoked pursuant to this 

section, the employer is responsible for: 

(1) Reimbursement of actual inbound 

transportation and subsistence 

expenses, as if the worker meets the 

requirements for payment under 

§ 655.122(h)(1); 

(2) The worker’s outbound 

transportation expenses, as if the worker 

meets the requirements for payment 

under § 655.122(h)(2); 

(3) Payment to the worker of the 

amount due under the three-fourths 

guarantee as required by § 655.122(i); 

and 

(4) Any other wages, benefits, and 

working conditions due or owing to the 

worker under this subpart. 

§ 655.182 Debarment. 

(a) Debarment of an employer. The 

OFLC Administrator may debar an 

employer or any successor in interest to 

that employer from receiving future 

labor certifications under this subpart, 

subject to the time limits set forth in 

paragraph (c) of this section, if the OFLC 

Administrator finds that the employer 

substantially violated a material term or 

condition of its temporary labor 

certification, with respect to H–2A 

workers, workers in corresponding 

employment, or U.S. workers 

improperly rejected for employment, or 

improperly laid off or displaced. 

(b) Debarment of an agent or attorney. 

The OFLC Administrator may debar an 

agent or attorney from participating in 

any action under 8 U.S.C. 1188, this 

subpart, or 29 CFR part 501, if the OFLC 

Administrator finds that the agent or 

attorney participated in, had knowledge 

of, or had reason to know of, an 

employer’s substantial violation. The 

OFLC Administrator may not issue 

future labor certifications under this 

subpart to any employer represented by 

a debarred agent or attorney, subject to 

the time limits set forth in paragraph (c) 

of this section. 

(c) Statute of Limitations and Period 

of Debarment. 

(1) The OFLC Administrator must 

issue any Notice of Debarment no later 

than 2 years after the occurrence of the 

violation. 

(2) No employer, attorney, or agent 

may be debarred under this subpart for 

more than 3 years from the date of the 

final agency decision. 

(d) Definition of violation. For the 

purposes of this section, a violation 

includes: 

(1) One or more acts of commission or 

omission on the part of the employer or 

the employer’s agent which involve: 

(i) Failure to pay or provide the 

required wages, benefits or working 

conditions to the employer’s H–2A 

workers and/or workers in 

corresponding employment; 

(ii) Failure, except for lawful, jobrelated reasons, to offer employment to 

qualified U.S. workers who applied for 

the job opportunity for which 

certification was sought; 

(iii) Failure to comply with the 

employer’s obligations to recruit U.S. 

workers; 

(iv) Improper layoff or displacement 

of U.S. workers or workers in 

corresponding employment; 

(v) Failure to comply with one or 

more sanctions or remedies imposed by 

the WHD Administrator for violation(s) 

of contractual or other H–2A 

obligations, or with one or more 

decisions or orders of the Secretary or 

a court under 8 U.S.C. 1188, 29 CFR part 

501, or this subpart; 

(vi) Impeding an investigation of an 

employer under 8 U.S.C. 1188 or 29 CFR 

part 501, or an audit under § 655.180 of 

this subpart; 

(vii) Employing an H–2A worker 

outside the area of intended 

employment, in an activity/activities 

not listed in the job order, or outside the 

validity period of employment of the job 

order, including any approved 

extension thereof; 

(viii) A violation of the requirements 

of § 655.135(j) and (k); 

(ix) A violation of any of the 

provisions listed in 29 CFR 501.4(a); or 

(x) A single heinous act showing such 

flagrant disregard for the law that future 

compliance with program requirements 

cannot reasonably be expected; 

(2) The employer’s failure to pay a 

necessary fee in a timely manner; 

(3) Fraud involving the Application 

for Temporary Employment 

Certification; or 

(4) The employer making a material 

misrepresentation of fact during the 

application process. 

(e) Determining whether a violation is 

substantial. In determining whether a 

violation is so substantial so as to merit 

debarment, the factors the CO may 

consider include, but are not limited to, 

the following: 

(1) Previous history of violation(s) of 

8 U.S.C. 1188, 29 CFR part 501, or this 

subpart; 

(2) The number of H–2A workers, 

workers in corresponding employment, 

or U.S. workers who were and/or are 

affected by the violation(s); 

(3) The gravity of the violation(s); 

(4) Efforts made in good faith to 

comply with 8 U.S.C. 1188, 29 CFR part 

501, and this subpart; 

(5) Explanation from the person 

charged with the violation(s); 

(6) Commitment to future compliance, 

taking into account the public health, 

interest, or safety, and whether the 

person has previously violated 8 U.S.C. 

1188; 

(7) The extent to which the violator 

achieved a financial gain due to the 

violation(s), or the potential financial 

loss or potential injury to the worker(s). 

(f) Debarment procedure. 

(1) Notice of Debarment. If the CO 

makes a determination to debar an 

employer, attorney, or agent, the CO 

will send that person a Notice of 

Debarment. The Notice will state the 

reason for the debarment finding, 

including a detailed explanation of the 

grounds for and the duration of the 

debarment, and the Notice will state the 

person’s opportunity to request a 

debarment hearing. The Notice will 

state that, to obtain such a hearing, the 

debarred party must, within 30 calendar 

days of the date of the Notice, file a 

written request to the Chief 

Administrative Law Judge, United 

States Department of Labor, 800 K 

Street, NW., Suite 400–N, Washington, 

DC 20001–8002, and simultaneously 

serve a copy to the Administrator, 

OFLC. The debarment will take effect 30 

days from the date the Notice of 

Debarment is issued, unless a request 

for review is properly filed within 30 

days from the issuance of the Notice of 

Debarment. The timely filing of an 

administrative appeal stays the 

debarment pending the outcome of the 

appeal. 

(2) Hearing. Within 10 days of receipt 

of the request for a hearing, the OFLC 

Administrator will send a certified copy 

of the ETA case file to the Chief ALJ by 

means normally assuring next-day 

delivery. The Chief ALJ will 

immediately assign an ALJ to conduct 

the hearing. The procedures in 29 CFR 

part 18 apply to such hearings, except 

that the request for a hearing will not be 


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considered to be a complaint to which 

an answer is required. 

(3) Decision. After the hearing, the 

ALJ must affirm, reverse, or modify the 

OFLC Administrator’s determination. 

The ALJ will prepare the decision 

within 60 days after completion of the 

hearing and closing of the record. The 

ALJ’s decision will be provided 

immediately to the employer, OFLC 

Administrator, DHS, and DOS by means 

normally assuring next-day delivery. 

The ALJ’s decision is the final decision 

of the Secretary, unless either party, 

within 30 calendar days of the ALJ’s 

decision, seeks review of the decision 

with the Administrative Review Board 

(ARB). 

(4) Review by the ARB. 

(i) Any party wishing review of the 

decision of an ALJ must, within 30 days 

of the decision of the ALJ, petition the 

ARB to review the decision. Copies of 

the petition must be served on all 

parties and on the ALJ. The ARB will 

decide whether to accept the petition 

within 30 days of receipt. If the ARB 

declines to accept the petition, or if the 

ARB does not issue a notice accepting 

a petition within 30 days after the 

receipt of a timely filing of the petition, 

the decision of the ALJ will be deemed 

the final agency action. If a petition for 

review is accepted, the decision of the 

ALJ will be stayed unless and until the 

ARB issues an order affirming the 

decision. The ARB must serve notice of 

its decision to accept or not to accept 

the petition upon the ALJ and upon all 

parties to the proceeding in person or by 

certified mail. 

(ii) Upon receipt of the ARB’s notice 

to accept the petition, the Office of 

Administrative Law Judges will 

promptly forward a copy of the 

complete hearing record to the ARB. 

(iii) Where the ARB has determined to 

review such decision and order, the 

ARB will notify each party of the 

issue(s) raised, the form in which 

submissions must be made (e.g., briefs 

or oral argument), and the time within 

which such presentation must be 

submitted. 

(5) ARB Decision. The ARB’s final 

decision must be issued within 90 days 

from the notice granting the petition and 

served upon all parties and the ALJ, in 

person or by certified mail. If the ARB 

fails to provide a decision within 90 

days from the notice granting the 

petition, the ALJ’s decision will be the 

final decision of the Secretary. 

(g) Concurrent debarment jurisdiction. 

OFLC and the WHD have concurrent 

jurisdiction to impose a debarment 

remedy under this section or under 29 

CFR 501.20. When considering 

debarment, OFLC and the WHD may 

inform one another and may coordinate 

their activities, so that a specific 

violation for which debarment is 

imposed is cited in a single debarment 

proceeding. Copies of final debarment 

decisions will be forwarded to DHS 

promptly. 

(h) Debarment involving members of 

associations. If the OFLC Administrator 

determines that an individual employermember of a joint employer association 

has committed a substantial violation, 

the debarment determination will apply 

only to that member unless the OFLC 

Administrator determines that the 

association or another association 

member participated in the violation, in 

which case the debarment will be 

invoked against the association or other 

complicit association member(s) as well. 

(i) Debarment involving associations 

acting as joint employers. If the OFLC 

Administrator determines that an 

association acting as a joint employer 

with its members has committed a 

substantial violation, the debarment 

determination will apply only to the 

association, and will not be applied to 

any individual employer-member of the 

association. However, if the OFLC 

Administrator determines that the 

member participated in, had knowledge 

of, or had reason to know of the 

violation, the debarment may be 

invoked against the complicit 

association member as well. An 

association debarred from the H–2A 

temporary labor certification program 

will not be permitted to continue to file 

as a joint employer with its members 

during the period of the debarment. 

(j) Debarment involving associations 

acting as sole employers. If the OFLC 

Administrator determines that an 

association acting as a sole employer 

has committed a substantial violation, 

the debarment determination will apply 

only to the association and any 

successor in interest to the debarred 

association. 

§ 655.183 Less than substantial violations. 

(a) Requirement of special procedures. 

If the OFLC Administrator determines 

that a less than substantial violation has 

occurred, but the OFLC Administrator 

has reason to believe that past actions 

on the part of the employer (or agent or 

attorney) may have had and may 

continue to have a chilling or otherwise 

negative effect on the recruitment, 

employment, and retention of U.S. 

workers, the OFLC Administrator may 

require the employer to conform to 

special procedures before and after the 

temporary labor certification 

determination. These special procedures 

may include special on-site positive 

recruitment and streamlined 

interviewing and referral techniques. 

The special procedures are designed to 

enhance U.S. worker recruitment and 

retention in the next year as a condition 

for receiving a temporary agricultural 

labor certification. Such requirements 

will be reasonable; will not require the 

employer to offer better wages, working 

conditions, and benefits than those 

specified in § 655.122; and will be no 

more than deemed necessary to assure 

employer compliance with the test of 

U.S. worker availability and adverse 

effect criteria of this subpart. 

(b) Notification of required special 

procedures. The OFLC Administrator 

will notify the employer (or agent or 

attorney) in writing of the special 

procedures that will be required in the 

coming year. The notification will state 

the reasons for the imposition of the 

requirements, state that the employer’s 

agreement to accept the conditions will 

constitute inclusion of them as bona 

fide conditions and terms of a 

temporary agricultural labor 

certification, and will offer the employer 

an opportunity to request an 

administrative review or a de novo 

hearing before an ALJ. If an 

administrative review or de novo 

hearing is requested, the procedures 

prescribed in § 655.171 will apply. 

(c) Failure to comply with special 

procedures. If the OFLC Administrator 

determines that the employer has failed 

to comply with special procedures 

required pursuant to paragraph (a) of 

this section, the OFLC Administrator 

will send a written notice to the 

employer, stating that the employer’s 

otherwise affirmative H–2A certification 

determination will be reduced by 25 

percent of the total number of H–2A 

workers requested (which cannot be 

more than those requested in the 

previous year) for a period of 1 year. 

Notice of such a reduction in the 

number of workers requested will be 

conveyed to the employer by the OFLC 

Administrator in the OFLC 

Administrator’s written certification 

determination. The notice will offer the 

employer an opportunity to request 

administrative review or a de novo 

hearing before an ALJ. If administrative 

review or a de novo hearing is 

requested, the procedures prescribed in 

§ 655.171 will apply, provided that if 

the ALJ affirms the OFLC 

Administrator’s determination that the 

employer has failed to comply with 

special procedures required by 

paragraph (a) of this section, the 

reduction in the number of workers 

requested will be 25 percent of the total 

number of H–2A workers requested 

(which cannot be more than those 


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requested in the previous year) for a 

period of 1 year. 

§ 655.184 Applications involving fraud or 

willful misrepresentation. 

(a) Referral for investigation. If the CO 

discovers possible fraud or willful 

misrepresentation involving an 

Application for Temporary Labor 

Certification, the CO may refer the 

matter to the DHS and the Department’s 

Office of the Inspector General for 

investigation. 

(b) Sanctions. If the WHD, a court or 

the DHS determines that there was fraud 

or willful misrepresentation involving 

an Application for Temporary Labor 

Certification and certification has been 

granted, a finding under this paragraph 

will be cause to revoke the certification. 

The finding of fraud or willful 

misrepresentation may also constitute a 

debarrable violation under § 655.182. 

§ 655.185 Job service complaint system; 

enforcement of work contracts. 

(a) Filing with DOL. Complaints 

arising under this subpart must be filed 

through the Job Service Complaint 

System, as described in 20 CFR part 

658, subpart E. Complaints involving 

allegations of fraud or misrepresentation 

must be referred by the SWA to the CO 

for appropriate handling and resolution. 

Complaints that involve worker 

contracts must be referred by the SWA 

to the WHD for appropriate handling 

and resolution, as described in 29 CFR 

part 501. As part of this process, the 

WHD may report the results of its 

investigation to the OFLC Administrator 

for consideration of employer penalties 

or such other action as may be 

appropriate. 

(b) Filing with the Department of 

Justice. Complaints alleging that an 

employer discouraged an eligible U.S. 

worker from applying, failed to hire, 

discharged, or otherwise discriminated 

against an eligible U.S. worker, or 

discovered violations involving the 

same, will be referred to the U.S. 

Department of Justice, Civil Rights 

Division, Office of Special Counsel for 

Unfair Immigration Related 

Employment Practices (OSC), in 

addition to any activity, investigation, 

and/or enforcement action taken by ETA 

or a SWA. Likewise, if OSC becomes 

aware of a violation of these regulations, 

it may provide such information to the 

appropriate SWA and the CO. 

TITLE 29—LABOR 

Revise part 501 to read as follows: 

PART 501—ENFORCEMENT OF 

CONTRACTUAL OBLIGATIONS FOR 

TEMPORARY ALIEN AGRICULTURAL 

WORKERS ADMITTED UNDER 

SECTION 218 OF THE IMMIGRATION 

AND NATIONALITY ACT 

Subpart A—General Provisions 

Sec. 

501.0 Introduction. 

501.1 Purpose and scope. 

501.2 Coordination between Federal 

agencies. 

501.3 Definitions. 

501.4 Discrimination prohibited. 

501.5 Waiver of rights prohibited. 

501.6 Investigation authority of Secretary. 

501.7 Cooperation with Federal officials. 

501.8 Accuracy of information, statements, 

data. 

501.9 Surety bond. 

Subpart B—Enforcement 

501.15 Enforcement. 

501.16 Sanctions and remedies—general. 

501.17 Concurrent actions. 

501.18 Representation of the secretary. 

501.19 Civil money penalty assessment. 

501.20 Debarment and revocation. 

501.21 Failure to cooperate with 

investigations. 

501.22 Civil money penalties—payment 

and pollection. 

Subpart C—Administrative Proceedings 

501.30 Applicability of procedures and 

rules. 

Procedures Relating to Hearing 

501.31 Written notice of determination 

required. 

501.32 Contents of notice. 

501.33 Request for hearing. 

Rules of Practice 

501.34 General. 

501.35 Commencement of proceeding. 

501.36 Caption of proceeding. 

Referral for Hearing 

501.37 Referral to Administrative Law 

Judge. 

501.38 Notice of docketing. 

501.39 Service upon attorneys for the 

Department of Labor—number of copies. 

Procedures Before Administrative Law Judge 

501.40 Consent findings and order. 

Post-Hearing Procedures 

501.41 Decision and order of 

Administrative Law judge. 

Review of Administrative Law Judge’s 

Decision 

501.42 Procedures for initiating and 

undertaking review. 

501.43 Responsibility of the Office of 

Administrative Law Judges (OALJ). 

501.44 Additional information, if required. 

501.45 Final decision of the Administrative 

Review Board. 

Record 

501.46 Retention of official record. 

501.47 Certification. 

Authority: 8 U.S.C. 1101(a)(15)(H)(ii)(a), 

1184(c), and 1188. 

Subpart A—General Provisions 

§ 501.0 Introduction. 

These regulations cover the 

enforcement of all contractual 

obligations, including requirements 

under 8 U.S.C. 1188 and 20 CFR part 

655, subpart B applicable to the 

employment of H–2A workers and 

workers in corresponding employment, 

including obligations to offer 

employment to eligible United States 

(U.S.) workers and to not lay off or 

displace U.S. workers in a manner 

prohibited by these regulations or 20 

CFR part 655, subpart B. 

§ 501.1 Purpose and scope. 

(a) Statutory standards. 8 U.S.C. 1188 

provides that: 

(1) A petition to import an alien as an 

H–2A worker (as defined at 8 U.S.C. 

1188) may not be approved by the 

Secretary of the Department of 

Homeland Security (DHS) unless the 

petitioner has applied to the U.S. 

Secretary of Labor (Secretary) for a 

certification that: 

(i) There are not sufficient workers 

who are able, willing, and qualified, and 

who will be available at the time and 

place needed, to perform the labor or 

services involved in the petition, and 

(ii) The employment of the alien in 

such labor or services will not adversely 

affect the wages and working conditions 

of workers in the U.S. similarly 

employed. 

(2) The Secretary is authorized to take 

actions that assure compliance with the 

terms and conditions of employment 

under 8 U.S.C. 1188, the regulations at 

20 CFR part 655, subpart B, or these 

regulations, including imposing 

appropriate penalties, and seeking 

injunctive relief and specific 

performance of contractual obligations. 

See 8 U.S.C. 1188(g)(2). 

(b) Role of the Employment and 

Training Administration (ETA). The 

issuance and denial of labor 

certification under 8 U.S.C. 1188 has 

been delegated by the Secretary to ETA, 

an agency within the U.S. Department of 

Labor (the Department or DOL), who in 

turn has delegated that authority to the 

Office of Foreign Labor Certification 

(OFLC). In general, matters concerning 

the obligations of an employer of H–2A 

workers related to the labor certification 

process are administered by OFLC, 

including obligations and assurances 

made by employers, overseeing 

employer recruitment and assuring 

program integrity. The regulations 

pertaining to the issuance, denial, and 


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revocation of labor certification for 

temporary foreign workers by the OFLC 

are found in 20 CFR part 655, subpart 

B. 

(c) Role of the Employment Standards 

Administration (ESA), Wage and Hour 

Division (WHD). Certain investigatory, 

inspection, and law enforcement 

functions to carry out the provisions 

under 8 U.S.C. 1188 have been 

delegated by the Secretary to the WHD. 

In general, matters concerning the 

obligations under a work contract 

between an employer of H–2A workers 

and the H–2A workers and workers in 

corresponding employment are enforced 

by WHD, including whether 

employment was offered to U.S. workers 

as required under 8 U.S.C. 1188 or 20 

CFR part 655, subpart B, or whether 

U.S. workers were laid off or displaced 

in violation of program requirements. 

Included within the enforcement 

responsibility of WHD are such matters 

as the payment of required wages, 

transportation, meals, and housing 

provided during the employment. The 

WHD has the responsibility to carry out 

investigations, inspections, and law 

enforcement functions and in 

appropriate instances to impose 

penalties, to debar from future 

certifications, to recommend revocation 

of existing certification(s), and to seek 

injunctive relief and specific 

performance of contractual obligations, 

including recovery of unpaid wages and 

reinstatement of laid off or displaced 

U.S. workers. 

(d) Effect of regulations. The 

enforcement functions carried out by 

the WHD under 8 U.S.C. 1188, 20 CFR 

part 655, subpart B, and these 

regulations apply to the employment of 

any H–2A worker and any other worker 

in corresponding employment as the 

result of any Application for Temporary 

Employment Certification filed with the 

Department on and after the effective 

date of these regulations. 

§ 501.2 Coordination between Federal 

agencies. 

(a) Complaints received by ETA or 

any State Workforce Agency (SWA) 

regarding contractual H–2A labor 

standards between the employer and the 

employee will be immediately 

forwarded to the appropriate WHD 

office for appropriate action under these 

regulations. 

(b) Information received in the course 

of processing applications, program 

integrity measures, or enforcement 

actions may be shared between OFLC 

and WHD, or other agencies as 

appropriate, including the Department 

of State (DOS) and DHS, for 

enforcement purposes. 

(c) A specific violation for which 

debarment is imposed will be cited in 

a single debarment proceeding. OFLC 

and the WHD may coordinate their 

activities to achieve this result. Copies 

of final debarment decisions will be 

forwarded to the DHS promptly. 

§ 501.3 Definitions. 

(a) Definitions of terms used in this 

part. 

Administrative Law Judge (ALJ). A 

person within the Department’s Office 

of Administrative Law Judges appointed 

pursuant to 5 U.S.C. 3105. 

Adverse effect wage rate (AEWR). The 

annual weighted average hourly wage 

for field and livestock workers 

(combined) in the States or regions as 

published annually by the U.S. 

Department of Agriculture (USDA) 

based on its quarterly wage survey. 

Agent. A legal entity or person, such 

as an association of agricultural 

employers, or an attorney for an 

association, that: 

(1) Is authorized to act on behalf of 

the employer for temporary agricultural 

labor certification purposes; 

(2) Is not itself an employer, or a joint 

employer, as defined in this section 

with respect to a specific Application 

for Temporary Labor Certification; and 

(3) Is not under suspension, 

debarment, expulsion, or disbarment 

from practice before any court, the 

Department, the Executive Office for 

Immigration Review, or DHS under 8 

CFR 292.3 or 1003.101. 

Agricultural association. Any 

nonprofit or cooperative association of 

farmers, growers, or ranchers (including 

but not limited to processing 

establishments, canneries, gins, packing 

sheds, nurseries, or other similar fixedsite agricultural employers), 

incorporated or qualified under 

applicable State law, that recruits, 

solicits, hires, employs, furnishes, 

houses, or transports any worker that is 

subject to 8 U.S.C. 1188, 20 CFR part 

655, subpart B, or this part. An 

agricultural association may act as the 

agent of an employer, or may act as the 

sole or joint employer of any worker 

subject to 8 U.S.C. 1188. 

Area of intended employment. The 

geographic area within normal 

commuting distance of the place of the 

job opportunity for which the 

certification is sought. There is no rigid 

measure of distance that constitutes a 

normal commuting distance or normal 

commuting area, because there may be 

widely varying factual circumstances 

among different areas (e.g., average 

commuting times, barriers to reaching 

the worksite, quality of the regional 

transportation network). If the place of 

intended employment is within a 

Metropolitan Statistical Area (MSA), 

including a multistate MSA, any place 

within the MSA is deemed to be within 

normal commuting distance of the place 

of intended employment. The borders of 

MSAs are not controlling in the 

identification of the normal commuting 

area; a location outside of an MSA may 

be within normal commuting distance 

of a location that is inside (e.g., near the 

border of) the MSA. 

Corresponding employment. The 

employment of workers who are not 

H–2A workers by an employer who has 

an approved H–2A Application for 

Temporary Labor Certification in any 

work included in the job order, or in 

any agricultural work performed by the 

H–2A workers. To qualify as 

corresponding employment the work 

must be performed during the validity 

period of the job order, including any 

approved extension thereof. 

Date of need. The first date the 

employer requires the services of H–2A 

workers as indicated in the Application 

for Temporary Employment 

Certification. 

Employee. A person who is engaged 

to perform work for an employer, as 

defined under the general common law 

of agency. Some of the factors relevant 

to the determination of employee status 

include: The hiring party’s right to 

control the manner and means by which 

the work is accomplished; the skill 

required to perform the work; the source 

of the instrumentalities and tools for 

accomplishing the work; the location of 

the work; the hiring party’s discretion 

over when and how long to work; and 

whether the work is part of the regular 

business of the hiring party. Other 

applicable factors may be considered 

and no one factor is dispositive. 

Employer. A person (including any 

individual, partnership, association, 

corporation, cooperative, firm, joint 

stock company, trust, or other 

organization with legal rights and 

duties) that: 

(1) Has a place of business (physical 

location) in the U.S. and a means by 

which it may be contacted for 

employment; 

(2) Has an employer relationship 

(such as the ability to hire, pay, fire, 

supervise or otherwise control the work 

of employee) with respect to an H–2A 

worker or a worker in corresponding 

employment; and 

(3) Possesses, for purposes of filing an 

Application for Temporary Employment 

Certification, a valid Federal Employer 

Identification Number (FEIN). 

Federal holiday. Legal public holiday 

as defined at 5 U.S.C. 6103. 


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Fixed-site employer. Any person 

engaged in agriculture who meets the 

definition of an employer, as those 

terms are defined in this part, who owns 

or operates a farm, ranch, processing 

establishment, cannery, gin, packing 

shed, nursery, or other similar fixed-site 

location where agricultural activities are 

performed and who recruits, solicits, 

hires, employs, houses, or transports 

any worker subject to 8 U.S.C. 1188, 20 

CFR part 655, subpart B or this part, as 

incident to or in conjunction with the 

owner’s or operator’s own agricultural 

operation. 

H–2A Labor Contractor (H–2ALC). 

Any person who meets the definition of 

employer under this part and is not a 

fixed-site employer, an agricultural 

association, or an employee of a fixedsite employer or agricultural 

association, as those terms are used in 

this part, who recruits, solicits, hires, 

employs, furnishes, houses, or 

transports any worker subject to 8 

U.S.C. 1188, 20 CFR part 655, subpart B 

or this part. 

H–2A worker. Any temporary foreign 

worker who is lawfully present in the 

U.S. and authorized by DHS to perform 

agricultural labor or services of a 

temporary or seasonal nature pursuant 

to 8 U.S.C. 1101(a)(15)(H)(ii)(a). 

Job offer. The offer made by an 

employer or potential employer of H–2A 

workers to both U.S. and H–2A workers 

describing all the material terms and 

conditions of employment, including 

those relating to wages, working 

conditions, and other benefits. 

Job opportunity. Full-time 

employment at a place in the U.S. to 

which U.S. workers can be referred. 

Job order. The document containing 

the terms and conditions of employment 

that is posted by the SWA on its interand intra-state job clearance systems 

based on the employer’s Form ETA–790, 

as submitted to the SWA. 

Joint employment. Where two or more 

employers each have sufficient 

definitional indicia of an employer to be 

considered the employer of a worker, 

those employers will be considered to 

jointly employ that worker. Each 

employer in a joint employment 

relationship to a worker is considered a 

joint employer of that worker. 

Prevailing wage. Wage established 

pursuant to 20 CFR 653.501(d)(4). 

State Workforce Agency (SWA). State 

government agency that receives funds 

pursuant to the Wagner-Peyser Act (29 

U.S.C. 49 et seq.) to administer the 

State’s public labor exchange activities. 

Successor in interest. Where an 

employer has violated 8 U.S.C. 1188, 20 

CFR part 655, subpart B, or these 

regulations, and has ceased doing 

business or cannot be located for 

purposes of enforcement, a successor in 

interest to that employer may be held 

liable for the duties and obligations of 

the violating employer in certain 

circumstances. The following factors, as 

used under Title VII of the Civil Rights 

Act and the Vietnam Era Veterans’ 

Readjustment Assistance Act, may be 

considered in determining whether an 

employer is a successor in interest; no 

one factor is dispositive, but all of the 

circumstances will be considered as a 

whole: 

(1) Substantial continuity of the same 

business operations; 

(2) Use of the same facilities; 

(3) Continuity of the work force; 

(4) Similarity of jobs and working 

conditions; 

(5) Similarity of supervisory personnel; 

(6) Whether the former management or 

owner retains a direct or indirect 

interest in the new enterprise; 

(7) Similarity in machinery, equipment, 

and production methods; 

(8) Similarity of products and services; 

and 

(9) The ability of the predecessor to 

provide relief. 

For purposes of debarment only, the 

primary consideration will be the 

personal involvement of the firm’s 

ownership, management, supervisors, 

and others associated with the firm in 

the violations at issue. 

Temporary agricultural labor 

certification. Certification made by the 

OFLC Administrator with respect to an 

employer seeking to file with DHS a visa 

petition to employ one or more foreign 

nationals as an H–2A worker, pursuant 

to 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(a) 

and (c), and 1188. 

United States (U.S.). The continental 

U.S., Alaska, Hawaii, the 

Commonwealth of Puerto Rico, and the 

territories of Guam, the Virgin Islands, 

and, as of the transition program 

effective date, as defined in the 

Consolidated Natural Resources Act of 

2008, Public Law 110–229, Title VII, the 

Commonwealth of the Northern Mariana 

Islands. 

United States worker (U.S. worker). A 

worker who is: 

(1) A citizen or national of the U.S.; 

or 

(2) An alien who is lawfully admitted 

for permanent residence in the U.S., is 

admitted as a refugee under 8 U.S.C. 

1157, is granted asylum under 8 U.S.C. 

1158, or is an immigrant otherwise 

authorized (by the INA or by DHS) to be 

employed in the U.S.; or 

(3) An individual who is an 

authorized alien (as defined in 8 U.S.C. 

1324a(h)(3)) with respect to the 

employment in which the worker is 

engaging. 

WHD Administrator. The 

Administrator of the Wage and Hour 

Division (WHD), and such authorized 

representatives as may be designated to 

perform any of the functions of the 

WHD Administrator under this part. 

Wages. All forms of cash 

remuneration to a worker by an 

employer in payment for personal 

services. 

Work contract. All the material terms 

and conditions of employment relating 

to wages, hours, working conditions, 

and other benefits, including those 

required by 8 U.S.C. 1188, 20 CFR part 

655, subpart B, or this part. The contract 

between the employer and the worker 

may be in the form of a separate written 

document. In the absence of a separate 

written work contract incorporating the 

required terms and conditions of 

employment, agreed to by both the 

employer and the worker, the work 

contract at a minimum will be the terms 

of the job order and any obligations 

required under 8 U.S.C. 1188, 20 CFR 

part 655, subpart B or this part. 

(b) Definition of agricultural labor or 

services. For the purposes of this part, 

agricultural labor or services, pursuant 

to 8 U.S.C. 1101(a)(15)(H)(ii)(a), is 

defined as: agricultural labor as defined 

and applied in sec. 3121(g) of the 

Internal Revenue Code of 1986 at 26 

U.S.C. 3121(g); agriculture as defined 

and applied in sec. 3(f) of the Fair Labor 

Standards Act of 1938 (FLSA) at 29 

U.S.C. 203(f); the pressing of apples for 

cider on a farm; logging employment; 

reforestation activities; or pine straw 

activities. 

(1) Agricultural labor for the purpose 

of paragraph (b) of this section means all 

service performed: 

(i) On a farm, in the employ of any 

person, in connection with cultivating 

the soil, or in connection with raising or 

harvesting any agricultural or 

horticultural commodity, including the 

raising, shearing, feeding, caring for, 

training, and management of livestock, 

bees, poultry, and fur-bearing animals 

and wildlife; 

(ii) In the employ of the owner or 

tenant or other operator of a farm, in 

connection with the operation, 

management, conservation, 

improvement, or maintenance of such 

farm and its tools and equipment, or in 

salvaging timber or clearing land of 

brush and other debris left by a 

hurricane, if the major part of such 

service is performed on a farm; 

(iii) In connection with the 

production or harvesting of any 

commodity defined as an agricultural 

commodity in section 15(g) of the 


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Agricultural Marketing Act, as amended 

(12 U.S.C. 1141j), or in connection with 

the ginning of cotton, or in connection 

with the operation or maintenance of 

ditches, canals, reservoirs, or 

waterways, not owned or operated for 

profit, used exclusively for supplying 

and storing water for farming purposes; 

(iv) In the employ of the operator of 

a farm in handling, planting, drying, 

packing, packaging, processing, 

freezing, grading, storing, or delivering 

to storage or to market or to a carrier for 

transportation to market, in its 

unmanufactured state, any agricultural 

or horticultural commodity; but only if 

such operator produced more than onehalf of the commodity with respect to 

which such service is performed; 

(v) In the employ of a group of 

operators of farms (other than a 

cooperative organization) in the 

performance of service described in 

paragraph (b)(1)(iv) but only if such 

operators produced all of the 

commodity with respect to which such 

service is performed. For purposes of 

this paragraph, any unincorporated 

group of operators shall be deemed a 

cooperative organization if the number 

of operators comprising such group is 

more than 20 at any time during the 

calendar year in which such service is 

performed; 

(vi) The provisions of paragraphs 

(b)(1)(iv) and (b)(1)(v) shall not be 

deemed to be applicable with respect to 

service performed in connection with 

commercial canning or commercial 

freezing or in connection with any 

agricultural or horticultural commodity 

after its delivery to a terminal market for 

distribution for consumption; or 

(vii) On a farm operated for profit if 

such service is not in the course of the 

employer’s trade or business or is 

domestic service in a private home of 

the employer. 

As used in this section, the term farm 

includes stock, dairy, poultry, fruit, furbearing animal, and truck farms, 

plantations, ranches, nurseries, ranges, 

greenhouses or other similar structures 

used primarily for the raising of 

agricultural or horticultural 

commodities, and orchards. 

(2) Agriculture. For purposes of 

paragraph (b) of this section, agriculture 

means farming in all its branches and 

among other things includes the 

cultivation and tillage of the soil, 

dairying, the production, cultivation, 

growing, and harvesting of any 

agricultural or horticultural 

commodities (including commodities 

defined as agricultural commodities in 

1141j(g) of title 12, the raising of 

livestock, bees, fur-bearing animals, or 

poultry, and any practices (including 

any forestry or lumbering operations) 

performed by a farmer or on a farm as 

an incident to or in conjunction with 

such farming operations, including 

preparation for market, delivery to 

storage or to market or to carriers for 

transportation to market. See sec. 29 

U.S.C. 203(f), as amended (sec. 3(f) of 

the FLSA, as codified). Under 12 U.S.C. 

1141j(g) agricultural commodities 

include, in addition to other agricultural 

commodities, crude gum (oleoresin) 

from a living tree, and the following 

products as processed by the original 

producer of the crude gum (oleoresin) 

from which derived: gum spirits of 

turpentine and gum rosin. In addition as 

defined in 7 U.S.C. 92, gum spirits of 

turpentine means spirits of turpentine 

made from gum (oleoresin) from a living 

tree and gum rosin means rosin 

remaining after the distillation of gum 

spirits of turpentine. 

(3) Apple pressing for cider. The 

pressing of apples for cider on a farm, 

as the term farm is defined and applied 

in sec. 3121(g) of the Internal Revenue 

Code at 26 U.S.C. 3121(g) or as applied 

in sec. 3(f) of FLSA at 29 U.S.C. 203(f), 

pursuant to 29 CFR part 780. 

(4) Logging employment. Operations 

associated with felling and moving trees 

and logs from the stump to the point of 

delivery, such as, but not limited to, 

marking danger trees and trees/logs to 

be cut to length, felling, limbing, 

bucking, debarking, chipping, yarding, 

loading, unloading, storing, and 

transporting machines, equipment and 

personnel to, from and between logging 

sites. 

(5) Reforestation activities. 

Predominately manual forestry work 

that includes, but is not limited to, tree 

planting, brush clearing and precommercial tree thinning. 

(6) Pine straw activities. Certain 

activities predominately performed 

using hand tools, including but not 

limited to the raking, gathering, baling, 

and loading of pine straw that is a 

product of pine trees that are managed 

using agricultural or horticultural/ 

silvicultural techniques. 

(c) Definition of a temporary or 

seasonal nature. For the purposes of 

this part, employment is of a seasonal 

nature where it is tied to a certain time 

of year by an event or pattern, such as 

a short annual growing cycle or a 

specific aspect of a longer cycle, and 

requires labor levels far above those 

necessary for ongoing operations. 

Employment is of a temporary nature 

where the employer’s need to fill the 

position with a temporary worker will, 

except in extraordinary circumstances, 

last no longer than 1 year. 

§ 501.4 Discrimination prohibited. 

(a) A person may not intimidate, 

threaten, restrain, coerce, blacklist, 

discharge, or in any manner 

discriminate against any person who 

has: 

(1) Filed a complaint under or related 

to 8 U.S.C. 1188 or these regulations; 

(2) Instituted or caused to be 

instituted any proceedings related to 8 

U.S.C. 1188 or these regulations; 

(3) Testified or is about to testify in 

any proceeding under or related to 8 

U.S.C. 1188 or these regulations; 

(4) Consulted with an employee of a 

legal assistance program or an attorney 

on matters related to 8 U.S.C. 1188, or 

to this subpart or any other Department 

regulation promulgated pursuant to 8 

U.S.C. 1188; or 

(5) Exercised or asserted on behalf of 

himself or others any right or protection 

afforded by 8 U.S.C. 1188 or these 

regulations. 

(b) Allegations of discrimination 

against any person under paragraph (a) 

of this section will be investigated by 

the WHD. Where the WHD has 

determined through investigation that 

such allegations have been 

substantiated, appropriate remedies may 

be sought. The WHD may assess civil 

money penalties, seek injunctive relief, 

and/or seek additional remedies 

necessary to make the employee whole 

as a result of the discrimination, as 

appropriate, initiate debarment 

proceedings, and recommend to OFLC 

revocation of any such violator’s current 

labor certification. Complaints alleging 

discrimination against workers or 

immigrants based on citizenship or 

immigration status may also be 

forwarded by the WHD to the 

Department of Justice, Civil Rights 

Division, Office of Special Counsel for 

Immigration-Related Unfair 

Employment Practices. 

§ 501.5 Waiver of rights prohibited. 

A person may not seek to have an 

H–2A worker, a worker in 

corresponding employment, or a U.S. 

worker improperly rejected for 

employment or improperly laid off or 

displaced waive any rights conferred 

under 8 U.S.C. 1188, 20 CFR part 655, 

subpart B, or these regulations. Any 

agreement by an employee purporting to 

waive or modify any rights given to said 

person under these provisions shall be 

void as contrary to public policy except 

as follows: 

(1) Waivers or modifications of rights 

or obligations hereunder in favor of the 

Secretary shall be valid for purposes of 

enforcement; and 

(2) Agreements in settlement of 

private litigation are permitted. 


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§ 501.6 Investigation authority of 

Secretary. 

(a) General. The Secretary, through 

the WHD, may investigate to determine 

compliance with obligations under 8 

U.S.C. 1188, 20 CFR part 655, subpart B, 

or these regulations, either pursuant to 

a complaint or otherwise, as may be 

appropriate. In connection with such an 

investigation, WHD may enter and 

inspect any premises, land, property, 

housing, vehicles, and records (and 

make transcriptions thereof), question 

any person and gather any information 

as may be appropriate. 

(b) Confidential investigation. The 

WHD shall conduct investigations in a 

manner that protects the confidentiality 

of any complainant or other person who 

provides information to the Secretary in 

good faith. 

(c) Report of violations. Any person 

may report a violation of the obligations 

imposed by 8 U.S.C. 1188, 20 CFR part 

655, subpart B, or these regulations to 

the Secretary by advising any local 

office of the SWA, ETA, WHD or any 

other authorized representative of the 

Secretary. The office or person receiving 

such a report shall refer it to the 

appropriate office of WHD for the 

geographic area in which the reported 

violation is alleged to have occurred. 

§ 501.7 Cooperation with Federal officials. 

All persons must cooperate with any 

Federal officials assigned to perform an 

investigation, inspection, or law 

enforcement function pursuant to 8 

U.S.C. 1188 and these regulations 

during the performance of such duties. 

The WHD will take such action as it 

deems appropriate, including initiating 

debarment proceedings, seeking an 

injunction to bar any failure to 

cooperate with an investigation and/or 

assessing a civil money penalty therefor. 

In addition, the WHD will report the 

matter to OFLC, and may recommend to 

OFLC that the person’s existing labor 

certification be revoked. In addition, 

Federal statutes prohibiting persons 

from interfering with a Federal officer in 

the course of official duties are found at 

18 U.S.C. 111 and 18 U.S.C. 114. 

§ 501.8 Accuracy of information, 

statements, data. 

Information, statements and data 

submitted in compliance with 8 U.S.C. 

1188 or these regulations are subject to 

18 U.S.C. 1001, which provides, with 

regard to statements or entries generally, 

that whoever, in any matter within the 

jurisdiction of any department or agency 

of the U.S., knowingly and willfully 

falsifies, conceals, or covers up a 

material fact by any trick, scheme, or 

device, or makes any false, fictitious, or 

fraudulent statements or 

representations, or makes or uses any 

false writing or document knowing the 

same to contain any false, fictitious, or 

fraudulent statement or entry, shall be 

fined not more than $10,000 or 

imprisoned not more than 5 years, or 

both. 

§ 501.9 Surety bond. 

(a) Every H–2ALC must obtain a 

surety bond demonstrating its ability to 

discharge financial obligations under 

the H–2A program. Documentation from 

the issuer must be provided with the 

Application for Temporary Employment 

Certification identifying the name, 

address, phone number, and contact 

person for the surety, and providing the 

amount of the bond (as calculated in 

this section), date of its issuance and 

expiration and any identifying 

designation utilized by the surety for the 

bond. 

(b) The bond must be payable to the 

Administrator, Wage and Hour Division, 

United States Department of Labor, 200 

Constitution Avenue, NW., Room S– 

3502, Washington, DC 20210. It will 

obligate the surety to pay any sums to 

the WHD Administrator for wages and 

benefits owed to an H–2A worker or to 

a worker in corresponding employment, 

or to a U.S. worker improperly rejected 

or improperly laid off or displaced, 

based on a final decision finding a 

violation or violations of this part or 20 

CFR part 655, subpart B relating to the 

labor certification the bond is intended 

to cover. The aggregate liability of the 

surety shall not exceed the face amount 

of the bond. The bond must be written 

to cover liability incurred during the 

term of the period listed in the 

Application for Temporary Employment 

Certification for labor certification made 

by the H–2ALC, and shall be amended 

to cover any extensions of the labor 

certification requested by the H–2ALC. 

(c) The bond must be in the amount 

of $5,000 for a labor certification for 

which a H–2ALC will employ fewer 

than 25 workers; $10,000 for a labor 

certification for which a H–2ALC will 

employ 25 to 49 workers; $20,000 for a 

labor certification for which a H–2ALC 

will employ 50 to 74 workers; $50,000 

for a labor certification for which a H– 

2ALC will employ 75 to 99 workers; and 

$75,000 for a labor certification for 

which a H–2ALC will employ 100 or 

more workers. The amount of the bond 

may be increased by the WHD 

Administrator after notice and an 

opportunity for hearing when it is 

shown based on objective criteria that 

the amount of the bond is insufficient to 

meet potential liabilities. 

(d) The bond must remain in force for 

a period of no less than 2 years from the 

date on which the labor certification 

expires. If the WHD has commenced any 

enforcement action under these 

regulations against the employer or any 

successor in interest by that date, the 

bond shall remain in force until the 

conclusion of such action and any 

appeal or related litigation. Surety 

bonds may not be canceled or 

terminated unless 45 days’ notice is 

provided by the surety in writing to the 

WHD Administrator, at the address set 

forth in paragraph (b). 

Subpart B—Enforcement 

§ 501.15 Enforcement. 

The investigation, inspection, and law 

enforcement functions to carry out the 

provisions of 8 U.S.C. 1188, 20 CFR part 

655, subpart B, or these regulations, as 

provided in these regulations for 

enforcement by the WHD, pertain to the 

employment of any H–2A worker, any 

worker in corresponding employment, 

or any U.S. worker improperly rejected 

for employment or improperly laid off 

or displaced. Such enforcement 

includes the work contract provisions as 

defined in § 501.3(a). 

§ 501.16 Sanctions and remedies— 

general. 

Whenever the WHD Administrator 

believes that 8 U.S.C. 1188, 20 CFR part 

655, subpart B, or these regulations have 

been violated, such action shall be taken 

and such proceedings instituted as 

deemed appropriate, including (but not 

limited to) the following: 

(a)(1) Institute appropriate 

administrative proceedings, including: 

The recovery of unpaid wages 

(including recovery of recruitment fees 

paid in the absence of required contract 

clauses (see 20 CFR 655.135(k)); the 

enforcement of provisions of the work 

contract, 8 U.S.C. 1188, 20 CFR part 

655, subpart B, or these regulations; the 

assessment of a civil money penalty; 

make whole relief for any person who 

has been discriminated against; 

reinstatement and make-whole relief for 

any U.S. worker who has been 

improperly rejected for employment, 

laid off or displaced; or debarment for 

up to 3 years. 

(2) The remedies referenced in 

paragraph (1) will be sought either 

directly from the employer, or from its 

successor in interest, as appropriate. In 

the case of an H–2ALC, the remedies 

will be sought from the H–2ALC 

directly and/or monetary relief (other 

than civil money penalties) from the 

insurer who issued the surety bond to 

the H–2ALC, as required by 20 CFR part 


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655, subpart B and section 501.9 of this 

part. 

(b) Petition any appropriate District 

Court of the U.S. for temporary or 

permanent injunctive relief, including 

to prohibit the withholding of unpaid 

wages and/or for reinstatement, or to 

restrain violation of 8 U.S.C. 1188, 20 

CFR part 655, subpart B, or these 

regulations, by any person. 

(c) Petition any appropriate District 

Court of the U.S. for an order directing 

specific performance of covered 

contractual obligations. 

§ 501.17 Concurrent actions. 

OFLC has primary responsibility to 

make all determinations regarding the 

issuance, denial, or revocation of a labor 

certification as described in § 501.1(b) of 

this part and in 20 CFR part 655, 

subpart B. The WHD has primary 

responsibility to make all 

determinations regarding the 

enforcement functions as described in 

§ 501.1(c) of this part. The taking of any 

one of the actions referred to above shall 

not be a bar to the concurrent taking of 

any other action authorized by 8 U.S.C. 

1188, 20 CFR part 655, subpart B, or 

these regulations. OFLC and the WHD 

have concurrent jurisdiction to impose 

a debarment remedy under 20 CFR 

655.182 or under § 501.20 of these 

regulations. 

§ 501.18 Representation of the Secretary. 

The Solicitor of Labor, through 

authorized representatives, shall 

represent the WHD Administrator and 

the Secretary in all administrative 

hearings under 8 U.S.C. 1188 and these 

regulations. 

§ 501.19 Civil money penalty assessment. 

(a) A civil money penalty may be 

assessed by the WHD Administrator for 

each violation of the work contract, or 

the obligations imposed by 8 U.S.C. 

1188, 20 CFR part 655, subpart B, or 

these regulations. Each failure to pay an 

individual worker properly or to honor 

the terms or conditions of a worker’s 

employment required by 8 U.S.C. 1188, 

20 CFR part 655, subpart B, or these 

regulations constitutes a separate 

violation. 

(b) In determining the amount of 

penalty to be assessed for each 

violation, the WHD Administrator shall 

consider the type of violation 

committed and other relevant factors. 

The factors that may be considered 

include, but are not limited to, the 

following: 

(1) Previous history of violation(s) of 

8 U.S.C. 1188, 20 CFR part 655, subpart 

B, or these regulations; 

(2) The number of H–2A workers, 

workers in corresponding employment, 

or U.S. workers who were and/or are 

affected by the violation(s); 

(3) The gravity of the violation(s); 

(4) Efforts made in good faith to 

comply with 8 U.S.C. 1188, 20 CFR part 

655, subpart B, and these regulations; 

(5) Explanation from the person 

charged with the violation(s); 

(6) Commitment to future compliance, 

taking into account the public health, 

interest or safety, and whether the 

person has previously violated 8 U.S.C. 

1188; 

(7) The extent to which the violator 

achieved a financial gain due to the 

violation, or the potential financial loss 

or potential injury to the workers. 

(c) A civil money penalty for each 

violation of the work contract or a 

requirement of 8 U.S.C. 1188, 20 CFR 

part 655, subpart B, or these regulations 

will not exceed $1,500 per violation, 

with the following exceptions: 

(1) A civil money penalty for each 

willful violation of the work contract, or 

of 8 U.S.C. 1188, 20 CFR part 655, 

subpart B, or these regulations, or for 

each act of discrimination prohibited by 

§ 501.4 shall not exceed $5,000; 

(2) A civil money penalty for a 

violation of a housing or transportation 

safety and health provision of the work 

contract, or any obligation under 8 

U.S.C. 1188, 20 CFR part 655, subpart B, 

or these regulations, that proximately 

causes the death or serious injury of any 

worker shall not exceed $50,000 per 

worker; 

(3) For purposes of this section, the 

term serious injury includes, but is not 

limited to: 

(i) Permanent loss or substantial 

impairment of one of the senses (sight, 

hearing, taste, smell, tactile sensation); 

(ii) Permanent loss or substantial 

impairment of the function of a bodily 

member, organ or mental faculty, 

including the loss of all or part of an 

arm, leg, foot, hand or other body part; 

or 

(iii) Permanent paralysis or 

substantial impairment that causes loss 

of movement or mobility of an arm, leg, 

foot, hand or other body part. 

(4) A civil money penalty for a repeat 

or willful violation of a housing or 

transportation safety and health 

provision of the work contract, or any 

obligation under 8 U.S.C. 1188, 20 CFR 

part 655, subpart B, or these regulations, 

that proximately causes the death or 

serious injury of any worker, shall not 

exceed $100,000 per worker. 

(d) A civil money penalty for failure 

to cooperate with a WHD investigation 

shall not exceed $5,000 per 

investigation. 

(e) A civil money penalty for laying 

off or displacing any U.S. worker 

employed in work or activities that are 

encompassed by the approved 

Application for Temporary Labor 

Certification for H–2A workers in the 

area of intended employment either 

within 60 days preceding the date of 

need or during the validity period of the 

job order, including any approved 

extension thereof, other than for a 

lawful, job-related reason, shall not 

exceed $15,000 per violation per 

worker. Such layoff shall be permitted 

where all H–2A workers were laid off 

first. 

(f) A civil money penalty for 

improperly rejecting a U.S. worker who 

is an applicant for employment, in 

violation of 8 U.S.C. 1188, 20 CFR part 

655, subpart B, or these regulations, 

shall not exceed $15,000 per violation 

per worker. 

§ 501.20 Debarment and revocation. 

(a) Debarment of an employer. The 

WHD Administrator may debar an 

employer or any successor in interest to 

that employer from receiving future 

labor certifications under 20 CFR part 

655, subpart B, subject to the time limits 

set forth in paragraph (c) of this section, 

if: The WHD Administrator finds that 

the employer substantially violated a 

material term or condition of its 

temporary labor certification, with 

respect to H–2A workers, workers in 

corresponding employment, or U.S. 

workers improperly rejected for 

employment, or improperly laid off or 

displaced, by issuing a Notice of 

Debarment. 

(b) Debarment of an agent or an 

attorney. The WHD Administrator may 

debar an agent or attorney from 

participating in any action under 8 

U.S.C. 1188, 20 CFR part 655, subpart B 

or 29 CFR part 501, if the WHD 

Administrator finds that the agent or 

attorney participated in, had knowledge 

of, or had reason to know of, an 

employer’s substantial violation, by 

issuing a Notice of Debarment. The 

OFLC Administrator may not issue 

future labor certifications to any 

employer represented by a debarred 

agent or attorney, subject to the time 

limits set forth in paragraph (c) of this 

section. 

(c) Statute of Limitations and Period 

of Debarment. 

(1) The WHD Administrator must 

issue any Notice of Debarment no later 

than 2 years after the occurrence of the 

violation. 

(2) No employer, attorney, or agent 

may be debarred under this subpart for 

more than 3 years from the date of the 

final agency decision. 


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(d) Definition of violation. For the 

purposes of this section, a violation 

includes: 

(1) One or more acts of commission or 

omission on the part of the employer or 

the employer’s agent which involve: 

(i) Failure to pay or provide the 

required wages, benefits or working 

conditions to the employer’s H–2A 

workers and/or workers in 

corresponding employment; 

(ii) Failure, except for lawful, jobrelated reasons, to offer employment to 

qualified U.S. workers who applied for 

the job opportunity for which 

certification was sought; 

(iii) Failure to comply with the 

employer’s obligations to recruit U.S. 

workers; 

(iv) Improper layoff or displacement 

of U.S. workers or workers in 

corresponding employment; 

(v) Failure to comply with one or 

more sanctions or remedies imposed by 

the WHD Administrator for violation(s) 

of contractual or other H–2A 

obligations, or with one or more 

decisions or orders of the Secretary or 

a court under 8 U.S.C. 1188, 20 CFR part 

655, subpart B, or these regulations; 

(vi) Impeding an investigation of an 

employer under 8 U.S.C. 1188, 20 CFR 

part 655, Subpart B, or these 

regulations; 

(vii) Employing an H–2A worker 

outside the area of intended 

employment, or in an activity/activities 

not listed in the job order, or outside the 

validity period of employment of the job 

order, including any approved 

extension thereof; 

(viii) A violation of the requirements 

of § 655.135(j) and (k); 

(ix) A violation of any of the 

provisions listed in § 501.4(a) of this 

subpart; or 

(x) A single heinous act showing such 

flagrant disregard for the law that future 

compliance with program requirements 

cannot reasonably be expected. 

(2) In determining whether a violation 

is so substantial as to merit debarment, 

the factors set forth in § 501.19(b) shall 

be considered. 

(e) Procedural Requirements. The 

Notice of Debarment must be in writing, 

must state the reason for the debarment 

finding, including a detailed 

explanation of the grounds for and the 

duration of the debarment, must 

identify appeal opportunities under 

§ 501.33 and a time frame under which 

such rights must be exercised and must 

comply with § 501.32. The debarment 

will take effect 30 days from the date the 

Notice of Debarment is issued, unless a 

request for review is properly filed 

within 30 days from the issuance of the 

Notice of Debarment. The timely filing 

of an administrative appeal stays the 

debarment pending the outcome of the 

appeal as provided in § 501.33(d). 

(f) Debarment involving members of 

associations. If, after investigation, the 

WHD Administrator determines that an 

individual employer-member of a joint 

employer association has committed a 

substantial violation, the debarment 

determination will apply only to that 

member unless the WHD Administrator 

determines that the association or 

another association member 

participated in the violation, in which 

case the debarment will be invoked 

against the association or other 

complicit association member(s) as well. 

(g) Debarment involving associations 

acting as sole employers. If, after 

investigation, the WHD Administrator 

determines that an association acting as 

a sole employer has committed a 

substantial violation, the debarment 

determination will apply only to the 

association and any successor in interest 

to the debarred association. 

(h) Debarment involving associations 

acting as joint employers. If, after 

investigation, the WHD Administrator 

determines that an association acting as 

a joint employer with its members has 

committed a substantial violation, the 

debarment determination will apply 

only to the association, and will not be 

applied to any individual employermember of the association. However, if 

the WHD Administrator determines that 

the member participated in, had 

knowledge of, or had reason to know of 

the violation, the debarment may be 

invoked against the complicit 

association member as well. An 

association debarred from the H–2A 

temporary labor certification program 

will not be permitted to continue to file 

as a joint employer with its members 

during the period of the debarment. 

(i) Revocation. The WHD may 

recommend to the OFLC Administrator 

the revocation of a temporary 

agricultural labor certification if the 

WHD finds that the employer: 

(1) Substantially violated a material 

term or condition of the approved 

temporary labor certification; 

(2) Failed to cooperate with a DOL 

investigation or with a DOL official 

performing an investigation, inspection, 

or law enforcement function under 8 

U.S.C. 1188, 20 CFR part 655, subpart B, 

or this part; or 

(3) Failed to comply with one or more 

sanctions or remedies imposed by the 

WHD, or with one or more decisions or 

orders of the Secretary or a court order 

secured by the Secretary under 8 U.S.C. 

1188, 20 CFR part 655, subpart B, or this 

part. 

(j) Res Judicata. In considering a 

recommendation made by the WHD to 

revoke a temporary agricultural labor 

certification, the OFLC Administrator 

shall treat a final agency determination 

that the employer has committed a 

violation as res judicata and shall not 

reconsider such a determination. 

§ 501.21 Failure to cooperate with 

investigations. 

(a) No person shall refuse to cooperate 

with any employee of the Secretary who 

is exercising or attempting to exercise 

this investigative or enforcement 

authority. 

(b) Where an employer (or employer’s 

agent or attorney) does not cooperate 

with an investigation concerning the 

employment of an H–2A worker, a 

worker in corresponding employment, 

or a U.S. worker who has been 

improperly rejected for employment or 

improperly laid off or displaced, WHD 

may make such information available to 

OFLC and may recommend that OFLC 

revoke the existing certification that is 

the basis for the employment of the 

H–2A workers giving rise to the 

investigation. In addition, WHD may 

take such action as appropriate, 

including initiating proceedings for the 

debarment of the employer from future 

certification for up to 3 years, seeking an 

injunction, and/or assessing civil money 

penalties against any person who has 

failed to cooperate with a WHD 

investigation. The taking of any one 

action shall not bar the taking of any 

additional action. 

§ 501.22 Civil money penalties—payment 

and collection. 

Where a civil money penalty 

assessment is directed in a final order 

by the WHD Administrator, by an ALJ, 

or by the Administrative Review Board 

(ARB), the amount of the penalty is due 

within 30 days and payable to the 

United States Department of Labor. The 

person assessed such penalty shall remit 

promptly the amount thereof as finally 

determined, to the WHD Administrator 

by certified check or by money order, 

made payable to the order of Wage and 

Hour Division, United States 

Department of Labor. The remittance 

shall be delivered or mailed to the WHD 

Regional Office for the area in which the 

violations occurred. 

Subpart C—Administrative 

Proceedings 

§ 501.30 Applicability of procedures and 

rules. 

The procedures and rules contained 

herein prescribe the administrative 

process that will be applied with respect 

to a determination to assess civil money 


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penalties, to debar, or to increase the 

amount of a surety bond and which may 

be applied to the enforcement of 

provisions of the work contract, or 

obligations under 8 U.S.C. 1188, 20 CFR 

part 655, subpart B, or these regulations, 

or to the collection of monetary relief 

due as a result of any violation. Except 

with respect to the imposition of civil 

money penalties, debarment, or an 

increase in the amount of a surety bond, 

the Secretary may, in the Secretary’s 

discretion, seek enforcement action in 

Federal court without resort to any 

administrative proceedings. 

Procedures Relating to Hearing 

§ 501.31 Written notice of determination 

required. 

Whenever the WHD Administrator 

decides to assess a civil money penalty, 

to debar, to increase a surety bond, or 

to proceed administratively to enforce 

contractual obligations, or obligations 

under 8 U.S.C. 1188, 20 CFR part 655, 

subpart B, or these regulations, 

including for the recovery of the 

monetary relief, the person against 

whom such action is taken shall be 

notified in writing of such 

determination. 

§ 501.32 Contents of notice. 

The notice required by § 501.31 shall: 

(a) Set forth the determination of the 

WHD Administrator including the 

amount of any monetary relief due or 

actions necessary to fulfill a contractual 

obligation or obligations under 8 U.S.C. 

1188, 20 CFR part 655, subpart B, or 

these regulations, the amount of any 

civil money penalty assessment, 

whether debarment is sought and the 

term, and any change in the amount of 

the surety bond, and the reason or 

reasons therefor. 

(b) Set forth the right to request a 

hearing on such determination. 

(c) Inform any affected person or 

persons that in the absence of a timely 

request for a hearing, the determination 

of the WHD Administrator shall become 

final and unappealable. 

(d) Set forth the time and method for 

requesting a hearing, and the procedures 

relating thereto, as set forth in § 501.33. 

§ 501.33 Request for hearing. 

(a) Any person desiring review of a 

determination referred to in § 501.32, 

including judicial review, shall make a 

written request for an administrative 

hearing to the official who issued the 

determination at the WHD address 

appearing on the determination notice, 

no later than 30 days after issuance of 

the notice referred to in § 501.32. 

(b) No particular form is prescribed 

for any request for hearing permitted by 

this part. However, any such request 

shall: 

(1) Be typewritten or legibly written; 

(2) Specify the issue or issues stated 

in the notice of determination giving 

rise to such request; 

(3) State the specific reason or reasons 

why the person requesting the hearing 

believes such determination is in error; 

(4) Be signed by the person making 

the request or by an authorized 

representative of such person; and 

(5) Include the address at which such 

person or authorized representative 

desires to receive further 

communications relating thereto. 

(c) The request for such hearing must 

be received by the official who issued 

the determination, at the WHD address 

appearing on the determination notice, 

within the time set forth in paragraph 

(a) of this section. Requests may be 

made by certified mail or by means 

normally assuring overnight delivery. 

(d) The determination shall take effect 

on the start date identified in the 

written notice of determination, unless 

an administrative appeal is properly 

filed. The timely filing of an 

administrative appeal stays the 

determination pending the outcome of 

the appeal proceedings, provided that 

any surety bond remains in effect until 

the conclusion of any such proceedings. 

Rules of Practice 

§ 501.34 General. 

(a) Except as specifically provided in 

these regulations, the Rules of Practice 

and Procedure for Administrative 

Hearings Before the Office of 

Administrative Law Judges established 

by the Secretary at 29 CFR part 18 shall 

apply to administrative proceedings 

described in this part. 

(b) As provided in the Administrative 

Procedure Act, 5 U.S.C. 556, any oral or 

documentary evidence may be received 

in proceedings under this part. The 

Federal Rules of Evidence and subpart 

B of the Rules of Practice and Procedure 

for Administrative Hearings Before the 

Office of Administrative Law Judges (29 

CFR part 18, subpart B) will not apply, 

but principles designed to ensure 

production of relevant and probative 

evidence shall guide the admission of 

evidence. The ALJ may exclude 

evidence which is immaterial, 

irrelevant, or unduly repetitive. 

§ 501.35 Commencement of proceeding. 

Each administrative proceeding 

permitted under 8 U.S.C. 1188 and these 

regulations shall be commenced upon 

receipt of a timely request for hearing 

filed in accordance with § 501.33. 

§ 501.36 Caption of proceeding. 

(a) Each administrative proceeding 

instituted under 8 U.S.C. 1188 and these 

regulations shall be captioned in the 

name of the person requesting such 

hearing, and shall be styled as follows: 

In the Matter of ______, Respondent. 

(b) For the purposes of such 

administrative proceedings the WHD 

Administrator shall be identified as 

plaintiff and the person requesting such 

hearing shall be named as respondent. 

Referral for Hearing 

§ 501.37 Referral to Administrative Law 

Judge. 

(a) Upon receipt of a timely request 

for a hearing filed pursuant to and in 

accordance with § 501.33, the WHD 

Administrator, by the Associate 

Solicitor for the Division of Fair Labor 

Standards or by the Regional Solicitor 

for the Region in which the action arose, 

will, by Order of Reference, promptly 

refer a copy of the notice of 

administrative determination 

complained of, and the original or a 

duplicate copy of the request for hearing 

signed by the person requesting such 

hearing or by the authorized 

representative of such person, to the 

Chief ALJ, for a determination in an 

administrative proceeding as provided 

herein. The notice of administrative 

determination and request for hearing 

shall be filed of record in the Office of 

the Chief Administrative Law Judge and 

shall, respectively, be given the effect of 

a complaint and answer thereto for 

purposes of the administrative 

proceeding, subject to any amendment 

that may be permitted under these 

regulations or 29 CFR part 18. 

(b) A copy of the Order of Reference, 

together with a copy of these 

regulations, shall be served by counsel 

for the WHD Administrator upon the 

person requesting the hearing, in the 

manner provided in 29 CFR 18.3. 

§ 501.38 Notice of docketing. 

Upon receipt of an Order of 

Reference, the Chief ALJ shall appoint 

an ALJ to hear the case. The ALJ shall 

promptly notify all interested parties of 

the docketing of the matter and shall set 

the time and place of the hearing. The 

date of the hearing shall be not more 

than 60 days from the date on which the 

Order of Reference was filed. 

§ 501.39 Service upon attorneys for the 

Department of Labor—number of copies. 

Two copies of all pleadings and other 

documents required for any 

administrative proceeding provided 

herein shall be served on the attorneys 

for the DOL. One copy shall be served 

on the Associate Solicitor, Division of 


pwalker on DSK8KYBLC1PROD with PROPOSALS2
Federal Register / Vol. 74, No. 171 / Friday, September 4, 2009 / Proposed Rules 45965 

Fair Labor Standards, Office of the 

Solicitor, U.S. Department of Labor, 200 

Constitution Avenue, NW., Washington, 

DC 20210, and one copy on the Attorney 

representing the Department in the 

proceeding. 

Procedures Before Administrative Law 

Judge 

§ 501.40 Consent findings and order. 

(a) General. At any time after the 

commencement of a proceeding under 

this part, but prior to the reception of 

evidence in any such proceeding, a 

party may move to deter the receipt of 

any evidence for a reasonable time to 

permit negotiation of an agreement 

containing consent findings and an 

order disposing of the whole or any part 

of the proceeding. The allowance of 

such deferment and the duration thereof 

shall be at the discretion of the ALJ, 

after consideration of the nature of the 

proceeding, the requirements of the 

public interest, the representations of 

the parties, and the probability of an 

agreement being reached which will 

result in a just disposition of the issues 

involved. 

(b) Content. Any agreement 

containing consent findings and an 

order disposing of a proceeding or any 

part thereof shall also provide: 

(1) That the order shall have the same 

force and effect as an order made after 

full hearing; 

(2) That the entire record on which 

any order may be based shall consist 

solely of the notice of administrative 

determination (or amended notice, if 

one is filed), and the agreement; 

(3) A waiver of any further procedural 

steps before the ALJ; and 

(4) A waiver of any right to challenge 

or contest the validity of the findings 

and order entered into in accordance 

with the agreement. 

(c) Submission. On or before the 

expiration of the time granted for 

negotiations, the parties or their 

authorized representatives or their 

counsel may: 

(1) Submit the proposed agreement for 

consideration by the ALJ; or 

(2) Inform the ALJ that agreement 

cannot be reached. 

(d) Disposition. In the event an 

agreement containing consent findings 

and an order is submitted within the 

time allowed therefore, the ALJ, within 

30 days thereafter, shall, if satisfied with 

its form and substance, accept such 

agreement by issuing a decision based 

upon the agreed findings. 

Post-Hearing Procedures 

§ 501.41 Decision and order of 

Administrative Law Judge. 

(a) The ALJ shall prepare, within 60 

days after completion of the hearing and 

closing of the record, a decision on the 

issues referred by the WHD 

Administrator. 

(b) The decision of the ALJ shall 

include a statement of the findings and 

conclusions, with reasons and basis 

therefor, upon each material issue 

presented on the record. The decision 

shall also include an appropriate order 

which may affirm, deny, reverse, or 

modify, in whole or in part, the 

determination of the WHD 

Administrator. The reason or reasons for 

such order shall be stated in the 

decision. 

(c) The decision shall be served on all 

parties and the ARB in person or by 

certified mail. 

(d) The decision concerning civil 

money penalties, debarment, monetary 

relief, and/or enforcement of other 

contractual obligations under 8 U.S.C. 

1188, 20 CFR part 655, subpart B, and/ 

or this part, when served by the ALJ 

shall constitute the final agency order 

unless the ARB, as provided for in 

§ 501.42, determines to review the 

decision. 

Review of Administrative Law Judge’s 

Decision 

§ 501.42 Procedures for initiating and 

undertaking review. 

(a) A respondent, the WHD, or any 

other party wishing review, including 

judicial review, of the decision of an 

ALJ shall, within 30 days of the decision 

of the ALJ, petition the ARB to review 

the decision. Copies of the petition shall 

be served on all parties and on the ALJ. 

If the ARB does not issue a notice 

accepting a petition for review of the 

decision within 30 days after receipt of 

a timely filing of the petition, or within 

30 days of the date of the decision if no 

petition has been received, the decision 

of the ALJ shall be deemed the final 

agency action. 

(b) Whenever the ARB, either on the 

ARB’s own motion or by acceptance of 

a party’s petition, determines to review 

the decision of an ALJ, a notice of the 

same shall be served upon the ALJ and 

upon all parties to the proceeding in 

person or by certified mail. 

§ 501.43 Responsibility of the Office of 

Administrative Law Judges (OALJ). 

Upon receipt of the ARB’s Notice 

pursuant to § 501.42 of these 

regulations, the OALJ shall promptly 

forward a copy of the complete hearing 

record to the ARB. 

§ 501.44 Additional information, if 

required. 

Where the ARB has determined to 

review such decision and order, the 

ARB shall notify the parties of: 

(a) The issue or issues raised; 

(b) The form in which submissions 

shall be made (i.e., briefs, oral argument, 

etc.); and 

(c) The time within which such 

presentation shall be submitted. 

§ 501.45 Final decision of the 

Administrative Review Board. 

The ARB’s final decision shall be 

issued within 90 days from the notice 

granting the petition and served upon 

all parties and the ALJ, in person or by 

certified mail. 

Record 

§ 501.46 Retention of official record. 

The official record of every completed 

administrative hearing provided by 

these regulations shall be maintained 

and filed under the custody and control 

of the Chief ALJ, or, where the case has 

been the subject of administrative 

review, the ARB. 

§ 501.47 Certification. 

Upon receipt of a complaint seeking 

review of a decision issued pursuant to 

this part filed in a U.S. District Court, 

after the administrative remedies have 

been exhausted, the Chief ALJ or, where 

the case has been the subject of 

administrative review, the ARB shall 

promptly index, certify and file with the 

appropriate U.S. District Court, a full, 

true, and correct copy of the entire 

record, including the transcript of 

proceedings. 

Signed in Washington this 27th day of 

August 2009. 

Jane Oates, 

Assistant Secretary, Employment and 

Training Administration. 

Shelby Hallmark, 

Acting Assistant Secretary, Employment 

Standards Administration. 

[FR Doc. E9–21017 Filed 9–3–09; 8:45 am] 

BILLING CODE 4510–FP–P 


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