61660 Federal Register / Vol. 87, No. 196 / Wednesday, October 12, 2022 / Rules and Regulations 

DEPARTMENT OF LABOR 

Employment and Training 

Administration 

20 CFR Parts 653 and 655 

Wage and Hour Division 

29 CFR Part 501 

[DOL Docket No. ETA–2019–0007] 

RIN 1205–AB89 

Temporary Agricultural Employment of 

H–2A Nonimmigrants in the United 

States 

AGENCY: Employment and Training 

Administration and Wage and Hour 

Division, Department of Labor. 

ACTION: Final rule. 

SUMMARY: The Department of Labor 

(Department or DOL) is amending its 

regulations governing the certification of 

agricultural labor or services to be 

performed by temporary foreign workers 

in H–2A nonimmigrant status (H–2A 

workers) and enforcement of the 

contractual obligations applicable to 

employers of such nonimmigrant 

workers. These regulations are 

consistent with the Secretary of Labor’s 

(Secretary) statutory responsibility to 

certify that there are not sufficient able, 

willing, and qualified workers available 

to fill the petitioning employer’s job 

opportunity, and that the employment 

of H–2A workers in that job opportunity 

will not adversely affect the wages and 

working conditions of workers in the 

United States similarly employed. 

Among the issues addressed in this final 

rule are improving the minimum 

standards and conditions of 

employment that employers must offer 

to workers; expanding the Department’s 

authority to use enforcement tools, such 

as program debarment for substantial 

violations of program requirements; 

modernizing the process by which the 

Department receives and processes 

employers’ job orders and applications 

for temporary agricultural labor 

certifications, including the recruitment 

of United States workers (U.S. workers); 

and revising the standards and 

procedures for determining the 

prevailing wage rate. This final rule will 

strengthen protections for workers, 

modernize and simplify the H–2A 

application and temporary labor 

certification process, and ease 

regulatory burdens on employers. 

DATES: This final rule is effective 

November 14, 2022. 

FOR FURTHER INFORMATION CONTACT: For 

further information regarding 20 CFR 

part 653, contact Kimberly Vitelli, 

Administrator, Office of Workforce 

Investment, Employment and Training 

Administration, Department of Labor, 

200 Constitution Avenue NW, 

Washington, DC 20210, telephone: (202) 

693–3980 (this is not a toll-free 

number). Individuals with hearing or 

speech impairments may access the 

telephone numbers above via 

Teletypewriter (TTY)/ 

Telecommunications Device for the Deaf 

(TDD) by calling the toll-free Federal 

Information Relay Service at 1 (877) 

889–5627. 

For further information regarding 20 

CFR part 655, contact Brian Pasternak, 

Administrator, Office of Foreign Labor 

Certification, Employment and Training 

Administration, Department of Labor, 

200 Constitution Avenue NW, Room N– 

5311, Washington, DC 20210, telephone: 

(202) 693–8200 (this is not a toll-free 

number). Individuals with hearing or 

speech impairments may access the 

telephone numbers above via TTY/TDD 

by calling the toll-free Federal 

Information Relay Service at 1 (877) 

889–5627. 

For further information regarding 29 

CFR part 501, contact Amy DeBisschop, 

Director of the Division of Regulations, 

Legislation, and Interpretation, Wage 

and Hour Division, Department of 

Labor, Room S–3502, 200 Constitution 

Avenue NW, Washington, DC 20210, 

telephone: (202) 693–0406 (this is not a 

toll-free number). Individuals with 

hearing or speech impairments may 

access the telephone number above via 

TTY/TDD by calling the toll-free Federal 

Information Relay Service at 1 (877) 

889–5627. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Executive Summary 

A. Purpose of the Regulatory Action 

B. Legal Authority 

C. Current Regulatory Framework 

D. Summary of Major Provisions of This 

Final Rule 

E. Summary of Costs and Benefits 

F. Severability 

II. Acronyms and Abbreviations 

III. Background and Public Comments 

Received on the Notice of Proposed 

Rulemaking 

IV. Discussion of General Comments 

V. Section-by-Section Summary of This Final 

Rule, 20 CFR Part 655, Subpart B; 20 

CFR 653.501(c)(2)(i); and 29 CFR Part 

501 

A. Introductory Sections 

1. Section 655.100, Purpose and Scope of 

Subpart B 

2. Section 655.101, Authority of the 

Agencies, Offices, and Divisions of the 

Department of Labor; and 29 CFR 501.1, 

Purpose and Scope 

3. Section 655.102, Transition Procedures 

4. Section 655.103, Overview of This 

Subpart and Definition of Terms; 20 CFR 

653.501(c)(2)(i) of the Wagner-Peyser Act 

Regulations; and 29 CFR 501.3, 

Definitions 

B. Pre-Filing Procedures 

1. Section 655.120, Offered Wage Rate 

2. Section 655.121, Job Order Filing 

Requirements 

3. Section 655.122, Contents of Job Offers 

4. Section 655.123, Optional Pre-Filing 

Positive Recruitment of U.S. Workers 

5. Section 655.124, Withdrawal of a Job 

Order 

C. Applications for Temporary 

Employment Certification Filing 

Procedures 

1. Section 655.130, Application Filing 

Requirements 

2. Section 655.131, Agricultural 

Association and Joint Employer Filing 

Requirements 

3. Section 655.132, H–2A Labor Contractor 

Filing Requirements; and 29 CFR 501.9, 

Enforcement of Surety Bond 

4. Section 655.133, Requirements for 

Agents 

5. Section 655.134, Emergency Situations 

6. Section 655.135, Assurances and 

Obligations of H–2A Employers 

7. Section 655.136, Withdrawal of an 

Application for Temporary Employment 

Certification and Job Order 

D. Processing of Applications for 

Temporary Employment Certification 

1. Section 655.140, Review of Applications 

2. Section 655.141, Notice of Deficiency 

3. Section 655.142, Submission of 

Modified Applications 

4. Section 655.143, Notice of Acceptance 

5. Section 655.144, Electronic Job Registry 

6. Section 655.145, Amendments to 

Applications for Temporary Labor 

Certification 

E. Post-Acceptance Requirements 

1. Section 655.150, Interstate Clearance of 

Job Order 

2. Section 655.153, Contact With Former 

U.S. Workers 

3. Section 655.154, Additional Positive 

Recruitment 

4. Section 655.155, Referrals of U.S. 

Workers 

5. Section 655.156, Recruitment Report 

6. Sections 655.157, Withholding of U.S. 

Workers Prohibited, and 655.158, 

Duration of Positive Recruitment 

F. Labor Certification Determinations 

1. Section 655.161, Criteria for Certification 

2. Section 655.162, Approved Certification 

3. Section 655.164, Denied Certification 

4. Section 655.165, Partial Certification 

5. Section 655.166, Requests for 

Determinations Based on Nonavailability 

of U.S. Workers 

6. Section 655.167, Document Retention 

Requirements of H–2A Employers 

G. Post-Certification 

1. Section 655.170, Extensions 

2. Section 655.171, Appeals 

3. Section 655.172, Post-Certification 

Withdrawals 

4. Section 655.173, Setting Meal Charges; 

Petition for Higher Meal Charges 

5. Section 655.174, Public Disclosure 

6. Section 655.175, Post-Certification 

Amendments 


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Federal Register / Vol. 87, No. 196 / Wednesday, October 12, 2022 / Rules and Regulations 61661 

1For ease of reference, sections of the INA are 

referred to by their corresponding section in the 

United States Code. 

2Under sec. 1517 of title XV of the Homeland 

Security Act of 2002, Public Law 107–296, 116 Stat. 

2135, reference to the Attorney General’s or other 

Department of Justice Official’s responsibilities 

under sec. 1184(c) have been expressly transferred 

to the Secretary of Homeland Security. See 6 U.S.C. 

202, 271(b). 

3See generally 8 U.S.C. 1225; 8 CFR part 235. 

H. Integrity Measures 

1. Section 655.180, Audit 

2. Section 655.181, Revocation 

3. Section 655.182, Debarment; 29 CFR 

501.16, Sanctions and Remedies— 

General; 29 CFR 501.19, Civil Money 

Penalty Assessment; 29 CFR 501.20, 

Debarment and Revocation; 29 CFR 

501.21, Failure To Cooperate With 

Investigations; 29 CFR 501.41, Decision 

and Order of Administrative Law Judge; 

29 CFR 501.42, Procedures for Initiating 

and Undertaking Review; 29 CFR 501.43, 

Responsibility of the Office of 

Administrative Law Judges; 29 CFR 

501.44, Additional Information, if 

Required; and 29 CFR 501.45, Decision 

of the Administrative Review Board 

I. Labor Certification Process for 

Temporary Agricultural Employment in 

Range Sheep Herding, Goat Herding, and 

Production of Livestock Operations 

1. Modernizing Recruitment Requirements 

2. Regulatory Revisions Implemented by 

This Final Rule 

3. Other Comments 

J. Labor Certification Process for 

Temporary Agricultural Employment in 

Animal Shearing, Commercial 

Beekeeping, and Custom Combining 

1. Section 655.300, Scope and Purpose 

2. Section 655.301, Definition of Terms 

3. Section 655.302, Contents of Job Orders 

4. Section 655.303, Procedures for Filing 

Applications for Temporary Employment 

Certification 

5. Section 655.304, Standards for Mobile 

Housing 

VI. Discussion of Revisions to 29 CFR Part 

501 

A. Conforming Changes 

B. Section 501.9, Enforcement of Surety 

Bond 

C. Section 501.20, Debarment and 

Revocation 

D. Terminology and Technical Changes 

E. Intervening Rulemakings 

VII. Administrative Information 

A. Executive Orders 12866 (Regulatory 

Planning and Review) and 13563 

(Improving Regulation and Regulatory 

Review) 

B. Regulatory Flexibility Act, Small 

Business Regulatory Enforcement 

Fairness Act, and Executive Order 13272 

(Proper Consideration of Small Entities 

in Agency Rulemaking) 

C. Paperwork Reduction Act 

D. Unfunded Mandates Reform Act of 1995 

E. Executive Order 13132 (Federalism) 

F. Executive Order 13175 (Consultation 

and Coordination With Indian Tribal 

Governments) 

I. Executive Summary 

A. Purpose of the Regulatory Action 

This final rule amends the standards 

and procedures by which the 

Department grants certification of 

agricultural labor or services to be 

performed by H–2A workers on a 

seasonal or temporary basis, and 

enforcement of the contractual 

obligations applicable to employers of 

H–2A workers. The major provisions 

contained in this final rule will 

strengthen protections for workers, 

modernize and simplify the H–2A 

application and temporary labor 

certification process, and ease 

regulatory burdens on employers. 

It is the policy of the Department to 

maintain robust protections for workers 

and vigorously enforce all laws within 

its jurisdiction governing the 

administration and enforcement of 

nonimmigrant visa programs. This 

includes the coordination of the 

administration and enforcement 

activities of the Employment and 

Training Administration (ETA), Wage 

and Hour Division (WHD), and the 

Department’s Office of the Solicitor in 

the promotion of the hiring of U.S. 

workers and the safeguarding of wages 

and working conditions in the United 

States. In addition, these agencies make 

criminal referrals to the Department’s 

Office of Inspector General to combat 

visa-related fraud schemes. 

The Department is updating its H–2A 

regulations to ensure that employers can 

address temporary labor needs by 

employing foreign agricultural workers, 

without undue cost or administrative 

burden, while maintaining the 

program’s strong protections. The 

changes in this final rule will enhance 

WHD’s enforcement capabilities, 

thereby ensuring that responsible 

employers are not faced with unfair 

competition and allowing for robust 

enforcement against program fraud and 

abuse that undermine the rights and 

interests of workers. 

B. Legal Authority 

The Immigration and Nationality Act 

(INA), as amended by the Immigration 

Reform and Control Act of 1986 (IRCA), 

establishes an ‘‘H–2A’’ nonimmigrant 

visa classification for a worker ‘‘having 

a residence in a foreign country which 

he has no intention of abandoning who 

is coming temporarily to the United 

States to perform agricultural labor or 

services . . . of a temporary or seasonal 

nature.’’ 8 U.S.C. 1101(a)(15)(H)(ii)(a); 

see also 8 U.S.C. 1184(c)(1) and 1188.1

The admission of foreign workers under 

this classification involves a multi-step 

process before several Federal agencies. 

A prospective H–2A employer must first 

apply to the Secretary for a certification 

that: 

• 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 

• 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 prohibits 

the Secretary from issuing this 

certification—known as a ‘‘temporary 

agricultural labor certification’’—unless 

both of the above-referenced conditions 

are met and none of the conditions in 

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

strikes or lock-outs, labor certification 

program debarments, workers’ 

compensation assurances, and positive 

recruitment. 

The Secretary has delegated the 

authority to issue temporary agricultural 

labor certifications to the Assistant 

Secretary for Employment and Training, 

who in turn has delegated that authority 

to ETA’s Office of Foreign Labor 

Certification (OFLC). See Secretary’s 

Order 06–2010 (Oct. 20, 2010), 75 FR 

66268 (Oct. 27, 2010). In addition, the 

Secretary has delegated to the 

Department’s WHD the responsibility 

under 8 U.S.C. 1188(g)(2) to assure 

employer compliance with the terms 

and conditions of employment under 

the H–2A program. See Secretary’s 

Order 01–2014 (Dec. 19, 2014), 79 FR 

77527 (Dec. 24, 2014). 

Once an employer obtains a 

temporary agricultural labor 

certification from DOL, it may then file 

a petition for a nonimmigrant worker 

with the Secretary of Homeland 

Security. See 8 U.S.C. 1184(c).2 If the 

employer’s petition is approved, the 

foreign workers residing outside the 

United States whom it seeks to employ 

must, generally, apply for a 

nonimmigrant H–2A visa at a U.S. 

embassy or consulate abroad, and seek 

admission to the United States with U.S. 

Customs and Border Protection.3 If the 

employer seeks to employ foreign 

workers already performing work in the 

United States in H–2A status and 

wishes to petition the workers through 

an extension of stay or change of status, 

the foreign workers are not required to 

apply for a visa but should they depart 

from the United States subsequent to 

being granted such H–2A status, must 

generally obtain an H–2A visa in order 

to return to the country. 


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61662 Federal Register / Vol. 87, No. 196 / Wednesday, October 12, 2022 / Rules and Regulations 

4Final Rule, Temporary Agricultural Employment 

of H–2A Aliens in the United States, 75 FR 6884 

(Feb. 12, 2010) (2010 H–2A Final Rule); but see 

Final Rule, Modernizing Recruitment Requirements 

for the Temporary Employment of H–2A Foreign 

Workers in the United States, 84 FR 49439 (Sept. 

20, 2019) (2019 H–2A Recruitment Final Rule) 

(rescinding the requirement that an employer 

advertise its job opportunity in a print newspaper 

of general circulation in the area of intended 

employment; expanding and enhancing the 

Department’s electronic job registry; and leveraging 

the expertise and existing outreach activities of 

State Workforce Agencies (SWAs) to promote 

agricultural job opportunities); see also Final Rule, 

Rules Concerning Discretionary Review by the 

Secretary, 85 FR 30608 (May 20, 2020) (establishing 

a system of discretionary secretarial review over 

cases pending before or decided by the Board of 

Alien Labor Certification Appeals [BALCA] and to 

make technical changes to Departmental regulations 

governing the timing and finality of decisions of the 

Administrative Review Board [ARB] and the 

BALCA). 

5See Training and Employment Guidance Letter 

(TEGL) No. 32–10, Special Procedures: Labor 

Certification Process for Employers Engaged in 

Sheepherding and Goatherding Occupations under 

the H–2A Program (June 14, 2011), https://

wdr.doleta.gov/directives/corr_doc.cfm?docn=3042; 

TEGL No. 15–06, Change 1, Special Procedures: 

Labor Certification Process for Occupations 

Involved in the Open Range Production of Livestock 

under the H–2A Program (June 14, 2011), https:// 

wdr.doleta.gov/directives/corr_doc.cfm?docn=3044; 

TEGL No. 17–06, Change 1, Special Procedures: 

Labor Certification Process for Employers in the 

Itinerant Animal Shearing Industry under the H–2A 

Program (June 14, 2011), https://wdr.doleta.gov/ 

directives/corr_doc.cfm?docn=3041; TEGL No. 33– 

10, Special Procedures: Labor Certification Process 

for Itinerant Commercial Beekeeping Employers in 

the H–2A Program (June 14, 2011), https://

wdr.doleta.gov/directives/corr_

doc.cfm?DOCN=3043; TEGL No. 16–06, Change 1, 

Special Procedures: Labor Certification Process for 

Multi-State Custom Combine Owners/Operators 

under the H–2A Program (June 14, 2011), https:// 

wdr.doleta.gov/directives/corr_

doc.cfm?DOCN=3040. 

6Final Rule, Temporary Agricultural Employment 

of H–2A Foreign Workers in the Herding or 

Production of Livestock on the Range in the United 

States, 80 FR 62958 (Oct. 16, 2015) (2015 H–2A 

Herder Final Rule). 

7Consistent with a court-approved settlement 

agreement in Hispanic Affairs Project, et al. v. 

Scalia et al., No. 15-cv-1562 (D.D.C.), the 

Department recently rescinded 20 CFR 

655.215(b)(2). 

8Notice of Proposed Rulemaking, Temporary 

Agricultural Employment of H–2A Nonimmigrants 

in the United States, 84 FR 36168 (July 26, 2019). 

In late 2020, the Department published a final rule 

to revise the methodology by which it determines 

the hourly AEWR for non-range agricultural 

occupations. Final Rule, Adverse Effect Wage Rate 

Methodology for the Temporary Employment of H– 

2A Nonimmigrants in Non-Range Occupations in 

the United States, 85 FR 70445 (Nov. 5, 2020) (2020 

H–2A AEWR Final Rule). The 2020 H–2A AEWR 

Final Rule addressed only that aspect of the NPRM. 

This final rule addresses the remaining aspects of 

the NPRM published on July 26, 2019. 

C. Current Regulatory Framework 

Since 1987, the Department has 

operated the H–2A temporary labor 

certification program under regulations 

promulgated pursuant to the INA. The 

standards and procedures applicable to 

the certification and employment of 

workers under the H–2A program are 

found in 20 CFR part 655, subpart B, 

and 29 CFR part 501. The majority of 

the Department’s current regulations 

governing the H–2A program were 

published in 2010.4 In addition, the 

Department has issued special 

procedures for the employment of 

foreign workers in the herding and 

production of livestock on the range as 

well as animal shearing, commercial 

beekeeping, and custom combining 

occupations.5 The Department 

incorporated the provisions for 

employment of workers in the herding 

and production of livestock on the range 

into the H–2A regulations, with 

modifications, in 2015.6 The provisions 

governing the employment of workers in 

the herding and production of livestock 

on the range are now codified at 20 CFR 

655.200 through 655.235.7

D. Summary of Major Provisions of This 

Final Rule 

After careful consideration of the 

public comments received, this final 

rule adopts much of the regulatory text 

proposed in the notice of proposed 

rulemaking (NPRM or proposed rule) 

published in the Federal Register on 

July 26, 2019, with some significant 

changes.8 In particular, and as discussed 

in detail elsewhere in this preamble, 

this final rule adopts the following 

major changes to the Department’s H– 

2A program regulations: 

Strengthening Worker Protections and 

Program Integrity 

• Revises the standards and 

procedures by which employers 

qualifying as H–2A Labor Contractors 

(H–2ALCs) obtain temporary labor 

certification by permitting the electronic 

submission of surety bonds, adjusting 

the required surety bond amounts based 

on changes to adverse effect wage rates 

(AEWR), adopting a common bond form 

that includes standardized bond 

language, and permitting debarment of 

H–2ALCs that fail to provide adequate 

surety bonds. These provisions are 

intended to reduce the likelihood of 

program abuse by ensuring H–2ALCs 

are better able to meet their payroll and 

other program obligations to workers, 

streamline the process for accepting 

surety bonds, and strengthen the 

Department’s authority to address 

noncompliant bonds. 

• Clarifies the definitions of 

‘‘employer’’ and ‘‘joint employment,’’ 

the use of these terms in the filing of 

Applications for Temporary 

Employment Certification, and the 

responsibilities of joint employers. 

Employers that file as joint employers 

are treated as such as a matter of law for 

purposes of compliance and 

enforcement. In addition, employers 

that do not file applications but 

nonetheless jointly employ workers 

under the common law of agency are 

responsible as joint employers. These 

provisions are intended to enhance 

worker protections by providing greater 

clarity regarding the responsibilities of 

joint employers, consistent with the 

statute and the Department’s current 

policy and practice. 

• Provides that rental and/or public 

accommodations secured to house 

workers must meet applicable local, 

State, or Federal standards addressing 

certain health or safety concerns (e.g., 

minimum square footage per occupant, 

sanitary food preparation and storage 

areas, laundry and washing facilities), 

and requires employers to submit 

written documentation that such 

housing meets applicable standards and 

contains enough bed(s) and room(s) to 

accommodate all workers requested. 

These provisions are intended to better 

protect the health and safety of workers 

without imposing an undue burden on 

employers. 

• Enhances the Department’s 

debarment authority by holding agents 

and attorneys, and their successors in 

interest, accountable for their own 

misconduct independent of the 

employer’s violation(s), and clarifies 

that Applications for Temporary 

Employment Certification filed by 

debarred entities during the period of 

debarment will be denied without 

review. These provisions are intended 

to improve program integrity and 

promote greater compliance with 

program requirements. 

Modernizing the H–2A Application 

Process and Prevailing Wage Surveys 

• Establishes a single point of entry 

by requiring that employers, except in 

limited circumstances, electronically 

file Applications for Temporary 

Employment Certification, job orders, 

and all supporting documentation 

through a centralized electronic system 

maintained by the Department, and 

permits the use of electronic signatures 

meeting valid signature standards. 

These provisions are intended to reduce 

costs and burdens for most employers, 

improve the quality of applications, 

reduce the frequency of delays 

associated with deficient applications, 

and better facilitate interagency datasharing. 

• Codifies the use of electronic 

methods for the OFLC Certifying Officer 

(CO) to send notices and requests to 

employers, circulate approved job 

orders to appropriate SWAs for 


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Federal Register / Vol. 87, No. 196 / Wednesday, October 12, 2022 / Rules and Regulations 61663 

9E.O. 12866, Regulatory Planning and Review, 58 

FR 51735 (Oct. 4, 1993). 

10E.O. 13563, Improving Regulation and 

Regulatory Review, 76 FR 3821 (Jan. 21, 2011). 

interstate clearance and recruitment of 

U.S. workers, and issue temporary labor 

certification decisions directly to the 

Department of Homeland Security 

(DHS). These provisions are intended to 

modernize OFLC’s processing of 

applications to minimize delays, reduce 

administrative costs for the employer 

and the Department, and expedite the 

delivery of temporary agricultural labor 

certifications to DHS, while maintaining 

program integrity. 

• Replaces outdated prevailing wage 

survey guidelines from the Department’s 

ETA Handbook 385 (Handbook 385) 

with modernized standards that are 

more effective in producing prevailing 

wages for distinct crop or agricultural 

activities, and expands the universe of 

State entities that may conduct 

prevailing wage surveys, including 

SWAs, other State agencies, State 

colleges, or State universities. These 

provisions are intended to refine the 

minimum standards for prevailing wage 

surveys, including providing SWAs 

with the flexibility to leverage other 

State survey resources to expand the 

number and scope of surveys conducted 

based on information that is as reliable 

and representative as possible. In 

addition, while the minimum standards 

may not ensure statistically valid 

estimates for larger categories of 

workers, they are designed to provide 

more options for SWAs to make 

decisions about prioritizing precision, 

accuracy, granularity, or other quality 

factors in the data they use to inform 

prevailing wages. 

Expanding Employer Access and 

Flexibilities To Use the H–2A Program 

• Establishes new standards that 

permit individual employers possessing 

the same need for agricultural services 

or labor to file a single Application for 

Temporary Employment Certification 

and job order to jointly employ workers 

in full-time employment, consistent 

with the statute and the Department’s 

longstanding practice. This provision is 

intended to provide small employers 

who cannot offer full-time work for their 

H–2A employees with an opportunity to 

participate in the H–2A program and 

ensure each employer will be held 

jointly liable for compliance with all 

program requirements. 

• Codifies a unique set of standards 

and procedures, with some revisions, 

for employers that employ workers 

engaged in animal shearing, commercial 

beekeeping, and custom combining 

according to a planned itinerary across 

multiple areas of intended employment 

(AIE) in one or more contiguous States. 

These provisions are intended to 

provide appropriate flexibilities for 

employers engaged in these unique 

agricultural activities that are 

substantially similar to the processes 

formerly set out in administrative 

guidance letters, and greater certainty in 

the handling of these applications by 

the Department under 20 CFR part 655, 

subpart B. 

E. Summary of Costs and Benefits 

Executive Order (E.O.) 12866 9 and 

E.O. 13563 10 direct agencies to assess 

the costs and benefits of available 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). E.O. 13563 emphasizes the 

importance of quantifying both costs 

and benefits, of reducing costs, of 

harmonizing rules, and of promoting 

flexibility. This rulemaking has been 

designated a ‘‘significant regulatory 

action’’ under section (sec.) 3(f)(1) of 

E.O. 12866. Accordingly, it has been 

reviewed by the Office of Management 

and Budget (OMB). 

The Department estimates that this 

final rule will result in costs, cost 

savings, and qualitative benefits. The 

cost of this final rule is associated with 

rule familiarization and recordkeeping 

requirements for all H–2A employers, as 

well as increases in the amount of 

surety bonds required for H–2ALCs. 

This final rule is expected to have an 

annualized quantifiable cost of $2.75 

million and a total 10-year quantifiable 

cost of $19.29 million at a discount rate 

of seven percent. The cost savings of 

this final rule are the electronic 

submission of applications and 

application signatures, including the 

use of electronic surety bonds, and the 

electronic sharing of job orders 

submitted to the OFLC National 

Processing Center (NPC) with the SWAs. 

This final rule is estimated to have 

annualized cost savings of $0.16 million 

and total 10-year quantifiable cost 

savings of $1.12 million at a discount 

rate of seven percent. 

The Department estimates that this 

final rule will result in an annualized 

net quantifiable cost of $2.59 million 

and a total 10-year net cost of $18.17 

million, both at a discount rate of seven 

percent and expressed in 2021 dollars. 

The Department expects that this final 

rule will provide qualitative benefits 

including: (1) clearer application of 

certain housing-related standards when 

employers choose to meet their H–2A 

housing obligations by providing rental 

and/or public accommodations, which 

will bolster worker health and safety 

protections; (2) an improved process of 

submitting and reviewing H–2A 

applications, which will reduce 

workforce instability; and (3) the 

adoption of electronic surety bonds and 

a standardized bond form, which will 

help streamline the H–2A application 

process and reduce delays. The 

Department believes that the qualitative 

benefits outweigh the quantitative net 

costs in this rule. 

F. Severability 

To the extent that any portion of this 

final rule is declared invalid by a court, 

the Department intends for all other 

parts of this final rule that can operate 

in the absence of the specific portion 

that has been invalidated to remain in 

effect. Thus, even if a court decision 

invalidating a portion of this final rule 

results in a partial reversion to the 

current regulations or to the statutory 

language itself, the Department intends 

that the rest of this final rule continue 

to operate, to the extent possible, in 

tandem with the reverted provisions. 

II. Acronyms and Abbreviations 

AEWR Adverse effect wage rate(s) 

AIE Area(s) of intended employment 

ALJ Administrative Law Judge 

AOWL Agricultural Online Wage Library 

ARB Administrative Review Board 

ARIMA Autoregressive integrated moving 

average 

BALCA Board of Alien Labor Certification 

Appeals 

BLS Bureau of Labor Statistics 

CBA Collective bargaining agreement 

CFR Code of Federal Regulations 

CO Certifying Officer(s) 

COVID–19 Novel coronavirus disease 

CPI Consumer Price Index 

DBA Doing Business As 

DC District of Columbia 

DHS Department of Homeland Security 

DOJ Department of Justice 

DOL Department of Labor 

DOS Department of State 

ECI Employment Cost Index 

E.O. Executive Order 

E–SIGN Electronic Signatures in Global and 

National Commerce Act 

ETA Employment and Training 

Administration 

FEIN Federal Employer Identification 

Number 

FICA Federal Insurance Contributions Act 

FLAG Foreign Labor Application Gateway 

FLC Farm Labor Contractor 

FLS Farm Labor Survey 

FLSA Fair Labor Standards Act 

FR Federal Register 

FTC Federal Trade Commission 

FY Fiscal Year(s) 

GPEA Government Paperwork Elimination 

Act 

H–2ALC(s) H–2A Labor Contractor(s) 


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11As explained elsewhere in this rule, the 

Department separately published a final rule—the 

2020 H–2A AEWR Final Rule—that addressed the 

proposal and public comments concerning the 

AEWR methodology and was limited to only that 

aspect of the NPRM. This final rule addresses the 

remaining aspects of the NPRM. Previously, on 

January 15, 2021, the Department announced and 

posted on OFLC’s website an unpublished final rule 

on these remaining aspects of the NPRM, explaining 

that the rule was pending publication in the 

Federal Register with a 30-day delayed effective 

date. See Announcements, U.S. Department of 

Labor Withdraws Forthcoming H–2A Temporary 

Agricultural Program Rule for Review (Jan. 20, 

2021), https://www.dol.gov/agencies/eta/foreignlabor/news. On January 20, 2021, however, the 

Department withdrew this document from the 

Office of the Federal Register, prior to the document 

being made available for public inspection, for the 

purpose of reviewing issues of law, fact, and policy 

raised by the rule. Therefore, the unpublished draft 

rule (hereinafter referenced as ‘‘the January 2021 

draft final rule’’) never took effect. 5 U.S.C. 

552(a)(1), 553; cf. Humane Society v. U.S. Dep’t of 

Ag., No. 20–5291,—F.4th—, 2022 WL 2898893, at 

*8 (D.C. Cir. 2022) (holding that ‘‘agencies may 

repeal a rule made available for public inspection 

in the Office of the Federal Register only after 

complying with the [Administrative Procedure 

Act’s] procedural requirements’’). The Federal 

Register and the Code of Federal Regulations 

remain the official sources for regulatory 

information published by the Department. Id. Any 

statements in the January 2021 draft final rule do 

not represent the Department’s formal policy. 

Moreover, the January 2021 draft final rule and any 

statements contained therein do not, and may not 

be relied upon to, create or confer any right or 

benefit, substantive or procedural, enforceable at 

law or equity by any individual or other party. 

HR Human Resources 

iCERT iCERT Visa Portal System 

ICR Information Collection Request 

IFR Interim final rule 

INA Immigration and Nationality Act 

IRC Internal Revenue Code 

IRCA Immigration Reform and Control Act 

of 1986 

IRS Internal Revenue Service 

MSA Metropolitan Statistical Area(s) 

MSPA Migrant and Seasonal Agricultural 

Worker Protection Act 

NAICS North American Industry 

Classification System 

NOA Notice(s) of Acceptance 

NOD Notice(s) of Deficiency 

NPC National Processing Center 

NPRM Notice of proposed rulemaking 

NPWC National Prevailing Wage Center 

NW Northwest 

OALJ Office of Administrative Law Judges 

OEWS Occupational Employment and 

Wage Statistics 

OFLC Office of Foreign Labor Certification 

OIRA Office of Information and Regulatory 

Affairs 

OMB Office of Management and Budget 

OSHA Occupational Safety and Health 

Administration 

PRA Paperwork Reduction Act 

Pub. L. Public Law 

PWD Prevailing wage determination(s) 

QCEW Quarterly Census of Employment 

and Wages 

RFA Regulatory Flexibility Act 

RIN Regulation Identifier Number 

RV Recreational vehicle 

SBA Small Business Administration 

Sec. Section of a Public Law 

Secretary Secretary of Labor 

SOC Standard Occupational Classification 

Stat. U.S. Statutes at Large 

SWA(s) State Workforce Agency(-ies) 

TDD Telecommunications Device for the 

Deaf 

TEGL Training and Employment Guidance 

Letter 

TTY Teletypewriter 

UI Unemployment insurance 

UMRA Unfunded Mandates Reform Act of 

1995 

U.S. United States 

U.S.C. United States Code 

USCIS U.S. Citizenship and Immigration 

Services 

USDA U.S. Department of Agriculture 

WHD Wage and Hour Division 

III. Background and Public Comments 

Received on the Notice of Proposed 

Rulemaking 

On July 26, 2019, the Department 

published an NPRM requesting public 

comments on proposals intended to 

modernize and simplify the process by 

which OFLC reviews employers’ job 

orders and applications for temporary 

agricultural labor certifications for use 

in petitioning DHS to employ H–2A 

workers. See 84 FR 36168. The 

Department also proposed to amend the 

regulations for enforcement of 

contractual obligations applicable to the 

employment of H–2A workers and 

workers in corresponding employment 

administered by WHD, and to amend 

the Wagner-Peyser Act regulations 

administered by ETA to provide 

consistency with revisions to H–2A 

program regulations governing the 

temporary agricultural labor 

certification process. Id. The NPRM 

invited written comments from the 

public on all aspects of the proposed 

amendments to the regulations. A 60- 

day comment period allowed for the 

public to inspect the proposed rule and 

provide comments through September 

24, 2019. 

The Department also received 

requests for an extension of the 

comment period for the NPRM. While 

the Department appreciated the issues 

raised concerning the public’s 

opportunity to examine the rule and 

comment, the Department decided not 

to extend the comment period. The 

Department continues to believe that a 

60-day comment period was sufficient 

to allow the public to inspect the 

proposed rule and provide comments, 

and this conclusion is supported by 

both the volume of comments received 

and by the wide variety of stakeholders 

that submitted comments within the 60- 

day comment period. 

The Department received a total of 

83,532 public comments in docket 

number ETA–2019–007 in response to 

the NPRM. In addition, the Department 

received 128 comments in response to 

document WHD_FRDOC_0001–0070 

prior to the comment submission 

deadline. These comments were 

incorporated into docket number ETA– 

2019–007, and each comment received 

a note on regulations.gov indicating that 

it was timely received. The commenters 

represented a wide range of 

stakeholders from the public, private, 

and not-for-profit sectors. The 

Department received comments from a 

geographically diverse cross-section of 

stakeholders within the agricultural 

sector, including farmworkers, workers’ 

rights advocacy organizations, farm 

owners, trade associations for 

agricultural products and services, notfor-profit organizations representing 

agricultural issues, and other 

organizations with an interest in 

farming, ranching, and other 

agricultural activities. Public sector 

commenters included Federal elected 

officials, State officials, and agencies 

representing 14 State governments. 

Private sector commenters included 

business owners, recruiting companies, 

and law firms. Other commenters 

included immigration advocacy groups, 

public policy organizations, and trade 

associations interested in immigrationrelated issues. The vast majority of 

comments specifically addressed 

proposals and issues contained in the 

NPRM. The Department recognizes and 

appreciates the value of comments, 

ideas, and suggestions from all those 

who commented on the proposal, and 

this final rule was developed after 

review and consideration of all public 

comments timely received in response 

to the NPRM.11 12

IV. Discussion of General Comments 

Following careful consideration of the 

public comments received, the 

Department made a number of 

modifications to the NPRM’s proposed 

regulatory text. Section V of this 

preamble sets out the Department’s 

interpretation and rationale for the 

amendments adopted to 20 CFR part 

655, subpart B, 20 CFR 653.501(c)(2)(i), 

and 29 CFR part 501, section by section. 

Before setting out the detailed sectionby-section analysis below, however, the 

Department will first acknowledge and 

respond to general comments that did 

not fit readily into this organizational 

scheme. 

Of the total public comments 

received, 82,893 comments were 

associated with form letters or letter 

writing campaigns. One not-for-profit 

organization submitted the names of 

8,602 community members expressing 

general concerns about worker wages, 


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worker safety, and enforcement of 

immigration laws. A not-for-profit 

foundation and labor union letter 

writing campaign resulted in the 

submission of more than 74,000 form 

letters and postcards from individual 

farmworkers expressing general 

concerns over issues such as the growth 

of the H–2A program, worker wages, 

costs to workers, working conditions, 

housing conditions, job opportunities 

for U.S. workers, and enforcement and 

oversight of program protections. 

Additional letter writing campaigns 

were organized by agricultural 

associations, trade associations, local 

groups of farmers, and private 

individuals. The Department recognizes 

and appreciates the public’s interest in 

this regulatory action. Where these 

letters discussed substantive changes 

within the scope of the rule, the 

Department has considered and 

addressed these issues, in detail, in the 

section-by-section analysis of this 

preamble. 

Many of the comments received 

expressed general support for or 

opposition to the proposed rule, without 

discussing specific provisions of the 

NPRM. The Department received 

comments from individual business 

owners, farmers, and trade associations 

that expressed general support for 

taking action to change the H–2A 

program, including efforts to streamline 

the electronic document filing system, 

modernizing and improving the 

efficiency of the program, making the 

program more flexible and responsive to 

farmer needs, and creating an 

environment that fosters a more stable 

workforce without harming U.S. 

workers. Other commenters stressed the 

importance of protecting and improving 

the American farming industry through 

the proposed regulations. Another 

commenter mentioned the growth of the 

H–2A program in their State as evidence 

that the program plays a vital role in the 

agricultural sector. The Department 

values and appreciates these 

commenters’ support for the proposed 

rule, as well as their unique and 

informed perspectives on the program’s 

strengths and proposed points of 

improvement. 

In addition to comments expressing 

general support for the rule, the 

Department received several comments 

supporting other comments that were 

submitted in response to the NPRM. 

Most of these comments were from 

individual farmers and ranchers 

expressing support for a comment 

submitted by an agricultural association 

or trade association. The Department 

acknowledges the time and effort 

undertaken by these commenters to 

voice their opinions on this rulemaking 

and lend their support for the opinions 

of others. Where these comments 

supported substantive changes within 

the scope of the rule, the Department 

has considered and addressed these 

issues, in detail, in the section-bysection analysis of this preamble. 

The Department also received several 

comments in general opposition to the 

changes proposed in the NPRM, 

including from private citizens, 

farmworkers, and workers’ rights 

advocacy organizations. These 

comments included concerns that 

changes to the H–2A program could 

disproportionately harm small farms. In 

accordance with the Regulatory 

Flexibility Act (RFA), an analysis on the 

impact on small farms was performed, 

and the results were considered in 

formulating this final rule. Additional 

commenters expressed the view that 

stronger protections and accountability 

for worker safety and living conditions 

are needed, asserting that the changes 

proposed in the NPRM would serve to 

weaken labor standards and increase 

instances of abuse within the 

immigration system. Some commenters 

feared that the proposed changes would 

disproportionately harm marginalized 

communities, including immigrants, 

individuals with disabilities, and people 

of color. One commenter opposed the 

changes proposed in the NPRM out of 

a general concern that such changes, 

once implemented, would encourage 

employers to deny jobs to U.S. 

farmworkers in order to hire foreign 

workers for less pay. Still other 

commenters stated that the changes 

proposed in the NPRM would make 

working and living conditions worse for 

farmworkers both within the H–2A 

program as well as farmworkers who are 

already lawfully present in the United 

States and employed in that capacity. 

These commenters underscored the 

importance of increasing protections for 

both U.S. workers’ and H–2A workers’ 

living and working conditions. Some 

commenters worried that the proposed 

changes would increase costs to 

workers, decrease their wages, or both. 

In contrast, one commenter expressed 

concern about the proposal increasing 

costs for employers through higher 

wages and labor standards for workers. 

Other commenters expressed general 

concerns about how the changes would 

impact food safety and the appeals 

process. A few commenters criticized 

the proposed rule for not including 

provisions to address recruitment fees 

and sectors in agriculture that have 

year-round needs for labor. 

The Department values and 

appreciates the participation and input 

from these commenters and the 

perspectives they have to offer. The 

mission of DOL is to foster, promote, 

and develop the welfare of the wage 

earners, job seekers, and retirees of the 

United States; improve working 

conditions; advance opportunities for 

profitable employment; and assure 

work-related benefits and protection of 

workers’ rights. Under this charge, the 

Department continues to be as diligent 

as possible in safeguarding worker 

rights, promoting the welfare of all 

workers, and investigating and 

preventing abuse within the U.S. 

agricultural economy, and it shares 

these commenters’ concerns for the 

protection of all farmworkers in the 

United States. Where these comments 

supported substantive changes within 

the scope of the rule, the Department 

has considered and addressed these 

issues, in detail, in the section-bysection analysis of this preamble. 

V. Section-by-Section Summary of This 

Final Rule, 20 CFR Part 655, Subpart B; 

20 CFR 653.501(c)(2)(i); and 29 CFR 

Part 501 

This section of the preamble provides 

the Department’s responses to public 

comments received on the NPRM and 

rationale for the amendments adopted to 

20 CFR part 655, subpart B, 20 CFR 

653.501(c)(2)(i), and 29 CFR part 501, 

section by section, and generally follows 

the outline of the regulations. Within 

each section of the preamble, the 

Department has noted and responded to 

those public comments that are 

addressed to that particular section of 

this final rule. If a proposed change is 

not addressed in the discussion below, 

it is because the public comments did 

not substantively address that specific 

provision and no changes have been 

made to the proposed regulatory text. 

The Department received some 

comments on the NPRM that were 

outside the scope of the proposed 

regulations, and the Department offers 

no substantive response to such 

comments. The Department also has 

made some nonsubstantive changes to 

the regulatory text to correct 

grammatical and typographical errors, 

in order to improve readability and 

conform the document stylistically, that 

generally are not discussed below. 

A. Introductory Sections 

1. Section 655.100, Purpose and Scope 

of Subpart B 

The NPRM proposed minor 

amendments to this section to clarify 

the purpose of the H–2A program 

regulations in paragraph (a) and the 

scope of those regulations in paragraph 


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(b). Proposed paragraph (a) reflected the 

purpose of the final rule as realizing the 

Department’s statutory authority to 

establish a process through which it will 

make factual determinations regarding 

the issuance of a temporary agricultural 

labor certification and certify its 

determination to DHS. See 8 U.S.C. 

1188(a). Proposed paragraph (b) 

described the scope of the Department’s 

role in receiving, reviewing, and 

adjudicating Applications for 

Temporary Employment Certification, 

including establishing standards and 

obligations with respect to the terms 

and conditions of the temporary 

agricultural labor certification with 

which H–2A employers must comply, 

and the rights and obligations of H–2A 

workers and workers in corresponding 

employment. The Department received 

some comments on this provision, but 

has not made any substantive changes to 

the regulatory text in response to these 

comments. Therefore, as discussed 

below, this provision remains 

unchanged from the NPRM except for 

minor technical changes. 

Although many commenters generally 

applauded the Department’s efforts to 

amend the H–2A regulations through 

this rulemaking activity, others stated 

the proposed regulations were 

unsatisfactory in addressing a wide 

array of immigration and workforce 

issues impacting the United States. 

Some called for an ‘‘overhaul’’ of the 

immigration system as it relates to 

agricultural labor through this rule or 

through a ‘‘guest’’ worker program, and 

some suggested creation of a system 

where the agricultural workforce would 

have a pathway to citizenship. Others 

stated that the changes proposed in this 

rulemaking would weaken workers’ 

wages, protections, and U.S. worker 

recruitment obligations, and would not 

incentivize farmers’ use of E-Verify 

administered by DHS and the Social 

Security Administration. However, no 

commenters objected to the 

Department’s proposed language under 

§ 655.100 stating the purpose and scope 

of its H–2A program regulations based 

on the Department’s statutory authority 

under the INA. 

To the extent commenters urged 

action beyond the proposed changes 

that the Department presented for 

public comment in the NPRM, their 

comments are outside the scope of this 

rulemaking. To the extent these 

commenters commented on the 

Department’s proposals in specific 

provisions of the NPRM (e.g., wage 

requirements or recruitment 

obligations), the Department has 

addressed their specific comments in 

the preamble discussion of those 

particular provisions. Generalized 

comments relating to this final rule are 

addressed in section IV, Discussion of 

General Comments. In the absence of 

objection to the Department’s proposed 

revisions to this regulatory language 

describing the purpose and scope of its 

H–2A program regulations, the 

Department has adopted these 

provisions as proposed, with minor 

changes in § 655.100. In this final rule, 

the Department reversed the order of the 

words ‘‘purpose’’ and ‘‘scope’’ in the 

section heading in order to reflect the 

sequence of topics in paragraphs (a) and 

(b). The Department also revised 

‘‘temporary agricultural labor or 

services’’ to now read ‘‘agricultural 

labor or services of a temporary or 

seasonal nature’’ and included the word 

‘‘temporary’’ in front of ‘‘foreign 

workers’’ to better reflect the 

determinations made in the 

Department’s temporary agricultural 

labor certification. 

2. Section 655.101, Authority of the 

Agencies, Offices, and Divisions of the 

Department of Labor; and 29 CFR 501.1, 

Purpose and Scope 

The NPRM proposed minor 

amendments to this section related to 

the delegated authorities of ETA and 

WHD and the division of 

responsibilities between the agencies in 

administering the H–2A program. In 

addition to other statutory 

responsibilities required by 8 U.S.C. 

1188, proposed paragraph (a) addressed 

ETA’s authority to carry out the 

Secretary’s responsibility to issue 

temporary agricultural labor 

certifications through OFLC, while 

proposed paragraph (b) addressed 

WHD’s authority to carry out the 

Secretary’s authority to investigate and 

enforce the terms and conditions of H– 

2A temporary agricultural labor 

certifications under 8 U.S.C. 1188, 29 

CFR part 501, and 20 CFR part 655, 

subpart B (‘‘this subpart’’) (collectively, 

‘‘the H–2A program’’). Proposed 

paragraph (c) reminded program users 

of ETA and WHD’s concurrent authority 

to impose a debarment remedy, when 

appropriate, under ETA regulations at 

20 CFR 655.182 or under WHD 

regulations at 29 CFR 501.20. The 

Department received a few comments 

on this provision, none of which 

necessitated substantive changes to the 

regulatory text. Therefore, as discussed 

below, this provision remains 

unchanged from the NPRM. 

Some commenters raised concerns 

about potential delays or confusion 

related to the manner in which ETA and 

WHD coordinate enforcement and share 

authority, as well as the level of 

expertise of enforcement agencies to 

which ETA and WHD may make 

referrals. One commenter expressed 

concern about the frequency of WHD 

investigations of H–2A employers, as 

compared to non-H–2A employers, and 

objected to what it perceived as an 

expansion of WHD’s enforcement 

authority. Another commenter 

suggested that the complementary 

regulation at 29 CFR 501.1(b) be revised 

to explicitly reference OFLC’s authority 

to carry out responsibilities under 20 

CFR part 655, subpart B, in addition to 

its authority under the statute. As the 

regulations are promulgated pursuant to 

OFLC’s statutory authority, the 

Department considers the proposed 

regulations to adequately describe the 

scope of OFLC’s authority. Further, by 

adding paragraph (b) to 20 CFR 655.101, 

the Department clarifies the role of 

WHD with regard to 20 CFR part 655, 

subpart B, within that subpart rather 

than solely within the complementary 

regulation at 29 CFR 501.1(c) and brings 

consistency to 20 CFR 655.101 and 29 

CFR 501.1; both now address ETA’s and 

WHD’s roles. To the extent commenters 

raised concerns about the manner in 

which ETA and WHD coordinate 

enforcement and shared authority, in 

practice, those specific comments are 

addressed in connection with the 

relevant regulatory provision (e.g., 20 

CFR 655.182(g)). As no commenter 

raised issues with the proposed 

revisions to the description of the 

authority of the Department’s agencies, 

offices, and divisions under 20 CFR 

655.101 and 29 CFR 501.1 that 

necessitate changes, the Department is 

adopting them in this final rule without 

change. 

3. Section 655.102, Transition 

Procedures 

a. Rescinding the Provision Allowing for 

the Creation of Special Procedures 

As stated in the NPRM, the 

Department’s H–2A regulations have, 

since their creation, provided authority 

under 20 CFR 655.102 to ‘‘establish, 

continue, revise, or revoke special 

procedures for processing certain H–2A 

applications,’’ and the Department has 

exercised a limited degree of flexibility 

in determining when specific variations 

from the normal labor certification 

processes were necessary to permit the 

temporary employment of foreign 

workers in specific industries or 

occupations. However, the Department 

proposed to rescind the special 

procedures provision in its H–2A 

regulations in light of the decision in 

Mendoza v. Perez, 754 F.3d 1002, 1022 

(D.C. Cir. 2014), which found that the 


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13The Department recently rescinded 

§ 655.215(b)(2) in a separate rulemaking. Final Rule, 

Adjudication of Temporary and Seasonal Need for 

Herding and Production of Livestock on the Range 

Applications Under the H–2A Program, 86 FR 

71373 (Dec. 16, 2021) (2021 H–2A Herder Final 

Rule). 

14The Department’s reference to ‘‘the 2010 H–2A 

Final Rule’’ herein includes the regulatory text 

adopted through that rulemaking, 75 FR 6884, and 

in other minor revisions that took effect prior to the 

effective date of this final rule. 2019 H–2A 

Recruitment Final Rule, 84 FR 49439 (rescinding 

the requirement that an employer advertise its job 

opportunity in a print newspaper of general 

circulation in the area of intended employment; 

expanding and enhancing the Department’s 

electronic job registry; and leveraging the expertise 

and existing outreach activities of SWAs to promote 

agricultural job opportunities); see also Final Rule, 

Rules Concerning Discretionary Review by the 

Secretary, 85 FR 30608 (establishing a system of 

discretionary secretarial review over cases pending 

before or decided by the BALCA and to make 

technical changes to Departmental regulations 

governing the timing and finality of decisions of the 

ARB and the BALCA); 2021 H–2A Herder Final 

Rule, 86 FR 71373 (amending the regulations 

regarding the adjudication of temporary need for 

employers seeking to employ nonimmigrant 

workers in job opportunities covering the herding 

or production of livestock on the range). 

Department’s determination to establish 

special procedures for sheep, goat, and 

cattle herding under § 655.102 was 

subject to the Administrative Procedure 

Act, possessed all the hallmarks of a 

legislative rule, and could not be issued 

through sub-regulatory guidance. The 

Department underwent notice-andcomment rulemaking to convert the subregulatory guidance for sheep and goat 

herding and production of livestock on 

the range into formal regulations; those 

provisions appear in the Department’s 

H–2A regulations at 20 CFR 655.200 

through 655.235. 2015 H–2A Herder 

Final Rule, 80 FR 62958.13 Accordingly, 

the Department proposed in the NPRM 

new regulatory provisions under 

§§ 655.300 through 655.304 to 

incorporate the remaining special 

procedures covering the specific 

occupations of animal shearing, 

commercial beekeeping, and custom 

combining into the H–2A regulatory 

framework, effectively rescinding the 

TEGLs covering those occupations. The 

Department received some comments on 

the Department’s proposal to rescind 

existing § 655.102, but as discussed 

below, none warranted changes to the 

Department’s proposed rescission. 

Therefore, the rescission of this 

provision remains unchanged from the 

NPRM. 

Some commenters generally 

supported the proposal to engage in 

rulemaking (i.e., through the NPRM and 

this final rule) to incorporate the 

procedures and standards from the 

TEGLs for itinerant animal shearing, 

commercial beekeeping, and custom 

combining into the H–2A regulations, 

with some remarking that it provided an 

opportunity to comment on specific 

aspects of occupational variances. The 

Department addresses these specific 

comments in the preamble sections 

below that discuss §§ 655.300 through 

655.304. Several other commenters 

expressed support for this proposal and 

cited general agreement with the 

conclusion that such procedures are 

substantive and require formal noticeand-comment rulemaking. 

One trade association stated that it 

‘‘takes no position’’ on the proposed 

rule’s rescission of the special 

procedures provision, but recommended 

the procedures and standards set forth 

in TEGLs should undergo ‘‘appropriate 

due process’’ before attaining the status 

of regulations. Although other trade 

associations and individual commenters 

were in favor of eliminating informal 

special procedures, they recommended 

the Department retain the ability to 

develop formal special procedures when 

circumstances arise in the future. These 

commenters noted that U.S. agriculture 

will continue to evolve, and the 

Department must have the appropriate 

tools to implement immediate changes 

to assist farmers while protecting 

workers. 

The Department understands the 

concerns expressed by a few 

commenters that consideration of 

special variances for specific industries 

or occupations, other than those 

addressed in this final rule at §§ 655.200 

through 655.235 and §§ 655.300 through 

655.304, may be appropriate at some 

point in the future. However, in light of 

the court’s decision in Mendoza and the 

similarity between the special 

procedures at issue in that case and the 

current H–2A special procedure TEGLs, 

the Department has determined that it 

should engage in formal notice-andcomment rulemaking procedures (i.e., 

through the NPRM and this final rule) 

to incorporate into the regulations its 

current H–2A special procedures. 

Rescission of the broad authority in 

§ 655.102 to establish special 

procedures does not preclude the 

Department from engaging in future 

notice-and-comment rulemaking or 

issuing guidance; rather, it reassures the 

public that the Department will engage 

in notice-and-comment rulemaking to 

establish variances in the future. 

Accordingly, the Department is 

adopting its proposal to rescind from 

the H–2A regulations the explicit 

provision permitting the Department to 

establish special procedures for 

processing certain Applications for 

Temporary Employment Certification 

under § 655.102. 

b. Transition Procedures for 

Implementing Changes Created by This 

Final Rule 

As stated in the NPRM, the 

Department proposed to repurpose 

§ 655.102 to clarify which set of 

regulations—the 2010 H–2A Final 

Rule 14 or this final rule—an employer 

must satisfy for each Application for 

Temporary Employment Certification 

that it has already submitted or that it 

is preparing to submit when this final 

rule becomes effective. The Department 

proposed to rename § 655.102 as 

‘‘Transition procedures,’’ and add 

regulatory language to support an 

orderly and seamless transition between 

the rules. 

Paragraph (a) proposed that an 

Application for Temporary Employment 

Certification submitted to the OFLC 

NPC before the effective date of the final 

rule would be processed under the 

regulations in effect when it was 

submitted (i.e., the 2010 H–2A Final 

Rule). However, an employer’s 

engagement with H–2A program 

requirements begins in advance of its 

submission of the Application for 

Temporary Employment Certification to 

the NPC, with its submission of a job 

order to the SWA for review and 

clearance. In order to provide similar 

regulatory continuity for H–2A program 

job orders, paragraphs (b) and (c) 

proposed a procedure for determining 

which set of regulations would apply to 

an Application for Temporary 

Employment Certification submitted to 

the NPC on or after the effective date of 

the final rule. 

As a result, any Application for 

Temporary Employment Certification 

with a first date of need no later than 

90 days after the effective date of this 

final rule would be processed under the 

2010 H–2A Final Rule. All other 

Applications for Temporary 

Employment Certification submitted on 

or after the effective date of this final 

rule would be processed under this final 

rule. The Department received some 

comments on this provision, none of 

which necessitated substantive changes 

to the regulatory text. Therefore, as 

discussed below, this provision remains 

unchanged from the NPRM. 

The majority of commenters that 

addressed transition procedures, 

including trade associations, an 

employer, and a SWA, generally 

supported the proposal. However, they 

expressed concern that the transition 

period might occur during a busy season 

or across calendar years, depending on 

the timing of the final rule’s publication. 


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15The Department decided not to adopt several 

major changes proposed in the NPRM (e.g., 

staggered entry), as discussed in relevant preamble 

sections, which mitigates the SWA’s concern to 

some degree. In addition, as explained in the 

preamble discussing § 655.120, the Department 

anticipates the modernized prevailing wage 

determination (PWD) survey requirements will 

reduce the burden on SWAs. 

16Order Granting Plaintiffs’ Motion for a 

Preliminary Injunction, United Farm Workers v. 

U.S. Dep’t of Labor, No. 20–cv–1690 (E.D. Cal. Dec. 

23, 2020), ECF No. 37. The court’s order was issued 

two days after the effective date of the 2020 H–2A 

AEWR Final Rule. 17Order Granting Plaintiffs’ Motion for Summary 

Judgment, United Farm Workers v. U.S. Dep’t of 

Labor, No. 20–cv–1690 (E.D. Cal. Apr. 4, 2022), ECF 

No. 102; Judgment, United Farm Workers v. U.S. 

Dep’t of Labor, No. 20–cv–1690 (E.D. Cal. Apr. 4, 

2022), ECF No. 103. 

18As noted below, the comment period for the 

2021 H–2A AEWR NPRM closed on January 31, 

2022, and the Department will address comments 

received in response to that proposal in that 

separate rulemaking. 

These commenters urged the 

Department to include sufficient time in 

the transition period for employers to 

become familiar with new requirements 

and for the Department and SWA to 

develop and implement processes 

associated with the changes in the final 

rule, ideally outside of busy filing 

periods (e.g., September, October, and 

November). The Department considered 

these interests and concluded that the 

transition procedures adopted in this 

final rule ensure that all job orders and 

Applications for Temporary 

Employment Certification submitted to 

the SWA and/or NPC before the 

effective date of this final rule will 

continue to be governed by the 2010 H– 

2A Final Rule. Not only will this 

approach ensure that the rule change 

does not complicate or disrupt an 

employer’s application process midstream, but it will provide an 

appropriate period after publication of 

this final rule during which the 

Department, SWAs, and employers can 

adjust to the new rule before an 

employer submits its first job order for 

processing under this final rule (i.e., 

with a first date of need more than 90 

days after the effective date of this final 

rule). 

Three commenters remarked on the 

length of the transition period proposed. 

Two trade associations objected to what 

they viewed as a delay of the actual 

effective date of the final rule. They 

remarked that the final rule would not 

be fully in effect on the 30th day after 

publication. In contrast, a SWA urged 

the Department to consider a longer 

transition period, such as 180 days after 

the final rule’s publication date, stating 

that both SWAs and employers need 

more than 90 days to adjust to the 

substantive changes being proposed, 

e.g., survey methodologies and 

staggered entry.15

The Department appreciates both the 

SWA’s suggestion for more time as well 

as other commenters’ concerns about 

prompt implementation of the new rule. 

The transition period implemented in 

this final rule balances these concerns. 

It allows the Department to implement 

necessary changes to program 

operations, application forms, and 

technology systems, and to provide 

training and technical assistance to the 

NPC, SWAs, employers, and other 

stakeholders in order to familiarize 

them with changes required by this rule. 

However, the transition period also 

balances the preparation required to 

properly implement the new rule with 

the importance of promptly 

implementing the modernized 

regulations. It requires employers to 

prepare job orders in compliance with 

the new regulations, and it requires the 

NPC and SWA to be prepared to receive 

those job orders, 46 days after 

publication of this final rule. Further, 

using employers’ first date of need after 

this final rule’s effective date, rather 

than a job order or Application for 

Temporary Employment Certification 

submission date, better ensures that 

workers who perform labor or services 

during the same season will be covered 

by the same set of regulations. 

4. Section 655.103, Overview of This 

Subpart and Definition of Terms; 20 

CFR 653.501(c)(2)(i) of the WagnerPeyser Act Regulations; and 29 CFR 

501.3, Definitions 

a. AEWR 

The NPRM proposed conforming 

changes to the definition of AEWR to be 

consistent with the NPRM’s proposal to 

adjust the methodology used to 

establish AEWR in the H–2A program. 

Subsequently, the Department issued 

the 2020 H–2A AEWR Final Rule (85 FR 

70445), which revised the AEWR 

methodology for non-range agricultural 

occupations and included a revised 

definition of AEWR. On December 23, 

2020, in United Farm Workers v. Dep’t 

of Labor, No. 20–cv–01690 (E.D. Cal. 

filed Nov. 30, 2020), the U.S. District 

Court for the Eastern District of 

California issued an order preliminarily 

enjoining the Department from further 

implementing the 2020 H–2A AEWR 

Final Rule.16 On April 4, 2022, after the 

parties submitted summary judgment 

briefing, the court vacated the 2020 H– 

2A AEWR Final Rule and remanded the 

rule to the agency for further rulemaking 

consistent with the court’s order.17 In 

this final rule, the Department is 

implementing the court’s vacatur of the 

2020 H–2A AEWR Final Rule by 

removing from the CFR the regulatory 

text that the Department promulgated 

through that rulemaking at § 655.103(b) 

(the definition of AEWR), thereby 

restoring the regulatory text to appear as 

it did before the effective date of the 

2020 H–2A AEWR Final Rule. 

The Department has good cause to 

bypass any otherwise applicable 

requirements of notice and comment 

and a delayed effective date for this 

portion of the rule because they are 

unnecessary and would be contrary to 

the public interest. See 5 U.S.C. 

533(b)(B), (d). First, the changes made 

here carry out the ministerial task of 

effectuating the court’s vacatur order 

and restores the regulatory text to the 

operative regulatory text in place prior 

to the publication of the now-vacated 

rule (the definition of AEWR in effect 

under the 2010 H–2A Final Rule). Since 

the court’s vacatur order, no other party 

has sought to appeal the court’s order or 

otherwise block it from taking effect. 

The Department has therefore 

concluded that the notice and delayed 

effective date requirements are 

unnecessary. 

Second, the Department has 

concluded that taking comment on this 

change would be contrary to the public 

interest because it could lead to 

confusion, particularly among the 

regulated public, as to the applicable 

definition of the AEWR and the AEWR 

methodology. This is especially true in 

light of the Department’s December 1, 

2021, NPRM proposing revisions to the 

reinstated 2010 AEWR methodology. 

Continuing to include the vacated 

methodology in the CFR while 

simultaneously proposing to amend the 

2010 AEWR methodology in the 

separate rulemaking could be 

unnecessarily confusing to the regulated 

community. This change eliminates any 

possible confusion over the current 

AEWR methodology and, more 

importantly, any confusion over what 

methodology the Department has 

proposed to change in its current AEWR 

rulemaking.18

The Department has concluded that 

each of these reasons—that notice and 

comment and a delayed effective date 

are unnecessary, impracticable, and 

contrary to the public interest— 

independently provides good cause to 

bypass any otherwise applicable 

requirements of notice and comment 

and a delayed effective date. 

b. Area of Intended Employment and 

Place of Employment 

The NPRM proposed minor 

amendments to the definition of AIE by 


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19For example, the H–1B regulations provide the 

following examples of non-worksites (i.e., locations 

that do not constitute a place of employment) for 

an H–1B worker: ‘‘[a] computer engineer sent to 

customer locations to ‘troubleshoot’ complaints 

regarding software malfunctions; a sales 

representative making calls on prospective 

customers or established customers within a ‘home 

office’ sales territory; a manager monitoring the 

performance of out-stationed employees; an auditor 

providing advice or conducting reviews at customer 

facilities; a physical therapist providing services to 

patients in their homes within an area of 

employment; an individual making a court 

appearance; an individual lunching with a 

customer representative at a restaurant; or an 

individual conducting research at a library.’’ See 

§ 655.715. These examples have limited parallels 

within the agricultural economy. 

replacing the terms ‘‘place of the job 

opportunity’’ and ‘‘worksite’’ with a 

newly defined term ‘‘place(s) of 

employment.’’ The Department received 

some comments on this provision, none 

of which necessitated substantive 

changes to the regulatory text. 

Therefore, as discussed below, these 

definitions remain unchanged from the 

NPRM with one minor revision. 

As explained in the NPRM, the CO 

will continue using the definition of AIE 

to assess whether each place of 

employment—defined as a worksite or 

physical location where work under the 

job order actually is performed by the 

H–2A workers and workers in 

corresponding employment—is within 

normal commuting distance from the 

first place of employment listed on the 

job order as a work location or, if 

designated, the centralized ‘‘pick-up’’ 

point (e.g., worker housing) to every 

other place of employment identified in 

the application and job order. After 

considering comments, as discussed 

below, the Department adopts the 

proposed definitions of AIE and place of 

employment with one minor change, to 

use the term ‘‘place of employment’’ in 

the singular in the definition of AIE. 

Some commenters suggested the 

Department make substantive revisions 

to the proposed definition of ‘‘place of 

employment,’’ given how it is applied in 

the proposed definition of AIE at 20 

CFR 655.103(b), and the explicit 

limitation of an Application for 

Temporary Employment Certification to 

one AIE that the Department proposed 

to incorporate at § 655.130(e). Some 

commenters asserted that travel time 

from one point on a farm to another 

(e.g., from one field to another 

noncontiguous field, or from a field to 

a packing facility) and/or incidental 

travel off the farm to places outside of 

the AIE should not be considered in the 

Department’s AIE evaluation. Several 

commenters, including a trade 

association, agent, and employers, used 

job opportunities involving trucking 

duties (e.g., delivering an employer’s 

crops to storage or market) as examples 

of their concerns. These commenters 

objected to listing all of a trucker’s 

delivery and pick-up locations on the 

Application for Temporary Employment 

Certification as worksites, which the CO 

would analyze under the definition of 

AIE at § 655.103(b) and subject to the 

geographic limitation at § 655.130(e). 

Several trade associations, agents, and 

employers commented that the 

Department should adopt the H–1B 

definition of place of employment at 

§ 655.715, asserting that the Board of 

Alien Labor Certification Appeals 

(BALCA) has done so in some appeal 

decisions. One commenter stated that 

adopting the H–1B definition would 

ensure that certain locations where 

work is performed for short durations 

are excluded from consideration in 

analysis of the AIE. An employer 

supported this approach as flexible and 

efficient, while other commenters stated 

it would provide clarity and certainty to 

the AIE evaluation. An agent 

acknowledged that the H–1B definition 

might be ‘‘less-than-ideal for the H–2A 

program for other reasons’’ and 

proposed a slightly modified version of 

the H–1B definition. 

The Department declines to adopt the 

H–1B definition of ‘‘place of 

employment’’ for the H–2A program 

because doing so would be a major 

change that commenters and 

stakeholders generally could not have 

anticipated as an outcome of the 

rulemaking, thus warranting additional 

public notice and opportunity for 

comment. Additionally, the H–1B 

definition of ‘‘place of employment’’ is 

tailored to the specialty occupations 

eligible for the H–1B program, and this 

definition is not easily retrofitted or 

modified to apply to agricultural 

occupations eligible for the H–2A 

program.19 Finally, such a change is not 

necessary to address commenters’ 

concerns. 

The Department’s proposed definition 

of AIE considers the normal commuting 

distance to the place of employment 

where the workday begins, not the 

geographic scope of a worker’s route 

after the workday begins. Under the 

proposed definition of ‘‘place of 

employment,’’ a truck driver’s delivery 

locations, for example, are places of 

employment, as they are worksites or 

other physical locations at which the 

truck driver performs work under the 

job order. However, those delivery 

locations are not considered in the AIE 

analysis of normal commute to the place 

of employment because the workday for 

the job opportunity begins before a 

worker travels to those locations. The 

geographic scope limitation on such 

places of employment (i.e., after the 

workday begins) are addressed under 

§ 655.130(e), which, as revised, 

accommodates work at ‘‘places of 

employment outside of a single [AIE] 

only as is necessary to perform the 

duties specified in the Application for 

Temporary Employment Certification, 

and provided that the worker can 

reasonably return to the worker’s 

residence or the employer-provided 

housing within the same workday.’’ 

While not assessed as part of an AIE 

review, an employer must identify on 

the Application for Temporary 

Employment Certification and job order 

all places of employment, including 

those after the workday begins, to allow 

both for the Department to review, and 

U.S. workers to be apprised of, the 

material terms and conditions of the job 

opportunity. If specific addresses are 

unknown, such as in the case of crop 

delivery to storage or market, the 

employer may describe the places to 

which deliveries will be made with as 

much specificity as possible (e.g., 

county or city names). To be clear, all 

worksites and physical locations where 

work will be performed under the job 

order, both those to which a worker 

must commute and those to which a 

worker must travel after their workday 

begins, must be disclosed in the 

Application for Temporary Employment 

Certification and job order; however, 

those worksites and physical locations 

to which a worker must travel after the 

workday begins to perform work under 

the job order will not be analyzed under 

the definition of AIE. These comments 

and the limitation of an Application for 

Temporary Employment Certification to 

one AIE, absent an exception, are 

discussed further in relation to the 

geographic scope provision at 

§ 655.130(e). 

A State employment agency expressed 

concern that the term ‘‘places of 

employment’’ may result in employer 

misrepresentation of the actual 

worksite, lead to confusion around 

where the ‘‘actual worksite’’ is located 

when reviewing a job order, and require 

the SWAs to identify more deficiencies 

in cases where the employer does not 

specify the worksite as a place of 

employment. A forestry employer 

expressed concern that the proposed 

definition would be unworkable 

because the employer performs work at 

places of employment across areas 

wider than normal commuting 

distances, considers employer-provided 

housing to be home, and does not 

expect workers to return home to their 

permanent residence each day. 


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To add clarity, the Department has 

revised the definition of AIE so that 

‘‘place of employment’’ is singular. As 

discussed above, there may be a number 

of places of employment listed on an 

Application for Temporary Employment 

Certification, as an employer must 

identify each worksite or physical 

location where work under the job order 

will be performed. However, the CO 

uses only one place—the first place of 

employment identified or, if designated, 

the centralized ‘‘pick-up’’ point (e.g., 

worker housing)—to determine the 

normal commuting distance around that 

place and whether all of the worksites 

or physical locations to which a worker 

may commute to begin the workday are 

within that normal commute. Where an 

employer’s job opportunity involves a 

planned itinerary (e.g., animal shearing 

subject to § 655.300), and in the event 

an AIE analysis is required, the normal 

commute at each place along the 

planned itinerary would be analyzed. 

Some commenters asserted that a 

normal-commuting-distance analysis 

should focus on the location of the 

housing or pick-up point employers 

provide for workers, rather than the 

places of employment listed on an 

employer’s Application for Temporary 

Employment Certification. A trade 

association, with support from other 

commenters, stated that, because 

employers are required to provide 

transportation to worksites from the 

housing the employer provides or a 

pick-up point, a normal commuting 

distance for U.S. workers should be 

measured from their home to the 

housing or pick-up point, not the 

worksite(s); and thus argued that 

worksites have little bearing on the AIE 

labor market test. Another trade 

association similarly remarked that the 

‘‘housing or pick-up point, rather than 

the worksite’’ should be the determining 

factor, asserting that this would reflect 

the commuting patterns of agricultural 

workers more accurately. An employer 

urged adoption of a standard that would 

consider a worksite to be within the AIE 

if the employer has provided housing at 

the worksite; as normal commuting 

distance would be measured from each 

of the various locations where the 

employer provided housing to workers, 

employers could file fewer Applications 

for Temporary Employment 

Certification, each application covering 

multiple AIEs. Similarly, an agent stated 

that employers are required to provide 

housing within a normal commuting 

distance, which ‘‘would allow for 

multiple work/housing locations on a 

single application.’’ 

The Department disagrees with 

commenters who assert that the location 

of one or more places of employment is 

not relevant to evaluating normal 

commuting distance whenever an 

employer provides transportation from a 

designated pick-up point, such as the 

housing it provides to H–2A workers 

and those workers in corresponding 

employment who are not reasonably 

able to return to their own residence 

within the same day, as provided in 

§ 655.122(d)(1). The Department 

likewise disagrees that providing 

additional housing at the place of 

employment negates the need for the 

AIE analysis. A worker who does not 

reside at the pick-up point must 

commute either to the pick-up point or 

to the place of employment directly. 

Further, if the workday does not begin 

at the pick-up point, the commute for a 

worker who travels to the pick-up point 

using their own transportation 

continues from the pick-up point to the 

place of employment using the 

employer’s transportation. To the extent 

a commute involves multiple segments, 

workers in corresponding employment 

may not be able to reasonably return to 

their own residences within the same 

day. Although an employer would be 

required to provide such workers with 

housing, the Department noted in the 

NPRM (and farmworkers and their 

advocates agreed in comments) that 

longer-than-normal commuting 

distance, transportation issues, and any 

requirement to live away from home 

and family are all factors that can 

discourage U.S. workers from accepting 

temporary agricultural job 

opportunities, impacting recruitment 

and the Department’s ability to assess 

the labor market prior to issuing a final 

determination. Should a worker in 

corresponding employment choose not 

to live in employer-provided housing to 

reduce the commute, the Department 

has health and safety concerns, such as 

driver fatigue that can be exacerbated by 

increased commute times. In a comment 

addressing transportation safety under 

§ 655.122(h), a State employment 

agency noted that driver fatigue in 

agriculture is a ‘‘real and concerning 

issue,’’ stating that it is not uncommon 

to see workers at worksites that are 

hours away from housing sites. (To the 

extent these commenters are discussing 

workers’ movement between various 

places of employment after the workday 

begins, the Department has addressed 

this issue above and in § 655.130(e).) 

Separately, a workers’ rights advocacy 

organization discussed the use of the 

definition of AIE for other purposes, for 

example, to frame the geographic area 

for prevailing practice and wage 

surveys, asserting that regulatory 

language at §§ 655.122(d)(5) and 

653.501(c)(2)(i) limits AIE in those 

contexts to a single State. Those 

comments with regard to prevailing 

wage surveys are addressed in the 

discussion of prevailing wage 

determinations (PWDs) at § 655.120(c). 

In addition to soliciting comments on 

the proposed definitional changes, the 

Department invited input on whether it 

should further revise the definition of 

AIE either to continue making factbased determinations on a case-by-case 

basis, with the consideration of other 

objective factors such as commuting or 

labor market area designation systems or 

other comprehensive commuting 

studies and data, or to implement a 

uniform standard, like a maximum 

commuting distance or time above 

which a commute would be considered 

unreasonable in all cases. The 

Department asked that comments 

address the advantages and 

disadvantages of different alternatives 

and how implementation would provide 

greater clarity and ensure the integrity 

of the labor market test. 

Commenters varyingly expressed 

general concerns that the current 

definition of AIE is too broad, too 

narrow, or too ambiguous, but without 

offering an alternative framework. A 

trade association stated that AIE ‘‘varies 

by the nature of the employer’s need 

and does not fit neatly into one defined 

box,’’ while an employer expressed 

concern that the current definition 

created such a broad standard that it 

could result in subjective review of an 

application. An agent suggested the 

definition of AIE should be expanded to 

reflect that agricultural employers now 

have statewide and interstate 

production to ‘‘reduce crop failure risks, 

expand marketing windows, and 

improve capital utilization’’; otherwise, 

the commenter suggested, the definition 

failed to accommodate modernization of 

agricultural operations. Many 

farmworkers emphasized that it is 

important to them to work close either 

in distance or time to where they live 

due to the lack of a driver’s license, 

post-work obligations like schoolwork, 

and the need to care for their children 

and be available if family emergencies 

occur. A workers’ rights advocacy 

organization expressed concern that the 

definition of AIE leads to a large AIE 

and results in fewer U.S. worker 

applicants for job opportunities because 

the regulation does not require 

employers to provide transportation to 

local workers. 

Some commenters objected to the use 

of Metropolitan Statistical Areas (MSAs) 

in the H–2A program’s definition of AIE 

as an objective means of evaluating a 


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normal commute in particular areas, but 

did not offer an alternative. Some trade 

associations, with support from other 

commenters, asserted that MSAs and 

commuting distance have no correlation 

with the nature of agricultural work. For 

example, one commenter stated that 

commute times associated with MSAs 

‘‘bear little resemblance to how 

agricultural workers get to their jobs.’’ A 

workers’ rights advocacy organization 

expressed concern that many 

farmworkers will have difficulty 

traveling to and between distant points 

within large MSAs and cited language 

from OMB stating that MSAs ‘‘are not 

designed as a general-purpose 

framework for nonstatistical activities.’’ 

See 2010 Standards for Delineating 

Metropolitan and Micropolitan 

Statistical Areas; Notice, 75 FR 37246 

(June 28, 2010). One of the trade 

associations, with other commenters 

echoing its statement, noted that the 

widely varying commute times 

associated with different MSAs will 

make it difficult for a Farm Labor 

Contractor (FLC) to contract with a 

farmer with certainty about whether the 

farm will be determined to be inside or 

outside an arbitrary commute time for 

that specific MSA. 

The commenters who addressed 

whether the Department should impose 

a more uniform standard for all 

employers, such as a maximum 

commuting distance or time above 

which a commute would be considered 

unreasonable in all cases, generally did 

not support a rigid measure of time or 

distance applicable in all cases. Several 

trade associations and an agent stated 

that use of a specific metric to 

determine reasonable commuting 

distance would be difficult due to 

various factors. An agent commented 

that employers transport workers to 

‘‘wherever the work is available,’’ and 

the Department should not limit 

transportation to commute times that 

may vary widely based on factors like 

traffic patterns. One stated that 

measuring commutes in miles would be 

inappropriate because it would not 

account for areas in which distance can 

be traveled quickly, and measuring in 

time would penalize those who travel 

difficult terrain or encounter heavy 

traffic during daily commutes. One 

trade association stated that there is too 

much variation in terrain, weather, 

population concentration, road quality, 

and traffic across the country to apply 

a rigid definition of normal commuting 

distance. Another trade association 

similarly remarked that it would be 

impossible to use a definitive rigid 

measure of reasonable commuting 

distance due to variation in agriculture 

across the country, and urged the 

Department to provide more flexibility. 

While one agent suggested that a rigid 

commuting distance could be 

consistently applied, an employer urged 

the Department to adopt a flexible 

approach and not apply a rigid 

definition of normal commuting 

distance. 

The commenters who suggested a 

maximum commute distance or 

commute time disagreed as to an 

appropriate limit. Trade associations, 

individual employers, and an agent 

suggested the Department should not 

consider a commute time to be 

unreasonable unless, for example, the 

worksite is at least 2 hours from the 

housing, the pick-up point, or both. One 

viewed it as a more easily understood 

approach that ‘‘would prevent any 

misunderstanding of whether a specific 

farm will fit an MSA’s commute time 

and better conform to the realities of 

agricultural employment.’’ An agent 

commented that a smaller, more 

restrictive AIE is not helpful to anyone, 

neither the small local workforce that is 

not large enough for farmers’ needs, nor 

the farmer who will have to artificially 

separate parts of its widespread 

operation to fit into discrete AIEs. This 

commenter argued that the Department 

has ‘‘no statistics that legal, local or 

domestic workers would take jobs if 

they were just confined to about a 60- 

mile radius of any one farm.’’ By 

comparison, a workers’ rights advocacy 

organization urged the Department to 

limit the definition of ‘‘normal 

commuting distance’’ to distances 

‘‘considerably shorter than the 60+ mile 

figure’’ requested by employers and 

suggested that a more reasonable 

maximum distance might be 45 miles. 

Some commenters who opposed a 

maximum commuting distance stated 

that if the Department were to adopt a 

maximum distance standard, it should 

provide flexibility to account for typical 

travel delays. 

Upon careful consideration of all 

comments received, the Department 

declines to further modify the definition 

of AIE. Although using MSAs as a proxy 

for commuting area may result in 

broader geographic areas than might 

seem typical for jobs in rural areas, 

employers are required to provide 

housing to any worker in corresponding 

employment unable to reasonably return 

home at the end of the workday, 

including those who reside within the 

broadly identified commuting area. 

Some commenters appeared to conflate 

the concept of ‘‘reasonable commuting 

distance’’ as used in this section with 

the requirement that the employer 

provide housing to workers in 

corresponding employment who are not 

reasonably able to return to their 

residence within the same day. The 

Department notes that reasonable 

commuting distance as it relates to AIE 

is a general concept, whereas a 

determination as to whether a worker in 

corresponding employment is 

reasonably able to return to their 

residence at the end of the day is 

specific to the worker in question. 

Therefore, it is possible that a worker in 

corresponding employment could reside 

within a reasonable commuting distance 

of the place of employment, but could 

not reasonably return to their residence 

at the end of the day due to personal 

circumstances (e.g., lack of a private 

vehicle or public transportation). In 

such a situation, the employer would be 

required to offer housing to the worker 

in corresponding employment. 

Therefore, while commenters provided 

certain arguments that MSAs might be 

an imperfect fit in some situations, these 

comments neglect to consider the 

continued value in using MSAs to 

provide a level of predictability and 

adjudicatory consistency for employers 

nationwide, which the Department and 

many commenters both consider 

important. As commenters have not 

identified any clearly superior 

alternative, this final rule continues to 

rely on a case-by-case approach to 

assessing AIE given the varying 

circumstances across areas that affect 

travel and commuting times. 

c. Average AEWR 

The NPRM proposed to define a new 

term ‘‘average adverse effect wage rate’’ 

(average AEWR). The term is necessary 

to effectuate the Department’s proposal 

to make adjustments to the H–2ALC 

surety bond amounts based on changes 

to a nationwide average AEWR. The 

Department proposed to calculate the 

average AEWR as a simple average of 

the published AEWRs applicable to the 

Standard Occupational Classification 

(SOC) 45–2092 (Farmworkers and 

Laborers, Crop, Nursery, and 

Greenhouse) and publish an updated 

average AEWR annually to serve as the 

benchmark for future adjustments to the 

required bond amounts. 

The Department received only two 

comments specifically relating to the 

proposal to define the average AEWR. 

Both commenters misunderstood the 

nature of this proposal, believing that 

the Department was proposing an 

alternative to the wage sources listed in 

§ 655.120(a), and opposed the proposal 

for this reason. The Department 

reiterates that the average AEWR is only 

intended to be used as a benchmark for 


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20See 84 FR 36168, 36179 (explaining that the 

Department proposes to maintain the current 

requirement in § 655.120(a) that an employer must 

offer, advertise in its recruitment, and pay a wage 

that is the highest of the AEWR, the prevailing 

wage, the agreed-upon collective bargaining wage, 

the Federal minimum wage, or the State minimum 

wage, with only minor changes). 

21The AEWR methodology proposed in the 

NPRM would have resulted in the publication of 

separate AEWRs specific to the SOC 45–2092 and 

other occupational classifications for field and 

livestock workers. Under the modifications made to 

the Department’s AEWR methodology in the 2020 

H–2A AEWR Final Rule, the OFLC Administrator 

would instead publish an AEWR for each State for 

a combined field and livestock workers category, 

which would be applicable to the SOC 45–2092. 

However, as discussed above, the 2020 H–2A 

AEWR Final Rule was preliminarily enjoined in 

United Farm Workers v. U.S. Dep’t of Labor, No. 

20–cv–01690 (E.D. Cal. Dec. 23, 2020). Regardless 

of the precise AEWR methodology used, the average 

AEWR will be based on the AEWRs that apply to 

the SOC 45–2092, whether they are SOC-specific or 

for a combined field and livestock workers category. 

22See 8 U.S.C. 1188(c)(2) (‘‘The employer shall be 

notified in writing within seven days of the date of 

filing if the application does not meet the [relevant] 

standards’’); 8 U.S.C. 1188(c)(3)(A)(i) (‘‘The 

Secretary of Labor shall make . . . the certification 

described in subsection (a)(1) if . . . the employer 

has complied with the criteria for certification’’); 8 

U.S.C. 1188(d)(2) (‘‘If an association is a joint or 

sole employer of temporary agricultural workers, 

. . . [H–2A] workers may be transferred among its 

[employer-]members’’). 

making adjustments to the required 

bond amounts. Under this proposal, the 

average AEWR does not change or 

replace the wage rate required under 

§ 655.120(a).20

Accordingly, the Department adopts 

the definition of average AEWR with 

minor modifications. As defined in this 

final rule, the average AEWR is the 

simple average of the AEWRs applicable 

to the SOC 45–2092 (Farmworkers and 

Laborers, Crop, Nursery, and 

Greenhouse) and published by the 

OFLC Administrator in accordance with 

§ 655.120.21 The revised definition 

clarifies that once set, the average 

AEWR remains in effect until the OFLC 

Administrator publishes an adjusted 

average AEWR and it becomes effective. 

Adjustments to the average AEWR will 

occur consistent with the schedule for 

adjusting the relevant AEWRs under 

§ 655.120. 

d. Corresponding Employment 

The NPRM did not propose 

amendments to the definition of 

corresponding employment or request 

comments on any aspect of the 

definition. However, the Department 

received a few comments suggesting 

modifications to the definition, none of 

which necessitated substantive changes 

to the regulatory text from the NPRM. 

Therefore, this final rule retains the 

definition of corresponding employment 

from the current rule without change. 

Several commenters stated that the 

definition should be modified to 

include a de minimis exception, 

allowing non-H–2A workers to perform 

a limited amount of work similar to the 

duties described in the job order or 

performed by the H–2A workers without 

being considered to be engaged in 

corresponding employment. 

Alternatively, several commenters 

indicated that the definition should be 

more similar to the definition of 

corresponding employment under the 

H–2B program regulations, which 

defines corresponding employment to 

include work that is either substantially 

similar to the work included in the job 

order or substantially the same work 

performed by H–2B workers, and 

excludes certain full-time, incumbent 

employees. See 20 CFR 655.5; 29 CFR 

503.4. 

The Department has carefully 

considered these comments requesting 

that the definition of corresponding 

employment be revised and narrowed 

but declines to alter the definition of 

corresponding employment at this time. 

The Department did not propose any 

changes to the definition of 

corresponding employment or request 

comments on any aspect of the 

definition. Many parties who would be 

affected by any change in the definition 

of corresponding employment therefore 

had no reason to anticipate any change 

in the current definition or to provide 

input as to how the definition could be 

revised. The Department received only 

a limited number of comments on this 

topic, all from employers and their 

representatives, with no feedback from 

other affected parties to enable the 

Department to obtain multiple 

perspectives on this issue. Further, the 

regulation provides important 

protections for workers by requiring that 

non-H–2A workers performing the same 

work as H–2A workers receive the same 

wages and working conditions as H–2A 

workers. Accordingly, the Department 

declines to adopt any changes to the 

definition of corresponding 

employment. 

e. Employer and Joint Employment 

The NPRM proposed amendments to 

the definitions of ‘‘employer’’ and ‘‘joint 

employment’’ to clarify the use of these 

terms in the filing of Applications for 

Temporary Employment Certification 

and the responsibilities of joint 

employers, consistent with the INA and 

the Department’s longstanding 

administrative and enforcement 

practice. The Department received many 

comments on these proposed 

definitions, none of which necessitated 

substantive changes to the regulatory 

text. Therefore, as discussed below, 

these definitions remain unchanged 

from the NPRM with one minor 

revision. 

Section 218 of the INA recognizes that 

growers, agricultural associations, and 

H–2ALCs that file applications are 

employers or joint employers.22 In 

conformity with the statute as well as 

the Department’s current policy and 

practice, the NPRM proposed to clarify 

the definitions of employer and joint 

employment with respect to the H–2A 

program to include all of those entities 

the statute deems employers or joint 

employers. Specifically, the Department 

proposed to add language to the 

definition of joint employment to clarify 

that an agricultural association that files 

an application as a joint employer is, at 

all times, a joint employer of all H–2A 

workers sponsored under the 

application and, if applicable, of 

corresponding workers. The Department 

further proposed to clarify the definition 

of joint employment to include an 

employer-member of an agricultural 

association that is filing as a joint 

employer, but only during the period in 

which the employer-member employs 

H–2A workers sponsored under the 

association’s joint employer application. 

The Department proposed to add 

language to the definition of joint 

employment to clarify that growers that 

file the joint employer application 

proposed in § 655.131(b) are joint 

employers, at all times, with respect to 

the H–2A workers sponsored under the 

application and all workers in 

corresponding employment. In light of 

these proposed changes, the Department 

also proposed a slight change to the 

joint employment language in the 

current regulation to clarify that entities 

that do not file applications but jointly 

employ workers under the common law 

of agency are also joint employers that 

may be held liable for violations under 

the statute. In other words, entities that 

file applications as joint employers are 

joint employers as a matter of law, 

regardless of the common law of agency. 

The Department will assess the joint 

employer status of all other entities 

based on the nature of the employment 

relationship between the putative joint 

employer and the worker under the 

common law of agency, as provided in 

the existing definition of employee at 

§ 655.103 and required by Supreme 

Court precedent. In addition to the 

proposed changes to the definition of 

joint employment, the Department 

proposed to add language to the 

definition of employer to clarify that a 


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23Another agricultural association that submitted 

a comment (generally supported by several other 

commenters, including trade associations and 

individual employers) offered no criticism of the 

NPRM’s clarification that agricultural associations 

that file a joint employer application are liable at 

all times for violations committed against H–2A 

workers sponsored under the applications as well 

as any applicable corresponding workers. 

24See also the title of sec. 1188(d)(2) (‘‘Treatment 

of Associations Acting as Employers.’’) (emphasis 

added). 

25See Admin. v. WAFLA, ALJ No. 2018–TAE– 

00013 (OALJ Aug. 25, 2021), appeal pending, ARB 

No. 2021–0069 (agricultural association is a joint 

employer of workers employed under master 

application as a matter of law); Little v. Solis, 297 

FRD. 474, 478 (D. Nev. Jan. 27, 2014) (as a joint 

employer applicant, agricultural association is a 

joint employer of H–2A workers for purposes of the 

H–2A program); Ruiz v. Fernandez, 949 F. Supp. 2d 

1055, 1072 (E.D. Wash. June 7, 2013) (an 

agricultural association that submits a joint 

employer application is a party to the H–2A 

workers’ work contracts as a matter of law); 

Martinez-Bautista v. D & S Produce, 447 F. Supp. 

2d 954, 962 (E.D. Ark. Aug. 25, 2006) (entities that 

jointly applied to employ H–2A workers are joint 

employers of the workers); cf. WHD v. Native 

Techs., Inc., ARB No. 98–034, 1999 WL 377285, *6 

(ARB May 28, 1999) (filer of a labor condition 

application under H–1B provisions of the INA is an 

‘‘employer’’ by operation of law, independent of 

criteria under the common law test of employer); 

but see Admin. v. Azzano Farms & WAFLA, ALJ No. 

2019–TAE–00002 (OALJ Oct. 2, 2019), appeal 

pending, ARB No. 2020–0013. 

person who files an application other 

than as an agent is an employer and, 

similarly, that a person on whose behalf 

an application is filed is an employer. 

As the Department noted in the NPRM, 

these proposed revisions reflected the 

Department’s longstanding 

administrative and enforcement practice 

that is already familiar to employers. 

Joint Employment for Agricultural 

Associations Filing as a Joint Employer 

With Their Employer-Members 

The Department received numerous 

comments related to its proposal to 

clarify that an agricultural association 

that files an application as a joint 

employer is, at all times, a joint 

employer of all H–2A workers 

sponsored under the application and, if 

applicable, of corresponding workers. 

Two associations supported the 

proposed definition of joint 

employment. Two other associations 

submitted lengthy comments opposing 

the proposal. The two associations 

opposing the proposal each asserted the 

INA does not permit the Department to 

impose joint employer liability on an 

agricultural association for the 

violations of an association member, 

unless the association committed, 

participated in, or had knowledge of the 

violation. The associations cited sec. 

1188(d)(3)(A) of the INA, which limits 

the debarment of joint employer 

agricultural associations based on 

violations an employer-member 

commits to instances in which the 

agricultural association committed, 

participated in, had knowledge of, or 

had reason to know of the violation. The 

associations submitted that Congress’s 

specific choice to permit debarment for 

an employer-member violation only 

when an agricultural association meets 

this standard evinces a general intent to 

hold agricultural associations otherwise 

accountable for employer-member 

violations only when they committed, 

participated in, or knew of the 

underlying violation. 

The associations explained that 

Congress conferred a ‘‘special status’’ on 

agricultural associations ‘‘in order to 

level the playing field for small 

employers’’ and that imposing joint 

employer liability on agricultural 

associations that elect to file a joint 

employer application would ‘‘frustrate 

that status’’ because associations cannot 

afford exposure to such liability. Both 

assert that exposure to such liability 

would result in associations’ inability to 

file joint employer applications. The 

associations also stated that the 

Department has historically applied the 

common law of agency to determine 

whether an entity employs a worker and 

oppose the ‘‘proposed radical change to 

agency law.’’ 

Two other associations asserted that 

the Department has never held an 

association liable for employer-member 

violations unless the association was 

involved in or directly participated in 

the violation. One of these associations 

also agreed with the two associations 

described immediately above that the 

proposal to hold agricultural 

associations accountable for employermember violations when the 

agricultural association elected to file a 

joint employer application is 

inconsistent with the statute. That 

association also commented that the 

proposal will reduce small farmers’ 

access to the program and potentially 

threaten the existence and participation 

of associations in the program. And 

finally, various other employer 

commenters lodged general objections 

to holding associations liable for the 

violations that their employer-members 

commit.23

A workers’ rights advocacy 

organization supported the 

Department’s proposal to clarify that an 

agricultural association that elects to file 

a joint employer application is at all 

times a joint employer of the H–2A 

workers sponsored under the 

application as well as any 

corresponding workers. The commenter 

submitted that the clarification will 

incentivize associations to monitor 

employer-member compliance with 

program requirements. 

After carefully considering the 

comments it received, the Department 

has decided to retain its proposed 

clarification of the definition of joint 

employment to include language 

specifying that an agricultural 

association that files an application as a 

joint employer is, at all times, a joint 

employer of all H–2A workers 

sponsored under the application and 

any corresponding workers. The plain 

language of sec. 1188(d) of the INA 

requires this interpretation. Section 

1188(d)(2) only allows an agricultural 

association to file a single application 

on behalf of its employer-members to 

sponsor H–2A workers that it may 

‘‘transfer’’ among its membership ‘‘[i]f 

[the agricultural] association is a joint or 

sole employer of temporary agricultural 

workers.’’ 24 Thus, an association attests 

to joint employer status when it submits 

a joint employer application for 

authorization to transfer 

H–2A workers among its membership. 

In addition to permitting the association 

to transfer H–2A workers, filing a single 

application rather than individual 

applications on behalf of each 

employer-member of an agricultural 

association results in significant 

financial savings and substantially 

reduces the efforts and costs associated 

with the required recruitment and 

advertising. The statute requires an 

agricultural association to assume joint 

employer (or sole employer) status to 

qualify for these benefits.25 Even if the 

statutory language did not compel this 

result, the Department would 

nevertheless adopt this interpretation as 

agricultural associations are uniquely 

positioned to be knowledgeable of 

program requirements, and this 

requirement encourages associations 

that transfer workers among their 

employer-members to ensure that their 

employer-members understand program 

rules and regulations, assist their 

membership in achieving compliance, 

and provide accountability for 

agricultural associations filing as joint 

employers. 

Should an agricultural association 

prefer not to accept the obligations of 

joint (or sole) employment, it may 

choose instead to file individual 

applications on behalf of its employermembers as an agent, thereby limiting 

its liability, consistent with sec. 

1188(d)(1) (but also foregoing the 

privileges that apply if it files a Master 

Application). The statutory scheme 

accordingly permits an agricultural 

association to choose to assume the 


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26See Azzano Farms, ARB No 2020–0013; 

WAFLA, ARB No. 2021–0069. 

traditional responsibilities of a joint/ 

sole employer, including any liability to 

the workers it jointly/solely employs— 

or file an application as an agent and 

generally avoid employer liability. 

However, when associations file as 

agents, H–2A workers cannot be 

transferred among their employermembers, pursuant to sec. 1188(d)(2). 

The Department notes the contention 

that it has never sought to hold an 

agricultural association liable for 

employer-member violations unless the 

agricultural association was involved in 

the violations is inaccurate. Holding an 

association accountable for employermember violations when the association 

attested to joint employer status is 

consistent with WHD’s current statutory 

interpretation and its enforcement 

policy. WHD is presently asserting 

before the ARB that an association is 

liable for its employer-member’s 

violations based solely on its having 

filed a joint employer application.26

WHD has also previously sought to 

enforce program requirements against 

other associations based solely on their 

election of joint employer status. 

Additionally, it is inaccurate to state 

that sec. 1188(d)(3)(A) provides that 

violations committed by an association 

member are not the responsibility of an 

association unless the Secretary 

determines that the association 

participated in, had knowledge of, or 

had reason to know of the violations. 

Rather, this section provides that an 

association is not subject to debarment 

when an employer-member commits a 

violation (unless the Secretary 

determines that the association or other 

employer-member participated in, had 

knowledge of, or had reason to know of 

the violations). Read together, sec. 

1188(d)(2) and (3)(A) assign full legal 

responsibility to agricultural 

associations for employer-member 

violations, with the exception of a 

release from program debarment for an 

agricultural association when the 

Department cannot satisfy sec. 

1188(d)(3)(A)’s more exacting standard. 

The debarment standard provides a 

meaningful limitation on the 

Department’s authority to debar an 

agricultural association for its employermember’s violations. Consistent with 

the provision, the Department’s 

implementing regulations do not permit 

the Department to debar an association 

merely because its employer-member 

committed a substantial violation that 

subjects the employer-member to 

debarment. See 29 CFR 501.20(f). 

When an association is not subject to 

debarment, civil money penalty 

assessments against the agricultural 

association for employer-member 

violations may be lower than those 

assessed for association members. As 

the Department noted in the NPRM, it 

will continue to apply its longstanding 

policy with respect to imposing liability 

among culpable joint employers. This 

policy includes consideration of the 

factors at § 501.19(b) when the 

Department assesses civil money 

penalties. The Department applies these 

factors to joint employers on a case-bycase basis. Thus, for example, if the 

Department determines an agricultural 

association achieved no financial gain 

from an employer-member’s failure to 

pay the required wage to H–2A or 

corresponding workers, but that the 

employer-member achieved significant 

financial gain, the civil money penalty, 

if any, applicable to the association 

would likely be less than that applicable 

to the employer-member for this 

violation. 

Joint Employment for Employers Filing 

Joint Employer Applications Under 

§ 655.131(b) 

The Department received various 

comments concerning its proposal to 

add language to the definition of joint 

employment clarifying that growers that 

file the joint employer application 

proposed in § 655.131(b) are joint 

employers, at all times, with respect to 

the H–2A workers sponsored under the 

application and any corresponding 

workers. Five organizations representing 

growers’ interests expressed 

appreciation that the Department was 

proposing to permit ‘‘small growers to 

jointly apply’’ for H–2A workers and to 

permit such growers to share H–2A 

workers. However, these commenters, as 

well as a sixth organization, all opposed 

the Department’s proposal to treat each 

grower as a joint employer at all times 

for purposes of liability. The five 

organizations representing growers’ 

interests requested that the Department 

only hold employer(s) that commit a 

program violation accountable. They 

asserted that co-applicants that do not 

commit the violations are ‘‘innocent’’ 

and should not be held liable ‘‘for 

another employer’s violation(s).’’ The 

sixth organization similarly submitted 

that ‘‘[o]nly the employer [that] is guilty 

for violating the terms of the program 

should be penalized.’’ Another 

organization representing growers’ 

interests likewise contended ‘‘there is 

no basis for extending liability to any 

entity that did not have knowledge of or 

participate in any violation . . . .’’ 

A workers’ rights advocacy 

organization suggested that the job order 

that joint employers file in connection 

with a § 655.131(b) joint employer 

application should include language 

specifying that all named employers are 

agreeing to joint employment liability 

for the entire period of employment 

listed on the order. Otherwise, the 

commenter asserted, joint employers 

might contend liability extends solely to 

the dates on which H–2A workers 

complete work at the property owned or 

operated by the particular employer. 

The commenter specifically submitted 

this addition is necessary to prevent 

joint employer applicants from 

‘‘disputing joint employment should 

something go wrong.’’ 

The Department has reviewed closely 

the comments it received on this 

subject. It has decided to retain its 

proposed clarification of the definition 

of joint employment to include language 

specifying that the joint employers that 

file an application under § 655.131(b) 

are, at all times, joint employers of all 

H–2A workers sponsored under the 

application and, if applicable, of 

corresponding workers. The purpose of 

the Department’s proposal to add 

§ 655.131(b) to its implementing 

regulations was to permit a small grower 

that has a need for H–2A workers but 

cannot, alone, guarantee full-time 

employment to use the H–2A program 

by joining with another (or other) small 

grower(s) in the same area to obtain 

H–2A workers to perform the same 

work. Full-time employment under the 

program is 35 hours per workweek. See 

§ 655.135(f). The proposal accordingly 

permits co-applicants that cannot, 

alone, employ a worker for 35 hours per 

workweek to file an application together 

to employ H–2A workers and to move 

sponsored H–2A workers from one 

employer to another to satisfy the 35 

hours per workweek requirement. 

The statute specifically contemplates 

that all filers (other than agents) are 

employers and only expressly permits 

an entity (i.e., an agricultural 

association) to move H–2A workers 

from one employer to another when the 

entity agrees to retain program 

responsibility and liability with respect 

to the workers it moves. See 8 U.S.C. 

1188(d)(2). Therefore, as the Department 

stated in the NPRM and reaffirms here, 

the statute requires entities that jointly 

apply for H–2A workers whom they 

intend to move among themselves to 

retain program responsibility with 

respect to the H–2A workers and, if 

applicable, any corresponding workers. 

Because the statute provides that an 

entity permitted to move H–2A workers 

from one employer to another must 


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27 Martinez-Bautista v. D & S Produce, 447 F. 

Supp. 2d 954, 960–62 (E.D. Ark. 2006) (ruling 

entities that jointly applied to employ H–2A 

workers are joint employers of the workers and 

rejecting application of agricultural association 

liability principles when the joint employers had 

not filed through an association). 

retain program responsibility with 

respect to the workers, and because the 

retention of such responsibility will aid 

the Department’s enforcement of the 

program and enable corresponding 

workers and H–2A workers to obtain the 

wages they are owed consistent with 

joint employment principles, the 

Department is not adopting the 

commenters’ request to release coapplicants from liability for the 

violations that another co-applicant 

commits. Thus, if the Department 

determines any employer named in the 

Application for Temporary Employment 

Certification under § 655.131(b) has 

committed a violation, either one or all 

of the employers named in the 

Application for Temporary Employment 

Certification can be found responsible 

for remedying the violation(s) and for 

attendant penalties. For example, if 

employer C and employer D file a joint 

employer application under proposed 

§ 655.131(b) and employer C fails to pay 

the H–2A workers the required wage, 

employer D will be jointly liable for 

employer C’s violations. This approach 

not only conforms to the statute, it is 

consistent with judicial authority.27

Further, even if the statutory language 

did not require this interpretation, the 

Department would adopt it. The 

Department believes this policy will 

encourage employer compliance while 

helping to ensure that any back wages 

owed by joint employers will be paid. 

As an enforcement matter, it can be 

difficult to determine exactly where 

workers employed by joint employers 

are employed in a given workweek. The 

focus on the joint nature of the 

employment rather than the individual 

employer will assist in obtaining the 

wages owed to workers in the event they 

are underpaid and provide an incentive 

for all joint employers to maintain and 

monitor compliance. 

However, the Department retains 

discretion to impose lower civil money 

penalties against the joint employers 

that did not commit the underlying 

violation. If it determines any such 

penalties are appropriate, such penalties 

may be less than those it imposes 

against the joint employer that 

committed the violation. As the 

Department noted above, it will 

continue to apply its longstanding 

policy with respect to imposing liability 

among culpable joint employers. This 

policy includes consideration of the 

factors at 29 CFR 501.19(b) when the 

Department assesses civil money 

penalties. The Department applies these 

factors to joint employers on a case-bycase basis. Thus, for example, if the 

Department determines a joint employer 

had no previous history of violations, 

but that the other joint employer had a 

previous history of violations, the civil 

money penalty, if any, applicable to the 

joint employer with no previous history 

of violations would likely be less than 

that applicable to the joint employer 

that committed the violation. 

Furthermore, as with agricultural 

associations that filed a joint employer 

application with their employermembers, the Department will not debar 

a joint employer that filed a joint 

employer application under 20 CFR 

655.131(b) merely because another joint 

employer committed a substantial 

violation that subjects that other joint 

employer to debarment. Thus, for 

instance, if employer D in the example 

above did not participate in employer 

C’s violation, the Department will not 

seek to debar employer D, even if 

employer C’s underlying violation is 

substantial and subjects employer C to 

a debarment remedy. The Department 

has edited 20 CFR 655.182(h) and 29 

CFR 501.20(f) to confirm this approach. 

Joint Employment Period for 

Employer-Members Employing H–2A 

Workers Under an Agricultural 

Association Filing as a Joint Employer 

With the Employer-Members 

The Department proposed to clarify 

the definition of joint employment to 

include an employer-member of an 

agricultural association that is filing as 

a joint employer during the time the 

employer-member employs H–2A 

workers sponsored under the 

association’s joint employer application. 

Therefore, an employer that employs H– 

2A workers sponsored under an 

agricultural association joint employer 

application is jointly employing the H– 

2A workers with the agricultural 

association and, accordingly, is liable 

for any violations committed during the 

period it employs such workers. The 

proposed rule additionally clarified that 

an employer that is a member of an 

agricultural association that filed a joint 

employer application is only in joint 

employment with the agricultural 

association when it is employing the 

pertinent H–2A workers. Thus, if 

employer-member A commits program 

violations at a time when it is the only 

employer-member jointly employing the 

pertinent H–2A workers with the 

agricultural association, other employermembers within the association are not 

liable for such violations (provided the 

other employer-members did not 

participate in the violations, which were 

substantial, and thereby subject 

themselves to debarment). See 8 U.S.C. 

1188(d)(3)(A); 29 CFR 501.20(f). The 

Department received no comments that 

caused it to reconsider this proposal. 

The Department has accordingly 

implemented the provision unchanged 

from the NPRM in this final rule. 

The Department notes that the 

arrangement described above under 

§ 655.103(b) is different from employers 

filing joint employer applications under 

§ 655.131(b) that are, at all times, liable 

for any violation that another joint 

employer commits. As discussed 

previously, each § 655.131(b) joint 

employer is permitted to move H–2A 

workers to its co-applicants, whereas it 

is the agricultural association, not the 

employer-member, that may transfer 

workers when the agricultural 

association files as a joint or sole 

employer. The statute expressly permits 

an association to move H–2A workers 

from one entity to another only when 

the association agrees to retain program 

responsibility with respect to the moved 

H–2A workers by filing as a joint or sole 

employer. The Department has 

accordingly concluded that to permit 

§ 655.131(b) joint employers to move 

workers, it must require the joint 

employers, like an agricultural 

association permitted to transfer H–2A 

workers, to retain program 

responsibility with respect to the H–2A 

workers. In short, the legally relevant 

analog to § 655.131(b) joint employers 

for purposes of determining whether to 

require such employers to retain 

program responsibility at all times is an 

agricultural association that files a joint 

or sole employer application (not an 

employer-member of such an 

association). As a matter of policy, 

providing joint employers joint 

responsibility also serves to better 

ensure compliance with statutory and 

regulatory requirements in the same 

way that shared responsibility between 

associations and their membership 

incentivizes compliance. 

The Joint Employment Language More 

Expressly Codifies That the Common 

Law of Agency Determines Joint 

Employer Status for Non-Filers 

In the NPRM, the Department 

proposed a slight change to the joint 

employment language in the current 

regulation to make clear that an entity 

that meets the definition of employer 

under the common law of agency but 

did not file an H–2A application is a 

joint employer. As the Department 

explained in the NPRM, controlling 

judicial and administrative decisions 

provide that to the extent a Federal 


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28See Nationwide Mutual Insurance v. Darden, 

503 U.S. 318, 322–24 (1992); Garcia-Celestino v. 

Ruiz Harvesting, 843 F.3d 1276, 1288 (11th Cir. 

2016); Admin. v. Seasonal Ag. Services, Inc., ARB 

Case No. 15–023, 2016 WL 5887688, at *6 (ARB 

Sept. 30, 2016). The focus of the common law 

standard is the ‘‘hiring entity’s ‘right to control the 

manner and means by which the product is 

accomplished.’ ’’ Ruiz Harvesting, 843 F.3d at 1292– 

93 (quoting Darden, 503 U.S. at 323). Application 

of the standard typically entails consideration of a 

variety of factors. See id. at 1293 (citing Darden, 503 

U.S. at 323–24). 

29The Department additionally notes, as it did in 

the NPRM, that the current H–2A program 

definitions of employer and joint employment, as 

well as those the Department is implementing 

herein, are different from the definitions of 

‘‘employer,’’ ‘‘employee,’’ and ‘‘employ’’ in the Fair 

Labor Standards Act, 29 U.S.C. 201 et seq. (FLSA) 

and the definition of ‘‘employ’’ in the Migrant and 

Seasonal Agricultural Worker Protection Act, 29 

U.S.C. 1801 et seq. (MSPA). 

statute does not define the term 

employer, the common law of agency 

governs whether an entity is an 

employer.28 Accordingly, the proposal 

continued to use the common law of 

agency, as provided by current 

§ 655.103 in the definition of employee, 

to define the term joint employment for 

associations and growers that have not 

filed applications (as well as to define 

the term employer when an entity has 

not filed an application). Thus, for 

example, under the Department’s 

current and continuing enforcement 

policy—with which employers are 

already familiar—a grower is a joint 

employer with an H–2ALC with which 

it contracts to provide H–2A workers if 

the grower is jointly employing the H– 

2A workers under the common law of 

agency. The Department received no 

comments that caused it to reconsider 

this proposal. It has accordingly 

implemented the proposal unchanged 

from the NPRM in this final rule.29

The Department Is Adopting 

Clarifications to the Definition of 

Employer Proposed in the NPRM 

In the NPRM, the Department 

proposed to add language to the 

definition of employer to clarify both 

that a person who files an application 

other than as an agent is an employer 

and that a person on whose behalf an 

application is filed is an employer. An 

employer association opposed the 

proposed clarification. Its comment 

appeared to say that the definition of 

employer should be no broader than an 

entity that employs H–2A workers 

under the common law of agency. Two 

other associations asserted the proposed 

clarifications to the definition of 

employer are inconsistent with the INA. 

These two associations specifically 

asserted the statute does not permit the 

Department to hold agricultural 

associations accountable as an 

‘‘employer’’ when they have filed a joint 

employer application on behalf of their 

employer-members. The Department 

addressed above why the statute not 

only permits but also requires it to treat 

an agricultural association that files a 

Master Application as a joint employer 

of the pertinent workers. Because a joint 

employer is simply an employer of 

workers that another entity also 

employs, the statute requires the 

Department to treat an agricultural 

association that files an application as a 

joint employer as an ‘‘employer.’’ The 

Department’s clarification of the 

definition of employer to include those 

that file an application (other than as an 

agent) is not only consistent with the 

INA; the INA compels it. Further, even 

if the INA did not compel this 

conclusion, the Department would 

nonetheless adopt these clarifications as 

a matter of good policy. The Department 

believes this policy will encourage 

employer compliance by providing an 

incentive for associations to disseminate 

information, make additional inquiries 

regarding their employer-members’ 

responsibilities to workers under 

certified H–2A applications, and help to 

assure that any back wages owed by 

joint employers will be paid in full. 

The Department also received a 

comment that the current definition of 

employer does not adequately 

contemplate complex business 

organizations. It is beyond the scope of 

this rulemaking for the Department to 

determine all the ways that a business 

seeking to use the H–2A program might 

organize itself. The Department hopes 

the following general guidance will be 

useful to entities that use complex 

business structures. The Department 

will treat the entity that files an 

application as an employer unless the 

filer identifies itself as an agent. If the 

filer identifies itself as an agent, the 

Department will treat as an employer 

the entity the agent identifies as its 

principal. The Department will also 

treat any other entity that actually 

employs the pertinent H–2A workers 

under the common law of agency as an 

employer. For example, if one entity 

within a complex business organization 

files an application as an employer and 

another entity within the same complex 

business organization employs the 

workers under the common law of 

agency, the Department will treat each 

entity as an employer (whether or not 

the filer jointly employs the workers 

under the common law). Other tests that 

may pertain to the employment 

relationship under Federal common law 

such as the integrated employer or the 

successor in interest tests may also be 

applicable depending on the facts of the 

individual case. This paragraph is 

intended to provide general guidance, 

however, and as mentioned above, it is 

beyond the scope of this rulemaking to 

determine all the ways that a business 

seeking to participate in the program 

might organize itself. 

A commenter also brought to the 

Department’s attention a minor 

grammatical error in the regulatory 

text’s definition of employer at 

paragraph (iii). The Department agrees 

with the commenter and has made a 

minor technical change to the language 

to address the grammatical error. 

Employer-Member Responsibility for 

Violations Committed Under a Joint 

Employer Application Filed by an 

Agricultural Association 

Consistent with existing practice, the 

Department observed in the NPRM that 

when an agricultural association files a 

joint employer application, an 

employer-member of that association is 

an employer of the H–2A workers 

during the time the employer-member 

employs the workers. The Department 

further noted that when only one 

employer-member is employing the H– 

2A workers at the time of a program 

violation, only that employer-member 

and its agricultural association are 

fiscally responsible for program 

violations. The Department received no 

comments opposing this approach and 

is accordingly implementing it 

unchanged from the NPRM. 

Department’s Approach To Imposing 

Liability Among Culpable Joint 

Employers 

In the NPRM, the Department 

proposed to continue to apply its 

longstanding policy with respect to 

imposing liability among culpable joint 

employers. This policy, as noted 

previously, includes consideration of 

the factors at 29 CFR 501.19(b) when the 

Department assesses civil money 

penalties. The Department applies these 

factors to joint employers on a case-bycase basis. For example, if the 

Department determines an agricultural 

association achieved no financial gain 

from an employer-member’s failure to 

pay the required wage to H–2A or 

corresponding workers, but that the 

employer-member achieved significant 

financial gain, the civil money penalty, 

if any, applicable to the association 

would likely be less than that applicable 

to the employer-member for this 

violation. 

The Department received multiple 

comments supporting this approach. For 

example, a grower association 

specifically voiced its support for the 


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case-by-case approach. The Department 

also received a comment from another 

grower association opposing this 

approach, however, arguing that only 

the culpable party or parties should be 

assessed a civil money penalty. As 

noted above, the Department will apply 

the relevant factors on a case-by-case 

basis to joint employers and thus 

appropriately consider culpability. The 

Department accordingly intends to 

continue to assess civil money penalties 

against joint employers in this manner. 

Proposal To Move Certain Requirements 

in the Definition of Employer 

The current definition of employer in 

the H–2A program requires an employer 

to have a place of business in the United 

States and a means of contact for 

employment as well as a Federal 

Employer Identification Number (FEIN). 

The Department proposed to move these 

requirements to §§ 655.121(a)(1) and 

655.130(a). The proposal required a 

prospective employer to include its 

FEIN, its place of business in the United 

States, and a means of contact for 

employment in both its job order 

submission to the NPC and its 

Application for Temporary Employment 

Certification. The Department is 

implementing its proposal to move 

these requirements unchanged from the 

NPRM in this final rule. 

f. First Date of Need and Period of 

Employment 

The NPRM proposed to add 

definitions of the terms ‘‘first date of 

need’’ and ‘‘period of employment.’’ 

The Department received many 

comments on the definition of ‘‘first 

date of need’’ and has revised the 

proposed definition after consideration 

of these comments, as discussed below. 

The Department received no comments 

on the proposed definition of ‘‘period of 

employment’’ and has adopted the 

definition without change from the 

NPRM. 

The Department explained in the 

NPRM that an employer indicates the 

period of employment on its job order 

and Application for Temporary 

Employment Certification by identifying 

the first and last dates on which it 

requires the temporary agricultural labor 

or services for which it seeks a 

temporary agricultural labor 

certification. The first date the employer 

identifies on the job order and 

Application for Temporary Employment 

Certification is used as the date on 

which work will start for purposes of 

recruitment and for calculating program 

requirements (e.g., the positive 

recruitment period under § 655.158). 

However, as actual start dates may vary 

due to such factors as travel delays or 

crop conditions at the time the 

employer expected work to begin, the 

Department proposed to define the term 

‘‘first date of need’’ as the first date on 

which the employer ‘‘anticipates’’ 

requiring the temporary agricultural 

labor or services sought. The 

Department explained that the inclusion 

of the word ‘‘anticipates’’ in the 

definition would provide a limited 

degree of flexibility—up to 14 calendar 

days after the first date of need listed on 

the temporary agricultural labor 

certification—for the actual start date of 

work for some or all of the temporary 

workers hired to occur. 

Commenters who supported the 

proposed definition and the inclusion of 

the word ‘‘anticipates,’’ included 

employers, agents, trade associations, 

two State government commenters, and 

a State elected official. These 

commenters asserted that some 

flexibility to adjust actual start dates 

would simplify the program and 

facilitate both compliance and 

administration, while ensuring workers 

still receive the benefits promised. 

Commenters who opposed the 

definition, including a workers’ rights 

advocacy organization and farmworkers, 

focused their opposition on the 

potential for actual start date variability 

underlying the word ‘‘anticipates.’’ 

These commenters asserted that delayed 

start dates are harmful to workers, who 

value predictability and certainty in 

employment start dates, particularly 

where they turn down other work or 

have to travel far to make themselves 

available to work at the time and place 

needed. In addition, these commenters 

stated that farmworkers have expenses 

beyond housing and meals and cannot 

afford to lose expected pay for up to 2 

weeks, should the actual start date be 

later than the first date of need offered. 

Similarly, one State government 

commenter recommended the 

Department further clarify employer 

obligations to provide subsistence and/ 

or meals to workers when work does not 

start on the anticipated start date to 

ensure that employers understand and 

satisfy those obligations. 

The workers’ rights advocacy 

organization urged the Department to 

strengthen protections in the 

employment service regulations at 

§ 653.501(c)(5) if the Department retains 

the proposal, by requiring the employer 

to pay workers the hourly rate for the 

hours listed on the job order on each 

day work is delayed (not only the 

workdays in the first workweek), unless 

the employer notifies both the SWA and 

worker (not only the SWA) at least 10 

days before the anticipated start date, 

and setting the three-fourths guarantee 

calculation to the anticipated start date, 

rather than the actual start date. 

Amending the regulations at 

§ 653.501(c)(5) as suggested would be a 

major change to that regulation that 

commenters and stakeholders could not 

have anticipated as an outcome of the 

proposed definitions, thus warranting 

additional public notice and 

opportunity for comment. As such, the 

Department declines to adopt the 

suggestion at this time. 

A number of commenters expressed 

concern about the proposal. One 

employer thought workers might misuse 

the definition to arrive ‘‘late’’ and, as a 

result, employers would not have 

workers in place when needed. 

However, the Department did not intend 

for this definition to provide a flexible 

window for workers’ arrival at the place 

of employment without the employer’s 

consent. During recruitment, workers 

agree to make themselves available at 

the time and place needed. Should a 

worker not report for work for 5 

consecutive working days without the 

employer’s consent, the employer may 

exercise the abandonment provision at 

§ 655.122(n). In addition, a workers’ 

rights advocacy organization expressed 

concern about the definition’s 

application in master applications (i.e., 

applications agricultural associations 

may file in joint employment with their 

employer-members). The commenter 

thought that the actual start date 

flexibility, when combined with the 

Department’s proposal to allow 

employer-members’ actual start dates to 

vary by up to 14 days, could result in 

workers employed under a master 

application having actual start dates that 

vary by up to 28 days. This commenter 

asserted that this combination would 

increase the complexity of master 

applications and uncertainty for 

workers, which could discourage U.S. 

workers from applying. However, the 

proposed definition was intended to 

anchor the 14-day actual start date 

flexibility applicable to all employermembers on the master application to 

the earliest anticipated start date of any 

employer-member included in the 

application. As a result, all employermembers included in the master 

application would have been limited to 

the same 14-day ‘‘anticipated’’ start date 

flexibility window as any other H–2A 

application, calculated from the earliest 

employer-member start date included in 

the application. 

One commenter supported the 

definition and the 14-day flexibility 

discussed but stated 30 days of 

flexibility would be preferable. The 

commenter’s suggestion would amplify 


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concerns other commenters have 

expressed about workers waiting for 

work to begin, which is a concern 

shared by the Department. In addition, 

the suggestion is inconsistent with the 

Department’s observation of existing 

practice, as discussed above, in which a 

start date may vary slightly due to 

factors beyond an employer’s control. 

Because the Department intended in the 

NPRM to clarify, not change, existing 

requirements and practice regarding 

anticipated and actual start dates, the 

Department declines to adopt the 

suggestion by the commenter. 

After consideration of the comments 

and suggestions, the Department 

reiterates that the proposed definition, 

including the word ‘‘anticipates,’’ was 

only intended to make plain the 

Department’s existing understanding 

that a projected start date of need is 

difficult to set with certainty, given the 

required time periods for filing, and the 

actual start date of agricultural work 

must be afforded some flexibility to 

accommodate environmental and other 

agricultural conditions at the time work 

was projected to begin. For example, the 

Wagner-Peyser agriculture clearance 

system uses the term ‘‘anticipated’’ in 

relation to start dates and provides a 

process close to the start date the 

employer identified in the job order for 

the employer, the SWA, and referred 

farmworkers to communicate regarding 

the actual start date of work. See 

§ 653.501(c)(1)(iv)(D), (c)(3)(i) and (iv), 

(c)(5), and (d)(4). These regulations 

require an employer to notify the SWA 

of start date changes at least 10 business 

days before the originally anticipated 

start date and require the SWA to notify 

farmworkers that they should contact 

the SWA between 9 and 5 business days 

before the anticipated start date to verify 

the actual start date of work. 

§ 653.501(c)(5) and (d)(4). 

The Department also appreciates the 

opportunity to clarify employer 

obligations and worker protections 

regarding possible changes from the first 

date of need disclosed in the H–2A job 

order to the actual start date of work. As 

discussed above, the Wagner-Peyser 

agriculture clearance system regulations 

facilitate communication between 

employers and farmworkers before 

workers who must travel to the place of 

employment depart for the place of 

employment. If an employer fails to 

timely notify the SWA of a start date 

change (i.e., at least 10 business days 

before the anticipated first date 

identified in the job order), beginning 

on the first date of need, it must offer 

work hours and pay hourly wages to 

each farmworker who followed the 

procedure to contact the SWA for 

updated start date information. See 

§ 653.501(c)(3)(i) and (c)(5). In addition, 

under the Department’s H–2A 

regulations at § 655.145(b), if an 

employer requests a start date delay 

after workers have departed for the 

place of employment, the employer 

must assure the CO that it will provide 

housing and subsistence to all workers 

who are already traveling to the place of 

employment, without cost to the 

workers, until work commences. If an 

employer fails to comply with its 

obligations, the SWA may notify the 

Department’s WHD for possible 

enforcement, as provided in 

§ 653.501(c)(5), or the Department may 

pursue revocation of the temporary 

agricultural labor certification, 

following the procedures at § 655.181, 

or debarment of the employer, following 

the procedures at 20 CFR 655.182 or 29 

CFR 501.20. 

Although the January 2021 draft final 

rule would have adopted the proposed 

definition of ‘‘first date of need,’’ after 

further consideration of the comments, 

the Department has determined that 

adopting the definition as proposed— 

including the term ‘‘anticipates,’’ which 

the Department explained as a 14-day 

start date flexibility in the actual start 

date of work—in this final rule could 

increase, rather than decrease, 

complexity and confusion with regard 

to an employer’s obligations in the event 

a start date delay is necessary. Including 

the word ‘‘anticipates’’ in the definition 

added ambiguity to the requirement, 

which could increase the potential for 

miscommunication or 

misunderstandings about when workers 

should be expected to begin work, or 

from when they should expect to be 

compensated. For example, as discussed 

above, commenters interpreted the 

proposal to mean that workers could 

choose to arrive within a flexible 

window of time, or that this would 

allow a variability of up to 28 days in 

master applications. In addition to the 

potential confusion this change might 

cause, the Department agrees that 

adding this language without also 

considering additional worker 

protections could be detrimental to 

workers, and this was not the 

Department’s intention. As such, the 

Department has revised the definition of 

‘‘first date of need’’ in this final rule to 

remove the term ‘‘anticipates’’ and the 

related 14-day flexibility for the actual 

start date of work. 

While the Department appreciates the 

suggestions commenters made with 

regard to enhancing existing worker 

protections related to start date delays, 

those suggestions are beyond the scope 

of this rulemaking as noted above. The 

proposal within the scope of this 

rulemaking was inclusion of start date 

flexibility of up to 14 days in the 

definition of ‘‘first date of need’’ and 

conforming language. For clarity, the 

Department reiterates that revising the 

proposed definition has no impact on 

the employer’s obligations in the event 

of a start date delay, for example, under 

the Wagner-Peyser agriculture clearance 

system regulations. 

g. Job Order 

The NPRM proposed minor 

amendments to the definition of ‘‘job 

order’’ to conform to the proposed 

change under § 655.121, requiring 

electronic filing of the job order by the 

employer and transmittal of the 

approved job order by the CO to the 

SWA, and updating the job order form 

name and number. The Department 

received one comment on the proposed 

changes to this definition, which did 

not necessitate substantive changes to 

the regulatory text. Therefore, as 

discussed below, this definition remains 

unchanged from the NPRM. 

A workers’ rights advocacy 

organization expressed support for the 

proposal, explaining that electronic 

filing would streamline processing 

times and reduce burden, but 

commented that the SWA, in addition to 

the NPC, should receive immediate 

notice of the filing of the job order and 

proposed that the words ‘‘and SWA’’ be 

added to the end of the proposed 

definition. The Department appreciates 

the comment but respectfully declines. 

As explained in addressing comments 

on § 655.121, the changes to the job 

order filing process, under this final 

rule, avoid duplication of processes and 

will create significant savings and 

efficiencies for employers, SWAs, and 

the Department. Furthermore, 

transmission of the job order to the 

SWA will be virtually instantaneous 

upon submission in OFLC’s Foreign 

Labor Application Gateway (FLAG) 

system. 

h. Prevailing Wage 

Proposed Definition in 20 CFR 

655.103(b) 

The NPRM defined prevailing wage as 

the wage rate established by the OFLC 

Administrator for a crop activity or 

agricultural activity and geographic area 

based on a survey conducted by a State 

that meets the requirements in 

§ 655.120(c). The Department received 

no comments on this change. This final 

rule therefore adopts the language of the 

NPRM with a minor revision to account 

for a prevailing wage for a distinct work 

task or tasks performed within a crop or 


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30The Department revised 20 CFR part 653 in 

2016 in response to the enactment of the Workforce 

Innovation and Opportunity Act in 2014, which 

amended the Wagner-Peyser Act. See Final Rule, 

Workforce Innovation and Opportunity Act, 81 FR 

56072 (Aug. 19, 2016). The contents in 

§ 653.501(d)(4) are now located, with changes not 

relevant here, in § 653.501(c)(2)(i). 

agricultural activity, as applicable. This 

modification conforms the definition of 

prevailing wage with current practice 

and language in ETA Handbook 385, as 

well as changes made to other portions 

of § 655.120(c) in this final rule, 

discussed below. 

Proposal in 20 CFR 653.501(c)(2)(i) 

The current H–2A regulation defines 

‘‘prevailing wage’’ as the ‘‘[w]age 

established pursuant to § 653.501(d)(4),’’ 

the Wagner-Peyser Act regulation that 

covers clearance of both H–2A and nonH–2A interstate and intrastate 

agricultural job orders. Due to regulatory 

revisions to part 653, § 653.501(d)(4) no 

longer addresses prevailing wages but 

rather discusses the referral of 

workers.30 The current version of 

§ 653.501(c)(2)(i), in turn, requires 

SWAs to ensure the employer has 

offered no less than the higher of 

prevailing wages or the applicable 

Federal or State minimum wage for H– 

2A and non-H–2A agricultural job 

orders, but it does not address how 

prevailing wages are established. 

In the NPRM, the Department 

proposed to use the same methodology 

to establish the prevailing wage for both 

H–2A and non-H–2A agricultural job 

orders. As a result, it proposed to amend 

§ 653.501(c)(2)(i) to define ‘‘prevailing 

wage’’ for the agricultural recruitment 

system in the same manner as the 

Department proposed to define 

‘‘prevailing wage’’ for the H–2A 

program in § 655.103(b). Section 

655.103(b), as proposed, defined 

‘‘prevailing wage’’ as ‘‘[a] wage rate 

established by the OFLC Administrator 

for a crop activity or agricultural activity 

and geographic area based on a survey 

conducted by a [S]tate that meets the 

requirements in § 655.120(c).’’ As 

discussed below, this final rule adopts 

the proposed amendment to 

§ 653.501(c)(2)(i) with minor clarifying 

changes. 

A workers’ rights advocacy 

organization opposed the Department’s 

proposed change to § 653.501(c)(2)(i) on 

the basis that it only referred to 

prevailing wage surveys, thus 

establishing such surveys as the ‘‘sole 

mechanism’’ to determine whether the 

prevailing wage rate is the highest rate 

of pay. This commenter expressed 

concern that the proposal would reduce 

the SWA’s role in determining 

prevailing wages. The commenter 

explained the current regulation at 

§ 653.501(c)(2)(i) allows an ‘‘active role’’ 

by SWAs to ‘‘independently determine’’ 

that prevailing wages in some areas of 

a State are higher than the AEWR, the 

minimum wage, or the prevailing wage 

in other areas. By codifying a survey 

methodology, the commenter believed, 

the Department would restrict the 

SWAs’ ability to use other methods to 

determine whether the job order is 

offering an ‘‘adequate’’ wage. According 

to the commenter, the current regulation 

protects U.S. workers, especially piece 

rate workers, who receive a higher wage 

rate than their peers in other parts of the 

State, as a result of collective bargaining 

or market conditions. 

After careful consideration of the 

commenter’s concerns, the Department 

has decided to retain the NPRM 

proposal with minor clarifying changes. 

Specifically, this final rule adopts the 

NPRM’s proposal to amend 

§ 653.501(c)(2)(i) so that it incorporates 

the Department’s revised prevailing 

wage survey methodology in 

§ 655.120(c) and revised definition of 

‘‘prevailing wage’’ in § 655.103(b). In 

addition, this final rule revises 

§ 653.501(c)(2)(i) to more clearly 

distinguish the minimum requirements 

for wages and working conditions. The 

existing regulation addresses the 

minimum requirements for working 

conditions within the minimum 

requirements for wages, which may 

cause confusion as to the standards that 

apply to each requirement. Accordingly, 

this final rule separates these 

requirements into two different 

sentences to clarify that agricultural 

positions subject to 20 CFR part 653, 

subpart F, must, at a minimum, offer (1) 

the applicable prevailing wage or the 

applicable Federal or State minimum 

wage, whichever is higher, and (2) 

working conditions that are not less 

than the prevailing working conditions 

among similarly employed workers in 

the AIE. The standards governing the 

prevailing wage methodology are set 

forth in revised §§ 655.103(b) and 

655.120(c), and addressed in the 

preamble to § 655.120(c). The standards 

governing the wage rate an H–2A 

employer must offer, advertise in its 

recruitment, and pay are set forth in 

revised §§ 655.120(a) and 655.122(l). 

The Department disagrees with the 

commenter that the above-referenced 

revisions to § 653.501(c)(2)(i) will 

diminish the SWA’s role in determining 

prevailing wages under the H–2A 

program. Under this final rule, SWAs 

will continue to follow the Department’s 

criteria for prevailing wage surveys, 

either to conduct a survey itself or to 

select a survey conducted by another 

State agency to submit to the 

Department. Prior to this rule, the SWAs 

used ETA Handbook 385, which was 

last updated in 1981, and other subregulatory guidance to conduct such 

surveys and submit prevailing wage 

findings, when available, to the 

Department for review. In this sense, the 

Department has directed SWAs to use 

prevailing wage surveys to determine 

prevailing wage rates for agricultural job 

orders since at least 1981. The NPRM 

simply proposed to amend §§ 655.103(b) 

and 653.501(c)(2)(i) to reflect the new 

proposed survey methodology at 

§ 655.120(c). 

Under the revised methodology, 

SWAs continue to play an active role in 

determining prevailing wages. They 

retain the discretion to develop, 

administer, and report the results of 

prevailing wage surveys to the 

Department, including the discretion to 

determine where to conduct surveys for 

particular crop or agricultural activities 

and, if applicable, distinct work task(s) 

within those activities, subject to the 

methodological requirements of this 

final rule. For example, SWAs may 

conduct prevailing wage surveys of 

State, sub-State, and regional geographic 

areas based on the factors listed in 

§ 655.120(c)(1)(vi). In instances where a 

non-SWA State entity conducts the 

prevailing wage survey, the SWA will 

review the survey and submit, if 

appropriate and as before, the 

applicable information to the 

Department. 

Moreover, prevailing wage surveys are 

but one method used to determine 

whether the wage offer in a job order for 

temporary agricultural work is 

‘‘adequate.’’ Employers applying for H– 

2A temporary labor certification must 

generally offer in their job order and pay 

the highest of five wage sources (i.e., the 

AEWR, the prevailing wage, the agreedupon collective bargaining wage, the 

Federal minimum wage, or the State 

minimum wage). See § 655.120(a) 

(excluding certain employment). All 

other (non-H–2A) employers seeking to 

place interstate or intrastate job orders 

for temporary agricultural work must 

still pay the highest of the applicable 

prevailing wage or the applicable 

Federal or State minimum wage, as 

specified under this section. 

The commenter’s assertion that the 

current regulation protects U.S. workers 

who enjoy a higher wage rate as a result 

of collective bargaining conflates the 

prevailing wage and the required wage 

for purposes of the H–2A program. As 

explained above, prevailing wage 

surveys are but one of the distinct wage 

sources the Department compares to 


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determine which wage source is the 

highest and therefore the wage that an 

H–2A employer must offer and pay. If 

an employer files an H–2A application 

for job opportunities subject to the 

agreed-upon collective bargaining wage, 

the collective bargaining wage would be 

evaluated as one of the applicable wage 

sources under § 655.120(a). If the 

collective bargaining wage is the highest 

of available wage sources applicable to 

the H–2A application, the employer 

must offer and pay that wage to its H– 

2A workers and non-H–2A workers in 

corresponding employment. Similar 

principles hold for a non-H–2A 

interstate or intrastate agricultural job 

order, in which the prevailing wage may 

differ from the required wage a 

particular employer may be legally 

obligated to offer and pay. Section 

653.501(c)(2)(i) provides a floor, rather 

than a ceiling, for the wage that must be 

offered in an interstate or intrastate job 

order for a temporary agricultural 

position. Employers may always offer 

wages that exceed the minimum 

required under this section, and in some 

instances, such as where an applicable 

collective bargaining agreement (CBA) 

requires a higher wage offer, they may 

be obligated to do so. However, the 

Department reminds H–2A employers 

that any job offer to U.S. workers must 

offer 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. 

§ 655.122(a). 

i. Successor in Interest 

The Department proposed conforming 

changes to the definition of ‘‘successor 

in interest’’ consistent with proposed 

changes to 20 CFR 655.182 and 29 CFR 

501.20, which clarify that the 

Department may take action against an 

employer, agent, attorney, or 

combination thereof, for debarrable 

violations described under those 

sections. As discussed below, this 

provision remains unchanged from the 

NPRM. A workers’ rights advocacy 

organization supported the conforming 

changes to the definition without 

further comment. An agent further 

proposed that the Department should 

modify the definition of successor in 

interest to formally adopt guidance 

issued under the 2010 H–2A Final Rule 

where the Department determined that 

the regulation could be reasonably 

interpreted to allow a temporary 

agricultural labor certification to be 

assumed by a successor employer. The 

commenter also thought the definition 

should be more generalized, rather than 

framed from an enforcement 

perspective. Although the Department 

appreciates this comment, further 

modification to the definition is 

unnecessary. The Department added 

agents and attorneys to the definition to 

clarify that successor in interest to 

agents and attorneys may be subject to 

enforcement actions, consistent with 20 

CFR 655.182 and 29 CFR 501.20. In 

doing so, the Department made no 

change to the definition with regard to 

employers. The Department maintains 

its position, established in the 

supporting guidance, that a successor in 

interest entity may use a temporary 

agricultural labor certification issued, 

provided that it assumes all obligations, 

liabilities, and undertakings arising 

under the temporary agricultural labor 

certification. Therefore, this final rule 

adopts the proposed definition from the 

NPRM without change. 

j. Additional Definitions Adopted in 

This Final Rule 

The NPRM proposed minor 

amendments to the definition of 

Temporary Agricultural Labor 

Certification and proposed adding 

definitions of the following terms to 

provide greater clarity throughout the 

regulations: Act, Administrator, 

applicant, Application for Temporary 

Employment Certification, BALCA, 

Chief Administrative Law Judge (ALJ), 

DHS, ETA, H–2A Petition, MSA, OFLC 

Administrator, piece rate, place of 

employment, Secretary of Labor, 

Secretary of Homeland Security, U.S. 

Citizenship and Immigration Services 

(USCIS), WHD, and WHD 

Administrator. The Department received 

no comments on the proposed 

definitions of these terms. Therefore, 

this final rule adopts the definitions of 

these terms from the NPRM, with two 

minor changes. In this final rule, the 

Department simplifies the definition of 

‘‘USCIS’’ to mean U.S. Citizenship and 

Immigration Services, an operational 

component of DHS, while defining 

‘‘DHS’’ as the Department of Homeland 

Security as established by sec. 111 of 

title 6, U.S. Code. The respective 

authorities and functions of DHS and 

USCIS, as an operational component of 

DHS, are set forth in their authorizing 

statutes, implementing regulations, and 

delegation of authorities. 

k. 20 CFR 655.103(c) and 29 CFR 

501.3(b), Definition of Agricultural 

Labor or Services 

The NPRM proposed amendments to 

expand the regulatory definition of 

agricultural labor or services pursuant to 

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

reforestation and pine straw activities. 

The Department received many 

comments on this section and, for the 

reasons explained below, has decided to 

rescind the proposal to incorporate 

reforestation and pine straw activities 

into the definition of agricultural labor 

or services at § 655.103(c). However, in 

proposing the occupational definitions 

for itinerant employment in animal 

shearing, commercial beekeeping, and 

custom combining at § 655.301, subject 

to the proposed procedural variances 

contained in §§ 655.300 through 

655.304, the Department has made a 

technical, conforming revision to this 

section to clarify that the job duties 

under § 655.301 qualify for certification 

under the H–2A program. 

The Department proposed to define 

reforestation activities as predominantly 

manual forestry operations associated 

with developing, maintaining, or 

protecting forested areas, including, but 

not limited to, planting tree seedlings in 

specified patterns using manual tools, 

and felling, pruning, pre-commercial 

thinning, and removing trees and brush 

from forested areas. The proposed 

definition of reforestation activities 

would have included some forest fire 

prevention or suppression duties, when 

incidental to other reforestation 

activities, and would have excluded 

vegetation management activities in and 

around utility, highway, railroad, and 

other rights-of-way because these 

activities involve the destruction of 

vegetation, not cultivation. The NPRM 

proposed to define pine straw activities 

as operations associated with clearing 

the ground of underlying vegetation, 

pine cones, and debris; and raking, 

lifting, gathering, harvesting, baling, 

grading, and loading of pine straw for 

transport from pine forests, woodlands, 

pine stands, or plantations. 

In the NPRM, the Department 

reasoned that reforestation and pine 

straw activities share fundamental 

similarities with traditional agricultural 

industries, both in terms of activities 

performed and working conditions. 

These similarities had previously 

prompted the Department to consider 

similar proposals to include 

reforestation and pine straw activities 

within the H–2A program in the 2008 

and 2009–2010 rulemakings, but 

ultimately the Department rejected these 

proposals due to lack of stakeholder 

support. 2010 H–2A Final Rule, 75 FR 

6884; 2008 H–2A NPRM, 73 FR 8538, 

8555 (Feb. 13, 2008). The NPRM posited 

that many of the comments that led the 

Department to opt against expanding the 

definition of agriculture in the 2009– 

2010 rulemaking were no longer 

applicable due to recent regulatory 

changes in the H–2B program— 

specifically the publication of the 2015 

H–2B Interim Final Rule (IFR) (80 FR 


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31 In Bresgal v. Brock, the Ninth Circuit Court of 

Appeals enjoined the Department to cease refusing 

to enforce MSPA as to recruiting, soliciting, hiring, 

employing, furnishing, or transporting any migrant 

or seasonal agricultural worker for all 

predominantly manual forestry work, including but 

not limited to tree planting, brush clearing, precommercial tree thinning, and forest firefighting. 

24042, Apr. 29, 2015), which 

implemented cost-related requirements 

in the H–2B program similar to those 

currently found in H–2A. 

Comments Related to the Inclusion of 

Reforestation and Pine Straw Gathering 

Activities in the H–2A Program 

Comments attributable to the 

reforestation industry or its 

representatives either opposed the 

change or did so absent significant 

changes to the proposal. Some industry 

commenters simply stated that the H– 

2A program, particularly with the 

changes proposed in the NPRM, was a 

less attractive, more costly, and more 

burdensome alternative to the H–2B 

program. Other commenters rejected the 

assertion that reforestation shared 

similar characteristics to traditional 

agricultural industries and stated that 

these differences resulted in the H–2A 

program, or certain key H–2A 

provisions, being essentially 

unworkable for the reforestation 

industry. 

Many industry commenters stated 

that the unpredictable nature of 

reforestation work precluded 

compliance with the H–2A program. 

Some commenters posited that the H– 

2A program was designed for workers 

returning to the same fields each year, 

whereas reforestation occurs on a 

rotating cycle of up to 30 years and is 

heavily weather-dependent. Industry 

commenters stated that the flexibility 

required for reforestation work presents 

difficulties in obtaining pre-inspected 

housing that complies with H–2A 

housing standards, and that it would be 

impossible at the time of the application 

to determine whether each potential 

motel along an itinerary would meet 

these standards. Another industry 

commenter stated that it would be 

impossible to make hotel reservations in 

advance as schedules are constantly 

changing. Some commenters also 

indicated that remote worksites require 

additional housing flexibility, such as 

tents or mobile housing. 

Industry commenters further stated 

that the unpredictable and transient 

nature of reforestation work would not 

allow employers to submit itineraries to 

the Department when applying for 

temporary labor certification, and that 

the requirement of a separate 

application per itinerary was 

unworkable and would dramatically 

increase filing costs. One commenter 

stated that some reforestation employers 

have more than 30 crews working on 30 

separate itineraries, and another 

commenter with 35 crews on separate 

itineraries stated that its filing costs 

would increase from $8,500 for one 

application to $297,500 for 35 

applications. 

Similarly, many industry commenters 

stated that the reforestation industry 

would be unable to comply with the H– 

2A requirement to provide meals or 

kitchen facilities to workers. 

Commenters stated that motel 

accommodations for reforestation 

workers frequently lack kitchen 

facilities, and that the unpredictable 

nature of reforestation work means that 

arranging catering is logistically 

difficult. Some commenters stated that 

the workers cook for themselves at the 

worksites. One commenter may have 

misunderstood the H–2A meals 

requirement and stated that it could not 

provide meals and kitchen facilities 

(whereas only one or the other is 

required). 

Further, industry commenters 

opposed the proposed exclusion of 

utility right-of-way maintenance 

activities from the definition of 

reforestation activities. These 

commenters asserted that utility rightof-way maintenance cannot be divorced 

from other reforestation activities 

because the same companies necessarily 

engage in both, and the activities are 

nearly identical. Commenters stated that 

a large number of forestry employers— 

including three of the top five H–2B 

employers overall—also perform utility 

right-of-way spraying, and these 

activities are included in the same 

contracts and have the same job duties 

as reforestation work. Another 

commenter stated that the exclusion of 

utility right-of-way work would 

bifurcate a successful business model 

historically used by the industry, and 

another stated that the two industries 

rely on the same workforce and 

separating them between visa 

classifications would harm both 

industries. 

The Department received significantly 

fewer comments from the pine straw 

industry. Three comments from the pine 

straw industry supported the proposal 

to include pine straw in the definition 

of agricultural labor or services for the 

reasons offered in the NPRM, one of 

which represented a letter-writing 

campaign with 100 identical comments. 

These comments emphasized that the 

pine straw industry is agricultural in 

nature and should be regulated as such 

under agricultural rules. Additionally, 

one commenter pointed out that many 

pine straw companies already use the 

H–2A program. 

Worker advocates opposed the 

proposal, primarily because the 

inclusion of the pine straw and 

reforestation industries in the H–2A 

program would remove nonimmigrant 

reforestation and pine straw workers’ 

access to MSPA protections. These 

commenters identified access to the 

MSPA right to private action as an 

essential worker protection for H–2B 

workers engaged in reforestation and 

pine straw activities. Employee 

advocates also expressed concern that 

reforestation and pine straw employers 

would stop paying overtime to 

reforestation and pine straw workers 

due to a misunderstanding (as explained 

below) (either from the commenter itself 

or on the part of the employer) that H– 

2A employees are exempt from the 

FLSA overtime requirements simply by 

virtue of holding an H–2A visa. Some 

commenters also stated that the 

inclusion of reforestation within the 

uncapped H–2A program removes the 

numerical limitation on one of the 

largest users of the capped H–2B 

program and presents a substantial 

benefit to all H–2B employers by 

essentially providing H–2B cap relief. 

Commenters raised other concerns 

and objections to the inclusion of 

reforestation and pine straw activities in 

the H–2A program. Two commenters 

stated that the Department’s rationale 

for the proposal was not justified and 

does not overcome objections raised in 

prior rulemakings to similar proposals. 

One commenter stated that costs for 

reforestation employers would increase 

because they would not be permitted to 

house four employees in the same hotel 

room under the H–2A standards. This 

same commenter also stated that 

reforestation employers would be 

unable to comply with the three-fourths 

guarantee due to the uncertainty 

inherent in reforestation work, that the 

Department is unable to enforce the H– 

2B inbound transportation standards in 

some States, and that the Department 

risked violating the permanent 

injunction entered under Bresgal v. 

Brock, 843 F.2d 1163 (9th Cir. 1987).31

Two commenters representing State 

governments posited that inclusion of 

these industries in the H–2A program 

would increase work for SWAs and 

asked if additional funding would be 

provided. Another commenter advised 

that the Department and the Department 

of State (DOS) must be fully funded, 

particularly given any potential 

expansions to the H–2A program. 

Comments from non-industry specific 

sources, including agents, State 


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32These techniques include activities such as 

planting seedlings in a nursery; ongoing treatment 

with fertilizer, herbicides, and pesticides as 

necessary; replanting in line-out beds or in 

cultivated soil; yearly pruning or shearing; and 

harvesting for ornamental use. See 29 CFR 

780.216(b). 

governments, State farm bureaus and 

trade associations, tended to favor the 

proposal, albeit mostly in a generic and 

unsubstantiated way. Some comments 

expressed their support for any 

expansion of the H–2A program. One 

commenter representing the 

landscaping industry expressed support 

for the proposal because it would 

relieve pressure on the H–2B visa cap, 

and an insurance association supported 

the proposal because this expansion of 

H–2A would require more employers to 

obtain surety bonds. One State farm 

bureau, however, supported the 

proposal because the forest industry 

adds $6.4 billion annually in value to 

Arkansas’ economy, and expanding the 

scope of the H–2A program would allow 

this industry to address labor shortages. 

Upon careful consideration of the 

comments submitted, the Department 

declines to adopt the proposal to 

include reforestation and pine straw 

activities within the H–2A program. As 

noted above, the Department had 

hypothesized in the NPRM that 

objections to similar proposals in 

previous rulemakings would no longer 

be considered relevant; however, this 

hypothesis was disproved by the 

multitude of comments in opposition. 

As was found in the 2009–2010 

rulemaking, comments from or on 

behalf of those that would be most 

affected by the reforestation proposal 

(i.e., from the reforestation industry and 

employee advocates) overwhelmingly 

opposed the proposal, citing, in part, 

additional burdens due to the 

differences between the programs. 

While the pine straw industry submitted 

some comments supporting its inclusion 

in the H–2A program, the Department 

finds persuasive the concerns raised by 

employee advocates and accordingly 

declines to adopt the proposal with 

respect to pine straw as well. 

Additionally, as many commenters 

identified, pine straw employers are 

currently permitted use of the H–2A 

program (pursuant to the FLSA 

definition of agriculture and if the other 

requirements of the program are met) if 

the pine straw activities are performed 

by a farmer or on a farm as an incident 

to or in conjunction with such farming 

activities. For example, employees 

engaged in the gathering of pine straw 

on a Christmas tree farm are engaged in 

H–2A agriculture if the Christmas trees 

are produced using extensive 

agricultural and horticultural 

techniques.32 Declining to adopt the 

proposal has no impact on employers 

seeking workers to perform pine straw 

gathering under these circumstances, 

and such employers may continue to 

use the H–2A program. On the other 

hand, pine straw gathering that is not 

performed by a farmer or on a farm (e.g., 

that occurs in wild or uncultivated 

forests, in forest tree nurseries, or on 

timber tracts, or that is performed in 

conjunction with commercial 

landscaping activities) does not 

constitute agricultural labor or services; 

employers seeking temporary foreign 

workers to perform pine straw activities 

under these circumstances may 

continue to use the H–2B program. 

Though not within the scope of this 

rulemaking, the Department also wants 

to take this opportunity to address 

comments raising concerns about the 

current state of working conditions for 

H–2B reforestation workers. When 

commenters indicate that they cannot 

reasonably provide meals or kitchen 

facilities to reforestation workers 

because the worksites are too remote 

and conditions too uncertain, the 

Department cannot ignore the 

implication that some reforestation 

workers may not currently have access 

to sufficient food and/or facilities to 

prepare food. Itinerant workers 

constitute a vulnerable population; 

these workers are frequently wholly 

dependent on their employer for 

housing and transportation, work in 

remote areas far removed from services, 

and may not be fully aware of their 

geographic location. The Department 

reminds employers of itinerant workers 

not using the H–2A program that they 

should, at the very least, facilitate access 

to food and/or kitchen facilities by 

ensuring that workers have sufficient 

time and available transportation 

options to access grocery stores/cooking 

facilities, and/or prepared meals. 

In response to concerns expressed by 

commenters that some reforestation 

employers using the H–2B program may 

not provide full-time job opportunities 

and may not pay for inbound 

transportation, the Department reminds 

the public that such legal requirements 

are already in place. An H–2B job 

opportunity must be for full-time work, 

defined as 35 hours of work per week, 

and the FLSA applies independently of 

the H–2B program’s requirements. 

Specifically, the Fifth Circuit’s decision 

in Castellanos-Contreras v. Decatur 

Hotels, LLC, 622 F.3d 393 (5th Cir. 

2010), affects an employer’s 

responsibility for inbound 

transportation costs under the FLSA in 

that Circuit, but does not affect an 

employer’s inbound transportation 

obligations pursuant to the H–2B 

program regulations, nor does it affect 

the Department’s ability to enforce those 

obligations. See 20 CFR 655.20(d); 20 

CFR 655.5; 29 CFR 503.16(d); 29 CFR 

503.4; 20 CFR 655.20(j)(1)(i); and 29 

CFR 503.16(j)(1)(i). 

Other Comments Requesting the 

Inclusion or Exclusion of Certain 

Agricultural Activities or Industries in 

the H–2A Program 

The Department received many 

comments in this section that did not 

address the specific proposal relating to 

reforestation and pine straw, but rather 

suggested modifications to the scope of 

the H–2A program to include or exclude 

other activities or industries. As 

discussed below, the Department is not 

adopting these suggested modifications 

to the definition of agricultural labor or 

services. 

These commenters sought to expand 

the H–2A program to include all 

employment in packing houses or 

processing facilities that pack, process, 

or handle agricultural or horticultural 

commodities, even if, for example, more 

than half of the commodities are 

produced by other growers. Commenters 

stated that this division between 

packing houses based solely on the 

producer of the commodity is outdated 

and inequitable, because some packing 

houses have access to the H–2A 

program whereas others conducting 

identical activities do not. Commenters 

stated that all packing houses 

experience the same shortage of labor, 

regardless of the producer of the 

products, and the nature of the H–2B 

program is inadequate to address the 

packing house’s needs, both in terms of 

the number of workers available under 

the program and certification processing 

timelines. Multiple commenters 

suggested an expansive definition of 

agricultural labor or services 

encompassing packing houses and 

processing facilities. 

Many commenters stated that the 

H–2A program should encompass all 

transporting of an agricultural 

commodity to a facility for preparation 

to market, regardless of who produced 

the commodity or where the 

transportation occurs. Several 

commenters stated that harvesting is not 

complete until the product arrives at the 

packing facility or place of first 

processing, and the transportation to the 

place of first processing is an essential 

component of harvesting. Others stated 

that a contractor transporting 

agricultural or horticultural products is 


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33Employees engaged in the breeding, raising, 

and training of horses on farms for racing purposes 

are agricultural employees as defined by the FLSA. 

On the other hand, employees engaged in the 

racing, training, and care of horses and other 

activities performed off the farm in connection with 

commercial racing are not employed in agriculture. 

Continued 

essentially working for, or acting in the 

place of, the grower that produced those 

products, and thus is engaged in 

agricultural work. Many commenters 

referenced a critical shortage of truck 

drivers willing, qualified, and available 

to transport crops (particularly within 

the shorter season inherent in 

agriculture), and noted that many 

growers do not have the means to 

perform these transportation services 

themselves. The expansive definition 

submitted by multiple commenters 

similarly addressed this issue by 

suggesting inclusion of the following: 

the transportation of any agricultural or 

horticultural product in its 

unmanufactured state by any person 

from the farm to a storage facility, to 

market, or to any place of handling, 

planting, drying, packing, packaging, 

processing, freezing, or grading such as 

a packing house, a processing 

establishment, a gin, a seed 

conditioning facility, a mill, or a grain 

elevator; and the handling, planting, 

drying, packing, packaging, processing, 

freezing, or grading by any person of 

any agricultural or horticultural 

commodity in its unmanufactured state. 

Some commenters sought the explicit 

inclusion of specific industries in the 

definition of agriculture or more 

generally in the H–2A program. Some 

commenters requested that the H–2A 

program encompass work in seafood 

cultivation, harvesting, and processing 

due to the industry’s connection to food 

production and its difficulty in meeting 

its labor needs using a domestic 

workforce and the capped H–2B 

program. One commenter requested that 

the definition explicitly incorporate 

activities related to the care and feeding 

of horses and suggested it should 

incorporate grooms, stable-hands, 

exercise riders, and general caretakers, 

regardless of where the work is 

performed. A different commenter 

sought the inclusion of all 

agribusinesses, including agricultural 

retailers, in the program. Some 

commenters stated that all aspects of the 

ginning of cotton, including the related 

transportation from the field to the gin, 

are agricultural. A trade association 

representing the landscaping industry 

suggested the reclassification of several 

other industries currently within the 

H–2B program to reduce pressure on the 

H–2B visa cap. 

Some commenters stated that specific 

industries, or employers in general, 

should have the flexibility to use either 

the H–2A or H–2B program depending 

on their specific needs. Some 

commenters opined that employers have 

the expertise to know which program 

best meets their needs, whereas others 

stated that their industry was 

sufficiently diverse to require 

participation in both the H–2A and 

H–2B programs. 

One commenter sought to exclude 

activities from the program that are 

currently performed by H–2A workers. 

Specifically, this commenter suggested 

that work in constructing livestock 

buildings on farms, when the worker is 

not employed by the farmer, should not 

be permitted in the H–2A program 

because the work is, generally, nonagricultural. 

To the extent that commenters 

suggested amendments to the 

definitions of agricultural labor under 

sec. 3121(g) of the Internal Revenue 

Code (IRC) and agriculture under sec. 

3(f) of the FLSA, these suggestions are 

outside the scope of this rulemaking as 

well as beyond the Department’s 

statutory authority under the H–2A 

program. Congress defined these terms 

in their respective statutes and 

expressly incorporated these definitions 

into sec. 101(a)(15)(H)(ii)(a) of the INA. 

Any ability to amend these definitions, 

or their incorporation in the INA, also 

lies with Congress. Similarly, the 

Department is unable to reinterpret 

these statutory definitions solely within 

the context of the INA; the Department 

is constrained by pre-existing 

interpretations of these definitions 

within their respective statutes, 

including their implementing 

regulations, sub-regulatory guidance, 

and resulting case law. As a result, the 

Department cannot edit or limit these 

definitions in this rulemaking, such as 

by removing the 50-percent threshold 

from the IRC definition of agricultural 

labor; reinterpreting the phrase ‘‘in the 

employ of the operator of a farm’’; or 

excluding all construction occupations 

from the H–2A program because, in 

specific circumstances, construction 

work may constitute agricultural labor 

or services within one of the statutory 

definitions. In addition, the Department 

notes that it defers to the Department of 

the Treasury’s Internal Revenue Service 

(IRS) for interpretation of the IRC. 

The Department has carefully 

considered all comments requesting that 

the Secretary use his statutory authority 

to define additional activities and/or 

industries as agricultural labor or 

services, and respectfully declines to 

make further revisions to this definition 

beyond the technical or conforming 

revisions discussed above. These 

comments did not respond to proposals 

made in the NPRM, nor did the 

Department propose or invite comment 

on possible additions to the definition 

of agricultural labor or services beyond 

the proposal to add reforestation and 

pine straw activities. All affected parties 

could not reasonably expect that the 

Department was contemplating and 

seeking comment on potential additions 

other than reforestation and pine straw 

activities, and thus, the public has not 

been fully afforded the opportunity to 

consider and respond to the potential 

inclusion of these activities and/or 

industries in the H–2A program. 

Many comments received in response 

to the NPRM, as well as in previous 

rulemakings, illustrate that some 

employers perceive significant 

advantages in participating in the H–2B 

program as opposed to the H–2A 

program, and vice versa, depending on 

the labor demands of the specific 

industries who commented. 

Additionally, nearly all comments 

regarding additional expansions to the 

H–2A program originated from 

employers and their representatives, 

with minimal input from other affected 

parties, further suggesting that all 

parties could not reasonably have 

thought to comment on the proposals to 

expand the definition beyond the 

additions proposed in the NPRM. 

Consequently, the Department is 

disinclined to further expand the 

definition of agricultural labor or 

services in this rulemaking. 

The Department also declines to 

adopt the suggestion that employers be 

afforded the discretion to choose 

participation in either the H–2A or 

H–2B program. As previously explained 

in the preamble to the 2010 H–2A Final 

Rule, Congress clearly intended to 

create two separate programs: H–2A for 

agricultural work and H–2B for other, 

non-agricultural work. Compare 8 

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

1101(a)(15)(H)(ii)(b). 2010 H–2A Final 

Rule, 75 FR 6884, 6888. Allowing 

employers the discretion to use either 

program based on their individual 

preferences erases any meaningful 

distinction between the two programs 

and is inconsistent with congressional 

intent. However, as some commenters 

identified, certain industries necessarily 

will use both the H–2A and H–2B 

programs depending on the specific 

activities being performed. For example, 

the grooming and exercise riding of 

horses at a racetrack in connection with 

commercial racing is non-agricultural, 

whereas the care and feeding of those 

horses on a farm is agricultural work.33


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For these purposes, a training track at a racetrack 

is not a farm. See 29 CFR 780.122. 

34As defined by the FLSA, packing, processing, 

and transporting agricultural or horticultural 

commodities do not constitute agricultural 

employment unless these activities are performed 

by a farmer or on a farm as incident to or in 

conjunction with such farming activities (i.e., the 

farming activities of the farm or farmer). The 

packing, processing, or transporting of fruit 

produced by a different grower is performed as 

incident to or in conjunction with the farming 

activities of the farmer that produced the fruit, not 

the employer, and thus is outside the scope of the 

exemption from FLSA overtime pay. See generally 

29 CFR part 780, subparts A, B, and C; §§ 780.137 

and 780.138. FLSA exemptions are determined on 

a workweek basis, and an employee performing 

exempt work (i.e., packing, processing, and 

transporting the employer’s own fruit) and 

nonexempt work (i.e., packing, processing, and 

transporting the fruit produced by a different 

grower) in the same workweek is entitled to 

overtime pay in that particular workweek. See 

§§ 780.10 and 780.11. 

Other Comments Requesting Expansion 

of the H–2A Program for Year-Round 

Employment in Agriculture 

Many commenters requested that the 

scope of the H–2A program be expanded 

to include all job opportunities in 

certain industries, regardless of whether 

the opportunity is seasonal or 

temporary, including dairy, mushroom, 

poultry, livestock, aquaculture, and 

indoor nursery/greenhouse farming. 

Commenters emphasized that these 

industries encounter the same labor 

shortages as other agricultural 

industries, and that the limitation of the 

H–2A program to seasonal and 

temporary agricultural work is 

fundamentally inequitable and ignores 

the realities faced by year-round 

agriculture. Of the industries submitting 

comments, commenters representing the 

dairy industry noted particular concerns 

with difficulties in obtaining and 

retaining a sufficient workforce, and 

proposed solutions such as allowing for 

year-round visas and cycling different 

short-term H–2A workers through 

employment in a given year so that a 

series of workers on temporary visas 

could satisfy the employer’s permanent 

need. Other commenters stated that 

there was no statutory basis for allowing 

herders to be employed for 364 days in 

a year while not allowing the same for 

other industries. 

The Department received nearly 

identical comments in response to the 

2008 and 2009–2010 rulemakings. In 

response to current comments, the 

Department reiterates that it must 

consider each employer’s specific job 

opportunity on a case-by-case basis and 

its program experience has consistently 

shown that the majority of activities in 

these industries are year-round and 

therefore cannot be classified as either 

temporary or seasonal as required under 

the H–2A regulations and the INA, and 

not because they are non-agricultural. 

While the Department recognizes the 

workforce challenges encountered by 

various agricultural industries, it is 

limited by the INA to certifying H–2A 

applications for jobs of a temporary or 

seasonal nature. As stated in the 

preamble to the 2010 H–2A Final Rule, 

the determination as to whether a 

particular activity is eligible for H–2A 

certification rests on a finding that the 

duration of the activity or the need for 

that activity is temporary or seasonal. 

Permanent job opportunities cannot be 

classified as temporary or seasonal. 

2010 H–2A Final Rule, 75 FR 6884, 

6890–6891. Instead, employers that 

cannot find U.S. workers to fill 

permanent rather than temporary or 

seasonal jobs may wish to petition for 

workers under employment-based 

immigrant visa programs. See, e.g., 8 

U.S.C. 1153(b)(3); see also 8 U.S.C. 

1101(a)(15)(H)(ii)(a) (INA permits only 

‘‘agricultural labor or services . . . of a 

temporary or seasonal nature’’ to be 

performed under the H–2A visa 

category). Finally, with regard to 

comments above related to the period of 

need for herders, the Department 

recently rescinded, in the separate 2021 

H–2A Herder Final Rule, the 364-day 

provision that governed the 

adjudication of temporary need for 

employers of sheep and goat herders 

(§ 655.215(b)(2)) to ensure the 

Department’s adjudication of temporary 

or seasonal need is conducted in the 

same manner for all H–2A applications. 

Other Comments Related to the 

Requirements for Overtime Pay Under 

the FLSA 

Some commenters expressed concerns 

about or requested clarification of the 

requirement for overtime pay under the 

FLSA to H–2A workers. One commenter 

said that some employers incorrectly 

assume that H–2A workers are always 

exempt from the FLSA overtime 

requirement, and another commenter 

made this same incorrect assumption in 

its comment. Other commenters stated 

that the classification of certain 

industries and activities as agricultural 

under one Act and non-agricultural 

under another was confusing, and that 

the reclassification of pine straw 

activities as agricultural under the INA 

would simplify compliance. Another 

commenter suggested a regulatory 

clarification that construction labor 

performed on a farm for an independent 

contractor, as opposed to for the farm 

operator, is not agricultural employment 

for the purposes of the FLSA, and that 

employees providing such services are 

entitled to overtime pay. 

In light of these comments, the 

Department reiterates that the FLSA 

applies independently of the H–2A 

program. H–2A workers are not exempt 

from overtime pay under the FLSA 

simply by virtue of holding an H–2A 

visa, nor are workers engaged in 

corresponding employment with H–2A 

workers exempt from FLSA overtime 

pay simply because they are so engaged. 

The FLSA exempts employees 

employed in agriculture, as defined in 

sec. 3(f) of that same Act, from overtime 

pay (and, in more limited 

circumstances, from the Federal 

minimum wage) in any workweek that 

the worker is employed solely in 

agriculture. See FLSA sec. 13(a)(6) and 

(b)(12), 29 U.S.C. 213(b)(6) and (12). 

However, the INA defines agriculture 

more broadly than the FLSA and, 

consequently, some H–2A workers are 

employed in activities that do not 

constitute FLSA agriculture and thus are 

entitled to FLSA overtime pay. For 

example, H–2A workers employed by a 

farmer are exempt from FLSA overtime 

in any workweek in which they are 

engaged in packing fruit grown 

exclusively by that same farmer. 

However, if during a given workweek 

these same H–2A workers, in addition 

to packing fruit grown by their employer 

also pack fruit grown by another farmer, 

they are entitled to FLSA overtime pay 

in that workweek.34 Because the H–2A 

program’s definition of agricultural 

labor or services is broader than the 

FLSA definition of agriculture (i.e., it 

encompasses activities that constitute 

agricultural labor under the IRC, as well 

as logging and pressing of apples for 

cider on a farm), workers may be 

engaged in agricultural labor for H–2A 

program purposes but exempt or 

nonexempt from FLSA overtime in any 

particular workweek depending on their 

activities during that period. The 

Department encourages employers to 

consult the FLSA regulations at 29 CFR 

part 780 to determine if employees are 

entitled to FLSA overtime, and to 

consult applicable State and local laws, 

which may impose overtime or other 

wage requirements. 

Reforestation and pine straw 

activities, as defined in the NPRM, 

similarly do not constitute FLSA 

agriculture unless performed by a 

farmer or on a farm as incident to or in 

conjunction with such farming 

activities, and employees engaged in 

these activities are frequently entitled to 

FLSA overtime pay. 

One commenter opined that 

construction labor performed by an 

independent contractor on a farm never 


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constitutes FLSA agriculture. The 

Department notes that construction 

labor may constitute FLSA agriculture 

when performed by a farmer or on a 

farm as incident to or in conjunction 

with such farming activities. 

Minor Revisions Incorporating 

Occupational Definitions for Animal 

Shearing, Commercial Beekeeping, and 

Custom Combining in the H–2A 

Program 

In proposing the occupational 

definitions for itinerant employment in 

animal shearing, commercial 

beekeeping, and custom combining at 

20 CFR 655.301, the Department 

acknowledged in the NPRM that some 

of the listed activities may not otherwise 

constitute agricultural work under the 

current definition of agricultural labor 

or services in § 655.103(c), but are a 

necessary part of performing this work 

on an itinerary. See 84 FR 36168, 36222. 

Accordingly, and solely for the purposes 

of the proposed variances in §§ 655.300 

through 655.304, the Department 

explained that it would include these 

activities in the occupational 

definitions. Id. The Department did not 

receive any comments on this aspect of 

its proposal. However, because only 

duties that fall within the definition of 

agricultural labor or services under 

§ 655.103(c) may be certified under the 

H–2A program, and to clarify that the 

activities set forth under the definitions 

for animal shearing, commercial 

beekeeping, and custom combining in 

§ 655.301 qualify for certification under 

the H–2A program, the Department is 

making a technical, conforming revision 

to § 655.103(c). Under new 

§ 655.103(c)(5), the Department 

expressly states that, for the purposes of 

§ 655.103(c), agricultural labor or 

services includes animal shearing, 

commercial beekeeping, and custom 

combining activities as defined and 

specified in §§ 655.300 through 655.304. 

Additionally, this final rule incorporates 

the minor technical changes to correct 

the internal citations from paragraphs 

(c)(1)(iv) and (v) to now read paragraphs 

(c)(1)(i)(D) and (E), respectively, in 

§ 655.103(c)(1)(i)(E) and (F). 

l. 20 CFR 655.103(d) and 29 CFR 

501.3(c), Definition of a Temporary or 

Seasonal Nature 

The NPRM sought public comments 

to inform a decision whether to retain 

the current, two-arbiter model in which 

both the Department and DHS evaluate 

temporary or seasonal need during their 

sequential review processes, or to move 

the adjudication of an employer’s 

temporary or seasonal need either 

exclusively to DHS or exclusively to 

DOL. The Department solicited input 

from the public on this idea as a way to 

eliminate duplication of agency reviews. 

The Department received many 

comments on this idea and, for the 

reasons explained below, has decided to 

retain at present the current two-arbiter 

model of DHS and DOL sequentially 

adjudicating an employer’s temporary or 

seasonal need. 

The INA grants DHS broad authority 

to determine whether to admit 

temporary workers as H–2A 

nonimmigrants based on an employer’s 

petition, in consultation with 

appropriate Federal agencies, and 

further defines an H–2A nonimmigrant 

as an individual coming temporarily to 

the United States to perform agricultural 

labor or services ‘‘of a temporary or 

seasonal nature.’’ 8 U.S.C. 

1101(a)(15)(H)(ii)(a), 1184(c)(1), and 

1188. Pursuant to the INA and 

implementing regulations promulgated 

by the Department and DHS, the 

Department evaluates an employer’s 

need for agricultural labor or services to 

determine whether it is seasonal or 

temporary during the review of an 

Application for Temporary Employment 

Certification. 20 CFR 655.161(a); 8 CFR 

214.2(h)(5)(i)(A) and (h)(5)(iv). In order 

to promote greater consistency and 

reduce stakeholder confusion 

concerning the definition of temporary 

or seasonal need, the Department 

adopted the DHS definition in the 2010 

H–2A Final Rule. See 75 FR 6884, 6890. 

Compare 20 CFR 655.103(d) with 8 CFR 

214.2(h)(5)(iv)(A). 

Through its longstanding review of 

the nature of an employer’s need as part 

of its review of an Application for 

Temporary Employment Certification, 

such as examining the period of 

employment identified on the H–2A 

application and the nature of the 

employer’s need for agricultural labor or 

services, inclusive of the job duties, 

qualifications and requirements, and 

geographic locations where work will be 

performed, the Department has 

developed expertise and a process for 

determining temporary or seasonal need 

to which H–2A employers have become 

accustomed. In addition, DHS 

regulations state that an H–2A petition 

must establish, among other things, that 

the ‘‘employment proposed in the 

certification is of a temporary or 

seasonal nature’’ and that the 

Department’s finding that employment 

is of a temporary or seasonal nature 

during review of the Application for 

Temporary Employment Certification is 

‘‘normally sufficient’’ for the purpose of 

an H–2A Petition. 8 CFR 214.2(h)(5)(iv). 

Under current practice, if the 

Department issues a temporary 

agricultural labor certification and the 

employer files an H–2A Petition, DHS 

may reevaluate and adjudicate the 

employer’s temporary or seasonal need 

using the same definition or may defer 

to the Department’s finding. 

Many commenters supported 

eliminating the two-arbiter model, with 

most identifying the Department as the 

preferred sole arbiter. These 

commenters argued that retaining both 

arbiters creates uncertainty, 

inconsistency, and redundancy with 

harm to farmers, including crop loss as 

a result of the time lost should DHS 

reach a different, adverse decision later 

in the process than the Department. 

Most of the commenters who favored a 

single-arbiter model supported the 

Department as the sole arbiter. Some 

commenters urged the Department to 

consider a new arbiter of temporary or 

seasonal need, namely the U.S. 

Department of Agriculture (USDA). 

Included among these commenters who 

suggested USDA were several trade 

associations, a couple of agents, and a 

State government agency who named 

the Department as their second choice 

after USDA. Two other commenters, a 

trade association, and a State 

government agency suggested that the 

Department perform the role over DHS 

but with increased consultation with 

USDA. However, in the NPRM, the 

Department only sought public 

comment on the potential for only DHS, 

or only DOL, to serve as a sole arbiter. 

The Department did not propose or seek 

comment for an agency other than the 

Department or DHS to perform this role. 

Those commenters who favored the 

Department as the adjudicating 

authority for temporary or seasonal 

need, as opposed to DHS, noted the 

Department’s expertise and greater 

comparative familiarity with the H–2A 

program. Commenters also valued the 

Department’s position in the petition 

process relative to DHS, as employers 

are able to make adjustments earlier 

should questions regarding temporary or 

seasonal need arise and before incurring 

additional expenses associated with 

filing an H–2A Petition with DHS. 

Several commenters, including an 

agent, an employer, and a trade 

association, did not express a position 

regarding whether the Department or 

DHS should be the sole arbiter but 

instead noted the importance of the 

Department and DHS having congruent 

definitions of whether employment is of 

a temporary or seasonal nature. 

Similarly, another agent did not clearly 

express an opinion about whether there 

should be a sole arbiter of temporary or 

seasonal need but stated that DHS 

should continue to hold decisionVerDate Sep<11>2014 19:23 Oct 11, 2022 Jkt 259001 PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 E:\FR\FM\12OCR2.SGM 12OCR2

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35The January 2021 draft final rule indicated the 

Departments’ intent for DOL to serve as the sole 

arbiter of temporary or seasonal need through a 

prospective delegation of authority from DHS as 

well as a separate regulatory action to amend DHS’s 

related regulations. However, the January 2021 draft 

final rule was not published and never took effect. 

Accordingly, any statements contained therein do 

not represent the Department’s formal policy; and, 

similarly, they do not, and may not be relied upon 

to, create or confer any right or benefit, substantive 

or procedural, enforceable at law or equity by any 

individual or other party. As explained elsewhere 

in this rule, the Federal Register and the Code of 

Federal Regulations remain the official sources for 

regulatory information published by the 

Department. 

36The Department also makes corresponding 

changes throughout the regulation, replacing ‘‘the 

prevailing hourly wage or piece rate’’ with 

‘‘prevailing wage’’ or ‘‘prevailing wage rate,’’ except 

where a given provision specifically applies only to 

prevailing piece rates. 

making authority with respect to the 

temporary and seasonal requirements. 

The Department appreciates the 

variety of public comment on this 

proposal. After careful consideration of 

the comments received, the Department 

has determined, that it will not at this 

time be making such a substantial 

change to the program.35 Therefore, this 

final rule retains the current two-arbiter 

model of DHS and DOL both 

sequentially evaluating an employer’s 

temporary or seasonal need. 

The Department received additional 

comments regarding the definition of a 

temporary or seasonal nature at 20 CFR 

655.103(d) and 29 CFR 501.3(c). Many 

of these commenters urged the 

Department to include year-round work, 

particularly in the dairy industry. As the 

Department only sought public 

comment on determining whether the 

Department or DHS should act as the 

sole arbiter of temporary or seasonal 

need, such comments are outside the 

scope of this rulemaking. 

B. Pre-Filing Procedures 

1. Section 655.120, Offered Wage Rate 

The statute provides that an H–2A 

worker is admissible only if the 

Secretary determines that ‘‘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 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.’’ See 8 U.S.C. 

1188(a)(1). In 20 CFR 655.120(a), the 

Department currently meets this 

statutory requirement, in part, by 

requiring an employer to offer, advertise 

in its recruitment, and pay a wage that 

is the highest of the AEWR, the 

prevailing wage, the agreed-upon 

collective bargaining wage, the Federal 

minimum wage, or the State minimum 

wage. The Department proposed in the 

NPRM to maintain this wage-setting 

structure with only minor revisions and 

modify the methodologies by which the 

Department establishes the AEWR and 

prevailing wages. 

Prior to this final rule, the Department 

engaged in rulemaking to revise the 

methodology for establishing the AEWR 

that addressed the Department’s 

proposals at paragraphs (b)(1), (2), and 

(5) of the NPRM, as well as the 

definition of AEWR in § 655.103(b). See 

85 FR 70445. Most recently, the 

Department issued an NPRM on 

December 1, 2021, which proposed to 

revise the methodology for establishing 

the AEWR. 86 FR 68174. The comment 

period for the 2021 H–2A AEWR NPRM 

closed on January 31, 2022, and the 

Department will address those 

comments in a separate rulemaking. 

This final rule addresses all other 

aspects of the Department’s proposals at 

§ 655.120—specifically, paragraphs (a), 

(b)(3) and (4), (c), and (d). In addition, 

the Department reinstates the 2010 H– 

2A Final Rule’s method and schedule 

for updating the AEWR at paragraph 

(b)(2), which is necessary due to vacatur 

of the 2020 H–2A AEWR Final Rule, as 

discussed in the preamble to the 

definition of AEWR at § 655.103(b). 

The Department received many 

general comments related to H–2A labor 

costs and wage requirements, some 

claiming that wage requirements are too 

high and others stating that wage 

requirements are too low. To the extent 

those comments raised specific 

concerns or suggestions, they are 

discussed below. 

a. The Department Retains the 

Requirement That the Offered Wage 

Rate Must Be the Highest of the 

Available Wage Sources 

The Department protects against 

adverse effect on the wages of workers 

in the United States similarly employed 

by requiring, at § 655.120(a), that an 

employer must offer, advertise in its 

recruitment, and pay a wage that is the 

highest of the AEWR, the prevailing 

wage, the agreed-upon collective 

bargaining wage, the Federal minimum 

wage, or the State minimum wage, 

unless the occupation is subject to an 

alternative wage rate structure. The 

Department proposed three minor 

changes to paragraph (a). As discussed 

below, this final rule adopts the 

proposed language from the NPRM with 

minor conforming changes. 

First, the Department proposed to 

replace the current regulatory provision 

that provides an exception for separate 

wage rates set by ‘‘special procedures’’ 

(i.e., sub-regulatory variances from the 

regulation) and instead include a 

specific reference to the regulatory 

provisions covering job opportunities in 

the herding and production of livestock 

on the range under §§ 655.200 through 

655.235. Applications to obtain labor 

certifications to hire temporary 

agricultural foreign workers to perform 

herding or production of livestock on 

the range, as defined in § 655.201, are 

subject to the wage rate structure at 

§ 655.211 and are the only exception to 

the wage methodology set forth in this 

final rule at § 655.120. Further, as 

discussed above, the Department has 

removed the authority in § 655.102 to 

establish, continue, revise, or revoke 

‘‘special procedures’’ for H–2A 

occupations. The Department received 

comments requesting that it address 

herder wages, including a State law 

involving overtime pay for herders; 

however, these comments are outside 

the scope of this rulemaking. The 

Department explicitly stated in the 

NPRM that it was not reconsidering the 

herder wage rate methodology. 84 FR 

36168, 36220–36221. 

Second, the Department proposed to 

replace the ‘‘prevailing hourly wage or 

piece rate’’ with ‘‘prevailing wage rate’’ 

in recognition of the fact that the 

Department has issued prevailing wage 

rates that are not in the form of an 

‘‘hourly’’ or ‘‘piece’’ rate wages, 

including, for example, ‘‘monthly’’ 

prevailing wage rates.36 An employer 

suggested the Department, instead, 

replace ‘‘prevailing hourly rate or piece 

rate’’ with ‘‘prevailing guaranteed 

hourly rate’’ and use the hourly 

guarantee alone to protect against 

adverse effect on the domestic 

workforce. The commenter explained 

that such an approach would protect 

wages without limiting employers’ 

flexibility to reward productive workers 

through a piece rate or another 

incentive-based system. The Department 

declines to adopt the suggested 

language. To the extent the commenter 

seeks an hourly guarantee protection for 

workers in the event an employer uses 

incentive pay or piece rate, the 

regulation already provides hourly rate 

protection at § 655.122(l)(1) and (2); 

and, to the extent the commenter seeks 

to eliminate piece rate PWDs, such a 

suggestion is beyond the scope of this 

rulemaking. Further, the Department 

does not limit an employer’s flexibility 

to offer wages exceeding the minimum 

required wage. 

Third, the Department proposed to 

clarify that the requirement to offer and 

pay at least the prevailing wage rate 

applies only ‘‘if the OFLC Administrator 


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37The Department also makes a corresponding 

change to § 655.122(l). 

38See, e.g., AFL–CIO, et al, v. Dole, et al., 923 

F.2d 182, 185 (D.C. Cir. 1991) (noting Congress did 

not ‘‘define adverse effect and left it in the 

Department’s discretion how to ensure that the 

importation of farmworkers met the statutory 

requirements’’ and that the Department’s chosen 

methodology to prevent adverse effect is ‘‘a policy 

decision taken within the bounds of a rather broad 

congressional delegation’’); § 655.122(l)(1) (‘‘any 

agreed-upon collective bargaining rate’’); 1987 H– 

2A IFR, 52 FR 20496, 20502 (June 1, 1987) (noting 

H–2A workers ‘‘must be paid at the highest of the 

applicable wage rates’’); 2008 H–2A Final Rule, 73 

FR 77110, 77115 (Dec. 18, 2008) (‘‘the highest of the 

AEWR, prevailing wage, or minimum wage, as 

applicable’’); 2010 H–2A Final Rule, 75 FR 6884, 

6947 (‘‘some [S]tates do not perform prevailing 

wage surveys’’); ETA Handbook 385 at I–115 

(‘‘Should a survey not result in a prevailing wage 

rate finding, another survey should be made at the 

earliest appropriate time.’’). 

has approved a prevailing wage survey 

for the applicable crop activity or 

agricultural activity meeting the 

requirements of paragraph (c)’’ of 

§ 655.120.37 In the event there is no 

prevailing wage finding applicable to an 

employer’s job opportunity, the 

employer’s wage obligation is the 

highest of the other four applicable 

wage sources listed in paragraph (a). An 

employer that supported this proposal 

asked the Department to clarify that the 

OFLC Administrator must review the 

survey for compliance with prevailing 

wage methodology requirements, 

asserting that underlying documentation 

may have been lacking in the past. The 

Department appreciates this concern 

and notes that survey documentation 

demonstrating compliance with 

methodological requirements must be 

attached to the updated prevailing wage 

survey collection (i.e., Form ETA–232) 

at the time of submission to the OFLC 

Administrator. See § 655.120(c)(1)(i). 

The Department received many 

comments from workers’ rights 

advocacy organizations that asserted the 

Department is required to determine a 

prevailing wage in all cases. These 

commenters expressed concern that the 

Department proposed to eliminate this 

‘‘requirement,’’ and, by doing so, would 

permit employers to offer below-market 

wage rates in areas where a survey, if 

conducted, would produce a higher rate 

than the other wage sources. The 

Department reiterates that this final rule 

does not eliminate an existing 

requirement; rather, the revised 

language clarifies existing policy and 

practice. State-conducted prevailing 

wage surveys are another source of 

information that can provide protections 

for workers who are engaged in specific 

crop or agricultural activities offering 

piece rate pay or higher hourly rates of 

pay than the applicable AEWR in a 

geographic area. However, where the 

crop or agricultural activities in a 

geographic area are paid at hourly rates 

lower than the AEWR, a Stateconducted prevailing wage survey 

would not protect wages from adverse 

effect; the AEWR does. The AEWR will 

continue to serve as a wage floor that 

prevents localized wage stagnation or 

depression in areas and occupations in 

which employers desire to employ H– 

2A workers. Neither the statute nor the 

Department’s H–2A program regulations 

require the Department to determine a 

prevailing wage rate in all cases, and the 

Department’s regulations and guidance 

have contemplated that there are 

situations in which the wage sources 

listed in § 655.120(a) may be 

unavailable or inapplicable, as reflected 

in past practice.38 As explained in the 

NPRM, the Department primarily meets 

its obligation to protect against adverse 

effect on the wages of workers in the 

United States similarly employed by 

requiring employers to offer, advertise, 

and pay at least the AEWR. 84 FR 

36168, 36179. As such, requiring SWAs 

to conduct prevailing wage surveys for 

every crop and agricultural activity in 

every area within their jurisdiction is 

unnecessary to prevent adverse effect. 

However, the Department agrees that 

prevailing wage rates, under the PWD 

methodology adopted in this final rule 

at § 655.120(c), can provide additional 

safeguards. The Department will 

continue to issue PWDs based on 

information that is as reliable and 

representative as possible concerning 

the average wages of U.S. workers in a 

crop or agricultural activity and distinct 

work task(s) within that activity, if 

applicable, for a particular geographic 

region. As explained below, this final 

rule modernizes the PWD methodology 

and empowers States to produce a 

greater number of reliable prevailing 

wage rates, which the OFLC 

Administrator may approve under the 

requirements of § 655.120(c). 

The Department also received 

comments that suggested the 

Department should stop requiring H–2A 

employers to offer and pay the highest 

of the sources listed in paragraph (a) 

and use a different wage-setting 

standard instead. Two employers 

recommended the Department set the 

H–2A wage rate at the current Federal 

minimum wage of $7.25 per hour, while 

a trade association suggested the 

Department use the minimum wage 

adjusted annually using the Consumer 

Price Index (CPI). A trade association 

recommended the PWD, if available, 

should be used to set the H–2A wage 

requirement, even if that wage rate is 

lower than the AEWR, as it is the most 

accurate measure of the prevailing wage 

for that specific crop activity in that 

specific area. A public policy 

organization recommended the 

Department allow employers to pay H– 

2A workers less than the AEWR and 

prevailing wage rate, provided that U.S. 

workers receive five percent more than 

the highest of those two rates. These 

comments are outside the scope of the 

Department’s proposed modifications to 

paragraph (a). 

After consideration of the comments, 

the Department adopts the proposed 

language with two minor revisions. 

First, the Department has revised 

§ 655.120(a) to clarify that an employer 

must offer and pay, at a minimum, the 

highest of the enumerated wage sources, 

but may choose to offer and pay a higher 

rate. Second, the Department has 

revised § 655.120(a)(2) to align with 

language regarding prevailing wages at 

§ 655.120(c). As discussed further in the 

preamble to § 655.120(c)(1)(iii), the 

revised language in this paragraph 

recognizes that there may be a 

prevailing wage for a distinct work task 

or tasks within a crop or agricultural 

activity in certain situations. 

b. AEWR Determinations 

This final rule covers the 

Department’s proposals at paragraphs 

(b)(3) and (4) of § 655.120, which the 

Department reserved when addressing 

paragraphs (b)(1), (2), and (5) in a 

separate rulemaking (i.e., the 2020 H– 

2A AEWR Final Rule). As explained 

above in the preamble to the definition 

of AEWR at § 655.103(b), the 2020 H–2A 

AEWR Final Rule was vacated, leaving 

the 2010 H–2A Final Rule in its place. 

For the same reasons as noted in the 

preamble to the AEWR definition, the 

Department is implementing the court’s 

vacatur of the 2020 H–2A AEWR Final 

Rule in this final rule by removing from 

the CFR the regulatory text that the 

Department promulgated through that 

rulemaking at § 655.120(b)(1), (2), and 

(5), thereby restoring the regulatory text 

to appear as it did before the effective 

date of the 2020 H–2A AEWR Final 

Rule, subject to the changes noted in 

this section. The Department has good 

cause to bypass otherwise applicable 

requirements of notice and comment 

and a delayed effective date because 

these are unnecessary for the 

implementation of the court’s vacatur 

order and would be impracticable and 

contrary to public interest in light of the 

agency’s need to implement the final 

judgment. See 5 U.S.C. 533(b)(B), (d). 

Delaying the ministerial task of restoring 

the regulatory text also would be 

contrary to the public interest because it 

could lead to confusion, particularly 


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39Under 44 U.S.C. 1507, publication in the 

Federal Register provides legal notice of the new 

wage rates. Section 655.122(l) of the 2010 H–2A 

Final Rule required employers to pay the wage rate 

‘‘in effect at the time work is performed.’’ 

40See, e.g., Notice, Labor Certification Process for 

the Temporary Employment of Aliens in Agriculture 

in the United States: 2020 Adverse Effect Wage 

Rates for Non-Range Occupations, 84 FR 69774 

(Dec. 19, 2019) (announcing AEWRs for 2020 on 

December 19, 2019, to be effective January 2, 2020). 

41See, e.g., 1987 H–2A IFR, 52 FR 20496, 20521; 

Labor Certification Process for the Temporary 

Employment of Aliens in Agriculture in the United 

States; H–2A Program Handbook, 53 FR 22076, 

22095 (June 13, 1988) (‘‘[c]ertified H–2A employers 

must agree, as a condition for receiving 

certification, to pay a higher AEWR than the one 

in effect at the time an application is submitted in 

the event publication of the [higher] AEWR 

coincides with the period of employment’’). 

among the regulated public, as to the 

applicable AEWR methodology. With 

regard to changes in this section, the 

Department issued the 2021 H–2A 

AEWR NPRM, which proposed new 

paragraphs (b)(1) and (5). Accordingly, 

the Department retains the 2010 H–2A 

Final Rule’s paragraph (c) that provides 

for annual AEWR updates to be 

published in the Federal Register, 

redesignated as paragraph (b)(2) in this 

final rule, and will address paragraphs 

(b)(1) and (5) in a separate rulemaking. 

i. Must Pay Any Higher AEWR on the 

Published Effective Date of the New 

Wage Rate 

The text adopted in the 2010 H–2A 

Final Rule specified the employer’s 

obligation to pay the wage rate ‘‘in effect 

at the time work is performed.’’ 39 In the 

event the OFLC Administrator publishes 

an updated AEWR that is higher than 

the previous AEWR, a prevailing wage 

for the crop activity or agricultural 

activity or task(s) and geographic area, 

the agreed-upon collective bargaining 

wage, the Federal minimum wage, or 

the State minimum wage, the employer 

must start paying the higher wage on the 

effective date of the new rate. In the 

Federal Register notice publishing the 

updated AEWRs, the OFLC 

Administrator identifies the effective 

date of the new AEWRs. Proposed 

§ 655.120(b)(3) was intended to more 

clearly articulate the timing of the wage 

adjustment by codifying the current 

practice of providing employers a short 

period of time (i.e., up to 14 days) to 

update their payroll systems, such that 

an employer would not be required to 

adjust a worker’s pay in the middle of 

a pay period, but would be required to 

promptly implement the 

adjustment.40 See 84 FR 36168, 36188. 

Although the January 2021 draft final 

rule would have accepted the proposal 

to codify an adjustment period of up to 

14 calendar days after the Department’s 

publication of updated AEWRs in the 

Federal Register, after further 

consideration of the comments and as 

explained below, the Department has 

decided not to adopt this proposal, but 

it otherwise adopts the proposed 

language from the NPRM with minor 

conforming changes. 

The Department received comments 

from associations, farm bureaus, 

employers, agents, individual 

commenters, an agricultural financial 

services business, and a national 

business advocacy organization 

opposing the requirement that 

employers must increase the wage rate 

during the employment period if the 

Department publishes a higher rate. 

Many of these commenters expressed 

concern this provision would make it 

more difficult for employers to conduct 

advance operational and budget 

planning because, at the time of filing, 

they would lack knowledge of the 

required wage rate(s) throughout the 

entire period of employment. An 

association asserted the wage rate 

required in the work contract should 

prevail throughout the employment 

period because ‘‘the determination of no 

adverse impact to domestic workers has 

been satisfied for the contract period’’ 

once the work contract is approved. 

These commenters, however, generally 

supported the Department’s proposal to 

include a period of time for employers 

to adjust to the new wage rate after 

publication, rather than imposing an 

obligation to immediately implement, 

with an employer asserting immediate 

implementation would have been 

‘‘unrealistic at best’’ due to the 

employer’s need to update pay 

structures and a business advocacy 

organization asserting 14 days is 

insufficient. Another commenter urged 

the Department to set a ‘‘date certain’’ 

on which the updated wage rates would 

be effective. 

The wage adjustment provision will 

affect only those employers whose 

OFLC-approved offered wage rate falls 

below the permissible minimum wage 

floor once the Department issues the 

new wage rates. The duty to pay an 

updated AEWR if it is higher than the 

other wage sources is not a new 

requirement, as employers participating 

in the H–2A program historically have 

been required to offer and pay the 

highest of the AEWR, the prevailing 

wage, or the Federal or State minimum 

wage at the time the work is 

performed.41 As explained in the 2010 

H–2A Final Rule, ‘‘[t]he Department 

recognizes that these wage adjustments 

may alter employer budgets for the 

season’’ and, therefore, ‘‘employers are 

encouraged to include into their 

contingency planning certain flexibility 

to account for any possible wage 

adjustments.’’ 2010 H–2A Final Rule, 75 

FR 6884, 6901. This is especially true 

given that employers have been required 

to make these adjustments for many 

years and neither program experience 

nor comments on the NPRM 

demonstrated that a longer adjustment 

period would be necessary to avoid 

significant operational burdens on 

employers or the layoffs and crop 

deterioration cited by some 

commenters. For similar reasons, the 

Department believes concerns about 

significant mid-contract increases in the 

AEWR are overstated. 

A SWA urged the Department to 

require immediate implementation of 

increased wage rates, asserting that a 

delay of up to 14 days would deprive 

workers of up to 2 weeks of pay at the 

AEWR and, therefore, would produce 

the type of adverse effect the 

Department is required to prevent. This 

commenter believed that if the 

Department permitted a 14-day 

adjustment period, it should require the 

employer to ‘‘pay any increases 

retroactively, perhaps in the pay period 

after the new wage rate becomes 

effective,’’ which the commenter stated 

was consistent with the Department’s 

FLSA regulations at 29 CFR 778.303. 

The Department is sensitive both to the 

worker protection concerns the SWA 

raised and to adopting an approach that 

could add complexity, which is 

inconsistent with the Department’s 

goals in this rulemaking to enhance 

worker protections while simplifying 

the program to facilitate compliance and 

administration. 

Therefore, in this final rule, the 

Department has not adopted the 

proposal that would have codified an 

adjustment period of up to 14 calendar 

days after the Department’s 

announcement of the new AEWRs in the 

Federal Register; instead, the 

Department will continue current 

practice of stating the effective date of 

the new AEWRs in the Federal Register 

announcement of the new AEWRs, 

which may be immediate and will not 

be more than 14 calendar days after 

publication of that notice, consistent 

with historical and current practice. In 

addition, the Department has made a 

minor revision to align with language 

regarding prevailing wages at 

§ 655.120(c). As discussed further in the 

preamble to § 655.120(c)(1)(iii), the 

revised language at § 655.120(b)(3) 

recognizes that there may be a 

prevailing wage for a distinct work task 

or tasks within a crop or agricultural 


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activity in certain situations. 

Additionally, the Department has made 

a minor revision to clarify that if an 

updated AEWR is higher than the other 

wage sources, the employer must pay at 

least the updated AEWR, but may 

choose to offer and pay a higher rate. 

ii. Must Not Lower Wage Rate After 

Publication of a Lower AEWR 

In § 655.120(b)(4), the Department 

proposed to prohibit employers from 

lowering the wage rate during the 

certified employment period in the 

event the OFLC Administrator publishes 

an updated AEWR that is lower than the 

rate guaranteed on the job order. In 

order to avoid potential confusion 

regarding the requirement to continue to 

pay the previously offered wage if a 

lower rate is published during the 

employment period, the Department 

also proposed to remove language in 

§§ 655.120(b) and 655.122(l) regarding 

the wage rate ‘‘in effect at the time work 

is performed.’’ This approach ensures 

the wage rate does not fall below the 

rate that was offered to workers and 

agreed to in the work contract and 

prevents employers from including a 

clause in the job order to allow such a 

reduction within contract terms. As 

discussed below, this final rule adopts 

the proposed language from the NPRM 

unchanged. 

Employer, association, agent, and 

business advocacy group commenters 

opposed the Department’s proposal to 

prohibit employers from reducing the 

wage rate during the employment 

period, in the event the AEWR 

decreases. Several commenters, 

including associations, believed the 

proposal would unfairly undermine 

mutually agreed-upon contract terms. 

Some of these commenters asserted that 

the Department’s proposal infringed 

upon the employers’ and workers’ 

contract rights by permitting the 

Department to ‘‘void’’ or ‘‘abrogate’’ the 

wage rate offered and agreed to in the 

employment contract and prohibiting 

the employer from including wage 

reduction clauses in the contract. An 

agent asserted the prohibition against 

wage reductions mid-contract would 

disadvantage employers with start dates 

before an AEWR adjustment because 

they would be required to pay a higher 

rate throughout the period of 

employment, while an employer with a 

start date after the new AEWR rates are 

published could pay the lower rate. Two 

employers and a trade association stated 

that the employer should be permitted 

to pay a lower AEWR if one is published 

because the AEWR is the ‘‘exact wage’’ 

necessary to protect U.S. workers, and 

the commenters asserted ‘‘there is no 

valid basis to require payment of a 

higher wage when that wage is no 

longer determined to be the AEWR.’’ 

With respect to commenters’ concern 

that these provisions infringe on 

employers’ and workers’ freedom to 

contract, H–2A employers are free to 

include any terms and conditions in 

employment contracts that comply with 

all laws and regulations governing the 

H–2A program and employment 

generally. However, the Department 

holds the view that agricultural workers 

‘‘generally comprise an especially 

vulnerable population whose low 

educational attainment, . . . low rates 

of unionization and high rates of 

unemployment leave them with few 

alternatives in the non-farm labor 

market,’’ and, as a result, these workers’ 

‘‘ability to negotiate wages and working 

conditions with farm operators or 

agriculture service employers is quite 

limited’’ (2009 H–2A NPRM, 74 FR 

45906, 45911 (Sept. 4, 2009)), and this 

‘‘limited bargaining power . . . 

exacerbates the problem of stagnating 

[wages]’’ (2010 H–2A Final Rule, 75 FR 

6884, 6894). Prohibiting contract terms 

that would lower wages paid below the 

offered and agreed-to rates aligns with 

these concerns and is consistent with 

the Department’s broad discretion to 

determine the most effective method of 

ensuring the employment of H–2A 

workers does not have an adverse effect 

on the wages of workers in the United 

States similarly employed. 

The Department believes that 

prohibiting downward adjustments of 

wage rates during the period of certified 

employment is necessary to provide 

stability and predictability for workers 

who have limited ability to negotiate 

their wages and working conditions. 

Accordingly, this will help protect 

against potential adverse effects on the 

workers’ wages and working conditions, 

without increasing the employer’s wage 

costs above those in effect at the time of 

certification. 

After consideration of the comments, 

the Department is adopting the proposal 

to prohibit the employer from reducing 

the offered wage, even in cases where 

the Department publishes a lower 

AEWR. Because the employer 

advertised and offered the higher rate on 

its job order, the employer cannot 

reduce the wage rate below the rate 

already guaranteed in the work contract. 

The Department has made a minor 

revision to clarify that if an updated 

AEWR is lower than the rate guaranteed 

on the job order, the employer must pay 

at least the rate guaranteed on the job 

order, but may choose to offer and pay 

a higher rate. 

c. Section 655.120(c) Prevailing Wage 

Determinations 

i. Background 

The Department proposed to 

modernize the methodology used to 

conduct prevailing wage surveys that 

applies to both H–2A and other 

agricultural job orders placed in the 

Wagner-Peyser Act agricultural 

recruitment system. The Department 

previously relied on ETA Handbook 

385, which was last updated in 1981, 

and other sub-regulatory guidance to set 

the standards that govern the prevailing 

wage surveys SWAs conduct to 

establish prevailing wage rates. The 

NPRM proposed to modernize these 

standards in order to establish reliable 

prevailing wage rates for employers and 

workers, and allow SWAs and other 

State agencies to conduct surveys using 

standards that are more realistic in a 

modern budget environment. Under the 

proposed methodology, the OFLC 

Administrator would issue a prevailing 

wage for a given crop activity or 

agricultural activity only if all of the 

requirements in proposed 

§ 655.120(c)(1) are met. 

In particular, the NPRM proposed the 

following methodological standards: (1) 

the SWA must submit a standardized 

form providing the methodology of the 

survey; (2) the survey must be 

independently conducted by the SWA 

or another State entity; (3) the survey 

must cover a distinct work task or tasks 

performed in a single crop activity or 

agricultural activity; (4) the surveyor 

must make a reasonable, good faith 

effort to contact all employers who 

employ workers in the crop or 

agricultural activity within the 

geographic area surveyed or conduct a 

randomized sampling of such 

employers; (5) the survey must be 

limited to the wages of U.S. workers, 

report an average wage, and be based on 

a single unit of pay used to compensate 

at least 50 percent of the U.S. workers 

included in the survey; (6) the survey 

must cover an appropriate geographic 

area based on several factors; and (7) the 

survey must report the wages of at least 

30 U.S. workers and five employers and 

the wages paid by a single employer 

must represent no more than 25 percent 

of the sampled wages included in the 

survey. 

SWAs that seek to prioritize precision 

of their estimates for the purpose of 

statistical validity for numerically large 

categories of workers may wish to 

consider employing statistical sampling 

methods that exceed the minimum 

standards contained in this final rule, 

such as those used by the National 

Agricultural Statistical Service in the 


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42This detailed information on the statistical 

methodology of the Farm Labor Survey (FLS) is 

publicly available by searching reginfo.gov for 

Information Collection Requests (ICRs) with the key 

words ‘‘agricultural labor survey,’’ opening the most 

recent ‘‘Agricultural Labor’’ ICR package, then 

selecting ‘‘View Supporting Statement and Other 

Documents’’ and opening the Supporting Statement 

B (SSB) document. 

43See Zirkle Fruit Co. v. U.S. Dep’t of Labor, et 

al., 442 F. Supp. 3d 1366, 1383 (E.D. Wash. 2020) 

(‘‘Agency action is not arbitrary or capricious 

simply because it is imperfect. Nor are agencies 

required to delay or forego their delegated duties 

simply because they lack a perfect dataset from 

which to undertake them.’’). 

44Zirkle Fruit Co., 442 F.Supp.3d at 1383; Order 

Dismissing Case, Evans Fruit Co., et al. v. U.S. Dep’t 

of Labor, et al., No. 19–cv–3202 (E.D. Wash. Nov. 

7, 2019); see also Order Denying Plaintiffs’ Motion 

for Preliminary Injunction, Evans Fruit Co., Inc. v. 

U.S. Dep’t of Labor, et al., No. 19–cv–3202 (E.D. 

Wash. Oct. 11, 2019) (agency’s actions are not 

arbitrary simply because they rely on ‘‘imperfect 

data or used an imperfect approach’’). 

Agricultural Labor Survey.42 However, 

as explained below, the Department is 

not requiring enhanced sampling 

methods. 

In addition to these standards, the 

NPRM proposed to establish (1) a 1-year 

validity period for prevailing wage rates; 

(2) a 14-day window in which 

employers must implement newly 

required higher prevailing wage rates; 

and (3) the requirement that employers 

continue to pay at least the rate 

guaranteed on the job order if a 

prevailing wage rate is adjusted during 

a work contract. The Department 

received comments both in support of 

and in opposition to these proposals, 

which are discussed in greater detail 

below. These comments raised a variety 

of concerns, some general and some 

pertaining to specific provisions 

identified in the NPRM. The 

Department will first respond to the 

general comments before turning to the 

proposals in § 655.120(c) and the 

specific comments related to these 

proposals. As discussed below, the 

Department is adopting paragraphs 

(c)(1)(ii) and (vi) unchanged from the 

NPRM and is adopting paragraphs (c)(1) 

introductory text and (c)(1)(i), (iii) 

through (v), and (vii) through (ix) with 

some changes. 

ii. General Comments on Prevailing 

Wage Determinations 

The Department received general 

comments regarding the need for PWDs. 

Several commenters including 

employers and trade associations 

encouraged the Department to remove 

PWDs from the H–2A regulations 

entirely. Commenters explained 

agricultural wages involved too many 

factors, which prevent the government 

from establishing an accurate wage rate 

that is generally applicable and protects 

the domestic workforce from adverse 

effect. As an example of this 

‘‘inaccuracy,’’ a few commenters 

observed that employers who respond to 

the survey in some regions or States pay 

higher rates to compete with employers 

who use the H–2A program in those 

areas. According to the commenters, the 

inclusion of these higher rates distorts 

survey results. 

To the extent these comments 

recommend eliminating prevailing 

wages as a wage source under 

§ 655.120(a), they are outside the scope 

of this rulemaking. With respect to 

comments on setting accurate wages 

when different factors affect agricultural 

workers’ pay, the Department 

acknowledges it cannot delay or forgo 

its delegated duties because the 

available data may be less than 

perfect.43 The Department disagrees 

with the commenters’ suggestion that 

the inclusion of responses from 

employers paying higher rates to 

compete with H–2A employers 

necessarily distorts survey results. The 

commenters did not provide evidence 

that the inclusion of such rates 

‘‘distorts’’ survey findings or offer 

examples of survey inaccuracies, 

beyond mentioning surveys challenged 

in two cases that have since been 

dismissed in favor of the Department 

and SWA.44 Moreover, the prevailing 

wage rate is intended to reflect the 

average wage of U.S. workers in a 

geographic area for a crop or agricultural 

activity and, if applicable, distinct work 

task(s) within that activity. If employers 

are paying a certain average rate and the 

Department validates such a finding, 

then that is the prevailing wage 

employers must pay to applicable 

workers when it is the highest of 

available wages sources in § 655.120(a). 

iii. General Comments on the Prevailing 

Wage Survey Methodology 

Several SWAs, employers, agents, and 

trade associations supported 

modernizing the prevailing wage 

methodology and revising the 

regulations to provide concrete 

guidance and criteria. A SWA as well as 

some employers and trade associations 

believed the proposed standards were 

not rigorous enough to produce accurate 

PWDs. In contrast, workers’ rights 

advocacy organizations claimed the 

standards were too rigorous and would 

result in too few PWDs. Similarly, two 

U.S. Senators asserted the proposed 

methodology ‘‘is overly complex’’ and 

raises concerns, including ‘‘whether 

SWAs will be adequately equipped to 

undertake the wage surveys.’’ The 

Senators did not provide additional 

explanation on why they believed the 

proposal was too complex. Some 

associations expressed concern there 

was no ‘‘third party . . . peer review’’ 

to show the standards would result in 

accurate prevailing wages. One 

association stated, without additional 

explanation, that changes to the survey 

methodology should only be attempted 

in a stand-alone rule, if at all. The 

Department appreciates and values the 

commenters’ general input on the 

prevailing wage survey methodology 

proposed in the NPRM. Because of the 

general nature of these comments, the 

Department is unable to address them in 

further detail. Beyond these general 

comments, the Department received 

comments on the specific proposals in 

§ 655.120(c), which are addressed in the 

sections that follow. 

iv. Section 655.120(c)(1) Introductory 

Text and (c)(1)(i) 

The Department proposed in 

§ 655.120(c)(1) that the OFLC 

Administrator will issue a prevailing 

wage for a crop activity or agricultural 

activity if all of the requirements in 

§ 655.120(c)(1)(i) through (ix) are met. 

The Department did not receive 

comments on this specific proposal, and 

therefore adopts the language in the 

NPRM with a minor revision to account 

for a prevailing wage for ‘‘a distinct 

work task or tasks performed’’ within a 

crop or agricultural activity, if 

applicable. As discussed further in the 

preamble to § 655.120(c)(1)(iii), the 

revised language recognizes there may 

be a prevailing wage for a distinct work 

task or tasks within a crop or 

agricultural activity in certain 

situations, and conforms to similar 

changes made to portions of § 655.120(c) 

in this final rule. 

In § 655.120(c)(1)(i), the Department 

proposed to maintain the current 

requirement that the SWA submit a 

Form ETA–232 to explain the 

methodology used to conduct the 

prevailing wage survey. An employer 

and trade association supported the 

proposal, while several workers’ rights 

advocacy organizations expressed 

concern that the Department would only 

require consideration of a prevailing 

wage rate if it is approved by the 

Department, and OFLC in particular, 

because this could lead to the potential 

rejection of a prevailing wage survey 

finding submitted by a SWA. 

Commenters, including two other trade 

associations, added that the Department 

should sanction SWAs that submit 

noncompliant or invalid surveys. 

After considering the comments 

received in response to 

§ 655.120(c)(1)(i), the Department has 


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45The Department has updated Form ETA–232 to 

align with the prevailing wage methodology in this 

final rule. 

46OEWS collects wage data from all 50 States as 

well as the District of Columbia (DC), Puerto Rico, 

Guam, and the Virgin Islands. See Bureau of Labor 

Statistics (BLS), Occupational Employment and 

Wage Statistics Overview, https://www.bls.gov/oes/ 

oes_emp.htm (last modified Mar. 31, 2021) (‘‘The 

OEWS survey is a federal-state cooperative program 

between [BLS] and [SWAs]. BLS provides the 

procedures and technical support, draws the 

sample, and produces the survey materials, while 

the SWAs collect the data. SWAs from all [50 

States], plus [DC], Puerto Rico, Guam, and the 

Virgin Islands participate in the survey. 

Occupational employment and wage rate estimates 

at the national level are produced by BLS using data 

from the [50 States] and [DC].’’). 

47See also e.g., 84 FR 36168, 36179 

(‘‘Accordingly, the Department proposes to make 

the changes discussed below to modernize the 

prevailing wage methodology and empower States 

to produce a greater number of reliable prevailing 

wage surveys results.’’); 84 FR 36168, 36263 

(prevailing wage defined as a wage rate established, 

inter alia, ‘‘based on a survey conducted by a state 

that meets the requirements in § 655.120(c)’’); 84 FR 

36168, 36176 (proposing a corresponding change to 

the Wagner-Peyser Act regulation at 20 CFR 

653.501(c)(2)(i) to define ‘‘prevailing wage’’ in the 

same manner for the agricultural recruitment 

system as the Department proposes to define 

‘‘prevailing wage’’ for the H–2A program). 

decided to retain the NPRM language 

with the same minor revision related to 

distinct work task(s) discussed above.45

The Department has reviewed and 

approved SWA prevailing wage findings 

for decades and paragraph (c)(1)(i) 

reflects a continuation of this 

longstanding review and approval 

process, not a new requirement. See, 

e.g., 1987 H–2A IFR, 52 FR 20496, 

20521; ETA Handbook 385 at I–135. The 

Department disagrees that a sanction is 

needed, especially when the 

Department has and will continue to 

review prevailing wage findings 

submitted by SWAs to ensure they 

satisfy the Department’s methodological 

requirements. 

v. Section 655.120(c)(1)(ii) 

The Department proposed to allow 

State entities other than the SWA, 

including a State agency, State college, 

or State university, to independently 

conduct prevailing wage surveys. This 

proposal sought to encourage more 

surveys conducted by reliable sources, 

independent of employer or worker 

influence. As the NPRM explained, 

SWAs have limited capacity to conduct 

surveys given other legal requirements, 

including the statutory requirement to 

conduct housing inspections. Other 

State entities, however, may have 

resources and expertise to conduct 

prevailing wage surveys for purposes of 

the H–2A program. Under the proposal, 

a State entity other than the SWA could 

choose to conduct a prevailing wage 

survey using State resources without 

any foreign labor certification program 

funding. Alternatively, the SWA could 

elect to wholly or partially fund a 

survey conducted by another State 

entity using funds provided by the 

Department for foreign labor 

certification programs. 

The Department proposed to continue 

to require the SWA to submit the Form 

ETA–232 for any prevailing wage 

survey, even if the survey was 

conducted by another State entity. This 

process is designed to ensure the 

Department will not adjudicate 

conflicting surveys in the event the 

SWA identifies more than one State 

prevailing wage survey that might be 

used for purposes of the H–2A program. 

The NPRM solicited comments on 

alternate methods to address concerns 

with possible conflicting surveys, and 

whether there are additional neutral 

sources of prevailing wage information 

that the Department should use in the 

H–2A program to further its effort to 

modernize State-conducted prevailing 

wage surveys. The Department received 

several comments on this proposal. 

Following full consideration of these 

comments, the Department has decided 

to retain the proposal in this final rule 

without change. The Department’s 

responses to these comments are 

provided below. 

Use of Alternative Data Sources 

A workers’ rights advocacy 

organization recommended the 

Department permit SWAs to determine 

prevailing wages based on information 

like employers’ job service listings for 

similar positions and information in a 

State unemployment insurance (UI) 

database. The commenter explained that 

a ‘‘wage survey is merely one of the 

ways’’ to determine a prevailing wage 

and ‘‘SWAs have a variety of real time 

data available to them that is provided 

by employers.’’ The commenter added 

that job service staff funded by Migrant 

and Seasonal Farmworker funds are 

‘‘uniquely qualified’’ to assess if an 

hourly or piece rate wage is consistent 

with the prevailing practice in their 

region. The commenter also urged the 

Department to use the local wage from 

the Occupational Employment and 

Wage Statistics (OEWS) survey,46

formerly the Occupational Employment 

Statistics survey prior to March 31, 

2021, to establish prevailing wages for 

crop activities paid on an hourly basis 

when the SWA does not produce a 

prevailing wage finding or if the 

Department determines the finding 

submitted does not satisfy 

methodological requirements. 

The Department appreciates the 

suggestions from the commenter. The 

Department agrees that SWAs and other 

State entities may draw on UI data, job 

service listings, and other sources of 

State-generated information to formulate 

prevailing wage surveys. For example, 

SWAs may use information in their 

State’s UI database as one source to help 

identify the general universe of 

employers to contact, so long as there is 

a 20 CFR part 603 compliant agreement 

for the transfer of the data. SWAs may 

also refer to job orders and similar 

information to help identify the pay 

structures for certain crop or 

agricultural activities to determine if 

there are distinct work task(s) within 

those activities before conducting a 

survey. As explained in the NPRM, 

prevailing wage surveys are specific to 

crop and agricultural activities and 

distinct tasks performed within these 

activities in particular geographic areas, 

as determined by SWAs. 84 FR 36168, 

36185–36187. The Department has 

relied on SWAs to determine prevailing 

wages in the H–2A program for decades 

because they are uniquely positioned to 

determine the crops and activities to be 

surveyed, the ideal times to conduct 

surveys for various seasonal activities, 

the universe of employers to be 

surveyed, and the areas in which 

employers operate, based on their 

knowledge of prevailing local practices 

and conditions, differing pay structures 

for specific activities and crops, and the 

movement of migratory farm labor 

within the State. Based on this 

knowledge of local conditions, SWAs 

and other State entities can draw on 

alternative sources of information as 

they craft prevailing wage surveys in 

accordance with the methodological 

requirements in this rule. 

To the extent the commenter is 

suggesting that sources such as 

employers’ job service listings or 

information in a State UI database be 

used to solely determine prevailing 

wages, the Department is not able to 

adopt this suggestion in this 

rulemaking. Although these may be 

neutral sources of wage information, 

these sources are not surveys or data 

collections designed to facilitate 

identification of wages paid to workers 

engaged in a particular activity in a 

particular geographic area. As noted in 

the NPRM, the Department proposed to 

‘‘modernize the methodology used by 

the SWAs to conduct prevailing wage 

surveys’’ and ‘‘allow the SWAs and 

other State agencies to conduct surveys 

using standards that are more realistic.’’ 

84 FR 36168, 36178, 36179.47 The use 

of these alternative data sources in lieu 

of a State-conducted survey of wages in 


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48See 2015 H–2B Final Rule, 80 FR 24146, 

24165–24171 (Apr. 29, 2015) (discussing at length 

the reasons the Department does not permit general 

use of employer-provided private wage surveys); 

§ 655.10(f); see also Comite de Apoyo a los 

Trabajadores Agricolas (CATA) v. Perez, 774 F.3d 

173, 191 (3d Cir. 2014) (directing ‘‘that private 

surveys no longer be used in determining the mean 

rate of wage for occupations except where an 

otherwise applicable [OEWS] survey does not 

provide any data for an occupation in a specific 

geographical location, or where the [OEWS] survey 

does not accurately represent the relevant job 

classification’’). 

49See, e.g., Consolidated Appropriations Act, 

2021, Public Law 116–260, div. H, tit. 1, sec. 110 

(2020); Consolidated Appropriations Act, 2020, 

Public Law 116–94, div. A, tit. I, sec. 110 (2019); 

Consolidated Appropriations Act, 2016, Public Law 

114–113, div. H, tit. I, sec. 112 (2015); see also 

Effects of the 2016 Department of Labor 

Appropriations Act (Dec. 29, 2015) at p. 4, https:// 

www.foreignlaborcert.doleta.gov/pdf/H-2B_

Prevailing_Wage_FAQs_DOL_Appropriations_

Act.pdf. 

50H–2B employers must obtain a PWD from the 

National Prevailing Wage Center (NPWC) before 

filing an H–2B application with the NPC. The 

NPWC engages in a case-by-case analysis of the 

employer’s job opportunity and several wage 

sources. 

51 During application review, the NPC compares 

the prevailing wage for the crop or agricultural 

activity and area, if available, to the other 

applicable wage sources (i.e., AEWR; CBA; and 

Federal and State minimum wages) to determine 

the highest wage. 

a crop or agricultural activity and 

geographic area to determine prevailing 

wages would require further 

consideration, in part, regarding the 

appropriate criteria such data sources 

must meet to produce prevailing wages 

in the H–2A program. Such a change to 

the proposal—adding both a method of 

determining prevailing wages other than 

State-conducted surveys of employers as 

well as the criteria for the SWA to use 

in evaluating and using non-survey data 

sources to determine prevailing wages— 

cannot be adopted without further 

consideration, including notice-andcomment rulemaking. 

Similarly, the Department did not 

propose to rely on an alternative nonState survey, such as the OEWS survey, 

in the event a SWA or other State entity 

conducts a survey but the survey does 

not yield a PWD. Rather, the 

Department proposed using the OEWS 

survey to establish the AEWR in certain 

circumstances. 84 FR 36168, 36183– 

36184. Moreover, the NPRM explained 

that the Department meets its obligation 

to protect against adverse effect on the 

wages of workers in the United States 

similarly employed primarily by 

requiring employers to offer, advertise, 

and pay the AEWR, which is a form of 

prevailing wage and under the current 

wage methodology is the required wage 

rate in approximately 95 percent of H– 

2A applications. Id. at 36179. The 

NPRM therefore clarified that the 

Department is not obligated to establish 

a prevailing wage separate from the 

AEWR for every occupation and 

agricultural activity in every State. Id. 

Instead, the Department proposed to 

modernize the methodology used by the 

SWAs to conduct prevailing wage 

surveys to serve as an additional wage 

protection for workers in specific crops 

and activities. Id. Adopting the 

suggestion to use the OEWS survey 

when there is no PWD from a Stateconducted survey would be a change 

that commenters and stakeholders 

generally could not have anticipated as 

an outcome of the rulemaking, thus 

warranting additional public notice and 

opportunity for comment. 

Finally, to the extent the commenter 

is referring to SWA staff funded by 

Wagner-Peyser Act funds when it refers 

to ‘‘job service staff funded by Migrant 

and Seasonal Farmworker funds,’’ the 

Department agrees that SWAs are 

‘‘uniquely’’ positioned to assess 

differing pay structures based on their 

knowledge of prevailing local practices 

and conditions, as discussed above. 

Private and Other Third-Party Surveys 

An individual commenter mistakenly 

believed the Department proposed to 

eliminate employer-provided prevailing 

wage surveys, but there are no such 

surveys under the H–2A program and, 

as such, the NPRM did not propose their 

elimination. Several trade associations, 

agents, and a public policy organization 

asked the Department to permit the use 

of wage surveys conducted by other 

third parties, including employerprovided surveys. One of these 

commenters explained statistically valid 

employer-provided surveys would save 

Federal resources and allow for ‘‘more 

accurate’’ surveys tailored to particular 

areas and occupations. The commenter 

stated it was irrational for the 

Department to permit such surveys in 

the H–2B program, but not the H–2A 

program. 

The Department declines to adopt the 

request to allow private or employerprovided surveys. As a preliminary 

matter, the Department notes that the 

comment mischaracterizes the 

Department’s position on the use of 

employer-provided surveys in the H–2B 

program. The 2015 H–2B Final Rule 

permits employer-provided surveys 

only in limited circumstances: (1) those 

conducted by a State or State agency, 

State college, or State university; (2) 

those submitted for a geographic area 

where the OEWS does not collect data, 

or in a geographic area where the OEWS 

provides an arithmetic mean only at a 

national level for workers employed in 

the SOC occupation; or (3) where the job 

opportunity is not included in an 

occupational classification of the SOC 

system, or is included within a SOC 

occupation designated as ‘‘all other.’’ 48

Further, only in the latter two scenarios 

(i.e., (2) and (3)) would the Department 

permit an employer to submit a private 

wage survey for consideration. 

Subsequently, Congress required the 

Department to expand the types of 

surveys permitted in the H–2B program 

through Appropriations Act legislation 

first enacted in 2015 and every year 

since.49

Moreover, due to regulatory 

differences between the H–2A and H–2B 

programs, the Department believes it is 

reasonable to exclude employerprovided surveys in the H–2A program 

but allow them in limited circumstances 

in the H–2B program. First, there is no 

AEWR under the H–2B program. 

Instead, the employer must offer a wage 

that is at least equal to the prevailing 

wage or the Federal, State, or local 

minimum wage, whichever is highest. 

Second, the PWD processes in the H–2A 

and H–2B programs are distinct. In the 

H–2B program, the prevailing wage is 

determined on a case-by-case basis, in 

advance of the employer’s application 

filing with the OFLC NPC.50 In contrast, 

prevailing wages under the H–2A 

program are historically determined 

using one method—SWA surveys 

submitted to the OFLC Administrator— 

and are applicable to all H–2A 

applications for the crop or agricultural 

activity in the area surveyed.51 There is 

no mechanism in the H–2A program for 

OFLC to evaluate wage surveys for 

specific job opportunities or from 

sources other than the SWA. Instead, 

the SWA must submit prevailing wage 

survey results to OFLC on the Form 

ETA–232. This final rule continues this 

requirement, even if the survey 

submitted with the SWA’s Form ETA– 

232 was conducted by another State 

entity. Finally, given that employers are 

required to pay the highest of the wage 

sources listed in § 655.120(a), it seems 

unlikely that an employer would submit 

an alternate wage survey because the 

wage finding from that survey would 

impact the employer’s wage offer 

requirement only if it is the highest 

among the sources in § 655.120(a). 

Surveys Conducted by Non-SWA State 

Entities 

An employer asserted that only State 

agriculture agencies should conduct 

surveys because SWAs and others lack 

industry expertise. A trade association 

opposed allowing SWAs to use surveys 

conducted by other State entities 

because this could create uncertainty 


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52See ETA Handbook 385 at I–113 (‘‘Some crop 

activities involve a number of separate and distinct 

operations.’’) (emphasis added). 

and may produce wages that ‘‘fluctuate 

wildly.’’ A public policy organization 

stated the NPRM does not offer a 

methodology to resolve conflicting 

surveys or address whether State 

universities may accept money from 

grower associations to conduct 

prevailing wage surveys. In contrast, a 

commenter from academia and another 

association supported the proposal in 

the NPRM, with the association noting 

that surveys conducted by non-SWA 

State entities would ‘‘alleviate 

concerns’’ over the reliability of OEWS 

data for agricultural occupations and 

provide a ‘‘reasonable alternative’’ to the 

FLS. 

The Department declines to adopt the 

suggestion to limit surveys to State 

agriculture agencies or SWAs. The 

Department seeks to increase, rather 

than limit, the number of State entities 

that can conduct surveys in order to 

encourage more prevailing wage 

findings. The commenters’ suggestion 

would conflict with this goal. Moreover, 

the Department is retaining the SWA as 

the entry point for other State entity 

surveys in order to leverage the SWA’s 

expertise in the selection of surveys to 

submit for OFLC approval. In response 

to the comment that the NPRM did not 

offer a ‘‘methodology’’ to resolve 

conflicting surveys, this final rule 

clarifies that the SWA will evaluate 

conflicting State surveys and submit to 

the Department only one survey for a 

crop or agricultural activity and distinct 

work task(s) in that activity, if 

applicable, for a particular area. 

With regard to the comment on 

whether State universities could accept 

money from grower associations to 

conduct a survey, the Department 

understands this comment to be 

concerned with the impartiality of Stateconducted surveys. As noted in the 

2015 H–2B Final Rule, the Department 

has a long history of partnering with 

States to collect wage data and 

determine prevailing wage rates. See 80 

FR 24146, 24170. The Department 

accepts surveys conducted by State 

entities, such as State agriculture 

agencies and universities, because these 

sources are considered reliable and 

independent of employer influence. Id. 

The requirement that the State must 

independently conduct the survey 

means that the State must design and 

implement the survey without regard to 

the interest of any employer in the 

outcome of the wage reported from the 

survey. Id. In addition, the Department 

does not believe wages will vary 

significantly depending on the State 

entity that conducts the survey. This is 

because entities will be held to the same 

methodological standards, and OFLC 

will review prevailing wage findings 

prior to the issuance of any prevailing 

wage rate to ensure the survey meets 

methodological requirements. 

vi. Section 655.120(c)(1)(iii) 

The Department proposed that a 

prevailing wage survey must cover a 

distinct work task or tasks performed in 

a single crop activity or agricultural 

activity. The Department explained the 

concept of distinct work tasks is 

continued from ETA Handbook 385, 

which provides: 

Some crop activities involve a number of 

separate and distinct operations. Thus, in 

harvesting tomatoes, some workers pick the 

tomatoes and place them in containers while 

others load the containers into trucks or 

other conveyances. Separate wage rates are 

usually paid for individual operations or 

combinations of operations. For the purposes 

of this report, each operation or job related 

to a specific crop activity for which a 

separate wage rate is paid should be 

identified and listed separately. 

ETA Handbook 385 at I–113 

(emphasis in original). The NPRM stated 

‘‘[t]he distinct task requirement means 

that even within a single crop, distinct 

work tasks that are compensated 

differently (e.g., picking and packing) 

would be required to be surveyed in a 

manner that produces separate wage 

results.’’ 84 FR 36168, 36186. 

The Department received several 

comments on this proposal. Some trade 

associations asked the Department to 

clarify what constitutes a distinct work 

task within a crop or agricultural 

activity so employers can provide more 

accurate and reliable wage data. A 

workers’ rights advocacy organization 

stated that it would be difficult for 

SWAs to determine which activities are 

paid differently until after the survey is 

complete. One trade association 

opposed the determination of wage rates 

by tasks because it believed doing so 

could negatively affect smaller 

operations and expose employers to 

liability. 

After careful consideration of the 

comments, the Department has decided 

to retain the proposal in this final rule 

with clarification in this section of the 

preamble and a minor change to the 

regulatory text. In particular, the 

Department clarifies that if the SWA or 

surveyor knows before the 

administration of a survey that separate 

wage rates are paid to a distinct work 

task or tasks within a crop or 

agricultural activity, then the survey 

must be designed to capture that unique 

task(s) and wage rate(s). This knowledge 

could come from different sources, 

including prior experience or 

stakeholder engagement during the 

survey development phase. 

The Department also clarifies that a 

SWA or surveyor may determine that a 

task or tasks within a crop or 

agricultural activity is paid differently 

during or after the survey 

administration period. For example, a 

survey form could ask employers to list 

the crop activity—including distinct 

work task(s) within each activity— 

associated with each unique wage rate. 

The survey could also provide a space 

for employers to furnish additional 

information on factors that may affect 

wage rates. Depending on the responses 

from employers (if any), the SWA or 

surveyor may determine there are 

distinct work task(s) within an activity 

and that it therefore must calculate a 

separate wage rate for this task or tasks. 

The Department’s above clarifications 

allow SWAs to retain discretion over 

which crop and agricultural activities to 

survey and the methods for collecting 

data from employers—as is the case 

under current standard practice—while 

fulfilling the requirements of this 

provision. Finally, consistent with 

current practice and language in the 

Handbook, the Department has revised 

the regulatory text for this provision to 

clarify that the survey must cover work 

performed in a single crop or 

agricultural activity and, if applicable, a 

distinct work task(s) performed in that 

activity. This change recognizes that not 

every crop activity or agricultural 

activity will have a distinct work task or 

tasks and thus not every survey will 

cover such task or tasks.52

In response to the trade associations’ 

request for clarification, the concept of 

distinct work tasks is not new, but 

rather a continuation from ETA 

Handbook 385. As noted in the 

Handbook, the hallmark of a distinct 

work task performed in a crop or 

agricultural activity is a separate wage 

rate that is paid for that operation or job. 

Given the factors that may affect wage 

rates, the Department is unable to 

provide an exhaustive list of tasks for all 

crop or agricultural activities in all 

geographic areas. Instead, what 

constitutes a distinct work task must be 

determined in each case, depending on 

the information before the SWA or other 

State surveyor. 

The Department acknowledges the 

workers’ rights advocacy organization’s 

comment that SWAs may not know if 

activities are paid differently until after 

the completion of a survey. As clarified 

above, a SWA or surveyor may 


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53See, e.g., 2015 H–2B Final Rule, 80 FR 24146, 

24173 (‘‘Proper randomization requires the surveyor 

to determine the appropriate ‘universe’ of 

employers to be surveyed before beginning the 

survey and to select randomly a sufficient number 

of employers to survey to meet the minimum 

criteria on the number of employers and workers 

who must be sampled.’’). 

54As noted further below, the sample size 

requirements in this final rule are consistent with 

or exceed the OEWS survey requirements as well 

as the ‘‘safety zone’’ standards used by the DOJ and 

Federal Trade Commission (FTC) in the anti-trust 

context. 

determine a distinct work task or tasks 

performed within a crop or agricultural 

activity is paid differently during or 

after the survey administration period. 

The Department believes this 

clarification addresses the workers’ 

rights advocacy organization’s comment 

and notes SWA commenters did not 

express concern that determining the 

distinct work tasks to be covered by a 

survey has been challenging under the 

Handbook or will be challenging under 

the similar provision proposed in the 

NPRM. Finally, the trade association did 

not explain how the proposal would 

adversely affect smaller operations, 

though it claimed that smaller 

operations rely on fewer workers to 

perform a more diverse array of tasks. 

As explained above, the concept of a 

distinct work task is a continuation from 

ETA Handbook 385. The Department is 

not aware of instances where employers 

have been exposed to liability related to 

this concept in the decades that 

prevailing wage surveys have been 

conducted using the Handbook and 

related guidance. In addition, because a 

separate wage rate is the hallmark of a 

distinct work task, an applicable 

employer—regardless of size—must pay 

this rate if it is approved by OFLC as the 

prevailing wage and is the highest of the 

applicable wage sources in § 655.120(a). 

vii. Section 655.120(c)(1)(iv) 

The Department proposed that the 

surveyor must make a reasonable, good 

faith effort to contact all employers who 

employ workers in the crop or 

agricultural activity and geographic area 

surveyed or conduct a randomized 

sampling of such employers. The NPRM 

explained this requirement is based on 

general statistical principles and 

consistent with ETA Handbook 385. 84 

FR 36168, 36186 (citing ETA Handbook 

385 at I–114). The NPRM proposed to 

continue the use of a random sample 

and clarified that a random sample or 

survey of the entire population is a 

requirement, not a recommendation. It 

noted this requirement is consistent 

with the H–2B prevailing wage 

regulation at § 655.10 and current H–2B 

prevailing wage guidance interpreting 

the H–2B appropriations riders. The 

Department received two general sets of 

comments on this proposal. Having 

carefully considered these comments, 

the Department has decided to adopt the 

regulatory text proposed in the NPRM, 

with some revisions. 

The first set of comments addressed 

the requirement to contact all employers 

in the area or a random sample of such 

employers. A workers’ rights advocacy 

organization asserted that contacting all 

employers of workers in a particular 

crop or agricultural activity would be 

impossible for States operating with 

limited resources because no ready 

database of this information exists. The 

commenter asked the Department to 

clarify what would constitute a 

‘‘reasonable’’ attempt to contact all 

employers in the universe and stated it 

would be clearer to ask the States to 

perform a random sample of employers 

of which they have knowledge, rather 

than a sample of all ‘‘such employers.’’ 

The commenter also suggested the 

regulations allow States to propose an 

alternative sampling method that aligns 

with the conditions and resources in 

that State. An agent claimed that 

allowing a reasonable, good faith 

attempt to contact all employers to 

substitute for statistically valid 

sampling ‘‘severely limits’’ the validity 

of resulting wages. A trade association 

stated it did not oppose the use of 

random samples if the survey produces 

reliable, statistically valid data and 

wages are not separated by task or 

otherwise discriminates against smaller 

operations. 

The Department agrees with the 

workers’ rights advocacy organization 

that the surveyor may not know the 

universe of all relevant employers at the 

beginning of a survey. This final rule 

therefore clarifies that the surveyor may 

estimate the universe of relevant 

employers and make a reasonable, good 

faith effort to contact these employers 

based on the estimated universe. This 

final rule also clarifies that under the 

random sample option, the surveyor 

must, at a minimum, estimate the 

universe of relevant employers and 

workers and then randomly select a 

sufficient number of employers from the 

estimated universe to contact in order to 

satisfy the minimum employer and 

worker sample size requirements. These 

minimum requirements or ‘‘baseline 

standards’’ are discussed in the 

preamble to § 655.120(c)(1)(vii) through 

(ix). The Department’s interpretation of 

the random sample option is consistent 

with its interpretation of a similar 

requirement for employer-provided 

surveys in the H–2B program.53

The NPRM proposed that a survey 

must include the wages of U.S. workers 

employed by at least five employers, 

among other baseline standards. As 

explained in the preamble discussing 

§ 655.120(c)(1)(vii) through (ix), it is the 

Department’s understanding that some 

crop or agricultural activities and 

distinct work task(s) in a geographic 

region may have a smaller number of 

employers. The Department made 

changes to § 655.120(c)(1)(vii) through 

(ix) so that States may still determine a 

prevailing wage in such a situation. 

Consistent with those changes, the 

Department amends this provision to 

clarify that if the estimated universe of 

employers is fewer than five, the 

surveyor must contact all employers in 

the estimated universe, instead of 

contacting a random sample or making 

a reasonable, good faith attempt to 

contact such employers. This final rule 

adds two clarifying edits: first, to 

replace ‘‘conducted’’ with ‘‘contacted’’ 

in regard to a randomized sample for 

consistency with the language in other 

parts of the provision, namely the 

‘‘contact all relevant employers’’ option, 

and with the purpose of this provision, 

which is to set forth how the surveyor 

should contact employers in the 

estimated universe. Second, this final 

rule amends the regulatory text to 

clarify that the estimated universe is for 

a crop activity or agricultural activity 

and, if applicable, a distinct work task 

or tasks within that activity. This 

clarification recognizes there may be a 

PWD for a distinct work task or tasks 

within a crop activity or agricultural 

activity in certain situations, and is 

consistent with changes to other 

portions of § 655.120(c) in this final 

rule. 

Consistent with SWAs’ current 

practice, the surveyor may estimate the 

universe of relevant employers from 

information obtained from sources such 

as UI databases, open and closed job 

orders, State labor market information, 

and information provided by State 

agricultural extension offices. The 

surveyor has the option to conduct a 

statistically valid sampling or stratified 

random sampling by employer size. 

However, the Department is not 

requiring enhanced sampling methods. 

Though the minimum standards in this 

final rule may not return statistically 

valid results in all cases due to the 

reduced sample size requirements,54 the 

Department believes that the 

requirements in this provision, along 

with other safeguards in § 655.120(c), 

will allow for the increased availability 

of State-specific data and crop/task 

categorical granularity, and are aimed at 

ensuring surveys that are sufficiently 


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55This practice is based on public guidance 

issued by the Department to SWAs that amended 

the guidance in ETA Handbook 385. See, e.g., TEGL 

No. 21–20, Fiscal Year (FY) 2021 Foreign Labor 

Certification Grant Planning Guidance (May 10, 

2021). 

56See id. 

57The NPRM noted that ETA Handbook 385 uses 

the terms ‘‘domestic workers’’ and ‘‘U.S. workers’’ 

in describing the sample to be conducted, and the 

previous version of the Form ETA–232 similarly 

limits the survey to U.S. workers. 84 FR 36168, 

36186 n. 50. 

representative and do not rely on 

selective sampling or other techniques 

that may produce wage estimates that 

are not representative of wages paid to 

workers in the United States similarly 

employed. In addition, these minimum 

standards are intended to provide more 

options for SWAs to make decisions 

about whether to prioritize precision, 

accuracy, granularity, or other quality 

factors in the data they use to inform 

prevailing wages. The Department will 

provide technical assistance to the 

SWAs, as needed. 

In response to the suggestion to allow 

an alternative sampling method, the 

Department concludes that this final 

rule balances the need to provide the 

surveyor with the flexibility to 

determine the type of survey to conduct 

with the need to ensure the results of 

the survey are as reliable as possible. 

The Department does not believe there 

is a reasonable alternative sampling 

method that consistently balances these 

goals, and the commenter did not 

suggest any. 

With regard to requests for 

clarification on what constitutes a 

‘‘reasonable’’ attempt to contact relevant 

employers, the NPRM explained that a 

reasonable, good faith effort might mean 

the surveyor sends the survey through 

the mail or other appropriate means to 

all employers in the geographic area and 

then follows up by telephone with all 

non-respondents. 84 FR 36168, 36186; 

see also 2015 H–2B Final Rule, 80 FR 

24146, 24173. However, a surveyor can 

make a ‘‘reasonable, good faith’’ attempt 

to contact relevant employers in other 

ways and the Department believes an 

assessment of reasonable contact 

methods will be determined most 

effectively on a case-by-case basis, 

depending on the facts before the OFLC 

Administrator. The Department 

disagrees with the agent’s comment that 

allowing a reasonable, good faith 

attempt to contact all employers 

‘‘severely limits’’ the validity of the 

resulting wage. Surveys often are based 

on samples from a population and are 

not ‘‘severely limited’’ merely because 

the surveyor did not contact the entire 

population. Rather, the validity of a 

survey will depend on factors such as 

the number of responses received. As 

mentioned above, the minimum 

standards in § 655.120(c) are aimed at 

ensuring surveys that are sufficiently 

representative and do not rely on 

selecting sampling or other techniques 

that result in biased prevailing wages. 

The second set of comments 

addressed the perceived elimination of 

the in-person interview requirement. 

Specifically, commenters, including two 

trade associations, claimed that inperson interviews of employers and 

employees are needed to obtain and 

verify accurate wage data. A workers’ 

rights advocacy organization stated inperson interviews of workers are likely 

necessary for reforestation and pine 

straw work. In contrast, another 

workers’ rights advocacy organization 

and a commenter from academia agreed 

that in-person interviews are no longer 

practical. 

In response to comments that inperson employer and employee 

interviews are necessary, the 

Department notes, as it explained in the 

NPRM, that in-person interviews are 

unnecessarily burdensome and 

inconsistent with modern survey 

methods. 84 FR 36168, 36179, 36185. 

Neither the FLS nor OEWS survey 

requires in-person interviews of 

employers as the primary collection 

method. Both the FLS and OEWS 

survey, moreover, rely solely on 

employer-reported data and do not 

canvass workers directly. The 

Department’s current standard practice 

for conducting prevailing wage surveys 

does not require SWAs to interview 

employers in person.55 The commenters 

did not explain why telephone, mail, or 

electronic methods of contacting 

employers are insufficient to collect 

verifiably accurate results. The 

Department’s current standard practice 

also does not require SWAs to conduct 

worker interviews.56 Therefore under 

this final rule, SWAs are not obligated 

to conduct in-person interviews of 

employers or worker interviews. 

Finally, because reforestation and pine 

straw workers are not covered in the H– 

2A program under this final rule, the 

workers’ rights advocacy organization’s 

comment that in-person interviews may 

be required for these industries is no 

longer applicable. 

viii. Section 655.120(c)(1)(v) 

The NPRM proposed to limit 

prevailing wage surveys to the wages of 

U.S. workers. It also proposed to require 

the SWA or other State entity to 

determine prevailing wages based on 

the unit of pay used to compensate at 

least 50 percent of the U.S. workers 

included in the survey and that the rate 

of pay must be based on the average 

wage of all the U.S. workers within the 

selected unit of pay. This final rule 

adopts these provisions with changes, 

explained below. 

Limiting the Survey to the Wages of U.S. 

Workers 

Limiting prevailing wage surveys to 

the wages of U.S. workers applies to 

both determining the universe of 

workers’ wages to be sampled and the 

universe of workers’ wages reported. 

The NPRM explained that this 

limitation is consistent with current 

policy 57 and reflects the Department’s 

longstanding concern that including the 

wages of non-U.S. workers may depress 

wages. 

Several trade associations and an 

agent urged the Department not to limit 

survey responses to the wages of U.S. 

workers because of the potential legal 

implications for employers, including 

that employers may not know whether 

workers are undocumented. These 

commenters and others also opposed 

the proposal on the basis that the 

Department does not similarly exclude 

from survey responses the wages paid to 

H–2A workers and workers in 

corresponding employment, which the 

commenters claim may inflate or skew 

the prevailing wage. Another trade 

association suggested the inclusion of 

non-U.S. workers would allow the 

Department to determine whether 

foreign workers are adversely affecting 

the wages of U.S. workers. An employer 

and trade association requested the 

Department add a provision that would 

make H–2A workers part of the 

prevailing wage survey if more than 10 

percent of the agricultural workforce in 

a State is composed of H–2A workers or 

workers in corresponding employment. 

After careful consideration of the 

comments, the Department has decided 

to adopt the proposal to limit the survey 

to U.S. workers. This final rule clarifies 

that ‘‘determining the universe of 

workers’ wages to be sampled’’ means 

the survey instrument must ask 

employers to report the wages of U.S. 

workers only. 

As explained above and in the NPRM, 

this survey limitation is a continuation 

of the Department’s current policy. 

Employers already have experience 

verifying worker eligibility prior to 

employment, and they have the 

obligation to continue to do so. 

Moreover, the Department is not aware 

of cases where employers have been 

exposed to liability based on the wages 

they have provided in response to SWA 

survey requests. Survey results should 

exclude the wages of H–2A workers, but 


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58ETA Handbook 385 at I–117 (noting that, if a 

survey includes more than one unit of pay, a 

prevailing wage rate is issued based on the unit of 

pay that represents the largest number of workers). 

59See 80 FR 24146, 24159–24160; see also 

Interim Final Rule, Wage Methodology for the 

should include the wages of U.S. 

workers in the crop activity or 

agricultural activity and distinct work 

task(s), if applicable, and geographic 

area. As noted above, the prevailing 

wage rate is intended to reflect the 

average wage of U.S. workers in a 

geographic area and a given crop or 

agricultural activity and, if applicable, 

distinct work task(s) within that 

activity. If prevailing wage surveys 

determine employers are paying a 

certain average rate for an activity or 

distinct task(s) in an area and the 

Department validates this finding, then 

that rate is the prevailing wage rate and 

must be paid to applicable workers 

when it is the highest of available wages 

sources listed in § 655.120(a). 

The Department declines to adopt the 

suggestion to include the wages of nonU.S. workers in a survey, or include the 

wages of H–2A workers in surveys when 

they are concentrated in an area, 

because it is contrary to the purpose of 

prevailing wage rates, which are 

intended to reflect the wage paid to U.S. 

workers in a given crop or agricultural 

activity and geographic area. As 

explained in the NPRM, limiting the 

survey to U.S. workers reflects the 

Department’s longstanding concern that 

including the wages of non-U.S. workers 

in a prevailing wage finding may 

depress wages. 84 FR 36168, 36186. To 

the extent U.S. workers in 

corresponding employment are covered 

by a prevailing wage survey, the 

Department concludes that the survey 

will sufficiently represent the wages 

paid by that employer to its H–2A 

workers as well. This is because H–2A 

employers must offer to U.S. workers no 

less than the same benefits, wages, and 

working conditions the employer is 

offering, intends to offer, or will provide 

to their H–2A workers. See § 655.122(a). 

Unit of Pay Determinations 

The NPRM proposed that a prevailing 

wage be issued only if a single unit of 

pay is used to compensate at least 50 

percent of the U.S. workers included in 

the survey, similar to the current 

requirement in ETA Handbook 385.58

The Department proposed this 

requirement both to verify that the rate 

structure reflected in the survey is 

actually prevailing and to allow the 

wages included in the survey to be 

averaged, as it would not be possible to 

average wages using different units of 

measurement. 

A trade association expressed support 

for this proposal. A workers’ rights 

advocacy organization requested the 

Department revise the regulatory text to 

clarify that the survey must report the 

unit of pay used to compensate at least 

50 percent of the workers represented in 

the survey responses, not 50 percent of 

all workers in the estimated survey 

universe. 

This final rule adopts the NPRM 

proposal with changes to the regulatory 

text in response to the above comments 

and after the Department’s own further 

consideration. First, the Department has 

revised the provision to require the 

PWD to be based on the unit of pay used 

to compensate the largest number of 

workers, rather than ‘‘at least 50 percent 

of the workers,’’ which is consistent 

with the current unit of pay provision 

in the Handbook. The Department made 

this change in this final rule because the 

proposed ‘‘50 percent of U.S. workers’’ 

would impose a requirement that is 

more stringent than the language in the 

Handbook for crop or agricultural 

activities involving several units of pay 

(e.g., per hour, per pound with no 

bonus, per pound with a bonus). While 

uncommon, the Department 

acknowledges there are instances where 

the survey results reflect more than two 

units of pay for a crop or agricultural 

activity and distinct work task(s) in that 

activity, if applicable. In such 

situations, there will be at least one unit 

of pay that is paid to the ‘‘largest 

number of workers’’ whose wages are 

reported in the survey, but it is possible 

that no single unit of pay will account 

for ‘‘at least 50 percent’’ of such 

workers. Because the unit of pay that is 

paid to the largest number of workers in 

the survey can be considered prevailing, 

the Department believes this proposed 

change better aligns with its goal of 

encouraging more prevailing wage 

surveys through the adoption of 

standards that are as reliable as possible, 

while also accounting for the realities of 

a modern budget environment. 

The Department made some minor 

revisions to the regulatory text for 

clarity and conformity with other 

provisions. The Department added 

‘‘U.S.’’ before ‘‘workers’’ in the 

regulatory text for clarification and 

consistency with the requirement that 

prevailing wage surveys include only 

wages of U.S. workers. The Department 

also changed the phrase from ‘‘whose 

wages are surveyed’’ to ‘‘whose wages 

are reported in the survey,’’ to address 

the workers’ rights advocacy 

organization’s request that the 

Department clarify that this language 

refers to survey responses received. 

Finally, the Department added the 

language ‘‘and distinct work task(s), if 

applicable’’ after ‘‘crop activity or 

agricultural activity,’’ for clarity and 

consistency with other changes to the 

regulatory text in § 655.120(c). As 

applied to this provision, this change 

clarifies that if the surveyor determines 

that a task (or tasks) within a crop or 

agricultural activity is paid differently 

(i.e., there is a distinct work task or tasks 

within the activity), then the survey 

should report the average wage of U.S. 

workers in that distinct work task(s). 

Rate of Pay Determinations 

The NPRM proposed that the survey 

must report the average wage of all 

workers within the prevailing unit of 

pay, which departed from the current 

requirement in ETA Handbook 385 to 

use a ‘‘40 percent rule’’ and a ‘‘51 

percent rule’’ to determine the 

prevailing rate of pay. The NPRM 

proposed using the average wage 

because it is consistent with the method 

the Department proposed to determine 

the AEWR, as well as the current 

methodology for determining prevailing 

wage rates in the H–2B program. The 

NPRM solicited comments on the 

proposal, as well as possible 

alternatives, including whether the 

Department should retain the ‘‘40 

percent rule’’ or ‘‘51 percent rule’’ from 

the Handbook or whether the 

Department should, instead, establish 

the prevailing wage at the median wage 

based on wages in the prevailing unit of 

pay. 

An employer, a SWA, and several 

trade associations urged the Department 

to use the median wage rather than the 

average wage on the basis that the 

former lessens the impact of outliers. A 

trade association recommended 

retaining the 40 percent and 51 percent 

rules without additional explanation. A 

SWA supported replacing the 40 and 51 

percent rules with this proposal as a 

way to simplify the methodology for 

determining the prevailing wage rate 

and potentially reduce confusion among 

stakeholders regarding how the 

prevailing wage is determined, but it 

asked for clarification on whether the 

SWA must collect ‘‘piece rate 

dimensions (i.e., specific linear 

dimensions of apple bins).’’ 

After consideration of these 

comments, the Department has decided 

to adopt the NPRM proposal to use the 

average or mean wage. As explained in 

the 2015 H–2B Final Rule, the mean is 

the appropriate wage to use to avoid 

immigration-induced labor market 

distortions.59 The mean is the arithmetic 


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Temporary Non-Agricultural Employment H–2B 

Program, Part 2, 78 FR 24047, 24058 (Apr. 24, 

2013). 

60See ETA Handbook 385 at I–117 (guidance on 

determining the prevailing wage rate when there is 

more than one unit of payment). Moreover, 

§ 653.501(c)(2)(i) of the Wagner-Peyser Act 

regulation states that ‘‘[i]f the wages offered are 

expressed as piece rates . . . [the Employment 

Service staff] must check if the employer’s 

calculation of the estimated hourly wage rate is . . . 

not less than the prevailing wage rate.’’ This 

provision covers clearance of both H–2A and nonH–2A agricultural job orders and requires the SWA 

to ensure that wages offered by an employer are not 

less than the higher of several wage sources, as 

applicable. By explicitly referencing different units 

of pay, this regulation recognizes that the prevailing 

wage rate may not be in the unit of payment that 

the employer offers in its job order. 

61 2020 H–2A AEWR Final Rule, 85 FR 70445, 

70463; see also 2021 H–2A AEWR NPRM, 86 FR 

68174, 68182. 

average of all wages surveyed in a crop 

or agricultural activity—and distinct 

work task(s) within that activity, if 

applicable—in the geographic area. If 

the applicable prevailing wage is set 

below the mean, it could result in a 

depressive effect on U.S. workers’ wages 

overall because the average wage of U.S. 

workers in the relevant activity or 

task(s) would be drawn down. See 2015 

H–2B Final Rule, 80 FR 24146, 24159– 

24160. Use of the mean is also 

consistent with the Department’s 

determination of prevailing wages for 

other foreign worker programs. See 20 

CFR 655.10(b)(2), (f)(2) (setting the 

prevailing wage in the H–2B program at 

the mean for the OEWS and employerprovided surveys); see also 20 CFR 

656.40(b)(2) (similar for PERM); 20 CFR 

655.731(a)(2)(ii) (similar for H–1B); 20 

CFR 655.410(b)(1) (similar for CW–1). 

Finally, this final rule clarifies that it 

may be appropriate to collect piece rate 

dimensions in some situations, such as 

when the unit of measurement of a 

piece is not standardized and can have 

differing dimensions. However, these 

determinations should be made on a 

case-by-case basis by the SWA or State 

entity conducting the survey. If 

necessary, the Department will provide 

technical assistance to the SWAs. 

Other Comments on § 655.120(c)(1)(v) 

Several trade associations and an 

agent opposed the ‘‘50 percent of U.S. 

workers’’ proposal because they 

believed it would impose an unrealistic 

wage level on employers as piece rate 

work may be converted to hourly 

compensation. They urged the 

Department, without additional 

explanation, to establish piece rate and 

hourly wages separately to avoid piece 

rate compensation for those who are 

most productive from inflating hourly 

wages. An employer and another trade 

association claimed that piece rates are 

effectively ‘‘double counted’’ when they 

are incorporated into the calculations of 

both the AEWR hourly rate and 

prevailing piece rates. 

The commenters’ specific concern 

regarding the conversion of units of pay 

is unclear. Under the Department’s 

approach, a prevailing wage is issued 

when a unit of pay is used to 

compensate the largest number of U.S. 

workers in the survey, assuming the 

survey meets other applicable 

requirements. For example, if 75 percent 

of U.S. workers included in the survey 

results are paid hourly, OFLC would 

issue an hourly prevailing wage rate for 

that activity. If those workers were paid, 

instead, by the piece based on the same 

unit of measurement (e.g., bushel), 

OFLC would issue a prevailing wage 

based on a piece rate. As such, in 

calculating a prevailing wage, OFLC 

would not convert one unit of pay to 

another (e.g., converting piece rates to 

hourly rates) because the ‘‘largest 

number of workers’’ standard must be 

for the same unit of pay. 

The Department declines to adopt the 

suggestion to establish separate piece 

rate and hourly wages because a wage 

rate based on one unit of pay can be 

prevailing for a crop or agricultural 

activity and distinct work task(s), if 

applicable, in the relevant geographic 

area even if there are other units of 

pay.60 Establishing both a prevailing 

hourly rate and piece rate for an activity 

or task(s) in every instance would be at 

odds with the Department’s current 

regulations and guidance under ETA 

Handbook 385. However, there could be 

a situation in which there are different 

units of pay, each one accounting for an 

equal number of U.S. workers whose 

wages are reported in the survey. 

Should this rare situation occur and the 

survey meets other applicable 

requirements, a separate prevailing rate 

would be determined for each unit of 

payment. This clarification is consistent 

with the guidance in ETA Handbook 

385. See ETA Handbook 385 at I–117. 

To the extent commenters are 

suggesting that piece rates, as incentive 

pay, not be included in the calculations 

of the AEWR, the Department declined 

to adopt this suggestion in the 2020 H– 

2A AEWR Final Rule. As that rule 

explains, some agricultural jobs 

guarantee only the State or Federal 

minimum wage and otherwise pay 

based on a piece rate; advertising an 

hourly wage that does not include 

‘‘incentive pay’’ is not a reasonable 

‘‘base rate’’ for H–2A employers to 

advertise to U.S. workers.61

Finally, some comments stated 

prevailing wage surveys should account 

for the fact that H–2A employers pay 

expenses not borne by non-H–2A 

employers, such as housing, 

transportation, visa costs, and 

subsistence. The Department does not 

agree. Prevailing wage surveys measure 

the wage rates paid to U.S. workers, not 

wage rates paid to H–2A workers or 

total labor costs employers may incur to 

ensure workers are available when and 

where needed to perform the labor or 

services an employer requires. As such, 

adopting the commenters’ suggestion 

would be inconsistent with the purpose 

of the prevailing wage and may, instead, 

depress the wages of workers in the 

United States similarly employed. 

ix. Section 655.120(c)(1)(vi) 

The Department proposed that a 

prevailing wage survey cover an 

appropriate geographic area based on (1) 

available resources to conduct the 

survey; (2) the size of the agricultural 

population covered by the survey; and 

(3) any different wage structures in the 

crop or agricultural activity within the 

State. The Department stated in the 

NPRM that it intended to codify existing 

practice in which OFLC receives 

prevailing wage surveys of State, subState, and regional geographic areas 

based on the factors listed above. The 

NPRM solicited comments on whether 

the Department should consider other 

factors in determining the appropriate 

geographic area for prevailing wage 

surveys. 

A workers’ rights advocacy 

organization requested the Department 

clarify what would constitute an 

appropriate area to survey, including an 

explanation of the relevance of the ‘‘size 

of the agricultural population’’ and how 

it factors in these determinations. The 

commenter claimed that, in practice, 

prevailing wages are calculated by 

SWAs within the boundaries of their 

respective States because they do not 

have the capacity or authority to survey 

across State lines. The commenter also 

asserted that SWAs appear to rely on 

agricultural reporting areas, as the term 

is used in ETA Handbook 385, and 

suggested the Department codify the 

asserted reliance on agricultural 

reporting areas rather than the AIE. An 

agent expressed concern that the 

provision would permit SWAs to survey 

‘‘truncated’’ areas based on resource 

constraints alone. 

After careful consideration of the 

above comments, the Department has 

decided to retain the provision as 

proposed. As noted in the NPRM, the 

Department intends for this provision to 

codify existing practice, which allows 

for surveys based on State, sub-State, 

and, in some cases, regional areas. 


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62See 84 FR 36168, 36187 (NPRM noting that 

while prevailing wages in the H–2B program are 

generally set based on the AIE, H–2A prevailing 

wage rates are generally set based on a larger 

geographic area). 

63See also TEGL No. 21–20, Fiscal Year (FY) 

2021 Foreign Labor Certification Grant Planning 

Guidance, at III–10 (May 10, 2021). 

64 84 FR 36168, 36187 (noting BLS requires wage 

information from a minimum of 30 workers before 

it deems data of sufficient quality to publish on its 

website); § 655.10(f)(4)(ii) (employer-provided 

surveys for the H–2B program must include wage 

data from at least 30 workers and three employers). 

SWAs currently rely on modernized 

agricultural wage reporting areas that 

are consistent with principles in ETA 

Handbook 385. This geographic area 

does not necessarily coincide with the 

AIE.62

In completing the updated Form 

ETA–232, the SWA must explain how 

the surveyor determined the geographic 

area to survey. This final rule lists 

factors that guide this selection, namely 

available resources, the size of the 

agricultural population covered by the 

survey, and different wage structures in 

the crop or agricultural activity within 

the State. To use the ‘‘size of the 

agricultural population’’ as an example, 

this factor may affect the scope of the 

surveyed area because of the need for 

sufficient survey responses. A surveyor 

may undertake a survey in one selected 

area that yields an insufficient response. 

In such cases, the surveyor can decide 

to increase the survey area and either 

make a reasonable, good faith effort to 

contact all employers employing 

workers in the crop or agricultural 

activity in the expanded area, or contact 

a new, randomly selected sample of 

such employers in the expanded area. 

In response to the agent’s comment, 

the Department disagrees that this 

provision would permit SWAs to survey 

‘‘truncated’’ areas based only on 

available resources. First, the 

commenter did not explain what 

constitutes a ‘‘truncated’’ area. Current 

practice, as noted above, permits a SWA 

to survey areas of different sizes based 

on considerations such as available 

resources.63 Second, this provision does 

not permit a surveyor to base its 

selection of the geographic area on only 

one factor. Instead, the surveyor must 

consider all three factors enumerated in 

the provision. Third, the Department 

will continue to review and approve 

SWA survey plans under this final rule, 

and the Department can work with 

SWAs to accommodate resource 

considerations while ensuring planned 

surveys are as reliable as possible. 

x. Section 655.120(c)(1)(vii) Through 

(ix) 

The Department proposed that the 

survey must include the wages of at 

least 30 U.S. workers and five 

employers, and the wages paid by a 

single employer must represent no more 

than 25 percent of the wages included 

in the survey. The NPRM stated the 30- 

worker standard is consistent with 

minimum reporting numbers for the 

OEWS and requirements for H–2B 

PWDs.64 The requirement to include 

wage data from at least five employers 

is a change from ETA Handbook 385, 

which does not have a minimum 

number of employers that must be 

included in the survey. The fiveemployer standard also exceeds the 

number of employers (three) required to 

establish prevailing wage rates under 

the H–2B program. As explained in the 

NPRM, prevailing wages in the H–2B 

program based on the OEWS are 

generally set based on the local AIE, but 

H–2A prevailing wages are typically 

determined based on a larger geographic 

area, and this difference in geographic 

area makes a higher number of employer 

responses appropriate for the H–2A 

program. Id. 

The Department also proposed that 

the wages paid by a single employer 

represent no more than 25 percent of the 

sampled wages so that the prevailing 

wage is not unduly impacted by the 

wages of a dominant employer. The 

NPRM stated the five-employer and 25 

percent dominance standards are 

consistent with the ‘‘safety zone’’ 

standards for exchanges of employer 

wage information established by the 

Department of Justice (DOJ) and Federal 

Trade Commission (FTC) in the antitrust 

context. Specifically, absent 

extraordinary circumstances, DOJ or 

FTC will not challenge as a violation of 

antitrust law the exchange of 

information regarding employer wages 

that meet the requirements for the safety 

zone. Although created for a different 

purpose, the safety zone standards 

establish levels at which the DOJ and 

FTC determined an exchange of wage 

information is sufficiently anonymized 

to prevent the wages of a single 

employer from being identified because 

the reported wage results too closely 

track the wages paid by that employer. 

The NPRM explained it is the 

Department’s preliminary conclusion 

that safety zone standards are consistent 

with the Department’s aim of requiring 

that the wages reported from a 

prevailing wage survey be sufficiently 

representative and that the wages of a 

single employer not drive the wage 

result. The Department solicited 

comments on the proposed 

requirements in § 655.120(c)(1)(vii) 

through (ix), including whether the 

proposed sample size requirements, and 

any recommended alternative 

requirements, should apply to the 

survey, overall, or to the prevailing unit 

of pay. The Department also sought 

comment on the proposed statistical 

standards and any alternate standards 

that might be used to meet the 

Department’s goals of establishing 

prevailing wage rates that are as reliable 

as possible but still consistent with the 

realities of a modern budget 

environment. After full consideration of 

the comments, the Department is 

adopting the proposals in 

§ 655.120(c)(1)(vii) through (ix) with 

amendments to the regulatory text, as 

explained below. 

Several commenters representing 

employers, agents, and trade 

associations expressed concern that the 

sample size requirements were too small 

to be representative. For example, a 

trade association said 30 workers from 

five employers could set the prevailing 

wage for ‘‘possibly thousands of workers 

and hundreds of employers’’ and urged 

the Department to expand the 

thresholds to ‘‘a reasonable percentage 

of workers and employers,’’ without 

explanation of what might constitute a 

reasonable percentage. Similarly, an 

agent urged the Department to consider 

a broader sample size while another 

association recommended the use of a 

statistically valid sample size, claiming 

the ‘‘breadth and scope of agricultural 

employment’’ exceeds the scope of 

PWDs under the H–2B program. In 

contrast, a commenter from academia 

and a SWA supported smaller sample 

sizes as a way to produce more PWDs. 

The SWA also believed it would 

eliminate the SWA’s responsibility to 

estimate the universe of employers and 

workers. A State agency association 

asserted, without additional 

explanation, that requiring specific 

minimum response rates should 

increase the validity of surveys. 

The Department does not agree with 

comments that claimed larger minimum 

sample sizes are necessary to produce 

accurate and representative PWDs. No 

commenter asserted that the Handbook’s 

much larger sample sizes were 

necessary, and no commenter proposed 

an alternative required worker or 

employer sample size that would be 

necessary to produce a reliable survey. 

The NPRM explained that the proposed 

sample size requirements were 

consistent with the OEWS survey 

requirements, as well as the ‘‘safety 

zone’’ standards used by the DOJ and 

FTC in the anti-trust context, points that 

no commenter specifically refuted. As 

stated in the NPRM, the Department has 

used a baseline of three employers and 


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30 workers for employer-provided wage 

surveys in the H–2B program since the 

2015 H–2B Final Rule (80 FR 24146). In 

recognition that H–2A prevailing wage 

rates are generally set based on a larger 

geographic area than prevailing wages 

in the H–2B program, the Department 

proposed to increase the number of 

employer responses from three under 

the H–2B program to five under the H– 

2A program. The Department also 

proposed the 25 percent standard as an 

additional safeguard to ensure 

prevailing wages are as reliable as 

possible. With regard to the SWA’s 

comment, the surveyor must still 

estimate the universe of relevant 

employers and workers under this final 

rule, as discussed in the preamble to 

§ 655.120(c)(1)(iv). 

A workers’ rights advocacy 

organization stated it may be difficult 

for SWAs to meet the minimum 

thresholds for survey areas that are 

smaller than the State level due to high 

employer non-response rates. Another 

workers’ rights advocacy organization 

said random sampling of reforestation 

and pine straw workers may be difficult 

because such workers are hard to reach, 

lists of relevant employers or 

contractors are likely unavailable, and 

employers are often reluctant to respond 

to surveys. As explained elsewhere in 

the preamble, the Department has 

declined to adopt the proposal to 

expand the definition of ‘‘agricultural 

labor or services’’ under § 655.103(c) to 

include reforestation and pine straw 

activities. The comment related to 

surveys of forestry worker wages is 

therefore no longer applicable. 

Moreover, the area surveyed may need 

to be expanded if the surveyor is not 

able to obtain wage results for at least 

five employers and 30 workers. If the 

estimated universe is less than five 

employers or 30 workers, a surveyor 

may use the alternative option described 

below or expand the area surveyed as 

needed. 

The Department solicited, but did not 

receive, comments on whether the 

baseline standards should apply to 

responses received for the survey 

overall or the prevailing unit of pay. 

However, after due consideration, the 

Department has decided to clarify that 

the baseline standards apply to survey 

responses received for the unit of pay 

that is used to compensate the largest 

number of workers whose wages are 

reported in the survey. Because the 

prevailing wage is determined based 

only on wage data within the prevailing 

unit of pay, the baseline standards 

should also apply to that unit of pay to 

increase the reliability of the survey 

findings as much as possible. Especially 

when there are multiple units of pay 

and a small number of employers or 

workers in the universe, this approach 

could require surveyors to increase the 

overall sample size and may result in 

fewer survey findings than if the 

baseline standards applied to the survey 

overall. However, the Department 

believes this approach best achieves its 

goal of establishing prevailing wage 

rates that are as reliable and accurate as 

possible, while still encouraging more 

prevailing wage surveys than under the 

Handbook. 

Based on the above comments and the 

Department’s further assessment of past 

prevailing wage surveys, the 

Department recognizes the estimated 

universe of employers or workers may 

be very small for some crop or 

agricultural activities and distinct work 

task(s) in a geographic area. For 

example, some distinct work tasks or 

activities in a particular area may have 

one or two employers in the estimated 

universe. In such a situation, applying 

the 25 percent or 5-employer standard 

would mean there can never be a 

prevailing wage finding for this task or 

activity, unless the number of 

employers in the estimated universe 

increases. Similarly, the estimated 

universe of workers employed to 

perform particular distinct work tasks or 

activities may be less than 30 in some 

cases. Applying the 30-worker standard 

would not result in a wage 

determination, unless the number of 

workers in the estimated universe 

increased. 

As such, the Department has decided 

to revise the regulatory text to address 

the limited situations where the 

estimated universe of employers or 

workers is less than the baseline 

standards, while leaving the baseline 

standards unchanged in other 

situations. For example, where the 

estimated universe of U.S. workers is at 

least 30, the survey must include the 

wages of at least 30 U.S. workers in the 

unit of pay used to compensate the 

largest number of U.S. workers whose 

wages are reported in the survey. In 

situations where the estimated universe 

of U.S. workers is less than 30, the 

survey must include the wages of all 

such U.S. workers. Similarly, where the 

estimated universe of employers is 

fewer than five, this final rule requires 

the survey to include wage data from all 

employers in the estimated universe. 

Finally, the 25 percent standard will 

apply where the estimated universe of 

employers is four or more, but will not 

apply when the estimated number of 

employers in the universe is less than 

four. These revised requirements 

encourage additional prevailing wage 

findings and are consistent with the 

Department’s goal of producing 

prevailing wage survey results that are 

as representative as possible by 

requiring the PWD to be based on data 

from all workers or employers where the 

universe of workers or employers is 

limited. 

xi. Other Comments on § 655.120(c)(1) 

Special Procedures for Sheep Shearing 

and Reforestation Employers 

Commenters including a trade 

association urged the Department to 

promulgate a provision allowing 

regional or national prevailing wage 

surveys for the sheep shearing industry 

because ‘‘there are not enough shearers 

in any one area’’ to establish a piece rate 

wage through a valid survey. According 

to the association, the survey instrument 

used should be able to account for 

differing types of shearing services in 

different regions, which result in 

separate wage rates. The association 

stated some regions have a larger 

number of ‘‘small flock’’ or ‘‘farm flock’’ 

sheep producers whose operations 

typically have smaller numbers of sheep 

than commercial producers, resulting in 

a higher ‘‘per head’’ price and wage than 

for a commercial producer. 

The Department declines to adopt the 

commenters’ suggestion because it does 

not believe that a variance in the form 

of a separate provision is needed for 

prevailing wage surveys for the sheep 

shearing industry. This is because the 

commenters’ concerns can be addressed 

through other requirements in this final 

rule. As discussed in the preamble to 

§ 655.120(c)(1)(iii) and (vi), this final 

rule allows for regional prevailing wage 

surveys that are able to capture distinct 

work tasks as applicable. It is also 

possible to obtain a prevailing wage for 

activities with a small number of 

estimated workers under circumstances 

explained in the preamble to 

§ 655.120(c)(1)(vii) through (ix). Lastly, 

as noted in the preamble to 

§ 655.120(c)(1)(iv), the surveyor has the 

option to conduct a statistically valid 

sampling or stratified random sampling 

by employer size, though these 

enhanced sampling methods are not 

required. 

A workers’ rights advocacy 

organization recommended the 

Department use the QCEW to set 

prevailing wages for reforestation 

workers in the short term on the basis 

that this data source counts reforestation 

workers more accurately than the OEWS 

surveys. Because reforestation is not 

covered in the H–2A program under this 

final rule, the workers’ rights advocacy 


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65Moreover, the Department has addressed the 

use of the QCEW as a wage source for the H–2A 

program above and in prior rulemaking. See 2020 

H–2A AEWR Final Rule, 85 FR 70445, 70446 n.6. 

66See, e.g., TEGL No. 21–20, Fiscal Year (FY) 

2021 Foreign Labor Certification Grant Planning 

Guidance, at III–10 (May 10, 2021). 

organization’s comment is no longer 

applicable.65

Rescission of ETA Handbook 385 

An agent and a trade association 

supported what they believed to be the 

Department’s proposal to ‘‘rescind’’ ETA 

Handbook 385. A State agency urged 

DOL to update ETA Handbook 385 to 

conform to the new regulations or 

provide supplemental guidance. Two 

other State agencies and a State agency 

association supported replacing the 

Handbook. 

This final rule does not formally 

rescind ETA Handbook 385, but SWAs 

and other surveyors must follow the 

methodological requirements in 

§ 655.120(c) when conducting 

prevailing wage surveys. In this way, 

the survey standards in § 655.120(c) 

replace the standards in ETA Handbook 

385 for H–2A prevailing wage surveys. 

This final rule clarifies, however, that 

SWAs and other surveyors may refer to 

the Handbook and other applicable 

authorities for additional guidance on 

issues related to the prevailing wage 

survey methodology not explicitly 

addressed in the Department’s 

regulations at 20 CFR part 655, subpart 

B, and 29 CFR part 501. 

Data Collection Period 

The NPRM did not propose a required 

wage data collection period. In 

particular, the Department did not 

propose requiring or prohibiting SWAs 

from capturing the wages paid to 

workers during the ‘‘peak’’ period of a 

crop or agricultural activity, rather than 

the wages paid over a season or a year. 

Several employers and trade 

associations urged the Department to 

require surveys cover a longer period 

than a peak week. According to the 

commenters, surveying a peak period 

‘‘spike[s]’’ the results and does not 

produce prevailing wage findings that 

measure wages paid over a season or a 

year. 

After consideration of the comments, 

the Department declines to adopt the 

commenters’ suggestion. There is no 

requirement that surveys cover a longer 

time period to measure the wages paid 

over a season or a year. While ETA 

Handbook 385 directs SWAs to estimate 

the beginning and end of the harvest for 

each crop and the ‘‘period of peak 

activity’’ for State grant plans, SWAs 

need not include that information in 

reporting prevailing wage rate results. 

Recent guidance no longer direct SWAs 

to identify the period of ‘‘peak activity,’’ 

nor even the anticipated start and end 

dates for the harvest of each crop, but 

simply request SWAs provide an 

anticipated timeframe for the prevailing 

wage survey.66 The requirement 

suggested by the commenters could 

further deter employers from 

responding to the survey, given the 

length of a season or a year and the 

possible number of unique wage rates 

paid during that time that an employer 

would have to report. It would also 

likely increase the cost of survey 

administration for SWAs or other State 

surveyors, without a corresponding 

compelling justification for such an 

increase. 

In response to the comments received, 

this final rule clarifies that SWAs 

continue to have discretion over when 

to conduct wage surveys and the data 

collection period. This is because SWAs 

or other State entities are best 

positioned to determine the most 

effective data collection period. To the 

extent it is helpful, the Department 

recommends the use of a peak week or 

peak period. A peak week is generally 

defined as the week where a commodity 

activity is the busiest. For harvesting, it 

would be when an agricultural 

employer is doing the most harvesting 

for a given commodity. Some surveys 

may gather data from a peak period of 

time that is longer than a week. The use 

of a peak week or period can afford 

several advantages. It allows, for 

example, the collection of data when the 

most workers are working in order to 

obtain the most robust amount of data. 

However, the use of a peak period is not 

required and may not be appropriate in 

all cases. For instance, some activities 

such as irrigation do not have a clearly 

defined peak week. 

Presumption of Validity 

A workers’ rights advocacy 

organization suggested that as long as 

SWAs follow the defined procedures to 

carry out a prevailing wage survey, the 

findings should enjoy a presumption of 

validity. After consideration, the 

Department declines to adopt the 

commenter’s suggestion. OFLC will 

review the prevailing wage survey 

documentation submitted by a SWA to 

ensure that the survey satisfies the 

enumerated requirements in 

§ 655.120(c). If these requirements are 

met, OFLC will issue a prevailing wage 

for the crop or agricultural activity or 

distinct work task(s) in question. Based 

on this regulatory scheme—which 

continues the Department’s current 

practice—a presumption of validity is 

not needed and would instead cut 

against the comprehensive review 

requested by other commenters. 

Timelines for Prevailing Wage 

Determinations 

A SWA suggested adding a 

requirement that OFLC issue a PWD 

within 10 days of the SWA’s submission 

of a survey to the Department. The SWA 

also requested the Department add a 

regulatory provision requiring OFLC to 

notify the SWA of any irregularities or 

deficiencies in the survey within the 

same 10-day period so the SWA may 

make corrections expeditiously. After 

consideration of the SWA’s comments, 

the Department declines to adopt these 

recommendations. The Department did 

not propose to set timeframes or solicit 

comments on setting timeframes for the 

prevailing wage survey review and 

approval process and, therefore, the 

SWA’s recommendations are beyond the 

scope of this rulemaking. The 

Department understands the importance 

of timely review and communication 

and it strives to review the surveys it 

receives in an expeditious manner. 

Imposition of a maximum period to 

review prevailing wage surveys, 

however, would undermine the 

Department’s ability to conduct a 

thorough review without a 

corresponding compelling justification. 

In particular, the SWA’s suggested 

timeframe would create an impediment 

to the type of comprehensive review 

needed to ensure prevailing wage 

surveys satisfy all methodological 

requirements, especially in cases where 

OFLC requests additional information 

from SWAs in order to complete its 

review. 

Piece Rate and Wage Enforcement 

Suggestions 

Because § 655.120(c) discusses the use 

of piece rates, some commenters took 

the opportunity to suggest changes to 

how piece rates are treated within the 

H–2A program. A workers’ rights 

advocacy organization recommended 

the Department make explicit that the 

employer must pay workers by the 

piece, rather than by the hour or using 

another method, if the prevailing wage 

is a piece rate and payment of the 

prevailing piece rate would yield a 

higher average hourly rate than the 

AEWR. A trade association stated the 

Department does not include hourly 

guarantees when reporting prevailing 

wages by piece rates and asserted this is 

contrary to standards in ETA Handbook 

385. The association added that the 

Department does not recognize that a 

piece rate with an AEWR hourly 


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guarantee (e.g., $25 bin rate with a 

$16.34 per hour guarantee) differs from 

a piece rate with a State minimum wage 

hourly guarantee (e.g., $25 bin rate with 

a $13.69 per hour guarantee). 

The Department’s proposed changes 

to the prevailing wage methodology 

under revised § 655.120(c) did not 

intend to change the prior application of 

the offered wage provision at 

§ 655.120(a) or the longstanding 

procedures for the regulation of piece 

rates. As such, the workers’ rights 

advocacy organization’s suggestion that 

the Department make explicit that an 

employer must pay workers by the 

piece, rather than by the hour or using 

another method, if the prevailing wage 

is a piece rate and payment of the 

prevailing piece rate would yield a 

higher average hourly rate than the 

AEWR, is beyond the scope of the 

Department’s proposal. The trade 

association’s comment does not specify 

if the reporting it references is the 

Department’s posting of prevailing 

wages to the Agricultural Online Wage 

Library (AOWL). To the extent the 

comment is referring to the posting of 

prevailing wages on AOWL, the 

Department reports piece rates that 

contain an hourly guarantee for a crop 

or agricultural activity or a distinct work 

task(s) within this activity when such a 

rate is reported by a SWA and validated 

by the Department. These piece rates 

with an hourly guarantee can represent 

different units of pay under certain 

circumstances, as discussed below. 

Moreover, as relevant to both 

comments, the Department posts 

prevailing wage rates on AOWL, not 

wage information from all applicable 

sources an H–2A employer must 

consider when evaluating whether its 

wage offer meets H–2A requirements 

under §§ 655.120(a) and 655.122(l). 

When the prevailing wage rate is hourly, 

an H–2A employer must compare this 

hourly rate to the other wage sources 

listed in § 655.120(a) to determine 

which is the highest and ensure that its 

wage offer is at least equal to the highest 

applicable hourly rate. Similarly, in 

limited situations where a prevailing 

wage rate is a piece rate in combination 

with an hourly guarantee (e.g., $25 bin 

rate with a $16 per hour guarantee), the 

H–2A employer must still engage in the 

comparison of other wage sources and 

ensure that it offers an hourly wage 

guarantee that is at least equal to the 

highest applicable hourly rate. As a 

result, an H–2A employer may be 

required to offer at least the prevailing 

piece rate (e.g., $25 bin rate) and an 

hourly wage guarantee (e.g., $16.34 per 

hour guarantee, the applicable AEWR) 

that is higher than the hourly guarantee 

listed in the PWD. To the extent either 

commenter is suggesting the Department 

add all or some other wage sources to 

the AOWL, the Department declines to 

adopt this suggestion, as it could 

increase, rather than decrease, 

confusion. 

The same workers’ rights advocacy 

organization proposed requiring the 

employer to attest that neither U.S. nor 

H–2A workers will be paid at a piece or 

hourly wage that is less than the rate 

that was paid for comparable work 

performed at that location in the prior 

season, or that is being offered by other 

employers in the AIE. The organization 

also requested that the regulations 

clarify the Department will review and 

require a change to the rate of pay after 

certification if presented with worker 

complaints or ‘‘clear, persuasive 

evidence’’ that the H–2A employer is 

paying less than the prevailing wage 

based on information such as UI data 

and job service listings. 

The Department declines to adopt 

these recommended changes. The 

Department did not propose or solicit 

comments on requiring an attestation 

that wages are not less than those paid 

for comparable work in the prior season. 

In addition, the commenter’s suggestion 

would add a wage source to those listed 

in § 655.120(a), which is a change the 

Department similarly did not propose in 

the NPRM. This suggestion is therefore 

outside the scope of the Department’s 

rulemaking. This final rule requires that 

H–2A employers pay H–2A workers and 

workers in corresponding employment 

the highest of wage sources listed in 

§ 655.120(a)—in particular, the higher of 

the AEWR and the prevailing wage rate 

approved by OFLC, as applicable—and 

thus already includes a prevailing wage 

concept intended to ensure that H–2A 

employers pay at least those wages 

found to be prevailing in the area, where 

applicable. While the specific change 

requested by the commenter’s second 

suggestion is unclear, the Department 

notes that its program integrity 

measures provide for review and 

enforcement of H–2A wage 

requirements. In the event of an audit, 

OFLC reviews an employer’s payroll 

information. When WHD conducts its 

investigations, it will enforce the 

appropriate wage rate for the work 

performed even when an employer 

misrepresented the duties on its 

application or employed workers in 

classifications not listed on its 

application. In the event an audit or 

investigation discovers substantial 

violations, OFLC or WHD may pursue 

debarment of the employer. 

xii. Section 655.120(c)(2) 

The Department proposed that a 

prevailing wage rate remain valid for 1 

year after the wage is posted on the 

OFLC website or until replaced with an 

adjusted prevailing wage, whichever 

comes first, except that if a prevailing 

wage that was guaranteed on the job 

order expires during the contract period, 

the employer must continue to 

guarantee at least the expired prevailing 

wage rate. As the Department explained 

in the NPRM, this proposal is generally 

consistent with OFLC’s current practice. 

See 84 FR 36168, 36188. The NPRM 

solicited comments on this proposal, 

including whether an alternate duration 

for the validity of prevailing wage 

surveys would better meet the 

Department’s goals of basing prevailing 

wage rates on the most recent data and 

making prevailing wage findings 

available where the prevailing wage rate 

would be higher than the AEWR. The 

NPRM also sought comment on whether 

the Department should index prevailing 

wage rates based on either the CPI or 

Employment Cost Index (ECI) when the 

OFLC Administrator issued a prevailing 

wage rate in one year for a crop or 

agricultural activity but a prevailing 

wage finding is not available in a 

subsequent year, and whether the 

Department should set limits on the age 

of the survey data. As discussed below, 

paragraph (c)(2) is adopted without 

change from the NPRM. 

Commenters generally supported the 

proposed 1-year validity period. A few 

commenters including trade 

associations recommended that a 

prevailing wage ‘‘expire on its 

anniversary,’’ without clarifying if 

‘‘anniversary’’ referred to the date the 

wage was posted by OFLC. Another 

trade association stated, without 

additional explanation, that the 

Department should not use surveys that 

include data older than 12 months. 

Citing the current ‘‘dynamic’’ business 

environment, other commenters 

suggested the Department should not 

use surveys that include data collected 

more than 6 months prior to the wage 

determination. One of these commenters 

claimed, without additional 

explanation, that such data should be 

excluded due to a limited pool of 

workers and variations in commodity 

markets, weather changes, and other 

variables. 

Several of these commenters also 

provided general suggestions regarding 

indexing prevailing wage rates between 

determinations. Some commenters 

recommended that prevailing wage rates 

not be indexed based on the CPI or ECI 

when the prevailing wage finding is not 


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67See 2015 H–2B Final Rule, 80 FR 24146, 24175 

(requiring the wages reported in employer-provided 

surveys in the H–2B program be no more than 24 

months old). 

68This provision, codified at § 655.120(b) under 

the 2010 H–2A Final Rule, was redesignated as 

paragraph (c) in the 2020 H–2A AEWR Final Rule. 

See 85 FR 70445, 70477. 

available, without explaining why 

prevailing wages should not be indexed 

based on these sources. Other 

commenters suggested that if the 

Department is considering indexing the 

prevailing wage rate to any metric, it 

should consider metrics that ‘‘reflect the 

agricultural economy such as wholesale 

or retail fruit and vegetable prices.’’ 

None of these commenters provided 

additional explanation. 

After consideration of these 

comments, the Department has decided 

to adopt the validity period provision as 

proposed. Under this final rule, a 

prevailing wage will expire either 1 year 

after OFLC posts the wage or on the date 

an adjusted prevailing wage is issued, 

whichever is earliest. This change is 

consistent with the specific comments 

on the 1-year validity period, based on 

the information provided in those 

comments. The Department declines to 

adopt the suggestion to exclude data 

older than 6 months from prevailing 

wage findings. The commenters did not 

explain why survey findings must 

exclude such data, beyond a general 

reference to the ‘‘dynamic’’ business 

environment and broad variables in that 

environment. Nor did the commenters 

provide evidence suggesting the 

exclusion of data older than 6 months 

is necessary for a survey to yield more 

accurate results or otherwise be an 

efficient use of a SWA’s limited 

resources. Instead, the commenters’ 

suggestion could elevate form over 

function—for example, excluding data 

that are 61⁄2 months old—and may 

unnecessarily preclude States from 

producing a valid PWD. The 

commenters’ suggestion is also at odds 

with the Department’s intent to 

establish survey results that are as 

reliable as possible using standards that 

are realistic for SWAs in a modern 

budget environment. If adopted, the 

commenters’ suggestion would impose 

more onerous data requirements on 

SWAs than those mandated by OFLC’s 

prior guidance on prevailing wage 

surveys and OFLC’s current 

requirements for employer-provided 

surveys under the H–2B program.67

The Department has decided not to 

adopt the suggestion to index the 

prevailing wage rate to address 

subsequent years in which a prevailing 

wage finding is not available. The 

commenters either did not provide any 

recommendation for index sources or 

did not address why a particular index 

would be sufficient to accurately reflect 

the prevailing wages of similarly 

employed workers. Without additional 

information, it is not clear what existing 

metric, if any, would reflect the 

information the commenters believed 

should be considered, and it is therefore 

difficult to evaluate the feasibility or 

desirability of this type of indexing for 

SWA prevailing wage survey findings. 

xiii. Section 655.120(c)(3) 

The current regulation at § 655.120(b) 

requires the employer to pay a higher 

prevailing wage upon notice to the 

employer by the Department.68 The 

Department’s current practice is to 

publish prevailing wage rates on its 

website and directly contact employers 

covered by a higher prevailing wage. In 

the NPRM, the Department proposed to 

continue this current practice of 

notifying employers directly. The 

Department also proposed that new 

higher prevailing wage rates would 

become effective 14 days after 

notification, which paralleled the 

Department’s proposal to codify current 

practice of providing an adjustment 

period of up to 14 days to start paying 

a newly issued higher AEWR. Although 

the January 2021 draft final rule would 

have adopted the 14-day proposal for 

prevailing wages, this final rule does not 

adopt the proposal for the reasons 

discussed below, but it otherwise adopts 

the proposed language from the NPRM 

with minor conforming changes. 

An employer and trade association 

stated a 14-day effective date is an 

improvement over the current 

requirement for prevailing wages. An 

agent and another trade association 

commented that 14 days do not allow 

employers adequate time to plan for 

costs, especially if there is a ‘‘significant 

increase’’ in wages. A SWA opposed the 

14-day proposal on the basis that 

workers can be deprived of up to 2 

weeks of pay to which they are entitled. 

Instead, the SWA suggested that 

employers should pay any increases 

retroactively, such as in the pay period 

after the new wage becomes effective, to 

alleviate potential burdens associated 

with adjusting wages mid-pay period. 

In response to comments that even 14 

days is not enough time for employers 

to plan for costs, the H–2A regulations 

already require the employer to pay a 

higher wage if the prevailing wage rate 

is adjusted during the work contract and 

the new adjusted wage is higher than 

the required wage at the time of 

certification. The NPRM retained this 

underlying requirement, which 

employers have been able to follow 

since 2010, while proposing to provide 

employers a brief period to adjust to a 

higher wage. When the Department 

added the provision to account for an 

increase in prevailing wages during a 

contract period, it recognized these 

wage adjustments may alter employer 

budgets for the season. See 2010 H–2A 

Final Rule, 75 FR 6884, 6901. As the 

Department explained at that time, the 

change is intended to ensure workers 

are paid throughout the life of their 

contracts at an appropriate wage, and 

the Department encouraged employers 

to include into their contingency 

planning certain flexibility to account 

for any possible wage adjustments. Id. 

After further consideration of the 

comments and in conformity with its 

decision not to adopt a 14-day 

adjustment period in connection with 

the AEWR, the Department declines to 

adopt the proposed delayed 

implementation of a prevailing wage 

update to workers’ pay. The 14-day 

grace period proposal was intended to 

help ensure workers are paid at an 

appropriate wage throughout the life of 

their contracts while giving employers a 

brief window for updating their payroll 

systems and to simplify the program 

through the adoption of consistent 

adjustment periods for wage-related 

updates. The Department is sensitive 

both to the worker protection concerns 

the SWA raised and to adopting an 

approach that could add complexity, 

which is inconsistent with the 

Department’s goals in this rulemaking to 

enhance worker protections while 

simplifying the program to facilitate 

compliance and administration. As 

such, the Department has decided 

against adopting the proposed 

adjustment period for prevailing wage 

updates in this final rule. Not adopting 

the proposal maintains current 

prevailing wage adjustment 

requirements, which help ensure 

workers are paid at an appropriate wage 

upon notification of a new, higher wage 

obligation. 

xiv. Section 655.120(c)(4) 

The NPRM proposed that if the 

prevailing wage is adjusted during the 

contract period and is higher than the 

previous certified offered wage rate, the 

employer must pay the higher wage rate, 

but may not lower the wage rate if OFLC 

issues a prevailing wage that is lower 

than the offered wage rate. This 

proposed change discontinues the 

current practice permitting employers to 

include a clause in the job order stating 

that it may reduce the offered wage rate 

if an adjustment during the contract 


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period reduces the highest wage rate 

among all applicable wage sources. The 

NPRM also proposed to remove 

language from § 655.120(b) that requires 

an employer to pay the wage ‘‘in effect 

at the time work is performed’’ because 

the presence of that reference may 

create confusion about the existing 

requirement to continue to pay a 

previously offered wage if the new 

‘‘effective’’ wage is lower. As discussed 

below, this final rule adopts paragraph 

(c)(4) as proposed in the NPRM except 

for a minor conforming change. 

The Department received comments 

from various entities, including 

employers, trade associations, and 

agents, in response to this provision. 

Many employer and trade associations 

opposed the Department’s current 

requirement mandating mid-contract 

wage adjustments if a new prevailing 

wage rate is higher than the required 

wage at the time of certification. 

Commenters explained, for example, 

that mid-season increases make 

planning impossible, are not fair to 

employers, and the government should 

not require employers to change a 

contract after it has been ‘‘approved.’’ A 

trade association stated it may not be 

possible to verify the sources of the 

wage data with no ability to challenge 

these data under the final rule. An agent 

and another trade association 

commented there is no valid basis to 

require payment of a higher wage that 

is not the AEWR if the AEWR is 

supposed to represent the exact wage 

that protects U.S. workers at that time. 

Other commenters offered four 

alternatives to the Department’s 

proposal, including (1) allowing 

employers to pay the rate(s) listed in a 

certified application for the duration of 

the employment period (i.e., a fixed 

wage with no upward adjustments); (2) 

authorizing downward wage 

adjustments; (3) permitting an annual 

adjustment of prevailing wage rates on 

a date certain; and (4) placing 

limitations on in-season prevailing wage 

increases, including a 10-percent cap. 

One of these commenters recommended 

the notice provided by the Department 

to the employer regarding ‘‘changes in 

wages be adequate to hand out to 

workers to meet the disclosure 

requirement.’’ 

Having carefully considered the 

comments received, the Department has 

decided to retain this provision with a 

minor change to the regulatory text to 

recognize that there may be a prevailing 

wage for a distinct work task or tasks 

within a crop or agricultural activity in 

certain situations. This modification is a 

technical, conforming change with other 

portions of § 655.120(c). Under this 

provision, because the employer 

advertised and offered the higher wage 

rate, the wage cannot be reduced below 

the wage already offered and agreed to 

in the work contract. Accordingly, if a 

prevailing wage for a geographic area 

and crop activity or agricultural activity 

and, if applicable, distinct work task(s) 

is adjusted during the work contract, 

and the new prevailing wage is lower 

than the rate guaranteed on the job 

order, the employer must continue to 

pay at least the offered wage rate. 

Employers who disagree with a wage 

adjustment after their applications have 

been certified can continue to challenge 

the adjustment in Federal court. 

The Department does not agree with 

the comment claiming there is no valid 

basis to require payment of a higher 

wage when that wage is not the AEWR. 

Employers participating in the H–2A 

program must offer and pay the highest 

of the AEWR, the prevailing wage, the 

Federal or State minimum wage, or the 

agreed-upon collectively bargained 

wage rate, as applicable, for every hour 

or portion worked during a pay period. 

See §§ 655.120(a) (excluding certain 

employment), 655.122(l). The wage 

adjustment provisions are intended to 

ensure that workers in the program 

consistently receive at least the highest 

of these applicable wages, whether that 

wage be the AEWR, the prevailing wage, 

or another wage source listed in 

§ 655.120(a). Moreover, PWDs 

determined by State-conducted 

prevailing wage surveys for a particular 

geographic area can serve as an 

important additional protection for 

workers in the United States in crop and 

agricultural activities with piece rates or 

higher hourly rates of pay than the 

AEWR. In such instances, the wage 

adjustment provisions ensure the wages 

received by applicable workers reflect 

the wage paid to similarly employed 

workers in that area. 

The Department declines to adopt the 

suggested alternatives, as they are not 

sufficient to ensure workers are paid at 

an appropriate wage commensurate 

with the baseline market value of their 

services throughout the life of their 

contracts. In addition, an annual 

adjustment of prevailing wage rates on 

a certain date each year is not in line 

with current practice. States do not 

conduct prevailing wage surveys at the 

same time each year in all cases, and 

consequently, OFLC validates PWDs 

throughout the year. The NPRM did not 

propose to change this practice. The 

Department also declines to adopt 

proposals to impose a 10-percent cap 

and similar limitations on PWDs. The 

Department establishes wages based on 

data representing actual wages paid to 

workers, including prevailing wages 

based on wages paid to U.S. workers in 

a particular geographic area and crop or 

agricultural activity and if applicable, 

distinct work task(s). The commenter 

did not provide a sufficient economic 

rationale to impose a cap that is 

unrelated to employer costs or wages 

paid and such a cap would produce 

wage stagnation, most significantly in 

years when the wages of U.S. workers 

are rising faster due to strong economic 

and labor market circumstances. 

The agent’s comment regarding the 

use of notice(s) of wage adjustment to 

satisfy ‘‘the disclosure requirement’’ did 

not specify the disclosure requirement 

to which the comment referred. To the 

extent the comment refers to the MSPA 

disclosure requirements under 29 U.S.C. 

1821 and 1831 and 29 CFR 500.75 and 

500.76, OFLC’s notice to the employer 

of prevailing wage rate adjustment(s) 

may be sufficient to satisfy the required 

disclosure of wage rates under MSPA 

(provided that, if multiple wage 

adjustments are included in the notice, 

it is clear which applies to the specific 

worker), but will not satisfy the required 

disclosure of other information, such as 

the place or period of employment. See 

29 U.S.C. 1821, 1831; 29 CFR 500.75, 

500.76. Without additional information, 

however, the Department cannot assess 

the agent’s recommendation and, 

therefore, is unable to adopt the 

recommendation. 

d. Section 655.120(d) Appeals 

Although the Department employs the 

same Notice of Deficiency (NOD) and 

appeal framework regardless of the 

deficiency noted in an Application for 

Temporary Employment Certification, 

the NPRM proposed to include an 

appeal provision at paragraph (d) for 

clarity. Specifically, if an employer does 

not include an appropriate offered wage 

on the H–2A application, the CO will 

issue a NOD requiring the employer to 

correct the wage offer. Such a situation 

may occur, for example, when the 

employer offers less than the highest of 

the sources applicable to the job 

opportunity under § 655.120(a) because 

it selected an incorrect SOC code for the 

job opportunity. If the employer 

disagrees with the wage rate associated 

with the SOC required by the CO and 

does not correct the wage offer in its 

response to the NOD, the application 

will be denied, and the employer may 

appeal the denial of its application on 

this basis (and other bases noted in the 

denial, as applicable) by following the 

appeal procedures at § 655.171. As 

discussed below, this provision remains 

unchanged from the NPRM. 


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The Department received several 

comments on this proposal. An 

employer expressed concern that an 

employer who disagrees with the 

required wage rate cannot appeal unless 

its application is denied. A trade 

association expressed concern that the 

proposal adds inefficiencies to the 

program and affects employers’ due 

process rights, and it claimed that 

applications would have to be denied 

based on a factor other than the wage in 

order to be appealed. 

As the Department explains below in 

the preamble to § 655.141, the removal 

of the ability to appeal a NOD better 

conforms with the statutory 

requirements under the INA. This 

change also helps to promote efficiency 

by providing that all possible grounds 

for denial are appealed at once, rather 

than allowing for separate appeals of 

multiple issues. The appeal process 

continues to include an expedited 

administrative review procedure, or an 

expedited de novo hearing at the 

employer’s request, in recognition of the 

INA’s concern for prompt processing of 

H–2A applications. Further, it is not 

true that an employer’s application has 

to be denied based on a factor other than 

the wage in order for the employer to 

challenge a wage rate required by the 

CO. An employer that does not correct 

a wage deficiency—or any other 

deficiency—noted in a NOD, may 

appeal a denial on that basis (and any 

other bases noted in the denial, as 

applicable). 

A workers’ rights advocacy 

organization noted SOC codes will be 

critical to determining the AEWR and 

the Department should allow the SWA 

to determine the appropriate code 

because SWAs, according to the 

organization, are the most 

knowledgeable about the different work 

in a certain agricultural industry in a 

geographic region. The organization 

requested that § 655.120(d)(1) be revised 

so that either the SWA or the CO can 

issue a NOD requiring the employer to 

correct the offered wage rate on its 

application. This concern is misplaced. 

The NPRM did not propose to change 

the SWA’s role in reviewing the offered 

wage rate and other information in an 

employer’s job order for compliance 

with 20 CFR part 653, subpart F, and 20 

CFR part 655, subpart B. Compare 

§ 655.121(b)(1) (2010 H–2A Final Rule) 

with § 655.121(e)(2). Specifically, if the 

SWA notes any deficiencies with the job 

order, including with the offered wage 

rate or SOC code, it must notify the 

employer and offer the employer an 

opportunity to respond. See id. Upon 

receipt of a response, the SWA will 

review the response and notify the 

employer of its acceptance or denial of 

the job order. See id. After the employer 

files its Application for Temporary 

Employment Certification, whether 

under the emergency filing procedures 

at § 655.134 or the normal filing 

procedures at § 655.130, the CO will 

review the employer’s application. If the 

CO determines the application contains 

an incorrect offered wage rate, the CO 

will issue a NOD under § 655.141 noting 

the incorrect rate, SOC code, and any 

other deficiencies that prevent 

certification, as applicable. See id.; 

§ 655.120(d)(1). As such, the 

commenter’s concern is addressed 

through the SWA’s authority to review 

and respond to deficiencies in the job 

order, which this final rule retains in 

§§ 655.121(e)(2) and 655.134(c)(1). 

An agent proposed ‘‘an appeal process 

in connection with the prevailing 

wages,’’ without additional explanation. 

To the extent the commenter intended 

to address an employer’s disagreement 

with, and appeal of, the CO’s 

application of a particular PWD to an 

employer’s job opportunity, such 

appeals are available in this final rule. 

See §§ 655.120(d), 655.142(c). To the 

extent the commenter intended to 

suggest the Department implement an 

appeals procedure for PWDs set or 

adjusted in accordance with paragraph 

(c), the Department respectfully 

declines, as employers can continue to 

challenge PWDs and post-certification 

adjustments in Federal court. 

After consideration of these 

comments, the Department has retained 

the provision as proposed. This 

provision provides a process to appeal 

the required offered wage rate for an 

employer’s job opportunity, both the 

CO’s application of the wage sources in 

paragraph (a) and determination of 

which is highest. This process is 

consistent with other provisions in this 

final rule that add express authority for 

the CO to issue multiple NODs and to 

eliminate appeals of NODs. See 

§§ 655.142(a), 655.141. 

2. Section 655.121, Job Order Filing 

Requirements 

In the NPRM, the Department 

proposed amendments to this section to 

modernize the process by which 

employers submit job orders to the SWA 

for review and clearance in order to test 

the local labor market and determine the 

availability of U.S. workers before filing 

an Application for Temporary 

Employment Certification. Specifically, 

the Department proposed new standards 

and procedures requiring employers, 

unless a specific exemption applies, to 

electronically submit job orders to the 

NPC for processing; minor revisions to 

the timeframes and procedures under 

which the SWA reviews and circulates 

approved job orders for intrastate and 

interstate clearance; and reorganization 

of several existing provisions to provide 

clarity and conform to other changes 

proposed in the NPRM. The Department 

received several comments on this 

section, none of which necessitated 

substantive changes to the regulatory 

text. However, the Department’s 

decision not to adopt the proposed 

optional pre-filing positive recruitment 

provision at § 655.123 necessitated the 

removal of the proposed pre-filing 

interstate job order circulation language 

from paragraph (f). Therefore, as 

discussed in detail below, the 

provisions of § 655.121 remain 

unchanged from the NPRM, except for 

paragraph (f). The Department will 

retain the parameters of pre-filing job 

order circulation from the 2010 H–2A 

Final Rule in paragraph (f), with minor 

revisions to conform to the electronic 

submission and transmission 

procedures adopted in this final rule, as 

discussed below. 

a. Submission and Transmission of the 

Job Order 

The INA requires employers to engage 

in the recruitment of U.S. workers 

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. The Department 

proposed to modernize and streamline 

the process by which employers submit 

job orders, H–2A Agricultural Clearance 

Order (Form ETA–790/790A), to the 

SWA for review and clearance to place 

job orders into intrastate and interstate 

clearance. Job orders are a required 

component of testing the labor market 

for the availability of U.S. workers 

before filing an Application for 

Temporary Employment Certification. 

The Department proposed to require all 

job orders, Form ETA–790/790A, be 

signed with an electronic signature (i.e., 

an electronic (scanned) copy of the 

original signature or a verifiable 

electronic signature method, as directed 

by the OFLC Administrator) and 

submitted electronically to the NPC, 

using the electronic method(s) 

designated by the OFLC Administrator. 

Currently, the Department’s FLAG 

system, available at https://flag.dol.gov, 

is the OFLC Administrator’s designated 

electronic filing method. Only 

employers the OFLC Administrator 

authorizes to file by mail due to lack of 

internet access or using a reasonable 

accommodation due to a disability 

under the proposed procedures in 

§ 655.130(c) would be permitted to file 


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69This comment expressed concern with the term 

‘‘promptly’’ in relation to the Department’s proposal 

in paragraph (f) to begin interstate clearance after 

the SWA’s approval of the job order, which the 

Department has not adopted, as discussed below. 

Both the commenter’s underlying concern with the 

term ‘‘promptly’’ and the Department’s response 

apply to the NPC’s transmission of a job order to 

a SWA, regardless of whether the transmission is 

for initial review or related to interstate clearance, 

and regardless of whether the transmission occurs 

pre-filing under paragraph § 655.121(f) or post-filing 

under § 655.150(a); therefore, the Department 

acknowledges the comment here. 

using those other means. Upon receipt 

in the electronic filing system, the NPC 

would transmit Form ETA–790/790A to 

the SWA serving the AIE for review. If 

the job opportunity is located in more 

than one State within the same AIE, the 

NPC would transmit a copy of the 

electronic job order, on behalf of the 

employer, to one of the SWAs with 

jurisdiction over the place(s) of 

employment for review. 

For job orders submitted to the NPC 

in connection with a future master 

application to be submitted under 

§ 655.131(a), the Department proposed 

the agricultural association would 

continue to submit a single Form ETA– 

790/790A in the name of the 

agricultural association as a joint 

employer. In the Form ETA–790A, as 

well as in the future Application for 

Temporary Employment Certification, 

the agricultural association would 

identify all employer-members by name. 

Where two or more employers are 

seeking to employ a worker or workers 

jointly, as permitted by § 655.131(b) 

(i.e., joint employers other than an 

agricultural association and its 

employer-members filing a master 

application under § 655.131(a)), the 

Department proposed that any one of 

the employers may continue to submit 

the Form ETA–790/790A as long as all 

joint employers are named on the Form 

ETA–790A and the future Application 

for Temporary Employment 

Certification. 

Commenters generally expressed 

strong support for the proposals to 

modernize the job order filing process 

by requiring job orders to be signed 

electronically and submitted through 

the Department’s electronic filing 

system, absent authorization to file by 

mail due to lack of internet access or 

using a reasonable accommodation due 

to a disability under the proposed 

procedures in § 655.130(c). A SWA 

viewed the proposal as a way to 

improve program efficiency, eliminate 

paper applications, reduce errors, and 

streamline the job posting process, and 

a workers’ rights advocacy organization 

agreed it may streamline the process 

and reduce paperwork burdens. The 

workers’ rights advocacy organization 

and a trade association recognized it as 

a way to improve communication 

between agencies involved in H–2A 

processing and improve response times. 

Several associations stated the ability to 

submit the job order electronically and 

to pre-populate certain information for 

future job orders will help streamline 

the application process, while the 

utilization of standardized terms and 

conditions of employment on the form 

and electronic data checks will enhance 

the efficiency of the program for users. 

However, some commenters opposed 

the Department’s proposal to require 

employers submit the Form ETA–790/ 

790A to the NPC, rather than to the 

SWA directly. Some comments urged 

the Department to maintain the existing 

filing procedures and expressed concern 

the proposed change would strain OFLC 

resources, hinder the employer’s ability 

to communicate directly with the 

SWAs, and transfer primary 

responsibility for job order review to the 

CO or otherwise diminish the role of the 

SWAs. Some commenters also asserted 

the Department failed to explain why 

this change was necessary and how it 

would improve the program. 

As explained in the NPRM, the 

Department determined the proposed 

changes, including submission to the 

NPC in the Department’s electronic 

filing system, will modernize the job 

order filing process resulting in more 

efficient use of SWA and Department 

resources. The SWAs generally do not 

have adequate capacity to provide for 

the full electronic submission and 

management of agricultural job orders in 

the OMB-approved format, which may 

create uncertainty for employers that 

need to submit job orders within 

regulatory timeframes. Further, given 

that an employer must provide a copy 

of the same job order to the NPC at the 

time of filing the Application for 

Temporary Employment Certification, 

the current job order filing process 

requires duplication of effort for 

employers, especially those with 

business operations covering large 

geographic areas that need to coordinate 

job order submissions with multiple 

SWAs; a single electronic submission 

location simplifies the application 

process. For the Department and SWAs, 

electronic submission of job orders to 

the NPC will decrease data entry, 

improve the speed with which job order 

information can be retrieved and shared, 

reduce staff time and storage costs, and 

improve storage security. Since the new 

Form ETA–790/790A will be stored 

electronically, it also eliminates the 

need for manual corrections of errors 

and other deficiencies and improves the 

efficiency of posting and maintaining 

approved job orders on the 

Department’s electronic job registry. The 

Department therefore determined that 

this process will result in more efficient 

use of Department and SWA staff time. 

The most common concern among 

commenters with respect to the 

requirement to submit job orders to the 

NPC through the Department’s 

electronic filing system, rather than to 

the SWA directly, related to potential 

delay in the SWA’s receipt of the job 

order. Commenters expressed concern 

the proposal might not streamline the 

job order filing and distribution 

processes; rather, it might add a ‘‘layer 

of bureaucracy,’’ with the NPC serving 

as an unnecessary intermediary between 

employers and the SWAs and causing 

delays between NPC’s receipt of a job 

order and its transmission of the job 

order to the SWAs. Commenters noted 

the NPRM did not impose deadlines by 

which the CO would be required to 

transmit the job orders to the SWAs, and 

an agent and workers’ rights advocacy 

organization stressed the need for the 

SWA to receive the job order 

immediately. A few commenters 

specifically asked the Department to 

clarify whether the SWA will receive 

immediate notification and receipt of 

the job order submission and whether 

the employer will receive confirmation 

when the SWA receives the job order. 

One commenter urged the Department 

to create a shared platform for electronic 

submission of the job order that ensures 

the SWAs have access to the job order 

without requiring the NPC to provide 

the SWA notice of the submission. 

Several commenters also urged the 

Department to ensure the FLAG 

electronic filing and application 

processing system provide notice to 

employers when the SWA takes action 

on a job order. A workers’ rights 

advocacy organization requested the 

Department provide an objectively 

measurable deadline by when the NPC 

must transmit job orders to SWAs, 

rather than the term ‘‘promptly.’’ 69

Under this final rule, there will be no 

duplication of processes and no delay 

between an employer’s submission of a 

job order to the NPC and the SWA’s 

access to the job order. As noted in the 

NPRM, the Department already provides 

the SWAs with access to OFLC’s FLAG 

system to electronically communicate 

any deficiencies with job orders 

associated with employer-filed H–2A 

and H–2B applications and uploading 

inspection reports of employer housing. 

That access has been enhanced so the 

SWA has access to the job order in the 

FLAG system upon submission. As a 


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result, ‘‘transmission’’ of the job order 

from the NPC to the SWA in FLAG is 

automatic and virtually instantaneous. 

Once the employer submits the Form 

ETA–790/790A in the FLAG system, the 

FLAG system will notify the SWA of the 

new job order available for its review 

and will send the employer a 

confirmation email that includes a 

generated case number the employer 

can use to track the submitted job order. 

The SWA may also send email 

correspondence to the filer as needed. 

When the SWA issues a decision on the 

job order, the case status in the filer’s 

queue will change to reflect that 

decision (e.g., NOD Issued, Job Order 

Approved, or Job Order Denied). In 

addition, if a job order is modified 

during processing of the Application for 

Temporary Employment Certification, 

the CO will add a case note directed to 

the SWA, advising the SWA an 

amendment has been made to the job 

order that both the NPC and SWA may 

access. 

The Department also received several 

comments about § 655.121(e)(1) that 

suggested a mistaken belief the 

Department intended for the NPC to 

choose which SWA would receive the 

job order in cases where more than one 

SWA has jurisdiction over the AIE, 

rather than continuing to allow the 

employer to make that selection. Agents 

and agricultural associations urged the 

Department to continue to permit 

employers to choose the SWA, while a 

workers’ rights advocacy organization 

urged the Department to provide 

specific criteria that the CO and 

employer must use to determine the 

SWA to receive the job order to guard 

against employers using their freedom 

of choice to avoid SWAs that have 

identified deficiencies in their past 

filings. The commenter recommended 

the Department require the CO to send 

the job order to the SWA with 

jurisdiction over the first work location 

under the contract, which it stated was 

important because positive recruitment 

is most likely to be effective in the State 

where work begins. 

Under this final rule, the employer 

will continue to identify the SWA to 

which its job order will be submitted for 

review under § 655.121. When an 

employer prepares and submits a job 

order in the FLAG system, the employer 

will be asked to identify the SWA to 

receive the job order by selecting a SWA 

from a drop-down list of SWAs with 

jurisdiction over that job order. The 

drop-down list will be consistent with 

the parameters at § 655.121(e)(1): Where 

only one SWA has jurisdiction over the 

AIE, the drop-down list will include 

only one option; where more than one 

SWA has jurisdiction over the AIE (i.e., 

the AIE crosses State lines), the dropdown list will include more than one 

option. For employers permitted to file 

by mail, the employer may identify the 

SWA to receive the job order, consistent 

with the parameters at § 655.121(e)(1), 

in a cover letter attached to that job 

order. Upon submission in the FLAG 

system, the job order will be 

electronically transmitted to the SWA 

the employer identified. 

The Department declines to revise 

§ 655.121(e)(1) to restrict an employer’s 

choice among the SWAs sharing 

jurisdiction in an AIE that crosses State 

lines by requiring the employer to select 

the SWA with jurisdiction over the 

place where work is expected to begin. 

As a preliminary matter, these job 

orders may not involve work that begins 

in one State or another; work may begin 

simultaneously throughout the AIE and 

across State lines. Further, an 

employer’s choice in this scenario is 

limited; the employer has the option to 

choose only among those SWAs that 

share State lines in the AIE. In addition, 

the difference in recruitment exposure 

in each of the States involved is 

minimal. As soon as the employerselected SWA approves the job order 

and begins intrastate recruitment, it will 

notify the NPC through the FLAG 

system to transmit the job order in the 

FLAG system to the other SWAs with 

jurisdiction over the AIE, in accordance 

with § 655.121(f). Adding the suggested 

restriction to § 655.121(e)(1) would 

increase the complexity of filings 

without adding significant value. 

However, the Department has clarified 

the SWA selection criteria applicable to 

a job opportunity that involves work in 

multiple AIEs along a planned itinerary, 

where there is a true beginning location 

for the work to be performed under the 

contract, in § 655.302. 

b. SWA Review of the Job Order 

The Department proposed minor 

revisions to the timeframes and 

procedures under which the SWA 

performs a review of the employer’s job 

order. Specifically, the Department 

proposed that where the SWA issues a 

notification of deficiencies, the 

notification the SWA issues must state 

the reason(s) the job order fails to meet 

the applicable requirements and state 

the modifications needed for the SWA 

to accept the job order. In addition, the 

Department proposed that the job order 

be deemed abandoned if the employer’s 

response to the SWA’s notification is 

not received within 12 calendar days 

after the SWA issues the notification. 

Finally, the Department proposed that 

any notice sent by the SWA to an 

employer must be sent using a method 

guaranteeing next-day delivery, 

including email or other electronic 

methods, and must include a copy to 

the employer’s representative, if 

applicable. 

Two commenters expressed concern 

that the Department was diminishing 

the role of the SWAs in the job order 

review process. One commenter 

believed the Department intended to 

transfer authority for job order review 

from the SWAs to OFLC, which the 

commenter asserted would set a 

‘‘dangerous precedent’’ that would 

undermine the SWA’s role by 

influencing how and when a SWA 

receives the job order. Similarly, a 

workers’ rights advocacy organization 

believed the proposed changes would 

diminish the SWA’s ability to promptly 

recruit and advise U.S. workers of job 

opportunities and compromise the 

SWA’s ability to issue a notification of 

deficiencies when the job order violates 

State law or fails to conform to local 

prevailing wages and practices. The 

commenter emphasized the importance 

of the SWAs in conducting review of job 

orders, noting the SWAs have greater 

knowledge than the CO of actual labor 

needs, crop needs, and local practice 

and, therefore, are more likely to 

identify flaws or fraud in job orders. 

This commenter further urged SWAs 

not to accept job orders, and OFLC to 

deny Applications for Temporary 

Employment Certification, that do not 

list use of crew leaders as a prevailing 

practice or that do list qualifications or 

requirements (e.g., experience 

requirements, background checks, or 

productivity standards), unless there 

has been a determination as to ‘‘whether 

or not these requirements are, in fact, 

the prevailing practices of non-H–2A 

employers in the industry and area.’’ 

Contrary to the concerns of the 

commenters, the Department is not 

changing the roles or responsibilities of 

the SWAs with respect to review and 

approval of job orders in this 

rulemaking. The SWAs will continue 

their traditional role in the recruitment 

process and work with employers on the 

specifics of the job order. Section 

655.121(e)(2) in the NPRM and this final 

rule retains the language from the 2010 

H–2A Final Rule that explains the SWA 

will review the contents of the job order 

for compliance with the requirements 

set forth in 20 CFR part 653 and this 

subpart. As the Department has noted in 

prior rulemaking, processing job orders 

has been an essential function of the 

SWAs since the inception of the H–2A 

program, and posting job orders in the 

employment service system and 

referring individuals to those jobs is a 


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core function of the SWAs that remains 

at the State level in this rule. The 

Department agrees the SWAs are 

especially effective arbiters of the 

acceptability of job orders due to their 

experience in providing services to 

farmworkers and their unique expertise 

in assisting employers in preparing job 

orders and making determinations 

regarding their sufficiency. The 

Department will continue to rely on the 

SWAs to apply their broad, historical 

experience in administering our nation’s 

public workforce system and 

understanding of the practical 

application of program requirements to 

the process of clearing job orders. 

Further, this final rule continues the 

CO’s existing authority and 

responsibility with respect to review of 

job orders after the Application for 

Temporary Employment Certification 

has been filed. Section 655.121(h) in 

this final rule is substantively the same 

as § 655.121(e) in the 2010 H–2A Final 

Rule. As was the case under the 2010 

H–2A Final Rule, § 655.121(h) of this 

final rule explains that H–2A job orders 

continue to be subject to CO review and 

that the CO may require the employer to 

make modifications to the job order 

prior to certification. As the Department 

explained in the 2010 H–2A Final Rule, 

it has the ultimate authority to ensure 

that a job order submitted in connection 

with an Application for Temporary 

Employment Certification satisfies 

applicable requirements. COs have 

always had the authority to review job 

orders; SWA acceptance of a job order 

has never obligated a CO to overlook 

any apparent violations or deficiencies 

the SWA may not have identified. 

However, in the overwhelming majority 

of cases, CO determinations about job 

orders will be consistent with those of 

the SWA, as is true of these 

determinations under the 2010 H–2A 

Final Rule. 

Two commenters also asserted some 

SWAs add an ever-growing and 

unnecessary list of attestations and 

assurances. One of the commenters 

believed this is inconsistent with the 

Department’s goal to streamline the 

program and expressed concern that the 

additional attestations may be 

incompatible with the new streamlined 

Forms ETA–790/790A and ETA–9142A. 

The commenters did not cite specific 

unduly burdensome requirements or 

state specifically which attestation 

requirements they consider 

inappropriate or burdensome. 

In the Department’s experience, some 

disagreements about job order content 

are attributable to differences in 

experience with the local industries and 

labor markets, and the resulting content 

requirements are legitimate outgrowths 

of those differences. The Department 

will continue to provide training and 

ongoing guidance for the SWAs, as 

necessary, to foster a clear 

understanding of program and other 

regulatory requirements and ensure 

uniformity in the job order review and 

determination processes. With the 

newly designed Form ETA–790/790A, 

the Department anticipates fewer 

inconsistencies between SWA 

determinations in various States. 

However, should a disagreement 

between the SWA and employer arise 

regarding attestations, assurances, or 

other job order content, which the SWA 

and employer are unable to resolve, the 

Department reminds employers that 

they can submit an Application for 

Temporary Employment Certification 

pursuant to emergency filing procedures 

contained in § 655.134. See 

§ 655.121(e)(3). 

Under this final rule, the SWA will 

provide written notification to the 

employer of any deficiencies within 7 

calendar days from the date the NPC 

transmitted the job order to the SWA. 

The notification issued by the SWA, 

which will be sent using a method 

ensuring next-day delivery, including 

email or other electronic methods, will 

state the reasons the job order fails to 

meet the applicable requirements and 

state the modifications needed for the 

SWA to accept the job order. The 

employer will continue to have an 

opportunity to respond to the 

deficiencies within 5 calendar days 

from the date the SWA issues the 

notification, and the SWA will issue a 

final notification to accept or deny the 

job order within 3 calendar days from 

the date the SWA receives the 

employer’s response. To ensure a timely 

disposition of all job orders, a job order 

will be deemed abandoned if the 

employer’s response to the notification 

of deficiencies is not received within 12 

calendar days after the SWA issues the 

notification. In this situation, the SWA 

will provide written notification and 

direct the employer to submit a new job 

order to the NPC that satisfies all the 

requirements of this section. The 12- 

calendar-day period provides an 

employer a reasonable maximum period 

within which to respond, given the 

Department’s concern for timely 

processing of the employer’s job order. 

If the SWA does not respond to the 

employer’s job order submission within 

the stated timelines, or if after providing 

responses to the deficiencies noted by 

the SWA, the employer is not able to 

resolve the deficiencies with the SWA, 

the Department will continue to permit 

the employer to file its Application for 

Temporary Employment Certification 

and job order to the NPC using the 

emergency filing procedures contained 

in § 655.134. The Department continues 

to encourage employers to work with 

the SWAs early in the process to ensure 

their job orders meet applicable Statespecific laws and regulations and are 

accepted in a timely manner for 

intrastate and interstate clearance. 

c. Clearance of Approved Job Orders 

The 2010 H–2A Final Rule provided 

for the SWA to review a job order and, 

after determining the job order was 

acceptable, to begin intrastate clearance 

and, in multi-State AIEs, circulate the 

job order to the SWAs in other States 

with jurisdiction over the place of 

employment. Under the 2010 H–2A 

Final Rule, however, the SWA does not 

begin interstate clearance until the CO 

instructs it to do so through the Notice 

of Acceptance (NOA). Upon receipt of 

the NOA, the SWA transmits the job 

order to SWAs in other States, following 

the CO’s instructions. 

In the NPRM, the Department 

proposed changes to the job order 

circulation process, in part, to bolster 

the optional pre-filing recruitment 

procedures proposed at § 655.123. The 

Department proposed to expand job 

order circulation to interstate clearance 

upon SWA approval, rather than upon 

CO issuance of the NOA. In addition, 

consistent with the proposed electronic 

transmission of job orders, the 

Department proposed that the SWA 

would notify the CO of the SWA’s 

approval, after which the CO would 

electronically transmit the job order to 

other SWAs for interstate clearance. 

Although the January 2021 draft final 

rule would have adopted the pre-filing 

interstate circulation of job orders, after 

further consideration of comments that 

addressed the Department’s pre-filing 

recruitment proposal and the 

Department’s resulting decision not to 

adopt that proposal, as discussed in the 

preamble regarding § 655.123, the 

Department has determined not to 

revise the timing of job order clearance 

in this final rule. In particular, and 

consistent with the Department’s 

reasoning for not adopting the proposed 

optional pre-filing recruitment 

provision, the Department has 

determined that the potential benefits of 

pre-filing interstate circulation of the job 

order are outweighed by the potential 

for confusion regarding job offer details 

and additional communication (e.g., 

between the CO and SWA or SWA and 

farmworker) if the job order is modified 

before the CO issues a NOA. Retaining 

the 2010 H–2A Final Rule’s timing is 

consistent with the Department’s goal of 


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70Housing for workers principally engaged in the 

range production of livestock must meet the 

minimum standards required by § 655.122(d)(2). 

simplifying the program and is 

responsive to comments indicating the 

importance of clear, accurate, and fixed 

job offer information for recruitment of 

U.S. workers. As a result, this final rule 

retains the 2010 H–2A Final Rule’s 

timing for intrastate and interstate 

clearance, with procedural 

modifications to conform to the 

electronic job order submission and 

transmission proposals adopted in this 

final rule. As revised, paragraph (f) 

provides that the SWA will review a job 

order and, if approved, will place the 

job order in intrastate clearance to 

commence recruitment of U.S. workers 

within its jurisdiction. In addition, if 

appropriate, the SWA will notify the 

NPC that the job order must be 

transmitted to other SWAs with 

jurisdiction over the place of 

employment (i.e., a place of 

employment located in a multi-State 

AIE) for intrastate clearance. 

Subsequently, upon the CO’s review 

and acceptance of the Application for 

Temporary Employment Certification, 

as provided in § 655.143, interstate 

circulation of the job order will begin, 

in accordance with § 655.150. 

d. Other Comments Related to § 655.121 

To clarify procedures, and as a result 

of other proposed changes, the 

Department proposed reorganization of 

several components of § 655.121. In 

addition, the Department proposed a 

technical correction in paragraph (g) of 

this section, changing ‘‘Application for 

Temporary Employment Certification’’ 

to ‘‘application’’ to reflect that the term 

‘‘application’’ refers to a U.S. worker’s 

application for the employer’s job 

opportunity during recruitment, not the 

Application for Temporary Employment 

Certification. 

The Department received a comment 

from an agent suggesting an amendment 

to § 655.121(h)(2) to allow employers to 

request a modification of the job order 

to the NPC after filing an Application for 

Temporary Employment Certification 

and prior to receiving a NOA, rather 

than limiting employer-requested 

modifications to the period prior to 

filing the Application for Temporary 

Employment Certification. The 

commenter believed its suggestion 

would be consistent with the fact the 

NPC may require the employer to 

modify the job order during the review 

process through a deficiency notice. 

However, the Department did not 

propose changes to this provision, 

which appeared in the 2010 H–2A Final 

Rule at paragraph (e)(2) of this section; 

therefore, the suggestion is beyond the 

scope of this rulemaking. Further, 

unlike CO-ordered modifications, 

employer-requested modifications 

would confuse and complicate the CO’s 

analysis and ability to identify 

deficiencies within 7 business days of 

receipt or, alternatively, issue a NOA as 

the first action. 

Another individual commenter 

suggested the Department allow 

employers ‘‘to file 120 days from the 

date of need,’’ which presumably refers 

to the filing timeframe for submitting a 

job order in § 655.121(b). As the 

Department proposed no changes to the 

filing timeframe, this suggestion is 

outside the scope of this rulemaking. 

3. Section 655.122, Contents of Job 

Offers 

a. Paragraph (a), Prohibition Against 

Preferential Treatment of H–2A Workers 

The Department’s current regulation 

at § 655.122(a) prohibits the preferential 

treatment of H–2A workers and requires 

that an 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. 

Section 655.122(a) further prohibits job 

offers from imposing on U.S. workers 

any restrictions or obligations that will 

not be imposed on the employer’s H–2A 

workers. The Department did not 

propose any changes to or request 

comments on § 655.122(a) in the NPRM, 

but the Department received one 

comment on this section. An agent 

requested that the Department ‘‘clarify’’ 

that the U.S. workers referenced in this 

section are those U.S. workers engaged 

in corresponding employment because, 

it asserted, ‘‘U.S. workers not in 

corresponding employment are not, in 

fact, entitled to the same H–2A wage 

rate as this provision appears to 

suggest.’’ The commenter, however, is 

incorrect because the requirements of 

this section are not limited to U.S. 

workers in corresponding employment. 

Under this section, for example, an H– 

2A employer may not impose on 

prospective U.S. workers applying for 

the H–2A job opportunity a minimum 

weight-lifting requirement that it will 

not and does not impose on H–2A 

workers. Therefore, this final rule 

retains the current regulatory language 

without change. 

b. Paragraph (d), Housing 

Pursuant to the statute and the 

Department’s regulations, an employer 

must provide housing at no cost to all 

H–2A workers and to those non-H–2A 

workers in corresponding employment 

who are not reasonably able to return to 

their residences within the same day. 

See 8 U.S.C. 1188(c)(4); § 655.122(d)(1). 

Generally, an employer may meet its 

housing obligations either by providing 

its own housing that meets the 

applicable Federal health and safety 

standards, or by providing rental and/or 

public accommodations that meet the 

applicable local, State, or Federal 

standards.70 The statute further requires 

that the determination whether the 

housing meets the applicable standards 

must be made not later than 30 days 

before the first date of need. See 8 

U.S.C. 1188(c)(3)(A) and (4). 

The NPRM proposed several 

amendments to this section governing 

housing inspections and certifications. 

Specifically, the Department proposed 

to reinforce the statutory requirement 

that housing certification must be made 

not later than 30 days prior to the first 

date of need; clarify that other 

appropriate local, State, or Federal 

agencies may conduct inspections of 

employer-provided housing on behalf of 

the SWAs; and authorize the SWAs (or 

other appropriate authorities) to inspect 

and certify employer-provided housing 

for a period of up to 24 months. The 

Department received many comments 

on the proposed amendments to these 

sections. After carefully considering 

these comments, the Department has 

adopted with minor revisions some of 

the regulatory text proposed in the 

NPRM and decided not to adopt the 

proposals that would have permitted a 

24-month housing certification period 

and employer self-certification of 

housing, as discussed below. 

Employer-Provided Housing 

Preoccupancy inspections are a vital 

step in determining whether employerprovided housing actually meets 

applicable health and safety standards, 

allowing the Department to ensure that 

the housing is safe and sufficient for the 

number of workers to be housed prior to 

their arrival for the work contract 

period. Under the current regulation, 

employers are required to obtain 

preoccupancy inspections of their 

housing for every temporary agricultural 

labor certification without exception. 

This requirement can lead to delays in 

the labor certification process, given the 

high demand for preoccupancy 

inspections and the SWAs’ finite 

resources. 

To address such delays, the 

Department proposed to allow the 

SWAs to inspect and certify employerprovided housing for a period of time 

up to a maximum period of 24 months. 

Under this proposal, the SWAs would 


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be required to provide prior notice to 

the Department of their intention to 

certify employer-provided housing for 

extended periods of time, up to 24 

months, and develop their own criteria 

for determining when such 

certifications are appropriate. Although 

the Department proposed to allow the 

SWAs to develop their own criteria, in 

recognition of their longstanding 

expertise in conducting housing 

inspections, the Department also 

requested comments as to whether a 

final rule should include specific 

criteria that the SWAs must consider in 

determining whether to certify 

employer-provided housing for longer 

time periods. The proposal also stated 

that when an employer files a 

subsequent Application for Temporary 

Employment Certification during the 

validity period of the official housing 

certification previously received from 

the SWA (or other appropriate 

authority), the employer would have 

been required to conduct its own 

inspection of the housing and provide 

the SWA and CO with a copy of the 

still-valid housing certification, which 

must be valid for the entire work 

contract period, and a signed and dated 

statement that the employer has 

inspected the housing, that the housing 

is available and sufficient to 

accommodate the number of workers 

requested, and that the housing meets 

all applicable health and safety 

standards. Additionally, the NPRM 

proposed to add language reiterating the 

statutory requirement that 

determinations with respect to housing 

must be made no later than 30 days 

prior to the first date of need. The 

NPRM also proposed to clarify that 

other appropriate local, State, or Federal 

agencies may conduct inspections of 

employer-provided housing on behalf of 

the SWAs, in accordance with the 

regulatory provisions at § 653.501(b). As 

discussed below, the Department has 

decided to adopt with minor revisions 

some of the regulatory provisions 

proposed in the NPRM. 

The Department received comments 

from a range of stakeholders regarding 

the proposed changes to the employerprovided housing inspection 

requirements. Employers and employer 

representatives expressed broad support 

for the proposal to allow certifications 

of employer-provided housing for a 

period of up to 24 months with 

employers self-inspecting their housing 

for further applications during this 

period. They indicated that this 

proposed revision would reduce delays 

in the application and certification 

process that they say harm agricultural 

businesses and create uncertainty for 

employers and workers. Some State 

agencies also expressed support for this 

proposal, indicating that it would 

improve their ability to allocate their 

resources for housing inspections. 

However, many of these commenters 

expressed concern that the SWAs would 

have discretion to determine the criteria 

for determining when such housing 

certification periods would be 

appropriate, indicating that the SWAs 

should be precluded from continuing 

inspections on an annual basis. Several 

commenters indicated that the final rule 

should require the SWAs to allow 

agricultural employers to have their 

housing certified for a period of 24 

months, or at least provide incentives to 

the SWAs to encourage them to certify 

employer-provided housing for a 24- 

month period as often as possible. Other 

commenters stated that the Department 

should require the SWAs to certify 

employer-provided housing for a 24- 

month period when previous 

inspections of housing provided by that 

employer had found that the housing 

complied with all applicable standards. 

Employers and their representatives 

were more divided in their comments 

regarding the proposed clarification that 

other appropriate local, State, or Federal 

agencies may conduct inspections of 

employer-provided housing on behalf of 

the SWAs. Several commenters stated 

that allowing agencies other than the 

SWAs to conduct housing inspections, 

as is already done in some States, 

reduces the logistical burden on the 

SWAs. They also noted that in some 

States, employer-provided housing is 

already inspected by other agencies due 

to State laws regarding migrant worker 

housing. If those agencies also 

conducted housing inspections for H– 

2A housing certifications, it would 

reduce the burden on employers for the 

same agency to conduct both 

inspections. Other employer 

associations expressed concern over the 

proposed language, particularly the 

possibility that Federal agencies might 

conduct housing inspections, as they 

felt such inspections were more 

appropriately conducted at the State or 

local level. 

In contrast, workers and workers’ 

rights advocacy organizations generally 

opposed the proposal to allow the 

SWAs to certify employer-provided 

housing for a period of up to 24 months, 

with employers conducting selfinspections of the housing for any 

subsequent Applications for Temporary 

Employment Certification filed during 

that timeframe. Workers, workers’ rights 

advocacy organizations, and some 

government agencies stated that 

employer-provided housing frequently 

fails to meet applicable health and 

safety standards even when inspected 

annually under the current rule, and 

that moving to a 24-month certification 

period would thus increase the risk that 

workers would be exposed to unsafe 

housing conditions. Several commenters 

also noted that housing conditions can 

deteriorate significantly over the course 

of a year, citing examples of housing 

that passed inspection but was found to 

have health or safety violations when 

subsequently investigated during the 

certification period, making it even less 

appropriate to certify housing for a 

longer time period. Workers’ rights 

advocacy organizations also questioned 

whether the employers’ self-inspection 

of their housing during the 24-month 

certification period would motivate 

employers to ensure that their housing 

continues to meet applicable health and 

safety standards, given the high rate of 

violations even when employers know 

that their housing will be inspected by 

a government agency annually. Some 

commenters stated that if the 

Department allows the SWAs to certify 

employer-provided housing for a 24- 

month period, the regulation should 

include criteria that must be met for 

employers to receive a longer 

certification period, such as compliance 

with Federal, State, or local housing 

laws, age of the housing, and whether 

the housing is in a populated, easily 

accessible area. Two other commenters 

suggested that if the SWAs were unable 

to certify housing in a timely manner, 

the Department itself should inspect the 

housing. 

After consideration of the comments 

received, the Department has decided 

not to adopt the proposal to permit 

certifications of employer-provided 

housing for a period of up to 24 months, 

with employers self-inspecting their 

housing for further applications during 

this period. Although the Department 

recognizes that preoccupancy housing 

inspections must be conducted in a 

timely manner, the Department 

concludes that achieving greater 

expediency in the certification process 

must not come at the cost of reduced 

housing compliance monitoring and 

increased risk to worker health and 

safety. As several commenters noted, 

the Department frequently encounters 

post-certification violations of the 

housing safety and health requirements 

even under the current rule; reducing 

the frequency of housing inspections 

would likely further exacerbate the 

frequency and severity of such 

violations. To do so would be 

inconsistent with the statute’s 


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71 ‘‘The employer shall be permitted at the 

employer’s option . . . to secure housing which 

meets the local standards for rental and/or public 

accommodations or other substantially similar class 

of habitation: Provided, That in the absence of 

applicable local standards, State standards for 

rental and/or public accommodations or other 

substantially similar class of habitation shall be 

met: Provided further, That in the absence of 

applicable local or State standards, Federal 

temporary labor camp standards shall apply.’’ 

72See OFLC FAQ, What do I need to submit to 

demonstrate the [rental and/or public 

accommodations] complies with applicable housing 

standards? (June 2017), https://www.foreignlabor

cert.doleta.gov/faqsanswers.cfm#q!917. 

73Beginning on March 13, 2020, continued on 

February 24, 2021, and again on February 18, 2022, 

the President has declared a national emergency 

concerning the novel coronavirus disease (COVID– 

19) pandemic. The Department encourages H–2A 

employers to regularly consult Federal, State, and 

local guidance on the COVID–19. At the time of this 

publication, OSHA’s regulations and guidance 

relevant to COVID–19 are available at https://

www.osha.gov/coronavirus. OFLC’s guidance on 

COVID–19 for H–2A employers is available at 

https://www.dol.gov/agencies/eta/foreign-labor. 

requirement that worker housing meet 

applicable safety and health standards. 

And while the January 2021 draft final 

rule would have accepted the proposal, 

after further consideration of the 

comments, and for the reasons 

discussed above, the Department has 

declined to do so. 

The Department has also considered 

the comments regarding the proposed 

clarification that other appropriate local, 

State, or Federal agencies may conduct 

inspections of employer-provided 

housing on behalf of the SWAs. As 

stated above, the proposed language 

merely reflected the existing regulatory 

provisions of § 653.501(b)(3), which 

already allow other appropriate agencies 

to conduct preoccupancy housing 

inspections on the SWAs’ behalf, and 

are included with the other housing 

provisions at § 655.122(d) for clarity and 

convenience. Indeed, as several 

commenters noted, preoccupancy 

inspections are already carried out by 

agencies other than the SWA in several 

States. As the proposed language merely 

reiterated the current regulatory 

position that preoccupancy inspections 

may be conducted by any appropriate 

public agency, the Department did not 

find that any change to this language 

was warranted and therefore has 

adopted the proposed language without 

change in this final rule. Similarly, the 

Department is adopting without change 

the proposed language in paragraph 

(6)(i) of this section, reiterating the 

statutory requirement that the 

determination as to whether housing 

provided to workers meets the 

applicable standards must be made not 

later than 30 calendar days before the 

first date of need identified in the 

Application for Temporary Employment 

Certification. 

Rental and/or Public Accommodations 

Where employers choose to meet their 

H–2A housing obligations by providing 

rental and/or public accommodations, 

the statute explicitly states that the 

accommodations must meet local 

standards for rental and/or public 

accommodations. In the absence of 

applicable local standards, State 

standards for rental or public 

accommodations must be met, and in 

the absence of applicable local or State 

standards, Federal temporary labor 

camp standards must be met. See 8 

U.S.C. 1188(c)(4).71 The current 

regulations at 20 CFR 655.122(d)(1)(ii) 

reflect the statutory language, 

incorporating the Occupational Safety 

and Health Administration’s (OSHA) 

temporary labor camp standards at 29 

CFR 1910.142, and additionally state 

that ‘‘[t]he employer must document to 

the satisfaction of the CO that the 

housing complies with the local, State, 

or Federal housing standards.’’ 

Currently, employers may meet that 

requirement by several methods, 

including, but not limited to, providing 

a copy of a housing inspection report or 

certification by the SWA, or another 

local, State, or Federal agency, where 

such an inspection is required by 

applicable rental or public 

accommodation standards, or by 

providing a signed and dated written 

statement confirming that the 

accommodation complies with 

applicable local, State, and/or Federal 

standards.72

This patchwork of applicable 

standards creates several challenges to 

protecting the health and safety of H–2A 

and corresponding workers housed in 

rental and/or public accommodations, 

such as hotels, motels, and other public 

accommodations that are available to 

the general public to rent for relatively 

short-term stays. Under the current 

regulations, in the absence of any local 

or State standards applicable to rental 

and/or public accommodations, the full 

set of OSHA temporary labor camp 

standards at § 1910.142 apply. However, 

several of these standards address 

health and safety concerns that 

generally do not arise in rental and/or 

public accommodations and thus are 

impractical or infeasible to apply in this 

context (for example, § 1910.142(a)(1), 

which addresses drainage of camp 

sites), leading to inconsistent 

application and enforcement of the 

standards overall. Conversely, where 

any local or State standards applicable 

to rental and/or public accommodations 

do exist, those standards apply to the 

complete exclusion of the OSHA 

temporary labor camp standards. Even 

where local and State standards for 

rental and/or public accommodations 

exist and address basic health and safety 

concerns for the general population, 

such as maximum occupancy, these 

standards are often silent on health and 

safety concerns unique to agricultural 

worker housing that are otherwise 

addressed in the OSHA temporary labor 

camp standards at § 1910.142. 

These gaps in protection can lead to 

significant health and safety concerns. 

In particular, overcrowding is one of the 

most common problems the Department 

encounters when inspecting hotels or 

motels used to house H–2A and 

corresponding workers. Workers have 

been found to be required to share a 

bed, sleep on the floor in a sleeping bag, 

share a single room where as many as 

eight people may be sleeping, or sleep 

on mattresses on the ground in laundry 

rooms or living rooms. In addition, 

where workers have to cook their own 

meals, hotels and motels may not have 

sanitary facilities or adequate cooking 

equipment, which can lead to worker 

health issues, rodent or pest 

infestations, and fire hazards. Workers 

housed in hotels and motels also may 

not have access to laundry facilities, a 

serious concern for workers whose 

clothing regularly comes into contact 

with pesticides or herbicides. These 

issues are all addressed in the OSHA 

temporary labor camp standards but are 

not frequently covered in local or State 

standards for rental and/or public 

accommodations.73

To address these concerns, the 

Department proposed certain changes to 

its regulations interpreting the statutory 

requirements for rental and/or public 

accommodations standards. The 

Department identified specific OSHA 

temporary labor camp standards that are 

applicable to rental or public 

accommodations, specifically: 

§ 1910.142(b)(2) (‘‘[e]ach room used for 

sleeping purposes shall contain at least 

50 square feet of floor space for each 

occupant’’), (b)(3) (‘‘[b]eds . . . shall be 

provided in every room used for 

sleeping purposes’’), (b)(9) (‘‘In a room 

where workers cook, live, and sleep a 

minimum of 100 square feet per person 

shall be provided. Sanitary facilities 

shall be provided for storing and 

preparing food.’’), (b)(11) (heating, 

cooking, and water heating equipment 

installed properly), (c) (water supply); 

(f) (laundry, handwashing, and bathing 

facilities), and (j) (insect and rodent 

control). Where local health and safety 

standards for rental and/or public 


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74See OFLC FAQ, What do I need to submit to 

demonstrate the [rental and/or public 

accommodations] complies with applicable housing 

standards? (June 2017), https://www.foreignlabor

cert.doleta.gov/faqsanswers.cfm#q!917. 

accommodations exist, the local 

standards apply in their entirety. 

However, if the local standards do not 

address one or more of the issues 

addressed in the OSHA health and 

safety standards listed in the regulation, 

the relevant State standards on those 

issues will apply. If both the local and 

State standards are silent on one or 

more of the issues addressed in the 

OSHA health and safety standards listed 

in the regulation, the relevant OSHA 

health and safety standards will apply. 

If there are no applicable local or State 

standards at all, only the OSHA health 

and safety standards listed in the 

regulation will apply. OSHA temporary 

labor camp standards that are not 

specifically mentioned in 20 CFR 

655.122(d)(1)(ii) will not be applicable 

to rental or public accommodations. 

The following is an example of how 

local, State, and OSHA health and safety 

standards would be applied to a specific 

rental or public accommodation under 

the regulation. An employer provides 

housing for workers in a motel located 

in a county with a local code that 

includes health and safety standards for 

public accommodations that address all 

but one of the health and safety 

standards in the listed OSHA standards, 

i.e., a requirement for a minimum 

number of square feet per occupant for 

sleeping rooms, one of the applicable 

OSHA health and safety standards listed 

in the regulation. The existing local 

code applies in its entirety to the motel, 

but since the local code has no 

applicable standard for a minimum 

number of square feet per occupant for 

sleeping rooms, the State standard for 

the minimum number of square feet per 

occupant for sleeping rooms, if any, 

would be applicable to the housing as 

well. If the State has no standard for the 

minimum number of square feet per 

occupant for sleeping rooms that is 

applicable to public accommodations, 

then the OSHA standard at 29 CFR 

1910.142(b)(2), which states that 

sleeping rooms must contain at least 50 

square feet per occupant, will apply (or, 

where cooking facilities are present, 

§ 1910.142(b)(9), which requires 100 

square feet per occupant in rooms where 

occupants live, sleep, and cook, would 

apply), in addition to other 

requirements of the local code. 

However, if the local standard (or State 

standard, in the absence of any local 

standard) contains a standard for the 

minimum number of square feet per 

occupant for sleeping rooms (or, where 

cooking facilities are present, a standard 

for the minimum feet per occupant for 

rooms where occupants live, sleep, and 

cook) that is applicable to public 

accommodations, that standard would 

apply, regardless of whether that local 

standard was more or less stringent than 

the applicable OSHA standard, because 

the listed OSHA standards apply only in 

the absence of local or State standards 

addressing those health and safety 

issues. Similarly, a local or State 

standard need not explicitly provide for 

a minimum number of square feet per 

occupant, provided the standard 

addresses the relevant area required for 

a given number of people. For example, 

a local standard that provides a 

maximum occupancy of three persons to 

a room that measures 100 square feet 

would constitute an applicable local 

standard, as it provides for a minimum 

area for each occupant. Alternatively, if 

there were no local or State health and 

safety codes applicable to the motel, 

only the OSHA standards listed in 20 

CFR 655.122(d)(1)(ii) would apply. Any 

other OSHA standards listed at 29 CFR 

1910.142 would not be applicable to the 

motel, because only the OSHA 

standards specifically listed in 20 CFR 

655.122(d)(1)(ii) are applicable to rental 

or public accommodations, and then 

only when neither the locality nor the 

State have applicable standards 

addressing those issues. 

The Department also proposed to 

modify the current regulatory language, 

which states that ‘‘[t]he employer must 

document to the satisfaction of the CO 

that the housing complies with the 

local, State, or Federal housing 

standards’’ (§ 655.122(d)(1)(ii)), to 

specify how an employer must 

document that the rental or public 

accommodations meet local, State, or 

Federal standards. The proposed 

language states that an employer must 

submit to the CO a signed, dated, 

written statement, attesting that the 

rental and/or public accommodations 

meet all applicable standards and are 

sufficient to accommodate the number 

of workers requested. This statement 

must include the number of beds and 

rooms that the employer will secure for 

the worker(s). The proposal language 

further required that, where the 

applicable local or State standards 

under § 655.122(d)(1)(ii) require an 

inspection, the employer also must 

submit a copy of the inspection report 

or other official documentation from the 

relevant authority. Where no inspection 

is required, the employer’s written 

statement must confirm that no 

inspection is required. The proposed 

language generally reflects current 

OFLC guidance as to how the employer 

may document that applicable health 

and safety standards have been met,74

with the additional requirements that 

employers submit a written statement 

even if they are also submitting a copy 

of an inspection report, where required, 

and that the written statement must 

contain the number of beds and rooms 

that will be provided in the rental or 

public accommodations. As discussed 

below, the Department has decided to 

adopt the regulatory provisions as 

proposed in the NPRM, with a few 

modifications. 

Several employers and employer 

associations opposed the proposed 

changes. These commenters generally 

stated that there is no basis for requiring 

employers to ensure that rental or 

public housing complies with any of the 

OSHA temporary labor camp health and 

safety standards, because standards 

designed for temporary labor camps are 

inappropriate for rental or public 

accommodations. They commented that 

requiring employers to find rental or 

public accommodations that meet the 

listed OSHA standards (in the absence 

of local or State standards addressing 

those issues) would be very difficult, 

possibly even preventing H–2A 

employers from using rental or public 

accommodations. These employers 

requested that the regulations no longer 

require the application of OSHA 

temporary labor camp standards. At 

least one commenter stated that the 

option to provide rental or public 

accommodations was made available to 

employers to give them the flexibility to 

provide housing that does not comply 

with OSHA health and safety standards 

in areas where compliant housing may 

be scarce. Some commenters expressed 

further concern that employers should 

be expected to attest to the compliance 

of rental or public housing 

accommodations provided to their 

workers, as it would be too confusing 

for them to determine which set of 

standards should apply. One employer 

association, while generally supportive 

of the proposed changes, indicated that 

employers are frequently unable to use 

public accommodations because the 

accommodations fail required 

inspections for minor issues, such as 

lack of window screens, and urged that 

employers should have greater access to 

public accommodation options. 

In contrast, workers, workers’ rights 

advocacy organizations, and at least one 

State agency expressed support for the 

proposed changes, indicating that 

specifically requiring the application of 


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Federal OSHA health and safety 

standards addressing important issues 

such as overcrowding, or inadequate 

sleeping, bathing, or laundry facilities, 

in the absence of such local or State 

standards, would result in modest 

improvements to worker health and 

safety. However, these commenters also 

stated that these improvements would 

not be sufficient without a strong 

commitment to inspections and 

enforcement of housing violations, with 

one workers’ rights advocacy 

organization further urging that Federal 

OSHA should be required to inspect 

rental or public accommodations in 

areas where local or State laws do not 

require such inspections. Another 

workers’ rights advocacy organization 

stated that the regulations should 

require the employer to at least use a 

more detailed self-inspection form, such 

as Form ETA–338, and identify the 

applicable standards for DOL or the 

SWA to review prior to issuing a 

temporary agricultural labor 

certification. In addition, most of these 

commenters expressed general support 

for additional protections or standards 

to be included in the regulations, but 

did not identify specific standards for 

inclusion. As addressed further below, 

only one commenter suggested specific 

additional standards for inclusion in the 

regulation. 

Having reviewed the comments on 

these issues, the Department adopts the 

proposals on rental and/or public 

accommodations at § 655.122(d)(1)(ii) 

and (d)(6)(iii), with a few modifications. 

With respect to the concerns raised by 

employers and employers’ associations 

that requiring compliance with 

applicable OSHA temporary labor camp 

health and safety standards may reduce 

the number of acceptable rental or 

public housing options, particularly in 

more rural areas, the Department notes 

that the statute requires that rental or 

public accommodations comply with 

applicable Federal temporary labor 

camp standards in the absence of 

applicable local or State standards. 

Thus, even under the Department’s 

current regulations, in many instances, 

rental and public accommodations must 

comply with applicable OSHA 

temporary labor camp standards if used 

to satisfy an H–2A employer’s housing 

obligations. The Department therefore 

cannot, through regulation, remove 

employers’ statutory obligations to 

comply with applicable Federal 

temporary labor camp standards in the 

absence of applicable local or State 

standards. The Department can, 

however, identify which OSHA 

temporary labor camp health and safety 

standards are applicable to rental or 

public accommodations. Rental and 

public accommodations are different 

structures than temporary labor camps, 

and some temporary labor camp 

standards are not applicable to such 

accommodations. However, rental and 

public accommodations generally are 

not designed to house groups of 

unrelated adult agricultural workers for 

an extended period of time, especially 

not in only one or two rooms. 

Accordingly, local or State standards 

governing rental or public 

accommodations may not address 

serious health and safety issues that 

arise in such worker housing. The 

regulation thus identifies which OSHA 

standards employers must meet in the 

absence of applicable local or State 

standards on those issues, to prevent 

serious health and safety issues more 

likely to occur where rental or public 

housing is used to house H–2A and 

corresponding workers, while 

eliminating confusion about whether 

such rental or public housing must 

comply with other OSHA temporary 

labor camp standards that are not 

feasibly applied to hotels and motels 

and other rental or public 

accommodations. 

Similarly, the Department notes that it 

cannot ‘‘simply require that regardless 

of local and state standards applicable 

to public accommodations, the housing 

must meet the basic minimum 

standards’’ set forth in OSHA’s 

temporary labor camp standards, as one 

workers’ rights advocacy organization 

suggested, because the statute permits 

employers to secure housing that meets 

applicable local or State standards for 

rental and/or public accommodations. 

As noted above, the Department also 

asked for comment specifically as to 

whether the regulation should identify 

any additional health and safety 

standards addressed in the DOL OSHA 

standards at 29 CFR 1910.142 as 

applicable to rental or public 

accommodations. Only one commenter, 

a workers’ rights advocacy organization, 

provided examples of additional OSHA 

temporary labor camp standards for 

inclusion in the regulations. 

Specifically, the commenter advocated 

for the addition of § 1910.142(b)(7) 

(‘‘[a]ll living quarters shall be provided 

with windows’’), (b)(10) (‘‘stoves (in 

ratio of one stove to 10 persons or one 

stove to two families) shall be 

provided’’), (d) (toilet facilities), (g) 

(lighting), (h) (refuse disposal), and (i) 

(construction and operation of kitchens, 

dining, and feeding facilities). 

The Department appreciates the 

suggestions set forth in this comment. 

The Department has decided to include 

some, but not all, of the suggested 

OSHA standards in the list of applicable 

OSHA temporary labor camp standards. 

First, the commenter argued for the 

inclusion of § 1910.142(b)(10), which 

states that ‘‘[i]n camps where cooking 

facilities are used in common, stoves (in 

ratio of one stove to 10 persons or one 

stove to two families) shall be provided 

in an enclosed and screened shelter. 

Sanitary facilities shall be provided for 

storing and preparing food.’’ The 

commenter argued that the inclusion of 

this standard was necessary when 

employers claim that they are providing 

cooking and kitchen facilities to workers 

housed in rental or public 

accommodations, as rental or public 

accommodations frequently have 

inadequate cooking facilities that are 

either lacking in stoves or have an 

insufficient number for all workers to 

have sufficient access to cook their own 

food. The commenter further pointed 

out that without sufficient access to 

stoves, workers often must use 

microwaves or hot plates for all of their 

cooking needs, resulting in potential fire 

hazards. The Department agrees. Where 

employers choose to meet their meal 

obligations by providing kitchen and 

cooking facilities to workers, the 

facilities must include, among other 

things, working cooking appliances, an 

obligation that is not met merely by the 

provision of one or more electric hot 

plates, microwaves, or outdoor 

community grills. The failure to provide 

adequate cooking appliances when 

attempting to meet meal obligations 

through the provision of cooking and 

kitchen facilities would in itself be a 

violation of 20 CFR 655.122(g), as was 

discussed in the preamble to the NPRM 

and is addressed further below. 

Including this standard as an applicable 

OSHA temporary labor camp standard 

may help employers determine whether 

rental or public accommodations have 

adequate kitchen and cooking facilities 

to enable employers to meet their meal 

obligations. Moreover, local and State 

codes applicable to rental or public 

accommodations are not likely to 

address this issue, since, in most 

instances, this type of housing is not 

generally intended to house groups of 

people over an extended period of time 

who need to be able to cook their own 

meals. This standard has therefore been 

included in the regulation as one of the 

applicable OSHA temporary labor camp 

standards, although it will be applicable 

only where an employer has chosen to 

meet its meal obligations by providing 

kitchen and cooking facilities to workers 

rather than by providing three meals per 

day to workers. 


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75See https://www.iccsafe.org/wp-content/ 

uploads/Master-I-Code-Adoption-Chart-DEC2021.pdf (last visited Dec. 14, 2021). 

76See Mechanical Ventilation: Breathe Easy with 

Fresh Air in the Home, https://www.energystar.gov/ 

ia/new_homes/features/MechVent_062906.pdf (last 

visited Dec. 14, 2021). 

77See https://www.iccsafe.org/wp-content/ 

uploads/Master-I-Code-Adoption-Chart-DEC2021.pdf (last visited Dec. 14, 2021). 

The commenter also advocated for the 

inclusion of § 1910.142(g), ‘‘Lighting,’’ 

which provides that where electric 

service is available: 

• Each habitable room in a camp shall 

be provided with at least one ceilingtype light fixture and at least one 

separate floor- or wall-type convenience 

outlet. 

• Laundry and toilet rooms and 

rooms where people congregate shall 

contain at least one ceiling- or wall-type 

fixture. 

• Light levels in toilet and storage 

rooms shall be at least 20 foot-candles 

30 inches from the floor. 

• Other rooms, including kitchens 

and living quarters, shall be at least 30 

foot-candles 30 inches from the floor. 

The commenter stated that worker 

health and safety requires at least one 

light fixture and outlet in each sleeping 

room, as well as adequate lighting in 

other rooms. It is likely that this issue 

will be addressed in applicable local or 

State codes, as various building codes 

published by the International Code 

Council, including the International 

Property Management Code, have 

standards regarding the number of 

electrical outlets and light fixtures 

required in sleeping rooms and other 

rooms, and these codes have been 

adopted by most States and/or 

localities.75 However, as this standard 

does address a basic health and safety 

need, and employers can fairly easily 

determine whether the rental or public 

accommodations they intend to use 

meet this standard, the Department has 

included § 1910.142(g) in the regulation 

as one of the applicable OSHA 

temporary labor camp standards that 

will apply in the absence of any 

applicable local or State standard 

addressing this issue. 

The commenter also recommended 

that the entirety of § 1910.142(d), 

containing various standards for toilet 

facilities, should be included in the 

regulation as one of the applicable 

OSHA temporary labor camp standards, 

arguing that requirements for a 

minimum ratio of toilets per person, as 

well as provisions for lighting, a supply 

of toilet paper, and cleanliness, are 

essential for workers’ health. The 

Department agrees that having adequate 

and sanitary toilet facilities is clearly 

necessary for workers’ health, but 

several of the standards included in this 

section are impractical or less necessary 

for many types of rental or public 

accommodations, as the standards were 

designed for temporary labor camp 

facilities. For example, in hotels or 

motels, it may not be practical or 

necessary to require that toilet rooms be 

accessible without passing through 

sleeping rooms, as bathrooms in hotels 

and motels tend to be accessed directly 

off of the lone sleeping area and thus 

there is no other way to access the 

bathroom. Similarly, it may be 

impractical to require that there be a 

minimum of two toilets for every shared 

facility, since one shared hotel room is 

likely to have only one toilet. In 

addition, some of the issues addressed 

by this standard are covered by other 

OSHA temporary labor camp standards 

that are already specified in the 

regulation. For instance, 

§ 1910.142(d)(8), which requires that 

each toilet room have natural or 

artificial light available at all hours, is 

not necessary when § 1910.142(g), 

which is included in the regulation as 

discussed above, requires all toilet 

rooms to have at least one ceiling or 

wall-type light fixture. However, some 

of the standards in this section are more 

feasibly implemented in rental or public 

accommodations, are more within the 

employer’s ability to control, and are 

key to maintaining a sanitary bathroom 

environment. Section 1910.142(d)(1), 

which states that ‘‘[t]oilet facilities 

adequate for the capacity of the camp 

shall be provided,’’ would be sufficient 

to require employers to ensure that the 

rental or public accommodation has 

sufficient toilets for the number of 

workers housed, without specifying a 

layout that may be impractical for rental 

or public accommodations. Section 

1910.142(d)(9), requiring that an 

adequate supply of toilet paper be 

provided for each toilet, clearly serves a 

critical sanitary purpose. Section 

1910.142(d)(10), requiring toilet rooms 

to be kept in a clean and sanitary 

condition and cleaned daily, also 

ensures that toilet facilities are 

maintained in a manner adequate for 

worker health and safety, and employers 

can ensure that this standard is followed 

in almost all types of rental or public 

accommodations. Accordingly, the 

Department has incorporated 

§ 1910.142(d)(1), (9), and (10) into this 

final rule as applicable OSHA 

temporary labor camp standards. 

However, the Department declines to 

include in this final rule all of the other 

OSHA temporary labor camp standards 

recommended by the workers’ rights 

advocacy organization (§ 1910.142(b)(7) 

(ventilation), (h) (refuse disposal), and 

(i) (kitchens, dining halls, and feeding 

facilities)). First, § 1910.142(b)(7) states 

that ‘‘[a]ll living quarters shall be 

provided with windows the total of 

which shall be not less than one-tenth 

of the floor area. At least one-half of 

each window shall be so constructed 

that it can be opened for purposes of 

ventilation.’’ The commenter claimed 

that this standard should be 

incorporated because rental and public 

accommodations may otherwise not 

have sufficient ventilation to combat a 

damp indoor environment, which can 

lead to serious health and safety issues 

such as mold, cockroach infestations, 

and rodent infestations. Although the 

Department certainly acknowledges the 

importance of ventilation in housing, 

this standard may be too restrictive for 

rental and public accommodations. In 

many instances, rental or public 

accommodations will have mechanical 

ventilation through a heating, 

ventilation, and air conditioning system 

or by other mechanical ventilation, 

which can provide ventilation at least as 

adequate as the ventilation provided by 

windows. An employer is unlikely to be 

able to require that hotels and motels 

additionally provide for windows that 

open. The U.S. Environmental 

Protection Agency has stated that 

mechanical ventilation is preferable to 

ventilation through windows or other 

openings,76 making it even less 

appropriate to require windows that can 

be opened when the rental or public 

facility has other adequate means of 

ventilation. In addition, because 

windows (natural light) and ventilation 

are addressed by the various model 

building, residential, and maintenance 

codes published by the International 

Code Council, which have been 

incorporated by the majority of States,77

State and local codes are likely to have 

provisions addressing this standard. 

Moreover, if a lack of adequate 

ventilation leads to damp conditions 

that foster pest infestations or similar 

unhealthy conditions, the rental or 

public accommodations would not meet 

the requirement of § 1910.142(j), already 

included in this final rule, which states 

that effective measures shall be taken to 

prevent infestation by and harborage of 

animal or insect vectors or pests. 

Second, § 1910.142(h)(1) requires flyand rodent-tight containers for the 

storage of garbage, and that at least one 

container be provided within 100 feet of 

each ‘‘family shelter.’’ Section 

1910.142(h)(2) requires that garbage 

containers be kept clean, and 

§ 1910.142(h)(3) requires that garbage be 


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78To the extent that commenters had concerns 

related to inspections of rental or public housing by 

SWAs or other agencies, it should be noted that 

those inspections are not required by these 

regulations, but by State or local laws, with their 

own requirements. 

emptied when full, but at least twice a 

week. The workers’ rights advocacy 

organization argued that this standard 

should be included to prevent rodents 

and insect infestation, stating that the 

inclusion of § 1910.142(j) regarding 

rodent and insect control is undercut by 

the failure to incorporate this standard. 

While adequate facilities for containing 

and disposing of garbage are important 

to maintaining a healthy living 

environment, the Department does not 

believe that the requirements of this 

standard are always practical in the 

context of rental or public 

accommodation, where refuse collection 

for the worker housing may be 

conducted very differently than for a 

temporary labor camp but in a safe and 

sanitary manner. For example, where 

workers are housed in several rooms in 

a hotel, trash may be collected from 

their rooms along with trash from other 

rooms and placed into the hotel 

dumpsters. Although there might not be 

at least one dumpster for each worker 

shelter and the dumpster may not be 

within 100 feet of the shelter, such a 

system could nevertheless adequately 

deal with the garbage in a safe and 

sanitary manner. Moreover, the 

Department does not agree that the 

inclusion of § 1910.142(j) regarding 

rodent and insect control is undercut by 

the failure to incorporate all elements of 

this standard, particularly in the context 

of rental and public accommodations. 

On the contrary, if accumulating garbage 

encourages rodents or insects, the 

employer would not be ensuring that 

‘‘[e]ffective measures shall be taken to 

prevent infestation by and harborage of 

animal or insect vectors or pests,’’ and 

would be in violation of § 1910.142(j). 

However, upon further consideration, 

the Department concludes that certain 

aspects of § 1910.142(h), specifically 

paragraphs (h)(2) and (3) requiring that 

garbage cans be kept clean and be 

emptied regularly, address significant 

safety and health concerns aside from 

the potential for rodent of insect 

infestation, and that these standards are 

easily implemented even in the context 

of hotels and motels, and are within an 

employer’s control to ensure 

compliance. Accordingly, the 

Department has included 

§ 1910.142(h)(2) and (3) in the 

regulation as two of the applicable 

OSHA temporary labor camp standards 

that will apply in the absence of any 

applicable local or State standard 

addressing these issues. Though the 

Department did not include this 

standard in the January 2021 draft final 

rule, upon further consideration of the 

rulemaking record and for the reasons 

stated above, the Department has 

concluded it is appropriate to do so 

here. 

Finally, § 1910.142(i) establishes 

certain standards for central dining halls 

or multiple family feeding operations 

and food handling facilities in 

temporary labor camps. The workers’ 

rights advocacy organization 

commented that this standard should be 

applicable to public and rental 

accommodations because these 

accommodations often do not have 

adequate cooking and kitchen facilities. 

Moreover, even where rental or public 

accommodations have cooking and 

kitchen facilities, the commenter alleged 

that the facilities often have improper 

refrigerator temperatures, pest 

infestations, or contaminated water. 

However, the Department does not agree 

that the inclusion of § 1910.142(i) as an 

applicable OSHA temporary labor camp 

standard is necessary to ensure that 

workers have adequate and safe cooking 

facilities when housed in rental or 

public accommodations. As explained 

in the preamble discussion of 20 CFR 

655.122(g) the Department has 

addressed the issues that arise when 

kitchen and cooking facilities in rental 

or public accommodations are 

insufficient. The inclusion of 

§ 1910.142(i) would incorporate 

standards that were designed primarily 

for larger centralized cooking and 

dining facilities, such as a large labor 

camp where an employer has a 

centralized dining hall and employs 

people to cook for the workers, and are 

therefore not appropriate for many 

rental or public accommodation 

situations. For example, even when a 

hotel room or suite has adequate kitchen 

or cooking facilities, it would not be 

practical to require that there be no 

opening from the kitchen into the living 

or sleeping quarters, as would be 

required by § 1910.142(i)(2). Moreover, 

several of the potential harmful 

conditions mentioned by the commenter 

are either sufficiently addressed in the 

context of rental or public 

accommodations by other standards that 

were already included in the proposed 

provisions, such as § 1910.142(b)(9) 

(‘‘[s]anitary facilities shall be provided 

for storing and preparing food’’ in rooms 

where workers cook), (c) (‘‘[a]n adequate 

and convenient water supply, approved 

by the appropriate health authority, 

shall be provided in each camp for 

drinking, cooking, bathing, and laundry 

purposes’’), or (j) (‘‘[e]ffective measures 

shall be taken to prevent infestation by 

and harborage of animal or insect 

vectors or pests’’), or would be further 

addressed by the additional 

incorporation of § 1910.142(b)(10), as 

discussed above. 

The Department has made additional 

minor, nonsubstantive revisions to 20 

CFR 655.122(d)(1)(ii) to better describe 

the applicable OSHA temporary labor 

camp standards. 

With respect to employers’ concerns 

regarding self-attestation under 

§ 655.122(d)(6)(iii) that the rental or 

public accommodations they furnish to 

workers comply with applicable local, 

State, or OSHA standards,78 the 

Department notes that under both the 

statute and the current regulations, 

employers are responsible for ensuring 

that if they choose to use rental or 

public accommodations to meet their 

housing obligations, those rental or 

public accommodations must meet 

applicable standards, and for 

documenting to the CO that these 

standards have been met during the 

application process. By requiring 

employers to provide a signed and dated 

statement attesting that the rental and/ 

or public accommodations meet all 

applicable standards and are sufficient 

to accommodate the number of workers 

requested, specifically noting the 

number of rooms and beds to be 

provided for the workers, along with 

any required inspection reports, the 

proposed changes merely attempt to 

ensure that employers have considered 

the applicable standards and verified 

that the rental or public 

accommodations comply with the 

standards prior to workers’ arrival. 

However, the Department will not 

require that employers use a particular 

self-inspection form in providing the 

required statement because doing so 

would be impracticable. The applicable 

standards will vary depending upon the 

locality or State in which the rental or 

public accommodations are located. 

Housing for Workers Covered by 20 CFR 

655.200 Through 655.235 

The Department is making clarifying 

edits to paragraph (d)(2) to reflect that 

§§ 655.230 and 655.235 establish the 

housing requirements for workers 

employed in herding and range 

production of livestock occupations 

under §§ 655.200 through 655.235. The 

Department has established separate 

requirements for these workers due to 

the unique nature of the work 

performed. The Department is also 

making a technical, conforming edit to 

paragraph (d)(2) to reflect that § 655.304 


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79See Wickstrum Harvesting, LLC, 2018–TLC– 

00018 (May 3, 2018) (affirming an ETA 

determination denying temporary agricultural labor 

certifications based on the employer’s practice of 

providing workers with a stipend for meals instead 

of providing meals or furnishing free and 

convenient cooking facilities). 

80The Department received many comments from 

employers in the reforestation industry noting that 

the remote, mobile nature of the work makes it 

difficult to access kitchen facilities or caterers, and 

that this was one reason why they felt it was 

inappropriate to include reforestation in the H–2A 

program. Those comments were reviewed earlier in 

this document, in the section discussing 

reforestation. 

establishes the housing standards 

applicable to mobile housing for 

workers engaged in itinerant animal 

shearing or custom combining, as 

defined and specified under §§ 655.300 

through 655.304. 

c. Paragraph (g), Meals 

The Department did not propose any 

changes to the current regulation at 

§ 655.122(g), which requires an 

employer to provide each worker three 

meals a day or furnish free and 

convenient cooking and kitchen 

facilities so that the worker can prepare 

meals, and further states that where an 

employer provides the meals, the job 

offer must state the charge, if any, to the 

worker for such meals. However, due to 

the high incidence of violations of this 

provision, the Department provided 

additional clarification of these 

requirements in the preamble to the 

NPRM. The Department adopts that 

guidance in the preamble to this final 

rule, with some additional clarifications 

in response to comments received. In 

addition, as explained below, the 

Department has revised § 655.122(g) in 

this final rule to reiterate certain 

requirements in § 655.173 regarding 

meal charges. 

Specifically, the NPRM clarified that 

kitchen facilities provided in lieu of 

meals must include clean space for food 

preparation, working cooking and 

refrigeration appliances, and 

dishwashing facilities. Although no 

specific cooking appliances are 

required, the appliances provided must 

be sufficient to allow workers to safely 

prepare three meals per day, a 

requirement that is not met if the 

employer merely provides an electric 

hot plate, a microwave, or an outdoor 

community grill, or if workers are 

required to purchase cooking appliances 

or accessories, such as portable burners, 

charcoal, propane, or lighter fluid. The 

Department adopts that guidance here. 

In addition, the Department noted 

that public accommodations such as 

hotels or motels frequently do not have 

adequate cooking facilities to satisfy an 

employer’s obligations under this 

section, and, in those instances, 

employers must provide three meals a 

day to workers to meet their obligations 

under § 655.122(g). The Department 

further explained that, where workers 

are housed in rental or public 

accommodations that provide meals, the 

provision of such meals may be 

sufficient to satisfy part of the 

employer’s obligations under 

§ 655.122(g). However, upon further 

consideration of the fact that such meals 

are unlikely to be sufficient to satisfy 

the employer’s obligations under 

§ 655.122(g), the Department is further 

clarifying this guidance. Some public 

accommodations may provide 

complimentary breakfast (e.g., 

continental breakfast, buffet, etc.) during 

a specific allotted time, such as 6 a.m. 

to 10 a.m. Such complimentary 

breakfast will generally not satisfy one 

of the three required daily meals since 

the daily start time for the workday will 

frequently preclude the workers from 

having meaningful access to the meal 

prior to departing the public 

accommodation for the place of 

employment. In addition, and as noted 

below, the employer should consider 

whether the meal is nutritionally and 

calorically adequate given the work 

performed and the weather conditions. 

For example, simply providing a muffin 

or cold cereal for breakfast would not be 

sufficient to meet an employer’s 

obligation to provide a nutritionally 

adequate meal. Therefore, the employer 

may only consider such complimentary 

breakfast to meet its obligation to 

provide meals when the breakfast is 

readily accessible to the workers and is 

nutritionally adequate. 

The Department further explained in 

the NPRM that where an employer 

elects to provide meals, the meals must 

be provided in a timely and sanitary 

fashion. For example, prepared meals 

requiring refrigeration that are delivered 

hours before an anticipated mealtime 

would not meet the employer’s meal 

obligation. In addition, providing access 

to third-party vendors but not paying 

the vendors directly for the workers’ 

meals does not constitute compliance 

with the requirement to provide meals 

or facilities, even if the employer 

provides a meal stipend.79 An employer 

who wishes to use a third-party vendor 

to provide meals may instead arrange 

for a third-party vendor and pay for the 

workers’ meals or use a voucher or 

ticket system where the employer 

initially purchases the meals and 

distributes vouchers or tickets to 

workers to obtain the meals from the 

third-party vendor. For such 

arrangements, the employer may deduct 

the corresponding allowable meal 

charge only if previously disclosed and 

in compliance with the procedures 

described under proposed § 655.173. 

The Department further emphasized 

that an employer may only deduct meal 

charges actually incurred up to the 

amount permitted under § 655.173. The 

Department adopts that guidance here. 

As the Department did not propose 

any changes to this section, it received 

comparatively few comments. Several 

workers’ rights advocacy organizations 

and one State government agency 

pointed out that employers frequently 

provide insufficient meals or overcharge 

workers for those meals. In response to 

these concerns, the State agency 

suggested that the Department adopt 

additional standards to ensure that 

meals provide adequate nutrition and 

caloric intake. One workers’ rights 

advocacy organization also suggested 

that the Department amend § 655.122(g) 

to include a statement that meal charges 

remain subject to limitations imposed 

by the FLSA and to require employers 

to retain records demonstrating the 

actual cost of providing meals. One 

agent 80 commented that employers 

should be permitted to provide a meal 

stipend for workers to purchase their 

own meals, in lieu of providing the 

meals themselves, particularly if that is 

the workers’ own preference. 

After further reviewing these 

comments, the Department agrees with 

the workers’ rights advocacy 

organization that the job order should 

explicitly state the existing 

requirements in § 655.173 that any meal 

charges remain subject to limitations 

and recordkeeping obligations imposed 

by the FLSA. Although these 

substantive requirements are not new, 

as § 655.173 already includes language 

explaining that meal charges are subject 

to the FLSA and incorporates the 

recordkeeping requirements at 29 CFR 

516.27, the Department concludes that 

explicitly reiterating these requirements 

in the job order will better inform 

workers of the full terms and conditions 

of any meal plan offered by the 

employer. Accordingly, this final rule 

revises § 655.122(g) to reiterate 

§ 655.173’s requirement that 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 the FLSA 

at 29 U.S.C. 203(m), including the 

recordkeeping requirements found at 29 

CFR 516.27. 

In addition, the Department agrees 

that where an employer chooses to meet 


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81Section 655.122(h)(1) further requires that, 

when it is the prevailing practice among non-H–2A 

employers in the area to do so, or when offered to 

H–2A workers, the employer must advance 

transportation and subsistence costs to workers in 

corresponding employment. Section 655.122(h)(1) 

also places employers on notice that they may be 

subject to the FLSA, which operates independently 

of the H–2A program and imposes independent 

requirements relating to deductions from wages. 

See also § 655.122(p). The Department did not 

propose any changes to these requirements and this 

final rule does not affect an FLSA-covered 

employer’s obligations under the FLSA. 

82See, e.g., 2009 H–2A NPRM, 74 FR 45906, 

45915 (‘‘[T]his 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.’’); OFLC FAQ (Sept. 15, 2010) 

(subsistence costs must be paid for costs incurred 

‘‘during the worker’s inbound trip from the point 

of recruitment to the employer’s worksite . . . and 

during the worker’s outbound trip from the 

employer’s worksite to the worker’s home or 

subsequent employment’’). 

83Section 655.122(h)(2) further provides that, for 

those workers who do have immediate subsequent 

H–2A employment, the initial or subsequent 

employer must provide or cover the costs of 

transportation and subsistence for the travel 

between the initial and subsequent worksites. The 

obligation to provide or pay for such costs remains 

with the initial H–2A employer if the subsequent 

H–2A employer has not contractually agreed to 

provide or pay for such travel. This section also 

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 recruitment period described 

in § 655.135(d). The Department did not propose 

any changes to these requirements. 

84Pursuant to DHS regulations, H–2A workers 

from certain localities need not obtain a visa to be 

admitted to the United States, including citizens of 

Bermuda and Canada, Bahamian nationals, and 

British subjects residing in certain islands. See 8 

CFR 212.1(a). 

its meal obligations by providing three 

meals per day to workers, those meals 

must be calorically and nutritionally 

adequate. An employer’s determination 

as to the adequacy of the meals must be 

reasonable—merely providing snacks 

such as chips or crackers, for example, 

would not meet an employer’s meal 

obligations. The Department has 

declined to adopt any particular 

standard for nutritional balance and 

caloric sufficiency at this time but 

encourages employers to consult the 

USDA, National Institutes of Health, or 

other credible sources of nutrition and 

caloric intake guidelines. 

In addition, the Department believes 

that providing employers with examples 

of established guidelines for ensuring 

that meals are calorically and 

nutritionally adequate will offer 

employers greater certainty when 

developing meal plans that such plans 

comply with the requirements of 

§ 655.122(g). For example, the USDA’s 

Dietary Guidelines for Americans 2020– 

2025 provide estimated calorie needs 

per day by age, sex, and physical 

activity level. They also suggest daily 

and weekly amounts of food groups, 

subgroups, and components, which may 

assist employers in the development of 

an adequate meal plan. Since the 

provision of adequate meals is essential 

to workers’ health, employers must 

exercise care in preparing meal plans. 

The Department encourages employers 

to consult workers, when practical, 

about their own preferences for such 

plans. The Department further notes 

that sanctions and remedies for an 

employer’s failure to provide sufficient 

meals may include, as appropriate, the 

recovery of back wages, the assessment 

of civil money penalties, and where 

warranted, debarment and/or 

revocation. 

Finally, in response to the comments 

received regarding meal stipends, the 

Department notes that, as stated above, 

the provision of a meal stipend is not 

sufficient to meet an employer’s meal 

obligations. The meal requirement is 

intended to ensure that workers receive 

adequate meals and contemplates the 

cost-effective preparation of such meals 

by the worker in their own kitchen or 

by an employer cooking or providing for 

a group. Workers who receive a stipend 

rather than three meals per day and do 

not have kitchen and cooking facilities 

will generally not be able to obtain 

equivalent meals, as they will not be 

able to purchase their individual meals 

with similar cost-effectiveness, 

exacerbating the problem of inadequate 

meals. This problem is even more acute 

when workers are working or living in 

more remote or rural locations, as is 

frequently the case, particularly where 

they are without transportation to 

procure their own meals, or where they 

do not have time during the workday to 

easily reach shops or restaurants from 

their worksite. 

The Department notes that the 

January 2021 draft final rule would have 

left § 655.122(g) unchanged. However, 

after further consideration of the 

comments received, and for the reasons 

discussed above, the Department has 

revised § 655.122(g) to reiterate certain 

requirements of § 655.173 regarding 

meal charges. 

d. Paragraph (h), Transportation; Daily 

Subsistence 

i. Paragraph (h)(1), Transportation to 

Place of Employment 

The Department’s current regulation 

at § 655.122(h)(1) requires, in part, that 

if the employer has not previously 

advanced 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 

reimburse the worker for the reasonable 

transportation and subsistence costs 

incurred from the ‘‘place from which 

the worker has come to work for the 

employer’’ to the place of 

employment.81 The Department 

currently interprets the ‘‘place from 

which the worker has come to work for 

the employer’’ to mean the ‘‘place of 

recruitment.’’ This is frequently the 

worker’s home,82 but as H–2A workers 

are often referred and recruited 

informally, the place of recruitment 

varies. Additionally, for a worker who 

completes the work contract period or is 

terminated without cause, and who does 

not have immediate subsequent H–2A 

employment, § 655.122(h)(2) requires 

the employer to provide or pay for 

return transportation and subsistence 

costs to the place of departure (i.e., 

recruitment).83

The NPRM generally kept the 

requirements of § 655.122(h)(1) and (2) 

without change. However, the 

Department sought to promote the 

efficiency of the H–2A program by 

establishing a consistent location and 

method for calculating a worker’s travel 

and subsistence costs from and to the 

place of employment. Specifically, the 

Department proposed to revise 

§ 655.122(h)(1) and (2) to require an 

employer to provide or pay for inbound 

and return transportation and 

subsistence costs (where otherwise 

required by the regulation) from and to 

the place from which the worker 

departed to the employer’s place of 

employment. For an H–2A worker 

departing from a location outside of the 

United States who must obtain a visa, 

the Department proposed that the place 

from which the worker ‘‘departed’’ 

would mean the ‘‘appropriate’’ U.S. 

embassy or consulate. The Department 

proposed to define the ‘‘appropriate’’ 

U.S. embassy or consulate as the U.S. 

embassy or consulate that issued the 

visa but sought comment on other 

definitions of ‘‘appropriate’’ U.S. 

embassy or consulate, given the 

differences in visa processing 

procedures among overseas posts. The 

Department further sought comment on 

the place of ‘‘departure’’ for those H–2A 

workers who do not require a visa to 

obtain H–2A status.84 See 8 CFR 

212.1(a); 22 CFR 41.2. The Department 

did not propose any changes to the 

place of departure (i.e., the place of 

recruitment) for corresponding workers 

and those H–2A workers departing from 

locations inside the United States. 

The Department received significant 

comments on this proposal. Employers, 


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85See https://www.state.gov/expanded-interviewwaivers-for-certain-nonimmigrant-visa-applicants/. 

associations, and their representatives 

largely supported the proposal, stating 

that it would greatly simplify 

reimbursement calculations to be able to 

use a single, consistent place of 

departure. Several employers also 

commented that it is more logical to 

calculate transportation and subsistence 

from the U.S. embassy or consulate that 

issues the worker’s visa, because only at 

that point is the worker’s travel for the 

employer’s benefit, since workers who 

are not able to obtain a visa cannot be 

employed by the H–2A employer. In 

addition, some employers mentioned 

that the FLSA requires reimbursement 

of travel expenses (to the extent that 

those travel expenses bring employees 

below the applicable minimum wage) in 

the employee’s first pay period, and 

stated that the Department should 

require that the requisite travel 

reimbursement be made at 50 percent of 

the work contract period, to reduce the 

likelihood that a worker would take 

advantage of travel reimbursement at an 

earlier point to come into the country 

and then abandon the H–2A 

employment. Some employers also 

suggested that the Department consider 

revising the regulation to allow the 

employer to share the transportation 

costs with the employee, as the work in 

the United States is mutually beneficial 

to both the employee and employer. 

In contrast, workers, workers’ rights 

advocacy organizations, and other 

government agencies generally opposed 

this change, arguing that the cost of 

workers’ transportation from their home 

to/from the embassy/consulate should 

be borne by the employer. They stated 

that transferring this cost to workers 

would place an undue burden on 

workers who frequently incur costs to 

obtain these job opportunities, thus 

increasing their vulnerability to debt 

and trafficking. Several commenters also 

noted that this change would 

disproportionately affect indigenous 

workers in rural communities, who live 

far from any U.S. embassy or consulate. 

Similarly, a couple of commenters 

pointed out that this change would 

encourage employers to either hire 

workers from countries with embassies 

that are comparatively close to the 

United States, such as Mexico, or to 

require workers to obtain their visas 

from U.S. consulates or embassies that 

are closer to the U.S. border. Some 

workers’ rights advocacy organizations 

and government entities also 

commented that shifting this cost to 

workers will disadvantage and thus 

adversely affect U.S. workers by 

artificially reducing the cost of 

employing H–2A workers. A couple of 

commenters also stated that the 

proposed change would cause 

confusion, as employers would still be 

liable to reimburse workers for the cost 

of transportation from their home to the 

U.S. embassy or consulate under the 

FLSA. However, one workers’ rights 

advocacy organization commented 

favorably on the Department’s 

clarification that the employer is 

required to reimburse employees for all 

reasonable subsistence costs (including 

lodging) that arise from the time at 

which the worker first arrives in the 

embassy/consulate city, while workers 

are following the necessary procedures 

to obtain their visas. 

The Department did not receive any 

comments on how to define the 

‘‘appropriate’’ consulate for those 

workers who must obtain a visa, nor did 

it receive any comments on the place of 

departure for those H–2A workers who 

need not obtain a visa, despite its 

requests for comments on both points. 

After carefully considering all of the 

comments received, the Department has 

decided to retain the requirements of 

the 2010 H–2A Final Rule requiring 

employers to provide, pay, or reimburse 

employees for their travel and 

subsistence to and from the place of 

recruitment, which in many cases will 

be the worker’s home. See 

§ 655.122(h)(1), (2). Both commenters 

who supported the proposed change 

and those who opposed it recognized 

that the resulting cost allocation change 

would be significant to both workers 

and employers. The Department agrees 

with the several commenters that noted 

implementation of the proposed 

changes in the NPRM would impose an 

undue burden on workers, many of 

whom are already vulnerable to 

exploitation, and many of whom live in 

remote rural areas and incur 

considerable expenses traveling to the 

embassy/consulate city. The cost of the 

worker’s inbound and outbound travel 

and subsistence is the employer’s 

obligation, as such travel is primarily for 

the benefit and convenience of the 

employer, who would not have 

sufficient workers to perform necessary 

work without this travel due to the lack 

of willing and qualified local workers. 

The use of an administratively 

consistent and efficient point of 

departure to calculate the extent of such 

obligations, as proposed in the NPRM, 

did not alter this analysis. The 

Department concludes that the proposed 

changes in the NPRM would improperly 

shift to workers a significant portion of 

this obligation that must instead be 

borne fully by the employer. 

The Department also believes that the 

Department and employers should be 

able to ascertain a worker’s place of 

recruitment without significant 

difficulty; indeed, such a standard has 

now been in place, with only a brief 

interruption, for more than 34 years. 

The recruitment information needed for 

the current rule generally is not difficult 

to obtain, and the employer has ready 

access to its own employees and to the 

recruiter it hired to acquire this 

information. To the extent it is difficult 

in any instance to ascertain the place of 

recruitment, the Department believes 

that any such difficulty cannot outweigh 

the significant burden that would be 

imposed on the worker by shifting the 

costs of transportation and subsistence 

from the place of recruitment to the 

embassy/consulate city. Moreover, the 

Department notes that the Department 

of State (DOS) has, at least temporarily, 

waived consular interviews for many 

nonimmigrant visa applicants, thus 

making it more difficult to determine 

the appropriate embassy or consulate 

under the proposal and thereby 

undermining the desired efficiencies of 

that proposed standard.85 In addition, 

the Department believes it is unlikely 

that any administrative efficiencies 

would be achieved through the changes 

proposed in the NPRM, as the changes 

would constitute a break with 

longstanding procedures that are well 

understood by employers. And even if 

any such efficiencies might be achieved, 

the Department believes that they would 

be minimal in comparison to the 

additional financial burden shifted onto 

H–2A workers. In sum, the Department 

has now determined that, as a matter of 

policy, any benefits of the proposal set 

forth in the NPRM are outweighed by 

the substantial costs imposed upon 

workers. 

Finally, in response to comments 

regarding the timing of reimbursement 

for inbound travel costs, the Department 

notes that the current H–2A regulation 

requires that inbound transportation 

and daily subsistence costs must be 

reimbursed when the worker has 

completed 50 percent of the work 

contract period, if reimbursement has 

not already been made. This 

requirement remains unchanged. 

However, the Department reiterates that 

the FLSA applies independently of the 

H–2A program’s requirements and thus 

the Department cannot relieve 

employers of their obligations under the 

FLSA in this rulemaking. Where an 

employer has obligations under 

multiple laws, the employer must 

comply with the more worker-protective 

of those obligations. Accordingly, to the 


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86The Department notes that the January 2021 

draft final rule would have accepted the NPRM 

proposal, with some modifications. However, after 

further consideration of the comments received, 

and for the reasons discussed above, the 

Department declines to adopt the proposed 

changes. 

extent that a worker’s transportation and 

subsistence costs bring the worker’s pay 

below the applicable minimum wage 

during the first pay period of 

employment, employers will remain 

responsible under the FLSA for 

reimbursing workers to that extent 

during the first pay period. However, 

relatedly, the Department does not agree 

with commenters who stated that the 

proposed regulation would cause greater 

confusion for employers regarding their 

FLSA obligations because even under 

the current regulation, H–2A employers 

that are also subject to the FLSA must 

comply with both laws, despite any 

differences in the amount or timing of 

any required reimbursements.86

ii. Paragraph (h)(4), Employer-Provided 

Transportation 

The Department proposed to clarify 

the minimum safety standards required 

for employer-provided transportation in 

the H–2A program. The Department’s 

current regulation at 20 CFR 

655.122(h)(4) provides that employerprovided transportation must comply 

with applicable Federal, State, or local 

laws and regulations and must provide, 

at a minimum, the same transportation 

safety standards, driver licensure, and 

vehicle insurance required under MSPA 

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

29 CFR 500.120 through 500.128. 

However, sec. 1841 of MSPA provides 

that employers must comply with 

transportation safety regulations 

promulgated by the Secretary, which 

include not only 29 CFR 500.105, 

providing transportation safety 

standards for vehicles other than 

passenger automobiles and station 

wagons used to transport workers over 

75 miles or in day-haul operations, but 

also 29 CFR 500.104, which provides 

transportation safety standards 

applicable to passenger automobiles or 

station wagons, or other vehicles, for 

trips of 75 miles or less, not including 

day-haul operations. The proposed rule 

therefore slightly modified the language 

of current 20 CFR 655.122(h)(4) by 

adding a citation to 29 CFR 500.104, to 

clarify that either § 500.104 or § 500.105 

is applicable, depending upon the type 

of vehicle that is being used to transport 

workers, the distance of the trip, and 

whether the vehicle is being used for a 

day-haul operation. The Department 

also sought comments about additional 

provisions that might help prevent 

driver fatigue and other unsafe driving 

conditions in order to improve safety in 

the transportation of H–2A and 

corresponding workers. As discussed 

below, this final rule adopts paragraph 

(h)(4) from the NPRM with minor 

clarifying changes. 

Several commenters indicated that 

they supported the clarification that 

both §§ 500.104 and 500.105 are 

applicable to employer-provided 

transportation, depending on the type of 

vehicle being used to transport workers. 

One commenter asked for additional 

clarification that both standards would 

not apply simultaneously, but that only 

the appropriate standard would apply 

depending on the type of vehicle used 

to provide worker transportation, i.e., 

either § 500.104 or § 500.105. This 

commenter also requested that the 

language at 20 CFR 655.122(h)(3), which 

requires the employer to ‘‘provide 

transportation between housing 

provided or secured by the employer 

and the employer’s worksite at no cost 

to the worker’’ (and to which the 

Department did not propose any 

changes), be revised to state that 

employers are required to provide 

transportation to and from the job site 

only to those workers for whom the 

employer must provide housing. One 

commenter stated that it would be better 

to have 29 CFR 500.105 apply to all 

types of vehicles used to provide 

transportation to workers, rather than 

having §§ 500.104 and 500.105 apply 

depending upon the type of vehicle 

used, indicating that this would be less 

confusing for employers and more 

beneficial to workers, as § 500.105 

incorporates additional safety standards. 

Another commenter opposed the 

application of § 500.104, stating that 

transportation safety is the concern of 

the Federal Motor Carrier Safety 

Administration, and also expressing 

concern that employers would be 

responsible for ensuring that these 

safety standards are met by workers’ 

personal vehicles, when workers choose 

to use their own vehicles in lieu of 

employer-provided transportation. 

Some commenters also provided 

feedback on the Department’s request 

for comments about additional 

provisions that might help prevent 

driver fatigue and other unsafe driving 

conditions. Although one commenter 

indicated that driver fatigue was not a 

common or serious problem, most 

commenters acknowledged that driver 

fatigue and associated accidents can be 

a serious problem. However, several of 

these commenters stated that education 

and outreach would be more helpful 

than additional regulations on 

transportation safety. One commenter 

suggested that H–2A drivers have rest 

period requirements similar to bus 

drivers and other commercial driver’s 

license drivers. Another commenter did 

not address fatigue specifically but 

recommended that the regulation 

require vehicles used to transport H–2A 

workers to be equipped with seatbelts, 

as well as certain changes to prevent 

gaps in insurance coverage where 

employers rely on workers’ 

compensation policies to meet the 

regulation’s vehicle insurance 

requirements. Specifically, this 

commenter recommended employers be 

required to identify during the 

application process the types of 

transportation that will be provided to 

the H–2A workers (such as inbound 

transportation from abroad to the U.S. 

job site, daily transportation between 

the lodging and worksite, transportation 

to allow the workers to perform 

personal errands, transportation 

between different job sites in different 

States, and outbound transportation at 

the conclusion of the contract period). 

In addition, the commenter 

recommended that if the employer 

proposes to satisfy the insurance 

requirements through a workers’ 

compensation policy, it must provide 

evidence that the policy covers all of the 

kinds of transportation identified. If the 

employer cannot do so, the commenter 

stated that the employer should be 

required to purchase liability insurance 

or provide a liability bond in the 

amount specified by the MSPA 

regulations. 

After a careful review of the 

comments, the Department is adopting 

the regulatory text as proposed, with 

two minor changes for clarification, as 

suggested by commenters. The proposed 

regulatory text stated that all employerprovided transportation ‘‘must provide, 

at a minimum, the same transportation 

safety standards, driver licensure, and 

vehicle insurance as required under 29 

U.S.C. 1841, 29 CFR 500.104 through 

500.105, and 29 CFR 500.120 through 

500.128.’’ (Emphasis added.) At least 

one commenter was concerned that this 

language could be read as requiring both 

§§ 500.104 and 500.105 to apply to all 

vehicles, as discussed above. However, 

pursuant to § 500.102, § 500.105 applies 

to ‘‘[a]ny vehicle, other than a passenger 

automobile or station wagon’’ used for 

any trip of a distance greater than 75 

miles, or pursuant to a day-haul 

operation, or in any manner not 

otherwise specified in § 500.102(a), (b), 

or (c), while § 500.104 applies to ‘‘[a]ny 

passenger automobile or station wagon’’ 

used to transport workers. Therefore, to 

clarify that §§ 500.104 and 500.105 do 


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not both apply simultaneously to all 

vehicles, but apply alternatively 

depending upon the type of vehicle 

used, the distance of the trip, and 

whether the vehicle is being used for a 

day-haul operation, this final rule 

provides that all employer-provided 

transportation ‘‘must provide, at a 

minimum, the same transportation 

safety standards, driver licensure, and 

vehicle insurance as required under 29 

U.S.C. 1841, 29 CFR 500.104 or 500.105, 

and 29 CFR 500.120 through 500.128.’’ 

(Emphasis added.) The Department has 

also made a conforming change to 20 

CFR 655.132(e)(2), with respect to the 

requirements for H–2ALCs. 

In addition, the prior H–2A job order 

form (i.e., Form ETA–790A) provided 

text fields in which employers must 

describe the employer’s transportation 

plans for workers: (a) to the place of 

employment from the place from which 

the worker has come to work for the 

employer (i.e., inbound); (b) from the 

place of employment to the place from 

which the worker has come to work for 

the employer (i.e., outbound); and (c) 

daily, between the employer-provided 

housing and the places where work is 

performed. In response to a 

commenter’s suggestion, the Department 

has added a clarification to 20 CFR 

655.122(h)(4) to reflect the requirement 

that employers identify in the job order 

the mode(s) of transportation (e.g., vans, 

buses) that will be used for daily 

transportation and, if known, for 

inbound and outbound transportation. 

The Department has also added 

language to this section of the regulation 

to require an employer to identify in the 

job order the mode(s) of transportation 

that will be used, if any and if known, 

for other purposes, such as to allow the 

workers to run personal errands. In 

addition to apprising workers of the 

transportation the employer will 

provide, the Department concludes that 

this information will improve 

compliance with applicable 

transportation safety standards, 

including those related to vehicle 

insurance requirements. 

In response to a commenter’s concern 

that these standards would apply to 

workers’ personal vehicles when 

workers choose to use their own 

vehicles in lieu of employer-provided 

transportation, the Department notes 

that the regulation specifically states 

that all employer-provided 

transportation must meet these 

transportation safety standards. 

§ 655.122(h)(4). If the employer provides 

transportation that meets all of the 

requirements, and one or more 

employees voluntarily choose to use an 

employee’s personal vehicle instead, 

without being directed or requested to 

do so by the employer, the employer 

would not be responsible for ensuring 

that the employee’s personal vehicle 

meets the transportation safety 

standards. Therefore, no revision to the 

regulatory language is necessary to 

clarify this issue. Similarly, the 

Department declines to adopt another 

commenter’s suggestion to modify the 

regulatory language at § 655.122(h)(3) to 

state that employers are only required to 

provide transportation to and from the 

employer-provided housing and the job 

site to those workers for whom the 

employer must provide housing and 

clarifies here that the transportation to 

and from the employer-provided or 

secured housing and job site need only 

be provided to workers who actually 

live in the housing. 

The Department has chosen not to 

adopt any additional regulatory 

provisions to address driver fatigue or 

other safety conditions at this time. 

Although one commenter suggested that 

the Department apply to H–2A drivers 

rest period requirements similar to those 

applicable to bus drivers and other 

commercial driver’s license drivers, 

such requirements do not adequately 

address the broad variety of 

circumstances in which H–2A drivers 

transport workers, as many trips are 

short in both duration and distance. 

Moreover, the Department did not 

receive any specific suggestions or 

information concerning ways in which 

a rest period requirement could be 

tailored to address the varied 

circumstances in which H–2A drivers 

transport workers, and the public has 

not had an opportunity to comment on 

a proposal tailored to H–2A drivers. 

While the Department did not receive 

many comments on the issue of driver 

fatigue, several commenters indicated 

that additional education and outreach 

could help address driver fatigue, as 

discussed above. Accordingly, the 

Department recently published a 

farmworker transportation safety web 

page that includes tips and best 

practices from the U.S. Department of 

Transportation’s Federal Motor Carrier 

Safety Administration related to driver 

fatigue, unsafe driving practices, and 

driver distractions, available at https:// 

www.dol.gov/agencies/whd/agriculture/ 

transportation-safety, and will further 

consider how it can address this issue. 

Although the Department has 

carefully considered the suggestion that 

seatbelt requirements should be 

specifically added to the transportation 

safety standards, the Department notes 

that the issue is generally addressed by 

applicable State and local laws and 

regulations. The Department reminds 

employers that the current 

transportation safety standards already 

require compliance with all applicable 

Federal, State, or local laws and 

regulations, including applicable State 

or local seatbelt requirements. 

Currently, every State except one (New 

Hampshire) has an applicable seatbelt 

law, and the majority of States require 

adults to wear seatbelts in all seats, 

subject to certain exceptions. See 

Governors Highway Safety Association, 

State Laws by Issue: Seat Belts (last 

visited Dec. 14, 2021), https://

www.ghsa.org/state-laws/issues/ 

seat%20belts. Accordingly, seatbelt 

regulations will not be issued at this 

time. The Department also appreciates 

the insightful analysis of the potential 

problems that can arise when employers 

rely on workers’ compensation policies 

to meet their liability insurance 

obligations, and the possible regulatory 

revisions that might address those 

problems. However, the Department did 

not propose any changes to the 

regulation regarding the sufficiency of 

workers’ compensation to cover vehicle 

transportation in lieu of vehicle 

insurance. Many parties who would be 

affected by any change in these 

longstanding requirements therefore had 

no reason to anticipate any such 

changes or to provide comment or 

propose alternatives. Accordingly, the 

Department declines to adopt any 

regulatory changes to these provisions 

in this rulemaking. 

However, the Department reminds 

employers that workers’ compensation 

insurance provides specific coverage 

that varies from State to State and may 

not cover all circumstances in which the 

workers are transported. For instance, 

transportation for a non-work-related 

purpose, such as a visit to the grocery 

store or laundromat, may not be covered 

under the State policy. Additionally, 

State workers’ compensation coverage 

may not apply to travel outside the 

State, or in some States, it may not 

apply to travel to and from work. If 

using a State workers’ compensation 

policy to meet the insurance 

requirements, it is important to be aware 

of precisely what type of travel is 

covered by the State policy and, if 

necessary, procure additional coverage 

through a liability insurance policy or 

liability bond for transportation not 

covered by the State law. An employer’s 

failure to maintain required insurance 

coverage for vehicles used to transport 

H–2A workers or workers in 

corresponding employment may result 

in the assessment of civil money 

penalties. A violation of the 

transportation safety requirements may 


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also serve as the basis for debarment or 

for revocation of the temporary 

agricultural labor certification. 

e. Paragraph (i), Three-Fourths 

Guarantee 

Although the Department did not 

propose, and in this final rule does not 

adopt, any revisions to § 655.122(i), a 

few employers and employer 

representatives provided feedback 

regarding changes that they would like 

to see incorporated into this section. 

Three commenters stated that due to the 

variability inherent in agriculture based 

on factors beyond the employer’s 

control, which can make it difficult to 

predict the amount of work that will 

need to be performed in a given season, 

the three-fourths guarantee should be 

based on the 35-hour per workweek 

required minimum rather than on the 

number of hours in a workday as stated 

in the job order. Another commenter 

requested the removal of the language in 

§ 655.122(i)(1)(iv) stating that the 

worker cannot 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 on Federal 

holidays. 

The Department has carefully 

considered these comments. However, 

the Department did not propose any 

changes to this section in the NPRM and 

did not ask for comments regarding any 

possible modifications of the threefourths guarantee. Accordingly, many 

affected parties did not provide any 

comments on the topic of the threefourths guarantee, and the Department 

declines to make any significant 

changes to this provision in the absence 

of input from the regulated community 

as a whole. 

f. Paragraph (j), Earning Records 

The NPRM proposed minor 

amendments to this provision to clarify 

current regulatory requirements at 

§ 655.122(j)(1), requiring an employer to 

maintain a worker’s home address, 

among other information. The 

Department proposed that an employer 

maintain the worker’s actual permanent 

home address, which is usually in the 

worker’s country of origin. Having the 

worker’s permanent addresses would 

permit the Department to contact a 

worker in the case of an investigation or 

litigation, or to distribute back wages. In 

its effort to enhance enforcement and 

modernize the H–2A program, the 

Department also requested comments on 

whether to require an employer to 

maintain records of a worker’s email 

address and phone number(s) in the 

worker’s home country, when available. 

As discussed below, the Department is 

adopting the proposed changes to 

paragraph (j)(1), as well as a 

requirement that the employer maintain 

records of a worker’s email address and 

phone number(s) in the worker’s home 

country, when available. 

The Department received very few 

comments in response to its proposal 

and request for comments on this 

section. Three commenters opposed the 

proposal, expressing concern about an 

employer’s ability to verify the accuracy 

of the workers’ permanent addresses, 

phone numbers, or email addresses, 

with one commenter also noting that 

many H–2A workers may consider that 

information to be private. Another 

commenter noted that DHS should 

already have H–2A workers’ permanent 

addresses and suggested that the 

Department obtain that information 

from them. Conversely, another 

commenter supported the Department’s 

proposal, commenting that it was a 

useful clarification and suggesting that 

an employer maintain records of its 

H–2A workers’ landlines if a cellphone 

number is not available. 

Other commenters requested that 

employers no longer be required to 

maintain a record of hours offered (as 

opposed to merely hours worked), as 

such information is difficult to track and 

not needed unless the employer wishes 

to use it towards the three-fourths 

guarantee. These comments are outside 

the scope of the Department’s proposal 

and, as such, were not considered at this 

time. 

After consideration of the comments, 

the Department adopts paragraph (j)(1) 

as proposed with two modifications. 

Specifically, paragraph (j)(1) in this final 

rule requires employers to maintain 

records of a worker’s permanent home 

address and, when available, the 

worker’s permanent email address and 

phone number(s). As with the worker’s 

permanent home address, the worker’s 

permanent email address and phone 

number(s) will usually mean the 

worker’s contact information, usually in 

the worker’s country of origin. Based on 

its enforcement experience, the 

Department concludes that maintaining 

this information, when available, will 

further enhance the efficiency of the 

Department’s enforcement efforts by 

providing multiple points of contact for 

workers once the workers have left the 

employer’s place of employment. And 

while the Department acknowledges 

that employers may not have the ability 

to verify the accuracy of all contact 

information provided by their workers, 

which may occasionally result in the 

Department attempting to contact a 

worker at an incorrect address, or that 

some workers may decline to share this 

information with an employer, the 

benefits of maintaining this information 

outweigh these potential concerns. 

Finally, the Department notes that the 

January 2021 draft final rule would have 

left the regulatory text unchanged from 

the 2010 H–2A Final Rule. However, 

upon further consideration of the 

comments and in light of the substantial 

benefit that the collection of this 

information would confer to the 

Department in its enforcement efforts, 

the Department adopts the abovedescribed changes in this final rule. 

g. Paragraph (l), Rates of Pay 

In the NPRM, the Department 

proposed to remove the statement ‘‘[i]f 

the worker is paid by the hour’’ and 

replace it with ‘‘[e]xcept for occupations 

covered by §§ 655.200 through 

655.235.’’ As explained in the NPRM, 

this revision clarifies that the highest 

applicable wage requirement applies, 

regardless of the unit of pay, for all 

employers except those employing 

workers primarily engaged in the 

herding or production of livestock on 

the range (i.e., occupations covered by 

§§ 655.200 through 655.235), which are 

the only occupations subject to a 

different wage methodology. If an 

employer is certified for a monthly 

salary because, for example, the 

prevailing wage rate is a monthly rate, 

the requirement to pay the highest 

applicable wage means that the 

employer must pay the hourly AEWR 

for all hours worked in a given month, 

if paying the hourly AEWR for all hours 

worked in that month would result in a 

higher wage than the certified monthly 

salary. The Department did not receive 

comments on this specific proposal, and 

therefore adopts the language as 

proposed. 

Additionally, the Department 

proposed to make corresponding 

changes to align this paragraph with the 

proposed changes to § 655.120(a). Those 

changes, as well as related comments, 

are discussed in more detail in the 

preamble to § 655.120(a). For the 

reasons stated in that section, the 

Department adopts the language in the 

NPRM with minor revisions to align 

with language regarding prevailing 

wages at § 655.120(c). As discussed 

further in the preamble to 

§ 655.120(c)(1)(iii), the revised language 

in this paragraph recognizes that there 

may be a prevailing wage for a distinct 

work task or tasks within a crop or 

agricultural activity in certain 

situations. 

The Department also received 

comments urging the Department to 

revise productivity standards for 

workers paid by the piece. One of these 


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Federal Register / Vol. 87, No. 196 / Wednesday, October 12, 2022 / Rules and Regulations 61721 

commenters suggested the Department 

exercise more flexibility in its review of 

productivity standards, while another 

commenter suggested a more rigorous 

review. Because the Department did not 

propose changes to productivity 

standards, these comments are beyond 

the scope of this rulemaking. 

h. Paragraph (n), Abandonment of 

Employment or Termination for Cause 

The Department’s current regulation 

at § 655.122(n) states that if a worker 

voluntarily abandons employment or is 

terminated for cause, and the employer 

notifies the NPC (and DHS if the worker 

is an H–2A worker), then the employer 

is not responsible for paying or 

providing for the worker’s subsequent 

transportation and subsistence 

expenses, and that worker is not entitled 

to the three-fourths guarantee described 

in § 655.122(i). Under the Department’s 

changes related to § 655.153, discussed 

below, timely notice to the NPC of such 

abandonment or termination will also 

relieve the employer from its otherwise 

applicable obligation to contact those 

U.S. workers it employed in the 

previous year who abandoned or were 

terminated for cause to solicit their 

return to the job. As discussed below, 

current § 655.153 does not require the 

employer to have provided the NPC 

with such notice in order to be relieved 

of the duty to contact former U.S. 

workers who abandoned the worksite or 

were dismissed for cause. The 

Department also proposed to revise 

§ 655.122(n) to require an employer to 

maintain records of the notification to 

the NPC detailed in the same section, 

including records related to U.S. 

workers’ abandonment of employment 

or termination for cause during the 

previous year, for not less than 3 years 

from the date of the temporary 

agricultural labor certification. As 

discussed below, this final rule adopts 

paragraph (n) from the NPRM with 

minor clarifying changes. 

The Department received comments 

from employers, agents, and trade 

associations addressing this section. 

Most of these comments suggested that 

employers should not be required to 

notify the NPC of the abandonment or 

termination of U.S. workers. These 

commenters stated that, although it may 

be important to notify DHS that H–2A 

workers are out-of-status, DOL does not 

similarly need to know the status of U.S. 

workers, making it unfair to penalize 

employers for not making such a report, 

particularly as it is not required under 

other programs. Commenters also 

suggested that if the notification 

requirement for U.S. workers was 

maintained in the final rule, employers 

should not be required to maintain a 

record of that notification, as that 

additional recordkeeping burden is an 

inefficient use of the employer’s 

resources, particularly as the employer 

will generally have other records of 

some kind demonstrating that the 

workers abandoned their employment 

or were terminated for cause. One 

commenter also asked the Department 

to clarify that these notification and 

recordkeeping requirements apply only 

to U.S. workers in corresponding 

employment and suggested that the 

requirement be even further limited to 

full-time workers hired during the 

recruitment period pursuant to the job 

order, due to the fluid and migratory 

nature of the agricultural workforce. 

Another commenter suggested that 

abandonment, which under the current 

regulation is deemed to begin after a 

worker fails to report for work at the 

regularly scheduled time for 5 

consecutive working days without the 

consent of the employer, instead be 

deemed to begin after a worker fails to 

report for work at the regularly 

scheduled time for 3 consecutive 

working days without the consent of the 

employer, as workers may need to be 

replaced quickly due to the perishable 

nature of agricultural goods. 

The Department has reviewed the 

comments suggesting that employers not 

be required to notify the NPC of the 

abandonment or termination for cause 

of U.S. workers. As an initial matter, the 

Department notes the requirement to 

notify the NPC of such U.S. worker 

abandonment or termination for cause is 

not new; the current regulations require 

employers to provide such notice in 

order to be relieved of the otherwise 

applicable contractual obligations 

relating to outbound transportation and 

the three-fourths guarantee. The 

Department proposed no changes to the 

notification requirements currently in 

place to relieve employers of their 

transportation and three-fourths 

guarantee contractual obligations and, 

accordingly, declines to adopt any 

changes to those existing requirements 

as beyond the scope of this rulemaking. 

As discussed further below, the 

Department has adopted its proposal 

providing that such notification to the 

NPC is required to relieve the employer 

from its obligation to contact these U.S. 

workers in the subsequent year under 

§ 655.153. Accordingly, the Department 

has revised proposed § 655.122(n) in 

this final rule to clarify such relief by 

explicitly referencing the employer’s 

obligations under § 655.153. Providing 

notification to the NPC of the 

abandonment or termination of U.S. 

workers is not a penalty for the 

employer. On the contrary, it is an 

opportunity for the employer to cancel 

its existing obligations to pay for 

outbound travel and subsistence; ensure 

that the employer has met the threefourths guarantee; and to contact former 

U.S. workers during recruitment, as 

discussed in reference to § 655.153 

below. Requiring notification to the NPC 

also ensures that the Department is on 

notice that the employer considers these 

obligations to be inapplicable to specific 

workers. This notification also helps the 

employer establish that a worker 

abandoned the job or was terminated for 

cause. 

Similarly, the Department has also 

decided to retain the proposed 

requirement that the employer must 

maintain a record of its notification of 

abandonment or termination for cause 

to the NPC to be relieved of their further 

contractual obligations to such U.S. 

workers. Once the employer has 

provided the required notification to the 

NPC for these workers, maintaining a 

record of such notifications with the 

employer’s other records relating to the 

workers’ abandonment or termination 

for cause will not substantially increase 

the employer’s recordkeeping burden. In 

contrast, maintaining these records 

could greatly assist employers and the 

Department in establishing that the 

employer is no longer required to 

provide outbound travel and 

subsistence, the three-fourths guarantee, 

or recruitment contact for such workers. 

In response to one commenter’s request 

for clarification, the Department 

confirms that the requirements for 

notification of abandonment or 

termination for cause of U.S. workers, 

including the recordkeeping 

requirement, are applicable only when 

the employer wishes to be relieved of 

further contractual obligations toward 

those workers; if the employer does not 

have any contractual obligation to 

provide outbound travel and 

subsistence, pay the three-fourths 

guarantee, or contact that worker for 

recruitment, the employer need not 

make such a notification for that worker. 

The Department has considered the 

comment suggesting that the 

abandonment be deemed to have 

occurred after a worker fails to report for 

work at the regularly scheduled time for 

3 consecutive working days without the 

consent of the employer, as opposed to 

5 consecutive working days, but has 

decided to retain the current regulatory 

language. As the Department did not 

propose any changes to, or request 

comments on, the length of time that a 

worker must fail to report to work before 

the worker is deemed to have 


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61722 Federal Register / Vol. 87, No. 196 / Wednesday, October 12, 2022 / Rules and Regulations 

87At the time the NPRM was published, an 

employer’s positive recruitment requirements 

included the activities set forth in §§ 655.151 

through 655.154 of the 2010 H–2A Final Rule. 

Subsequently, the Department rescinded §§ 655.151 

and 655.152 via the 2019 H–2A Recruitment Final 

Rule to modernize the method(s) used to advertise 

H–2A job opportunities. 84 FR 49439. 

abandoned their employment, the 

affected parties had no reason to 

anticipate that the Department 

contemplated a change to this provision, 

or to provide their input as to the 

appropriate length of time that should 

elapse before an absence should be 

considered abandonment and what 

factors should be considered. Therefore, 

the Department finds it is not 

appropriate to adopt such a change at 

this time. 

i. Paragraph (o), Contract Impossibility 

The NPRM proposed to retain the 

contract impossibility provision at 

paragraph (o) without change. Although 

the Department did not propose changes 

to, or invite comments regarding, this 

paragraph, the Department received 

comments from agents, trade 

associations, and a State government 

agency that addressed the contract 

impossibility provision. As discussed 

below, this provision remains 

unchanged from the NPRM. All of the 

commenters supported inclusion of the 

contract impossibility provision in the 

final rule. Three commenters suggested 

that the Department modify the 

provision. One of the commenters 

requested the Department add a 

specified timeframe for the CO’s 

determination, such as within 48 hours 

of receipt. The second commenter 

requested the Department remove the 

employer’s obligation to make efforts to 

transfer H–2A workers to comparable 

work and retain the obligation for U.S. 

workers only. The third commenter 

requested the Department revise this 

provision to clarify that an employer’s 

request for a contract impossibility 

determination may involve some, but 

not all, of its workers, depending on the 

nature of the Act of God involved. 

Revisions to paragraph (o) are beyond 

the scope of this rulemaking and are 

therefore not being made. A revision to 

paragraph (o) is not necessary, however, 

to address the commenter’s concern 

about Acts of God that reduce, but do 

not eliminate, an employer’s need for 

temporary workers. This provision 

involves permissible termination of the 

work contract between the employer 

and individual workers in the event that 

an Act of God renders the planned 

contract inviable. In the interest of 

striking an appropriate balance between 

ensuring fairness to workers and 

minimizing work contract disruptions, 

the Department does not require that 

requests for relief under the contract 

impossibility provision end the 

contracts with the entirety of an 

employer’s workforce. Rather, 

employers are encouraged to request 

reductions in the quantity of workers 

needed as best fits their particular 

circumstances. 

j. Paragraph (p), Deductions 

The Department’s current regulation 

at § 655.122(p) prohibits unauthorized 

deductions. An employer must disclose 

any deductions not required by law in 

the job offer. The Department noted, 

however, that employers often fail to 

disclose deductions by improperly 

withholding Federal Insurance 

Contributions Act (FICA) taxes. 

Alternatively, employers sometimes 

properly disclose and withhold Federal 

income tax at the worker’s request but 

fail to remit the withholding to the 

proper agencies. These actions, even if 

inadvertent, constitute violations of the 

H–2A statute and regulations. 

The Department did not propose any 

change to the regulation at § 655.122(p), 

but clarified in the preamble to the 

NPRM that according to the IRS, an 

employer may not withhold FICA taxes 

from an H–2A worker’s paycheck, and 

that an employer generally is not 

required to withhold Federal income tax 

from an H–2A worker’s paycheck. In 

some situations, employers may even be 

prohibited from withholding Federal 

income tax under the H–2A program. 

The Department received no comments 

in response to this section of the NPRM 

and has made no changes to the 

regulation in this final rule. 

k. Paragraph (q), Disclosure of Work 

Contract 

The Department’s current regulation 

at § 655.122(q) requires an employer to 

disclose 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 

provisions required by § 655.122. 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. 

The time by which the work contract 

must be provided depends on whether 

the worker is entering the United States 

to commence employment or is already 

present in the United States; however, 

for most H–2A workers, this must occur 

by the time the worker applies for a 

visa. The Department proposed to retain 

the current disclosure requirements 

with one minor revision to specify that 

the work contract must be disclosed to 

those H–2A workers who do not require 

a visa to enter the United States under 

8 CFR 212.1(a)(1) not later than the time 

of an offer of employment. This is the 

same point at which H–2A workers who 

are already in the United States because 

they are moving between H–2A 

employers receive the work contract. 

The Department did not receive any 

comments on this proposed change and 

therefore retains the language as 

proposed. 

4. Section 655.123, Optional Pre-Filing 

Positive Recruitment of U.S. Workers 

In the NPRM, the Department 

proposed to add a new provision at 

§ 655.123 to permit an employer to 

begin to conduct its positive recruitment 

efforts earlier in the H–2A application 

process.87 Specifically, the Department 

proposed new standards and procedures 

establishing a ‘‘pre-filing’’ positive 

recruitment option that would allow an 

employer to either begin positive 

recruitment activities after the SWA’s 

acceptance of the job order for clearance 

under § 655.121 and before submission 

of the Application for Temporary 

Employment Certification to the NPC 

(i.e., pre-filing), or wait for the CO’s 

NOA, consistent with current practice. 

After considering the comments 

received in response to the NPRM, and 

the subsequent impact of the 

Department’s decisions in the 2019 H– 

2A Recruitment Final Rule (effective 

October 21, 2019) on the proposed 

optional pre-filing positive recruitment 

provision, the Department has decided 

not to adopt § 655.123 in this final rule 

for the reasons discussed below. 

The INA requires the Secretary to 

deny a temporary agricultural labor 

certification if ‘‘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.’’ 

See 8 U.S.C. 1188(b)(4). The 

requirement for employers to engage in 

positive recruitment is in addition to, 

and occurs within the same time period 

as, the circulation of the job order 

through the interstate clearance system 

maintained by the SWAs. Id. Under the 

2010 H–2A Final Rule, employers begin 

to conduct required positive recruitment 

steps after the CO reviews an H–2A 

application and issues a NOA 

authorizing such recruitment of U.S. 

workers to commence. 


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As explained in the NPRM, the 

Department engaged in the 2019 H–2A 

Recruitment Final Rule 

contemporaneously with this 

rulemaking to modernize the method(s) 

used to advertise H–2A job 

opportunities for compliance with the 

positive recruitment requirements of the 

2010 H–2A Final Rule. On September 

20, 2019, shortly before the public 

comment period for this NPRM closed 

on September 24, 2019, the Department 

published the 2019 H–2A Recruitment 

Final Rule, which became effective 

October 21, 2019. The 2019 H–2A 

Recruitment Final Rule rescinded 

§§ 655.151 and 655.152; in lieu of 

employer-placed print advertisements 

in a newspaper of general circulation in 

the AIE, the Department leverages its 

enhanced electronic job registry, 

SeasonalJobs.dol.gov, to advertise H–2A 

job opportunities electronically on the 

employer’s behalf. This change in the 

recruitment process reduced the 

employer’s mandatory positive 

recruitment activities, while increasing 

post-acceptance job order exposure 

through the Department’s electronic job 

registry. Moving forward, an employer’s 

mandatory positive recruitment 

activities include contacting former U.S. 

workers, as required under § 655.153, 

and following the CO’s instructions 

regarding additional positive 

recruitment activities for the job 

opportunity, as applicable under 

§ 655.154. However, the 2019 H–2A 

Recruitment Final Rule did not change 

the existing timeframe for an employer’s 

positive recruitment activities. As a 

result, effective October 21, 2019, the 

CO instructs employers in the NOA to 

begin positive recruitment of U.S. 

workers under §§ 655.153 and 655.154 

and, contemporaneously, the CO posts 

the job opportunity on the Department’s 

electronic job registry. 

Applying the changes implemented in 

the 2019 H–2A Recruitment Final Rule 

to the optional pre-filing positive 

recruitment procedures proposed in the 

NPRM at § 655.123, an employer would 

have begun positive recruitment 

activities contained in §§ 655.153 

(contact with former employees) and 

655.154 (statutorily required 

recruitment in a multi-State region of 

traditional or expected labor supply, as 

designated by the Secretary), as 

applicable, within 7 days of SWA job 

order acceptance. Then, no more than 

50 calendar days before its first date of 

need, the employer would have 

submitted an initial recruitment report 

to the CO with its H–2A application. If 

the employer complied with the 

procedures described in § 655.123 and 

its H–2A application met all 

requirements for certification at the time 

of submission, the CO would have been 

able to issue the temporary labor 

certification as the CO’s first action after 

review. An employer choosing not to 

begin positive recruitment early, 

following the proposed procedures at 

§ 655.123, would have waited for the CO 

to issue the NOA and then begun 

positive recruitment in compliance with 

§§ 655.153 and 655.154. 

Proposed § 655.123 would not have 

changed an employer’s obligation to 

consider and hire able, willing, and 

qualified U.S. workers who will be 

available at the time and place needed 

to perform the labor or services involved 

in the application. Likewise, the 

proposed provision would not have 

changed the methods of contacting or 

recruiting U.S. workers an employer 

must use before hiring H–2A workers, or 

the duration of the recruitment period 

specified in § 655.135(d). Rather, 

§ 655.123 would have allowed the 

employer to start compliance with its 

positive recruitment obligations earlier 

in the labor certification process and to 

engage in active recruitment of U.S. 

workers over a longer period of time 

before certification. In addition, 

§ 655.123 would have streamlined the 

certification process for employers who 

demonstrated compliance with prefiling recruitment obligations and met 

all other conditions of certification by 

permitting the CO to issue a certification 

determination as the first action. 

The Department received several 

comments from employers, employer 

associations, agents, and trade 

associations that generally supported 

the optional pre-filing positive 

recruitment concept proposed. They 

viewed the option to begin positive 

recruitment activities earlier than 

current procedures allow, and thereby 

potentially receive a temporary labor 

certification as the CO’s first action, as 

a way to reduce paperwork and burdens 

associated with this step, increase 

efficiency, and help prevent delays in 

workers’ arrival, without undermining 

the program’s integrity. A few also 

believed that the Department’s 

certification determination would be 

better informed. A farm owner, for 

example, opined that beginning the 

recruitment period earlier would 

improve notice and access to these job 

opportunities for U.S. workers. 

Commenters employed as farmworkers 

generally noted the importance of notice 

and access to job opportunities, both in 

advance for planning purposes and after 

the work may have begun. 

Two workers’ rights advocacy 

organizations opposed the adoption of 

the proposed § 655.123. One asserted 

the proposal would weaken the 

requirement that employers first try to 

diligently recruit and hire U.S. workers 

before hiring H–2A workers. The other 

expressed concern that positive 

recruitment activities too far in advance 

(e.g., 50 days) would waste employer 

resources and be ineffective because 

workers are engaged in other work, in 

other places; if the employer’s positive 

recruitment activities occur earlier than 

the current regulatory timeline, the 

intended audience of the recruitment 

will not ‘‘[be] around to hear it.’’ The 

commenter urged the Department to 

retain the ‘‘traditional systems of 

recruitment already in place.’’ 

Within the proposed pre-filing 

recruitment provision, two agents, a 

farm owner, and a workers’ rights 

advocacy organization objected to the 

proposed timing requirement for 

submission of the initial pre-filing 

recruitment report. The agents 

considered the proposed timeframe 

requirement artificial and unnecessary 

due to the requirements that employers 

continue hiring throughout the 

recruitment period, update the 

recruitment report as necessary, and 

retain a final recruitment report with an 

account of all applicants and referrals 

received. In addition, one saw the 

timeframe requirement as potentially 

creating delays, for example, if the CO 

questioned discrepancies between the 

SWA referral database and the 

employer’s initial recruitment report. 

The farm owner asserted that in ‘‘most 

years’’ there are no applicants or 

referrals. The workers’ rights advocacy 

organization objected on the grounds 

insufficient recruitment would have 

taken place before the employer 

submitted the initial pre-filing 

recruitment report to the CO. 

At least one commenter found the 

combination of optional procedures and 

mandatory obligations in proposed 

§ 655.123 confusing and concerning. For 

example, the commenter feared 

employers might incorrectly interpret 

paragraphs (d) and (e) of proposed 

§ 655.123, relating to interviews and 

consideration and hiring of U.S. 

workers, as applicable only to pre-filing 

recruitment, not to all H–2A program 

recruitment. The commenter urged the 

Department to return the interview 

requirements provision to § 655.152(j); 

however, the Department rescinded 

§ 655.152 in the 2019 H–2A Recruitment 

Final Rule. Another commenter urged 

the Department to integrate regulatory 

changes implemented through the 2019 

H–2A Recruitment Final Rule when 

considering comments under this 

rulemaking process. 


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61724 Federal Register / Vol. 87, No. 196 / Wednesday, October 12, 2022 / Rules and Regulations 

The January 2021 draft final rule 

would have adopted the Department’s 

pre-filing recruitment proposal at 

§ 655.123, with clarifying modifications. 

For example, in that draft final rule the 

Department recognized the necessity of 

clarifying that the proposed pre-filing 

recruitment was an optional process. In 

addition, in the January 2021 draft final 

rule, the Department sought to clarify 

that those employers who opted to use 

the process remained subject to the 

program’s recruitment obligations. After 

further considering the comments 

received and the Department’s changes 

to the recruitment process in the 2019 

H–2A Recruitment Final Rule, the 

Department has decided not to adopt 

the pre-filing recruitment provision and 

will not include proposed § 655.123 in 

this final rule. However, the Department 

has decided to retain but relocate to 

§ 655.135(c) the mandatory recruitment 

obligation provisions proposed at 

paragraphs (d) and (e) of § 655.123. The 

Department recognizes the comments 

that highlighted potential benefits of the 

proposed provision but is sensitive to 

the potential confusion that could result 

from adoption of the proposed 

provision. In light of the concerns 

raised, the Department considers 

retaining the current system beneficial, 

as explained below. Therefore, this final 

rule retains the positive recruitment 

process and timing of the 2010 H–2A 

Final Rule, as modified by the 2019 

H–2A Recruitment Final Rule. As the 

Department is not adopting the 

proposed optional pre-filing recruitment 

provision, this final rule does not 

include minor revisions to other 

sections, like §§ 655.144 and 655.150, 

that were included in the January 2021 

draft final rule to conform those sections 

to the optional pre-filing recruitment 

process. 

Comments on both this proposal and 

the proposed recruitment period 

changes at § 655.135(d) expressed the 

importance of aligning the timing of the 

employer’s recruitment activities, such 

as contact with former U.S. workers, 

with the time periods during which U.S. 

workers are accustomed to such contact 

and most likely to be looking for 

agricultural job opportunities (e.g., close 

to or after the start date of work). In 

addition, employers may not be certain 

whether a potential pool of workers the 

OFLC Administrator identified through 

the labor supply State designation 

process proposed at § 655.154(d), and 

the related information posted regarding 

recruitment of that pool of workers, 

applies to its Application for Temporary 

Employment Certification. Furthermore, 

specific information about reaching the 

workers (e.g., organization point of 

contact information) may change 

between the OFLC Administrator’s 

annual posting of traditional or 

expected labor supply State 

determinations, which would hinder 

employers’ pre-filing recruitment 

efforts. In contrast, in a case-specific 

NOA, the CO can provide current, 

accurate information regarding 

additional positive recruitment required 

to recruit a pool of workers relevant to 

the employer’s job opportunity. 

The Department believes that 

retaining the longstanding requirement 

that employers contact former U.S. 

workers and conduct additional positive 

recruitment activities, as applicable, 

following the CO’s instructions in the 

NOA, in combination with the 

Department’s decision to retain the 

requirement that employers continue to 

hire qualified U.S. workers through 50 

percent of the contract period (as 

discussed in the preamble to 

§ 655.135(d) below) will more 

effectively ensure U.S. worker access to 

H–2A job opportunities advertised 

through positive recruitment activities 

than the optional pre-filing recruitment 

proposed in the NPRM. This will also 

avoid the potential for confusion among 

U.S. job seekers or employers cited 

above. Specifically, the Department 

believes that this final rule will ensure 

that: (1) recruitment of U.S. workers 

occurs for a sufficient period of time 

before and after the first date of need; (2) 

active employer recruitment occurs 

during a period of time that is most 

consistent with the common job seeking 

practices of U.S. agricultural workers; 

and, (3) where appropriate, employers 

receive specific instructions in the NOA 

regarding the additional positive 

recruitment activity required and the 

documentation to retain as evidence of 

compliance. As discussed above and 

based on the Department’s past 

experience administering the existing 

positive recruitment procedures and 

requirements, the Department believes 

these provisions effectively provide 

notice of available job opportunities to 

U.S. workers. 

As a result, through this final rule, the 

Department retains the positive 

recruitment timing required in the 2010 

H–2A Final Rule. An employer will 

continue to file a job order no fewer 

than 60 calendar days before the 

employer’s first date of need, except 

where the employer files the application 

under the emergency situations 

provision at § 655.134, and, upon SWA 

approval of the job order, intrastate 

recruitment will begin. Recruitment 

through the active job order will expand 

to interstate clearance with the CO’s 

issuance of a NOA and continue 

throughout the 50 percent period. When 

issuing the NOA, the CO will post the 

job opportunity on the Department’s 

electronic job registry, which will 

broadcast the job offer information 

through the Department’s enhanced 

electronic job registry at 

SeasonalJobs.dol.gov and ensure the job 

opportunity posting is continuously 

accessible to prospective applicants, 

regardless of their location, until the 

recruitment period at § 655.135(d) ends. 

In addition, upon receipt of the NOA, 

the employer will follow the CO’s 

instructions and begin to conduct 

positive recruitment activities by 

contacting former employees to 

determine their willingness to accept 

the employer’s job opportunity, as 

discussed further in the preamble to 

§ 655.153 below, and conducting 

additional positive recruitment based on 

the OFLC Administrator’s determination 

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, as discussed in the preamble to 

§§ 655.143 and 655.154. 

In addition to the comments 

addressed above, some commenters 

offered opinions about matters that had 

been open for public notice and 

comment through the 2019 H–2A 

Recruitment Final Rule; those 

comments are outside the scope of this 

rulemaking. Other commenters 

expressed general concerns about 

employers’ methods of contact, 

interview procedures, consideration of 

applicants or referrals, and 

documentation retention, which are 

matters that are also outside the scope 

of the optional pre-filing positive 

recruitment timing proposed in the 

NPRM. 

5. Section 655.124, Withdrawal of a Job 

Order 

The NPRM proposed to reorganize all 

withdrawal provisions so that, for 

example, the procedure for withdrawing 

the Application for Temporary 

Employment Certification and job order 

is located in the section of the rule 

where an employer at that stage of the 

labor certification process would look 

for such a provision. Accordingly, the 

NPRM proposed revisions to move the 

job order withdrawal provisions at 

§ 655.172(a) of the 2010 H–2A Final 

Rule to this new section, and to conform 

with other proposed changes in the 

NPRM. The Department received a few 

comments on this provision, none of 

which necessitated substantive changes 

to the regulatory text. Therefore, as 


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discussed below, this provision remains 

unchanged from the NPRM. 

In the 2010 H–2A Final Rule, all 

withdrawal provisions were found at 

§ 655.172, in the ‘‘Post-Certification’’ 

section of the regulations, regardless of 

the stage of processing to which they 

applied. For example, at § 655.172(a), 

the 2010 H–2A Final Rule addressed the 

conditions under which an employer 

could withdraw a job order before it 

submitted the related Application for 

Temporary Employment Certification. 

To make the rule better organized and 

more user-friendly, the Department 

proposed to reorganize the withdrawal 

provisions, in part, by moving the 

content of § 655.172(a) of the 2010 

H–2A Final Rule to the ‘‘Pre-Filing 

Procedures’’ section of the regulations, 

in a new proposed § 655.124. This 

change would place the job order 

withdrawal provision in a more logical 

location within the regulations—in the 

‘‘Pre-Filing Procedures’’ section with 

the job order filing and review 

procedures, and before the ‘‘Application 

for Temporary Employment 

Certification Filing Procedures’’ section 

that begins at § 655.130. 

In addition to the proposal to relocate 

the job order withdrawal provision to 

§ 655.124, the Department proposed 

minor revisions for both clarity and 

consistency with other proposed 

changes. In proposed § 655.124(a), the 

Department continued the 2010 H–2A 

Final Rule’s reminder in § 655.172(a) 

that ‘‘withdrawal of a job order does not 

nullify existing obligations to those 

workers recruited in connection with 

the placement of a job order pursuant to 

this subpart’’ with greater simplicity. In 

proposed § 655.124(b), consistent with 

the proposal employers submit their job 

orders to the NPC, the Department 

proposed to establish the NPC as the 

recipient of job order withdrawal 

requests. 

The Department received no 

comments objecting to the proposed 

reorganization of the job order 

withdrawal provision from § 655.172(a) 

to § 655.124. However, an agent voiced 

concerns about establishing the NPC as 

the recipient of job order withdrawal 

requests, and that agent and a few other 

commenters remarked on an employer’s 

continuing obligations after the job 

order’s withdrawal. 

Regarding the Department’s proposal 

to establish the NPC as the recipient of 

job order withdrawal requests, the 

commenter argued that the Department 

did not consider the costs and benefits 

of this particular change, particularly 

that it would result in undue delays in 

processing, and also that it lacks the 

authority to perform what the 

commenter considers an inherently 

State function. The Department 

respectfully disagrees. The costs and 

benefits of establishing the NPC as the 

conduit through which job orders are 

received and transmitted to the SWAs, 

including technological efficiencies 

gained in the processing of job orders 

through the Department’s electronic 

filing system, are addressed in 

connection with § 655.121. Those costs 

and benefits encompass receipt and 

transmission of job order withdrawal 

requests. In addition, the Department 

addressed similar concerns about 

possible delays in the preamble to 

§ 655.121. The NPC will transmit an 

employer’s request for withdrawal of a 

job order within the FLAG system to all 

SWAs actively recruiting under the job 

order. The SWAs that received the job 

order in accordance with § 655.121(e)(1) 

and, if applicable, § 655.121(f) will 

receive notice simultaneously and 

without delay. Further, the SWAs, not 

the NPC, will initiate procedures to 

close withdrawn job orders in the 

clearance system, as appropriate. As 

with its transmission of the initial job 

order submission to the SWA for review 

under § 655.121(e)(1) and transmission 

of the approved job order to other SWAs 

for clearance under § 655.121(f), the 

procedural role proposed in § 655.124 

does not exceed the NPC’s authority. 

The same agent and a few other 

commenters objected to employers 

being ‘‘obligated to comply with the 

terms and conditions of employment 

contained in the job order with respect 

to all workers recruited in connection 

with that job order’’ after withdrawal of 

the job order. Two suggested an 

employer should be required to honor 

the terms of a job order only if the 

employer has filed an Application for 

Temporary Employment Certification 

with the NPC, with one citing 

emergency circumstances beyond an 

employer’s control that may prevent the 

employer from continuing with the 

H–2A process. The other two 

commenters objected to continuing 

obligations beyond withdrawal of the 

job order, apparently without regard to 

when the job order is withdrawn. 

However, these comments overstate the 

Department’s proposed changes and 

conflict with the underlying obligation 

that was continued from § 655.172 of 

the 2010 H–2A Final Rule. 

Although the Department proposed 

clearer language to express an 

employer’s continuing obligations to a 

worker recruited in connection with the 

job order it seeks to withdraw, the 

Department proposed no change to the 

underlying requirement. If an employer 

successfully recruits workers through 

SWA referrals, the employer is bound 

by the terms and conditions of 

employment offered in the job order 

with respect to those workers, including 

but not limited to wages, housing, and 

transportation. See § 653.501(c)(3)(viii). 

As stated in the NPRM, and the 2010 

H–2A Final Rule, these obligations 

attach at recruitment and continue after 

withdrawal. As a result, these comments 

recommend changes that are beyond the 

scope of this rulemaking. 

C. Applications for Temporary 

Employment Certification Filing 

Procedures 

1. Section 655.130, Application Filing 

Requirements 

a. Paragraphs (a), What To File; (c), 

Location and Method of Filing; and (d), 

Original Signature 

The NPRM proposed minor 

amendments to these sections to clarify 

the minimum content requirements of a 

complete Application for Temporary 

Employment Certification; modernize 

the application process by requiring that 

employers, unless a specific exemption 

applies, electronically submit the 

Application for Temporary Employment 

Certification and all required supporting 

documentation; and permit the use of 

electronic signatures by the employer 

and, if applicable, the employer’s 

authorized attorney, agent, or surety. 

The Department received many 

comments on the proposed amendments 

to these sections, none of which 

necessitated substantive changes to the 

regulatory text. Therefore, as discussed 

below, this provision remains 

unchanged from the NPRM. 

The Department proposed language 

under paragraph (a) to clarify that the 

content of a complete Application for 

Temporary Employment Certification 

for submission to the Department must 

include a completed Application for 

Temporary Employment Certification; 

all supporting documentation and 

information required at the time of filing 

under §§ 655.131 through 655.135; and, 

unless a specific exemption applies, a 

copy of Form ETA–790/790A, submitted 

as set forth in § 655.121(a). The 

employer’s valid FEIN, a valid place of 

business (physical location) in the 

United States, and a means by which 

the employer may be contacted for 

employment must be included in the 

employer’s submission. 

As discussed in the NPRM, OFLC’s 

FLAG system will assist employers and 

their representatives in preparing 

complete submissions, as it will not 

permit an employer to submit an 

Application for Temporary Employment 

Certification until the employer 


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88Public Law 105–277, Title XVII (Secs. 1701– 

1710), 112 Stat. 2681–749 (Oct. 21, 1998), 44 U.S.C. 

3504. 

89Public Law 106–229, 114 Stat. 464 (June 30, 

2000), 15 U.S.C. 7001 et seq. 

90Federal Chief Information Council, Use of 

Electronic Signatures in Federal Organization 

Transactions, Version 1.0 (Jan. 25, 2013). 

91See Interim Final Rule, Labor Certification 

Process for Temporary Employment in the 

Commonwealth of the Northern Mariana Islands 

(CW–1 Workers), 84 FR 12380, 12393 (Apr. 1, 2019). 

completes all required fields on the 

forms and uploads and saves to the 

pending application an electronic copy 

of all documentation and information 

required at the time of filing, including 

a copy of the job order submitted in 

accordance with § 655.121. For 

applications permitted to be filed by 

mail pursuant to the procedures 

discussed below, if an employer submits 

an application that is incomplete or 

contains errors, the Department will 

issue a NOD identifying any 

deficiencies, and the employer will be 

required to mail back a revised 

application, thus requiring a timely 

back-and-forth to complete the 

application. 

The Department proposed language 

under paragraph (c) to require an 

employer to submit the Application for 

Temporary Employment Certification 

and all required supporting 

documentation using an electronic 

method(s) designated by the OFLC 

Administrator. The Department also 

proposed procedures that would permit 

employers lacking adequate access to efiling to file by mail and would permit 

employers that are unable or limited in 

their ability to use or access the 

electronic application due to a disability 

to request an accommodation to allow 

them to access and file the application 

through other means. Under proposed 

paragraph (c)(2), employers could 

request an accommodation if they are 

limited in their ability to use, or are 

unable to access, electronic forms or 

communication due to a disability. 

Unless the employer requested an 

accommodation due to a disability or 

inadequate access to e-filing, the NPC 

would return, without review, any 

Application for Temporary Employment 

Certification submitted using a method 

other than the electronic method(s) 

designated by the OFLC Administrator. 

Finally, proposed paragraph (d) of this 

section adopted the use of electronic 

signatures as a valid form of the 

employer’s original signature and, if 

applicable, the original signature of the 

employer’s authorized attorney, agent, 

or surety. 

The Department received many 

comments expressing strong support for 

the e-filing proposals as a way to 

improve the quality and accuracy of 

documents the Department receives and 

reduce processing times and paperwork 

burdens for employers, the Department, 

and SWAs. Some of these commenters 

noted employers in rural and remote 

areas may not have access to the means 

to file electronically, and they urged the 

Department to retain in the final rule 

proposed paragraphs (c)(2) and (3) of 

this section that permit filing by mail, 

provided the employer submits, in 

writing, a request for reasonable 

accommodation. In response to these 

comments, the Department agrees and 

has retained these provisions in this 

final rule. 

Commenters also generally supported 

the proposal to require electronic 

signatures for all electronically filed 

applications, though several 

commenters stated they would not 

support any provision requiring the filer 

to electronically sign documents within 

the FLAG system or prohibiting the filer 

from using copies of a ‘‘wet’’ signature. 

One commenter also expressed concern 

DHS might not accept the electronic 

signatures required under this final rule. 

This final rule does not require 

employers to sign documents within the 

FLAG system, and it does not prohibit 

handwritten ‘‘wet’’ signatures, which 

filers electronically copy (scan) and 

upload into the electronic filing system, 

while retaining the original in the 

employer’s document retention file. 

Under this provision, in addition to 

accepting electronic (scanned) copies of 

‘‘wet’’ signatures, the OFLC 

Administrator will permit an employer, 

agent, or attorney to sign or certify a 

document required under this subpart 

using a valid electronic signature 

method. Consistent with the 

Government Paperwork Elimination Act 

(GPEA) 88 and Electronic Signatures in 

Global and National Commerce Act 

(E–SIGN Act),89 the Department is 

adopting a ‘‘technology neutral’’ policy 

with respect to the requirements for 

electronic signatures. That is, the 

employer, agent, or attorney can apply 

a required electronic signature on a 

document using any available 

technology that can meet the five 

signing requirements in OMB 

guidelines: (1) the signer must use an 

acceptable electronic form of signature; 

(2) the electronic form of signature must 

be executed or adopted by the signer 

with the intent to sign the electronic 

record; (3) the electronic form of 

signature must be attached to or 

associated with the electronic record 

being signed; (4) there must be a means 

to identify and authenticate a particular 

person as the signer; and (5) there must 

be a means to preserve the integrity of 

the signed record.90 The OFLC 

Administrator will accept electronic 

signatures affixed to required 

documents using any available 

technology that meets the five signing 

requirements above. DHS will accept 

electronic signatures that have been 

accepted by the Department. As noted 

in the NPRM, the GPEA specifically 

states electronic records and their 

related electronic signatures are not to 

be denied legal effect, validity, or 

enforceability merely because they are 

in electronic form, and encourages 

Federal Government use of a range of 

electronic signature alternatives. See 

secs. 1704 and 1707 of the GPEA. In 

addition, this approach is consistent 

with the Department’s conclusion in an 

earlier rulemaking that these standards 

for accepting electronic signatures are 

reasonable and accepted by Federal 

agencies.91

Finally, one SWA that supported the 

e-filing proposal also urged the 

Department to use the e-filing process to 

collect demographic information, 

including information identifying areas 

with a high concentration of certified 

workers and a detailed breakdown of 

the number of workers certified by 

occupation. The commenter stated this 

information is often requested of SWAs 

and enhanced collection of the 

information would allow SWAs to better 

assess farm labor trends and address 

regional employment needs. The 

Department agrees it is important to 

collect H–2A program information and 

make it available to the public. The 

Department will continue to collect 

detailed program information, including 

information about work locations and 

certification numbers by occupation, 

and publish this information on the 

OFLC website and in periodic reports 

produced by the agency. 

b. Paragraph (e), Scope of Applications 

The NPRM proposed amendments to 

this section to clarify the geographic 

scope of all Applications for Temporary 

Employment Certification submitted by 

employers to the NPC and permit the 

filing of only one Application for 

Temporary Employment Certification 

for place(s) of employment covering the 

same geographic scope, period of 

employment, and occupation or 

comparable work. The Department 

received many comments on the 

proposed amendments to these sections. 

After carefully considering these 

comments, the Department has decided 

to largely adopt the regulatory text 

proposed in the NPRM, with several 

revisions discussed below. 


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92The Department also addressed these 

comments in connection with the definition of AIE 

at § 655.103(b). 

93As the INA does not define ‘‘hours worked,’’ 

the Department has concluded that it is beneficial 

for workers, employers, agents, and WHD to ground 

enforcement of INA program obligations in its 

decades of experience enforcing the FLSA, which 

applies to H–2A workers. See 2015 H–2B IFR, 80 

FR 24042, 24062. The FLSA clarifies that, unlike 

normal home-to-work travel, which need not be 

compensated, time spent by an employee in travel 

as part of their principal activity, such as travel 

from job site to job site during the workday, must 

be counted as hours worked. See 29 CFR 785.38. 

The Department also discusses the relationship 

between the INA and FLSA hours worked 

principles in its response to public comments on 20 

CFR 655.300. 

The Department proposed a new 

paragraph (e) to clarify that each 

Application for Temporary Employment 

Certification must be limited to places 

of employment within a single AIE, 

except where otherwise permitted by 

the subpart (e.g., under § 655.131(a)(2)), 

a master application may include places 

of employment within two contiguous 

States). This proposal addressed the 

overall lack of clarity in the 2010 H–2A 

Final Rule regarding whether an 

application could include places of 

employment that span more than one 

AIE, and ambiguity created by its 

revisions to § 655.132(a), which 

specifically limited only H–2ALC 

applications to places of employment 

within a single AIE. As stated in the 

NPRM, limiting the geographic scope of 

H–2A program job opportunities is an 

essential component of the labor market 

test necessary to determine both the 

availability of U.S. workers for the job 

opportunity and to ensure that U.S. 

workers in the local or regional area 

have an opportunity to apply for those 

job opportunities located within normal 

commuting distance of their permanent 

residences. The Department noted that 

qualified U.S. workers may be 

discouraged from applying for these job 

opportunities if required to perform 

work at places of employment both 

within and outside the normal 

commuting area or where assignment to 

places of employment outside normal 

commuting distance was possible, 

despite the availability of closer work. 

Furthermore, the Department stated that 

monitoring program compliance 

becomes more difficult and the potential 

for violations increases when workers 

employed under a single Application for 

Temporary Employment Certification 

are dispersed across more than one AIE. 

After considering the comments 

received, the Department has decided to 

adopt this provision, with two 

modifications. First, the Department 

split this section into two parts; 

paragraph (e)(1) addresses the 

geographic scope limitation, while 

paragraph (e)(2) maintains the 

administrative limitation that an 

employer may file only one Application 

for Temporary Employment 

Certification covering the same AIE, 

period of employment, and occupation 

or comparable work to be performed. 

Second, as discussed below, the 

Department modified paragraph (e)(1) to 

address job opportunities that involve 

mobility within the workday, after the 

workday begins. 

Employers, agents, and trade 

associations generally objected to a 

single AIE limit on fixed-site employer 

applications. Two commenters viewed 

it as a limit on the size of farm that can 

be included on an Application for 

Temporary Employment Certification, 

explaining that it is not uncommon for 

a farm to consist of multiple locations 

(e.g., fields or packing facilities) that 

may be in close proximity or may be 

located more broadly throughout a 

particular growing region of the State. 

These commenters argued that 

incidental travel during the regular paid 

workday in employer-provided vehicles, 

for example to pick up or deliver crops, 

move workers between farm locations, 

etc., should not be a factor in 

determining the geographic scope of an 

Application for Temporary Employment 

Certification. In addition, one 

commenter added that there should be 

no limit to distances on travel ‘‘as the 

first worksite location or the employer’s 

pick-up location are clearly defined and 

transportation between worksites is 

provided and paid by the employer.’’ 

Other commenters explained that 

restricting an H–2ALC Application for 

Temporary Employment Certification to 

one AIE may be justified for monitoring 

purposes, as such employers provide 

labor services to various fixed-site 

growers in different areas according to 

contracts, unlike a fixed-site grower, 

which has a known fixed location where 

the Department can go to perform its 

monitoring process. One of them 

objected to what it viewed as a 

significant change that would apply a 

restriction reasonable for H–2ALCs but 

not for fixed-site growers. The 

commenter urged the Department, 

without explanation, to retain the single 

AIE restriction for H–2ALCs only. 

Farmworkers and interested private 

citizens emphasized the importance of 

local work for farmworkers and 

generally agreed with the Department’s 

concern that job opportunities with 

worksites outside the local commuting 

area discourage U.S. applicants. These 

commenters provided examples of the 

difficulties in getting to job 

opportunities that are not local, whether 

due to challenges in arranging rides to 

work or problems with work-life 

balance when the commute is too long. 

A workers’ rights advocacy organization 

explained that broad determinations of 

AIE (i.e., ‘‘normal commute’’ to the job) 

are misused to refuse housing—and 

related transportation to worksites—to 

U.S. workers who reside within large 

AIE.92

The Department sought to strike an 

appropriate balance between the 

domestic labor market interests served 

by a single AIE geographic limitation on 

an Application for Temporary 

Employment Certification and the 

geographic flexibility growers need 

within a particular workday for certain 

job opportunities (e.g., truck drivers 

who deliver crops to market), which do 

not impact workers’ commute time or 

distance. To that end, in this final rule, 

the Department revised proposed 

paragraph (e)(1) to clarify that where a 

job opportunity involves work at 

multiple places of employment after the 

workday begins, the Application for 

Temporary Employment Certification 

may include places of employment 

outside a single AIE. First, this language 

ensures that any travel outside the AIE 

occurs during the workday and thus is 

compensable time.93 Second, the 

revised language limits such withinworkday mobility to only those job 

opportunities where it is necessary to 

perform the duties specified in the 

Application for Temporary Employment 

Certification. Last, the revised language 

specifies that this expanded geographic 

area (i.e., places of employment beyond 

the AIE after the workday begins) is 

permitted only if workers can 

reasonably return to their residence or 

employer-provided housing within the 

same workday. This parameter ensures 

that Applications for Temporary 

Employment Certification, subject to 

paragraph (e), include places of 

employment outside a single AIE only 

where there is no impact to the 

reasonable, normal, and safe daily 

commute for all of the employer’s 

workers who reside within the AIE, 

whether at their own residence or in 

employer-provided housing. 

Accordingly, the additional language 

in paragraph (e)(1) accommodates the 

types of job opportunities commenters 

described (e.g., truck drivers delivering 

their employer’s crop to market or 

storage) as unreasonably limited by a 

single AIE limitation, without negative 

impact to workers or the underlying 

labor market test. This text is consistent 

with the definitions of AIE and place of 

employment in § 655.103(b), and with 


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the comments discussed in the 

preamble for those definitions. 

Regarding paragraph (e)(2), as 

explained in the NPRM, this provision 

prevents the Department from receiving 

and processing duplicate applications 

and reduces duplicative efforts by 

preventing an employer from filing a 

new application for the same job 

opportunity while an appeal is pending. 

Paragraph (e)(2) also clarifies that filing 

more than one Application for 

Temporary Employment Certification is 

necessary only when an employer needs 

workers to perform full-time job 

opportunities that do not involve the 

same occupation or comparable work, or 

when workers perform the same fulltime work but in a different AIE or with 

different starting and ending dates (e.g., 

staggered start dates while ramping up). 

With respect to this provision, the 

Department did not receive any 

comments; accordingly, the Department 

is adopting this portion of the proposed 

regulatory text into clause (e)(2) without 

further change. 

c. Paragraph (f), Staggered Entry of H– 

2A Workers 

Current regulations require an 

employer to file separate Applications 

for Temporary Employment 

Certification for each sequential start 

date of work for each group of job 

opportunities. The NPRM proposed to 

add a new paragraph (f) at § 655.130 to 

allow an employer with an H–2A 

certification and an approved H–2A 

Petition to bring H–2A workers into the 

United States at any time during the 

120-day period that follows the first 

date of need identified on the certified 

Application for Temporary Employment 

Certification (i.e., staggered entry of 

H–2A workers for up to 120 days), 

under certain conditions. 

The Department received various 

comments on the proposed staggered 

entry provision. Many commenters— 

including trade associations, employers, 

agents, individual commenters, two 

State government agencies, and a State 

elected official—expressed general 

support for the Department’s proposal to 

allow the staggered entry of H–2A 

workers under a single Application for 

Temporary Employment Certification. 

The Department also received multiple 

comments on this proposal from public 

policy organizations, workers’ rights 

advocacy organizations, immigration 

advocacy organizations, trade 

associations, individual commenters, a 

commenter from academia, two State 

government agencies, and two U.S. 

Senators. These comments highlighted a 

need for substantial revision of the 

proposal, both for clarification and to 

better maintain program integrity. After 

considering these comments, the 

Department has decided not to adopt 

the proposed staggered entry provision 

in this final rule, for the reasons 

discussed below. 

Commenters who expressed support 

for the staggered entry proposal 

generally viewed it as a beneficial 

simplification of the H–2A program, 

particularly where an employer has 

labor-need phases within a season or 

growing cycle and currently files 

multiple, separate Applications for 

Temporary Employment Certification 

for each sequential start date. A few 

commenters explained, for example, 

that farmers rarely need their entire 

workforce at the beginning of a season, 

but instead need a steadily increasing 

number of workers as the harvest 

intensifies. An agent asserted that there 

is no law or regulation that prohibits 

staggered entry and urged the 

Department to retain this option in the 

final rule to enable employers to 

account for gradual changes to their 

labor needs through a single H–2A 

certification. Other commenters viewed 

staggered entry as a practical method of 

accommodating unpredictable factors, 

such as weather, that may change the 

exact timing of an employer’s labor need 

within the season. A State elected 

official said staggered entry would help 

producers remain in compliance with 

regulations, while adapting to changing 

needs and conditions. Some 

commenters stated that the proposal 

would support efficient use of farm 

resources, reduce costs and paperwork 

burdens, both at the border and on the 

farm, and create efficiencies for the 

Department by reducing application 

processing workload. Some commenters 

remarked that the proposal would also 

benefit U.S. workers, who could apply 

for job opportunities during the 

extended staggered entry recruitment 

period. 

Some of the commenters that 

supported the proposal urged the 

Department to provide additional 

flexibility for employers within the 

proposed staggered entry provision. For 

instance, some employers, trade 

associations, and agents urged the 

Department to add the word 

‘‘anticipated’’ before ‘‘latest date on 

which such workers will enter’’ in 

paragraph (f), explaining employers may 

not know the exact dates when filing 

requests because of the unpredictable 

influence of weather on agricultural 

employers’ labor needs. Another 

commenter urged the Department to 

extend the staggered entry provision 

beyond the proposed 120 days to 

accommodate potential delays while 

recruiting workers abroad, without 

suggesting an alternative end date. As 

the Department is not adopting the 

proposed staggered entry provision in 

this final rule, these suggestions are 

moot. 

Among commenters opposed to the 

proposal, the primary concern was that 

permitting staggered entry of H–2A 

workers at any time up to 120 days after 

the advertised date of need would 

undermine the labor market test and 

negatively impact U.S. worker access to 

job opportunities. In addition to 

concerns about a reduced recruitment 

period, these commenters expressed 

concern that U.S. workers would lack 

clear, accurate information about job 

opportunities, such as start dates and 

when jobs are available. Two U.S. 

Senators stated the staggered entry 

proposal would introduce instability 

into domestic and foreign labor markets 

due to the lack of notification around 

reliable dates of employment. Workers’ 

rights advocacy organizations expressed 

concern that U.S. workers would be 

disadvantaged because staggering would 

make it more difficult for them to learn 

of and apply for job opportunities. One 

of these commenters explained that 

having accurate, fixed information on 

dates, locations, and numbers of 

workers is essential to the labor market 

test, and staggered entry of H–2A 

workers would invalidate labor market 

determinations because the key 

information on which those 

determinations are based would change. 

One of the comment submissions 

consolidated many comments from 

agricultural workers who described the 

importance of knowing when seasonal 

work will begin and expressed concern 

over the staggered entry provision. A 

State agency expressed concern the 

proposal would complicate the 

recruitment efforts of SWAs. The two 

U.S. Senators and three State 

government agencies recognized the 

benefits of staggered entry for 

employers, but did not see benefits for 

workers, other than, perhaps, for those 

workers who could not commit to the 

full duration of employment but could 

commit to a later start date. The 

Senators and one of the State agencies 

asserted that extending the recruitment 

period for employers who chose to 

stagger entry of H–2A workers would 

not sufficiently remedy the harm 

resulting from the provision. 

Another commenter urged the 

Department to continue to require a 

separate application if an employer 

decides to bring in more H–2A workers 

at a later date in a particular harvesting 

season, asserting that this is an 

important safeguard for U.S. workers, as 


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it provides U.S. workers a new, distinct 

opportunity to apply when H–2A 

recruitment activity for each subsequent 

start date commences, particularly in 

situations where a U.S. worker is not 

aware of the recruitment for the first 

start date of need, or is not available on 

the employer’s first date of need. This 

commenter questioned how a U.S. 

worker would know whether the 

employer is still accepting applications 

for the job opportunity. A commenter 

from academia suggested that, if the 

Department were to adopt a staggered 

entry provision, then the Department 

should consider imposing additional 

recruitment requirements on employers, 

such as requiring employers to provide 

additional notice to SWAs that 

coincides with each phase of staggered 

entry. 

Some commenters who opposed the 

staggered entry provision expressed 

concern about the potential for misuse. 

A workers’ rights advocacy organization 

asserted the staggered entry proposal 

would provide a disincentive for 

employers to hire U.S. workers for the 

gradual start of the season and would 

make it easier for employers to fire 

workers (both U.S. and H–2A workers) 

who are not working up to productivity 

requirements and replace them with 

new H–2A workers throughout the 

staggering period. This commenter also 

envisioned employers establishing early 

start dates as a method of thwarting the 

recruitment of domestic workers. 

Another workers’ rights advocacy 

organization noted many agricultural 

workers ‘‘alter their migration patterns 

depending on the terms and conditions 

of employment’’ and expressed concern 

that the staggered entry option would 

allow employers to ‘‘manipulate 

traditional labor and recruitment 

patterns through massive applications 

covering multiple start dates and areas 

of employment’’ and refuse employment 

to U.S. workers after the recruitment 

period ends. One of the State 

government commenters expressed 

concern that employers would use the 

ability to update the terms of 

employment to bring in foreign workers 

according to evolving need, which it 

asserted would violate MSPA’s 

disclosure requirements and limit the 

ability of U.S. workers to obtain 

agricultural jobs. Another State 

government commenter expressed 

concern about the potential for the 

unlawful movement of workers, 

thinking that staggered entry could 

increase the difficulty in tracking and 

identifying such movement. 

A few State agencies suggested that 

aspects of the proposed provision could 

be revised for clarity and efficiency. 

Specifically, one State agency noted the 

proposal did not set a limit on the 

number of times an employer may 

notify the NPC of its intent to stagger 

entry of H–2A workers and expressed 

the concern that an employer could 

submit multiple notices identifying 

different staffing plans. The commenter 

was concerned that multiple notices 

would result in increased 

communication between the 

Department, the SWA, and field staff, 

and would offset any efficiencies 

potentially gained by the staggered entry 

provision. Another State agency 

expressed the concern that allowing 

employers to opt into using the 

staggered entry up to 14 days after the 

first date of need could complicate the 

process of obtaining an H–2A visa, 

which could lead to unreimbursed 

travel and subsistence costs between the 

workers’ home and the U.S. embassy or 

consulate. 

In addition, the Department received 

other comments indicating a need for 

clarification of the proposal to permit 

staggered entry, if the Department were 

to adopt such a provision in this final 

rule. For instance, a few commenters 

sought confirmation that employers 

would not be prohibited from filing 

multiple, separate applications for 

sequential needs, rather than opting to 

use staggered entry. An association 

mistakenly understood that the 

proposed language indicated 

associations filing joint master 

applications would not be permitted to 

stagger the entry of H–2A workers or 

would have less flexibility than other 

joint employers. Another commenter 

mistakenly believed that the staggered 

entry option could be used by livestock 

employers to have workers arrive 

whenever needed; for example, to gather 

livestock in advance of a major storm 

event, which may occur outside the 

employer’s seasonal need period or 

more than 120 days after its first date of 

need. Two U.S. Senators expressed 

concern that the staggered entry 

proposal could complicate compliance 

with the three-fourths guarantee that 

dictates the minimum number of hours 

an employer must offer to workers. Two 

State government agencies and a State 

elected official thought the proposal 

would increase SWA burdens and 

complicate their provision of services to 

workers, without an increase in funding, 

while another State government agency 

and an individual commenter requested 

guidance on how the staggered entry 

provision would affect completed 

certified housing inspections. One of the 

commenters explained that in some 

States, such as Oregon, SWA staff 

conduct site visits at the beginning of 

each H–2A contract, in part, to provide 

information to arriving workers about its 

services and workers’ rights. The 

commenter believed that if workers 

were to arrive on multiple start dates, 

the SWA would be required to conduct 

multiple site visits per contract to 

provide the same services, rather than 

one per contract. Further, the 

commenter expressed concern that some 

arriving workers might not receive 

information through a site visit, as the 

SWA may not be informed when new 

workers arrive during the staggering 

period. 

Commenters disagreed as to when the 

employer’s obligation to hire U.S. 

workers should end (i.e., how long the 

recruitment period under 

§ 655.135(d)(2) should be) if the 

employer opted to use staggered entry. 

Some agreed with the Department’s 

proposal to require the employer to hire 

U.S. workers through the employer’s 

identified last date for staggering, or 30 

days after the first start date, whichever 

is later. Some commenters clarified that 

they did not support attempts to extend 

the proposed hiring period beyond 

those proposed parameters. One argued 

that anything beyond 30 days after the 

last H–2A worker has entered the 

United States is overregulation, 

asserting there is no statutory 

prohibition against staggered entry. 

However, other commenters generally 

objected to any reduction in the period 

during which an employer is required to 

hire U.S. workers. A workers’ rights 

advocacy organization objected to not 

including any recruitment obligations 

past the last date of staggered entry and 

two commenters suggested the 

employer’s hiring obligation should be 

tied to the last entry of staggered 

workers. They urged the Department, for 

example, to extend an employer’s 

obligation to hire U.S. workers to 30 

days after the last H–2A foreign worker 

enters the United States or 30 days after 

each sequential staggered start date. In 

addition, some commenters expressed 

concern that the combination of 

proposals in this rulemaking, including 

staggered entry, would undermine the 

legitimacy of the labor market test, 

including the commenter from 

academia, who asserted the Department 

failed to evaluate the impact of the 

provision on the labor market test and 

urged the Department to evaluate the 

impact. 

The Department also received a few 

comments addressing issues beyond the 

scope of the staggered entry proposal. A 

trade association and an employer 

involved in the apple production 

industry discussed the impact of 


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94 In the January 2021 draft final rule, the 

Department considered adopting the proposal with 

significant revisions to address the many 

commenter concerns, such as administrative and 

enforcement challenges, including revisions 

clarifying limits on the number of notifications an 

employer might submit to the CO regarding its 

staggered entry plan, revising the timeframe in 

which an employer could submit its single 

notification of intent to stagger entry, expanding the 

collection of information regarding the employer’s 

staggered entry plan and corresponding start dates 

offered to prospective applicants, and bolstering 

disclosure of information to farmworkers regarding 

start date options. However, even with these 

changes, the Department believes the January 2021 

draft final rule did not sufficiently address 

confusing aspects of the proposal; ensure effective 

recruitment of U.S. workers for job opportunities, 

particularly where multiple or mid-season start 

dates are available; and balance flexibility, 

efficiency, and notice to prospective applicants, 

such as a single pre-certification opportunity to 

submit notice of intent to stagger entry. 

weather on predicting end dates for 

employers, and suggested the proposal 

should allow employers the flexibility 

to retain workers for an additional 

period after the anticipated end date of 

the work order without needing to file 

an extension. However, the staggered 

entry proposal involved only start date 

variability. End date flexibility, as the 

commenter noted, is already addressed 

through the extension provision at 

§ 655.170. In addition, a workers’ rights 

advocacy organization suggested the 

Department should revise the 

regulations to require a minimum 

training period in which workers may 

not be fired for failing to comply with 

productivity standards, so that 

employers would not terminate workers 

who do not initially meet productivity 

requirements and replace them with 

staggered workers. However, this 

suggestion is beyond the scope of this 

rulemaking. 

The Department appreciates the many 

comments it received on the proposed 

staggered entry provision. The 

Department recognizes that in 

administering the H–2A program, it 

must strike an appropriate balance 

between the need to provide U.S. 

workers notice of available agricultural 

job opportunities, including clarity 

regarding the terms and conditions 

offered, and the opportunity to apply for 

those job opportunities, and, where 

insufficient U.S. workers are available to 

satisfy an employer’s temporary 

agricultural labor need, the need to 

provide employers access to a pool of 

foreign labor through effective 

administration of the H–2A program. 

The Department is sensitive to 

comments indicating that the staggered 

entry provision proposed in the NPRM 

did not successfully strike this balance 

and, if adopted without revision, would 

have weakened the integrity of the labor 

market test and effective compliance 

monitoring and enforcement of program 

obligations, which was not the 

Department’s intent. The Department 

recognizes that concerns expressed by 

commenters would require substantial 

revisions to address the significant 

limitations of the staggered entry 

proposal set forth in the NPRM: to 

address confusing aspects of the 

proposal; to ensure effective recruitment 

of U.S. workers for job opportunities, 

particularly where multiple or midseason start dates are available; and to 

include parameters that balance 

flexibility, efficiency, and notice to 

prospective applicants, such as a single 

pre-certification opportunity to submit 

notice of intent to stagger entry. The 

Department agrees that additional 

guidance would be necessary to clarify 

how the provision would effectively 

operate in practice and to clarify the 

standards for enforcing program 

compliance. 

The Department appreciates the 

concerns of workers’ rights and 

immigration advocacy organizations, 

U.S. Senators, agricultural workers, and 

others that the proposed provision 

could make it more difficult for U.S. 

workers to learn of available H–2A job 

opportunities. For example, the 

Department is sensitive to commenters’ 

concerns regarding the information 

provided to U.S. workers during the 

recruitment period and agrees that 

substantial revisions to the proposed 

provision would be required to ensure 

that sufficient information is collected 

and made available to prospective U.S. 

worker applicants in the job order and 

other recruitment. The provision of such 

information is critical so that U.S. 

workers may, for example, apply for 

their preferred start date within the 

employer’s staggered entry plan. 

Additional disclosure requirements 

could better apprise U.S. workers of 

available job opportunities and start 

date options, which would, in turn, 

address concerns about agricultural 

workers’ ability to plan their migration 

routes. 

The Department also is sensitive to 

the concerns of commenters, including 

State agencies, that applications with 

multiple start dates of need may raise 

administrative challenges that merit 

further consideration and may increase, 

rather than reduce, administrative 

burdens and complicate SWA 

recruitment efforts. For example, 

applications with multiple start dates of 

need may require additional 

communication between the CO and 

SWA related to modifications to job 

orders that are active in the SWA 

clearance system and the Department’s 

electronic job registry, as necessary to 

ensure prospective applicants receive 

clear information about available start 

dates. Additional parameters on the 

number and timing of such 

modifications could minimize the 

administrative impact of such 

modifications, while simultaneously 

supporting clearer information 

disclosure to prospective applicants. 

Although the Department believes 

that a staggered entry provision may 

provide beneficial employer flexibilities 

and program administration efficiencies, 

the commenters correctly identified 

many areas in which the proposal 

would need to be substantially changed 

in order to properly balance employer 

and U.S. worker interests. At this time, 

the Department declines to adopt the 

proposed staggered entry provision, 

even with substantial revisions 

considered in the January 2021 draft 

final rule, as it may present significant 

drawbacks and unintended 

consequences.94 If the Department 

determines it is appropriate to propose 

a similar provision in the future that 

better strikes a balance between the 

need to provide U.S. workers notice of 

available agricultural job 

opportunities—including clarity 

regarding the terms and conditions 

offered, and the opportunity to apply for 

those job opportunities—and the need 

to provide employers access to a pool of 

foreign labor through effective 

administration of the H–2A program, it 

will do so via the notice and comment 

rulemaking process, providing the 

public an opportunity to comment on 

any such proposal. Accordingly, under 

this final rule, an employer who 

anticipates a need for different groups of 

workers to begin work on sequential 

start dates must continue to file separate 

Applications for Temporary 

Employment Certification, each 

reflecting a distinct start date within the 

employer’s temporary or seasonal need 

for labor, and engage in recruitment tied 

to each of those start dates, as provided 

in the 2010 H–2A Final Rule. 

d. Paragraph (f), Information 

Dissemination 

The Department proposed minor 

amendments to newly designated 

paragraph (f) (formerly paragraph (e)) in 

the 2010 H–2A Final Rule and proposed 

at paragraph (g) in the NPRM) to clarify 

that OFLC may provide information 

received in the course of processing 

Applications for Temporary 

Employment Certification, or in the 

course of conducting program integrity 

measures, not only to the WHD, but to 

any other Federal agency with authority 


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to enforce compliance with program 

requirements and combat fraud and 

abuse. The Department received one 

comment on this provision, which did 

not necessitate substantive changes to 

the regulatory text. Therefore, this 

provision remains unchanged from the 

NPRM. 

An agent objected to OFLC sharing 

information with ‘‘any other Federal 

agency’’ if the information sharing could 

lead to adverse action, as it could have 

a ‘‘significant chilling effect on 

workers’’ and could exceed the 

Department’s statutory authority. The 

Department appreciates these concerns; 

however the administration of the H–2A 

visa program involves multiple 

agencies. Information sharing between 

the agencies is used only as necessary 

to ensure the integrity of the program. 

As explained in the 2010 H–2A Final 

Rule, in this regard, the Department 

affirmatively shares information with 

DHS and other agencies, within defined 

limits, when necessary for those 

agencies to take action within their 

jurisdiction. For example, the 

Department may refer certain 

discrimination complaints to DOJ, 

under § 655.185, or refer information 

related to debarred employers or to 

employers’ fraudulent or willful 

misrepresentations to DHS, under 

§§ 655.182 and 655.184. Further, this 

provision aligns with current language 

in WHD regulations at 29 CFR 501.2, 

which provides ‘‘[i]nformation received 

in the course of processing applications, 

program integrity measures, or 

enforcement actions may be shared 

between OFLC and WHD or, where 

applicable to employer enforcement 

under the H–2A program, other agencies 

as appropriate, including the 

Department of State (DOS) and DHS.’’ 

Therefore, under § 655.130(g) in this 

final rule, the Department will share 

information when it is necessary and 

appropriate to do so. In all cases, the 

Department shares only the specific 

information the agency requires and 

ensures that all information sharing 

complies with the Privacy Act of 1974, 

Public Law 93–579, 88 Stat. 1896 (5 

U.S.C. 552a et seq.) (Dec. 31, 1974). 

2. Section 655.131, Agricultural 

Association and Joint Employer Filing 

Requirements 

The NPRM proposed amendments to 

this section to: (1) retain current 

requirements governing the submission 

of Applications for Temporary 

Employment Certification by an 

agricultural association on behalf of its 

employer-members; and (2) codify 

current standards and procedures 

governing the submission of 

Applications for Temporary 

Employment Certification by two or 

more individual employers seeking to 

jointly employ workers to perform 

agricultural labor or services. The 

Department received many comments 

on the proposed amendments to this 

section. After carefully considering 

these comments, the Department has 

decided to largely adopt the regulatory 

text proposed in the NPRM, with several 

revisions, as discussed below. 

a. Paragraph (a), Agricultural 

Association Filing Requirements 

The Department proposed minor 

revisions to paragraph (a) to clarify the 

application filing procedures for 

agricultural associations and to conform 

with other proposed changes in the 

NPRM, such as the definition of master 

application in § 655.103 and the 

modernization provisions that revise the 

procedures for issuance of temporary 

agricultural labor certifications in 

§ 655.162. The Department also 

proposed to reorganize the procedural 

provisions applicable to agricultural 

associations that file Applications for 

Temporary Employment Certification so 

that paragraph (a)(1) addresses the 

requirement for an agricultural 

association to identify the nature of its 

role in each application it files and 

retain documentation of its role. 

Paragraph (a)(2) addresses master 

application filings; paragraph (a)(3) 

addresses employer signatures on 

applications that an agricultural 

association files; and paragraph (a)(4) 

addresses certification issuance. As 

discussed below, the Department is 

adopting paragraph (a) without change 

from the NPRM. 

An association expressed concern 

about the interaction of the proposed 

staggered entry provision at § 655.130(f) 

and master application filing procedures 

at § 655.131(a)(2), thinking that 

agricultural associations that file master 

applications could not stagger entry of 

H–2A workers or would have less 

flexibility than other joint employers. 

As the Department has decided not to 

adopt the proposed staggered entry 

provision, for the reasons discussed in 

the preamble to § 655.130(f), the 

concern is moot. 

A workers’ rights advocacy 

organization supported the 

Department’s proposal to add explicit 

language in paragraph (a)(3) regarding 

signature requirements in applications 

filed by agricultural associations, while 

a State agency expressed support for 

electronic signatures, including those 

required under this section. Other 

commenters raised liability concerns 

related to master applications and joint 

employment, rather than the procedural 

provisions in paragraph (a); these 

comments are discussed in relation to 

the definitions at § 655.103(b). 

Accordingly, this final rule adopts 

paragraph (a) without change and, as 

such, continues to permit an 

agricultural association to file an 

application as a sole employer, joint 

employer, or agent, as contemplated in 

the INA. See 8 U.S.C. 1188(c)(3)(B)(iv) 

and (d). 

b. Paragraph (b), Joint Employer Filing 

Requirements 

The Department proposed a new 

paragraph (b) to codify its longstanding 

practice of permitting two or more 

individual employers to file a single 

Application for Temporary Employment 

Certification as joint employers. These 

filing requirements would apply when 

two or more individual employers 

operating in the same AIE have a shared 

need for workers to perform the same 

agricultural labor or services during the 

same period of employment, but each 

employer cannot guarantee full-time 

employment for the workers during 

each workweek. This provision is 

intended to allow smaller employers 

that do not have full-time work for an 

H–2A worker and lack access to an 

employer association to use the H–2A 

program. In these situations, small 

employers have established an 

arrangement to share or interchange the 

services of the workers to provide fulltime employment during each 

workweek and guarantee all the terms 

and conditions of employment under 

the job order or work contract. 

The application filing procedures for 

two or more employers under proposed 

§ 655.131(b) are different from the 

procedures for a master application filed 

by an agricultural association as a joint 

employer in several ways. First, unlike 

the master application provision, the 

employers filing a single Application for 

Temporary Employment Certification 

under proposed paragraph (b) would not 

be joint employers with an agricultural 

association of which they may be 

employer-members. Thus, if an 

agricultural association assists one or 

more of its employer-members in filing 

an Application for Temporary 

Employment Certification under 

proposed paragraph (b), the agricultural 

association would be filing as an agent 

for its employer-members. Second, all 

employers filing an Application for 

Temporary Employment Certification 

under proposed paragraph (b) must have 

the same first date of need and require 

the agricultural labor or services of the 

workers requested during the same 

period of employment in order to offer 


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and provide full-time employment 

during each workweek. In contrast, in a 

master application filed by an 

agricultural association, each employermember would offer and provide fulltime employment to a distinct number 

of workers during a period of 

employment that may have first dates of 

need differing by up to 14 calendar 

days. Unlike a master application where 

the places of employment for the 

employer-members could cover 

multiple AIEs within no more than two 

contiguous States, the employers filing 

a single application as joint employers 

under proposed paragraph (b) would 

have to identify places of employment 

within a single AIE. Finally, under 

proposed paragraph (b) all joint 

employers would be jointly and 

severally liable for violations by any 

joint employer for the entire period of 

need. As previously explained, and 

codified in § 655.103, while an 

agricultural association that files a 

master application is always an 

employer, a grower that is an employermember of the agricultural association 

that filed a master application is only in 

joint employment with the agricultural 

association when it is employing the 

pertinent H–2A workers. 

Under proposed paragraph (b)(1)(i), 

any one of the employers could file the 

Application for Temporary Employment 

Certification with the NPC, so long as 

the names, addresses, and the crops and 

agricultural labor or services to be 

performed are identified for each 

employer seeking to jointly employ the 

workers. Consistent with longstanding 

practice, any applications filed by two 

or more employers would continue to be 

limited to places of employment within 

a single AIE covering the same 

occupation or comparable work during 

the same period of employment for all 

joint employers, as required by 

§ 655.130(e). As the NPRM noted, the 

proposal would typically allow 

neighboring farmers with similar needs 

to use the program, though they do not, 

by themselves, have a need for a fulltime worker under § 655.135(f). 

Per proposed paragraph (b)(1)(ii), each 

joint employer would be required to 

employ each H–2A worker the 

equivalent of at least 1 workday (i.e., a 

7-hour day) each workweek. This 

proposed requirement aimed to fulfill 

the purpose of the filing model, which 

is to allow smaller employers in the 

same area and in need of part-time 

workers performing the same work 

under the job order to join together on 

a single application, making the H–2A 

program accessible to these employers. 

The proposed requirement also 

provided an additional limiting 

principle intended to ensure that 

individual employers with full-time 

needs would use the established 

application process for individual 

employers, that association members 

would use the statutory process 

provided for associations, and that joint 

applications would be restricted to 

small employers with a simultaneous 

need for workers that cannot support 

the full-time employment of an H–2A 

worker. In this way, the Department 

could carry out the statutory 

requirements applicable to individual 

employers and to associations. The 

Department invited comments on the 1- 

workday requirement in the NPRM, and 

also sought comments on how to best 

effectuate the purposes of joint 

employer applications. 

The NPRM additionally noted that 

each employer seeking to employ the 

workers jointly under the Application 

for Temporary Employment 

Certification would have to comply with 

all the assurances, guarantees, and other 

requirements contained in this subpart 

and in part 653, subpart F. Therefore, 

proposed § 655.131(b)(1)(iii) would 

require each joint employer to sign and 

date the Application for Temporary 

Employment Certification. By signing 

the application, each joint employer 

would attest to the conditions of 

employment required of an employer 

participating in the H–2A program and 

would assume full responsibility for the 

accuracy of the representations made in 

the application and job order, and for all 

of the assurances, guarantees, and 

requirements of an employer in the H– 

2A program. The Department noted in 

the NPRM that, in the event of a 

violation, all of the employers named in 

the Application for Temporary 

Employment Certification are liable for 

the violation and may be held jointly or 

individually responsible for remedying 

the violation(s) and for attendant 

penalties. 

Finally, the NPRM observed that 

where the CO grants temporary 

agricultural labor certification to joint 

employers, proposed § 655.131(b)(2) 

would provide that the joint employer 

that filed the Application for Temporary 

Employment Certification would receive 

the Final Determination correspondence 

on behalf of the other joint employers in 

accordance with the procedures 

proposed in § 655.162. As discussed 

below, the Department is adopting 

paragraph (b) from the NPRM with some 

changes. 

The Department received many 

comments related to its proposal to 

include § 655.131(b) in its implementing 

regulations. The employer comments 

related to § 655.131(b) all supported the 

proposal to permit joint employer 

applications. However, those employers 

that commented on § 655.131(b) 

uniformly criticized the provision’s 

requirement that all joint employers 

employ the pertinent H–2A workers at 

least 1 day per workweek. At least four 

commenters noted that the proposal 

would unduly complicate joint 

employer arrangements in which 

sponsored H–2A workers move from 

full-time employment at one applicant’s 

farm to full-time employment at another 

applicant’s farm based on growing 

conditions at the respective farms. 

Various commenters noted that the 

proposal would preclude joint 

applications by growers that need 

distinct numbers of H–2A workers by 

compelling a grower that has a lesser 

need to employ all the workers needed 

by a grower with a greater need. Some 

commenters asserted that the 

requirement would unduly reduce the 

‘‘flexibility’’ of farms that wish to use 

the joint employer application process. 

Still other commenters asserted that the 

proposal is unduly restrictive, 

unworkable, or serves no discernible 

policy objective. 

Four commenters each offered what 

would amount to a ‘‘less stringent 

restriction’’ than the 1-day-per-week 

requirement. Three of the commenters 

specifically suggested the Department 

might use other ‘‘metrics[,] includ[ing] 

percentage of hours or days per 

contract,’’ in lieu of the 1-day-per-week 

requirement. Another commenter 

similarly suggested that the Department 

might ‘‘establish a ‘minimum’ amount of 

time’’ that each joint employer must 

employ the pertinent H–2A workers 

during the entire period of employment. 

A workers’ rights advocacy 

organization supported holding all 

entities that file a joint employer 

application under § 655.131(b) 

accountable for any violation committed 

by one. It suggested that the Department 

provide greater clarity that all named 

employers are accountable as joint 

employers for any violations committed 

by one during the period of employment 

listed on the job order, ‘‘not just the 

dates in which H–2A workers 

completed work owned or operated by 

a particular employer.’’ As explained 

above, the liability of named joint 

employers is not dependent on the dates 

on which H–2A workers complete work 

for a particular named joint employer. 

The Department declines to adopt 

some commenters’ recommendation to 

place no limits on the number of hours 

each joint employer filing an 

application under § 655.131(b) may 

employ H–2A workers sponsored under 

such an application. The purpose of the 


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95Based on an analysis of Applications for 

Temporary Employment Certification processed for 

FY 2014 and 2017, the number of applications filed 

by H–2ALCs more than doubled from 660 (FY 2014) 

to 1,410 (FY 2017), and the number of worker 

positions certified for H–2ALCs nearly tripled from 

approximately 24,900 (FY 2014) to 72,400 (FY 

2017). Between FY 2014 and 2017, the average 

annual increase in H–2ALC applications requesting 

temporary labor certification was 29 percent, 

compared to only 18 percent for agricultural 

associations and 11 percent for individual farms 

and ranches. 

Department’s proposal in § 655.131(b), 

which it is electing to retain in this final 

rule, is to permit small growers that 

have a need for H–2A workers but 

cannot guarantee full-time employment 

on their own to join together to meet the 

full-time-job requirement for hiring H– 

2A workers. Placing no limits on the 

number of hours each joint employer 

filing an application under § 655.131(b) 

may employ H–2A workers sponsored 

under such an application would 

undercut this purpose by permitting 

employers that, individually, can 

guarantee full-time employment to use 

§ 655.131(b). 

Some commenters specifically 

requested that the Department modify 

§ 655.131(b) to expressly allow use of 

the provision by joint employers that 

would provide sequential full-time 

employment to H–2A workers. As the 

Department noted in the NPRM, 

individual employers that can provide 

full-time employment to H–2A workers 

can file an individual application under 

§ 655.130 for the individual employer’s 

period of need. In such a case, a joint 

employment relationship is unnecessary 

because the employer may file an 

application for the period of time for 

which full-time employment is offered. 

The Department accordingly has 

concluded that it is appropriate to limit 

applications under § 655.131(b) to those 

instances in which no co-applicant can 

provide full-time employment to H–2A 

workers. Therefore, the Department 

declines to adopt the commenters’ 

recommendation to place no limits on 

the number of hours each joint 

employer filing an application under 

§ 655.131(b) may employ H–2A workers 

sponsored under such an application. 

While the Department has decided to 

place numerical limits on the number of 

hours H–2A workers under a 

§ 655.131(b) application can work for a 

joint employer, it has closely considered 

many commenters’ suggestion that the 

proposed 1 day per workweek 

requirement unduly restricts employer 

flexibility. It has accordingly sought to 

determine if there is another less rigid 

metric that would provide employers 

greater flexibility and at the same time 

preserve § 655.131(b)’s purpose to 

accommodate small growers that cannot 

alone guarantee full-time employment 

but wish to use the program. With that 

dual purpose in mind, the Department 

has modified § 655.131(b), as proposed 

in the NPRM, to eliminate the 

requirement that all H–2A workers must 

work for each employer for at least 7 

hours in each workweek. This final rule 

allows employers to schedule H–2A 

workers at their discretion, so long as no 

single joint employer obtains more than 

a total of 34 hours of work in any 

workweek from all of the H–2A 

employees it employs. This provision 

provides maximum flexibility to joint 

employers in assigning H–2A employees 

under the rule, while helping to ensure 

that only employers that cannot provide 

full-time employment, defined in 

§ 655.135(f) as 35 hours a week, will file 

under this provision. By limiting the 

total number of hours of employment of 

all H–2A workers to no more than 34 

hours of work per week for each joint 

employer, the rule limits the use of this 

provision to those employers that have 

a need for part-time work. Employers 

with a need for 35 hours of work a week 

or more will be able to guarantee fulltime work and will be able to file under 

the standard process. Those employers 

that are able to guarantee full-time work 

will have no need to use this provision, 

which, as noted above, is designed for 

applicants that are unable to provide 

full-time work, and without this 

provision would be ineligible for the H– 

2A program. 

Finally, the Department notes that the 

January 2021 draft final rule would have 

adopted § 655.131(b) as proposed in the 

NPRM, with the addition of a new 

§ 655.131(b)(1)(ii) and (iii), which 

would have provided that no employer 

would employ any H–2A worker for 

fewer than 7 hours in a pay period and 

more than 28 hours in any workweek. 

The January 2021 draft final rule also 

would have adopted a new 

§ 655.131(b)(1)(iv), which would have 

provided that the employer, together 

with its co-applicants, would employ 

each H–2A worker for at least 70 hours 

in each 2-week pay period. However, 

those provisions would have added 

unnecessary restrictions on the 

scheduling of H–2A workers while 

failing to limit joint employment under 

this provision to employers with a parttime need. Accordingly, and for the 

reasons discussed above, those 

provisions were not adopted in this 

final rule. 

3. Section 655.132, H–2A Labor 

Contractor Filing Requirements; and 29 

CFR 501.9, Enforcement of Surety Bond 

The NPRM proposed amendments to 

these sections to clarify and enhance 

requirements governing the submission 

of Applications for Temporary 

Employment Certification by employers 

operating as H–2ALCs, including 

substantive revisions to the standards by 

which these employers must 

demonstrate proof of their ability to 

discharge their financial obligations in 

the form of a surety bond. The 

Department received many comments 

on the proposed amendments to this 

section. After carefully considering 

these comments, the Department has 

decided to largely adopt the regulatory 

text proposed in the NPRM, with several 

revisions, as discussed below. 

Because the Department added a 

provision at § 655.130(e) to address the 

geographic scope of Applications for 

Temporary Employment Certification, 

generally, language addressing that 

topic was no longer necessary in 

§ 655.132 and retaining it in this section 

could create confusion. An H–2ALC 

application and job order continue to be 

limited to places of employment within 

a single AIE, except as otherwise 

permitted by this subpart (e.g., 

§ 655.215(b)(1)). However, by moving 

the language to § 655.130(e), the 

Department’s proposal clarified that this 

same limitation applies to all 

applications and job orders, absent an 

explicit exception in this subpart. As a 

result, the Department proposed to 

eliminate paragraph (a) and redesignate 

the contents of paragraph (b) of the 2010 

H–2A Final Rule, which list the 

enhanced documentation requirements 

for H–2ALCs, as paragraphs (a) through 

(e). 

As explained in the NPRM, the 

Department has determined the 

enhanced documentation requirements 

for H–2ALCs continue to be necessary 

in order to protect the safety and 

security of workers and ensure basic 

program requirements are met, 

particularly given the increased use of 

the H–2A program by H–2ALCs and the 

relatively complex and transient nature 

of their business operations.95 In 

proposed paragraph (e)(1), the 

Department maintained the current 

rule’s requirement that an H–2ALC 

provide proof that any 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 is certified by the SWA. In 

proposed paragraph (e)(2), the 

Department proposed to replace the 

term ‘‘the worksite’’ with ‘‘all place(s) of 

employment’’ to clarify that 

transportation provided by the fixed-site 

agricultural business between the 

workers’ living quarters and all 


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96See 2008 H–2A Final Rule, 73 FR 77110, 77163; 

see also 2010 H–2A Final Rule, 75 FR 6884, 6941 

(‘‘The Department’s enforcement experience has 

found that agricultural labor contractors are more 

often in violation of applicable labor standards than 

fixed-site employers. They are also less likely to 

locations where work is performed must 

comply with the requirements of this 

section. Additionally, the Department 

corrected the reference for workers’ 

compensation coverage of transportation 

from § 655.125(h) to § 655.122(h). 

The Department has adopted 

paragraphs (e)(1) and (2) as proposed, 

with minor changes to paragraph (e)(2) 

for clarification. As discussed above in 

the preamble to § 655.122(h), the 

Department has made a minor revision 

to § 655.132(e)(2) to clarify that 29 CFR 

500.104 and 500.105 do not both apply 

simultaneously to all vehicles. Instead, 

29 CFR 500.104 and 500.105 apply 

alternatively depending upon the type 

of vehicle used, the distance of the trip, 

and whether the vehicle is being used 

for a day-haul operation. Accordingly, 

under this paragraph, H–2ALCs will 

continue to include in or with their 

Applications for Temporary 

Employment Certification, at the time of 

filing, the information and 

documentation listed in redesignated 

paragraphs (a) through (e) to 

demonstrate compliance with regulatory 

requirements. 

Many commenters addressed the 

presence of H–2ALCs in the H–2A 

program, rather than the Department’s 

proposed amendments to § 655.132. 

Immigration, public policy, and 

workers’ rights advocacy organizations, 

trade associations, and an international 

recruiter raised concerns about H– 

2ALCs’ lack of transparency and about 

farmers using H–2ALCs as a shield to 

escape responsibility and maintain 

lower wages. A workers’ rights advocacy 

organization and numerous farmworkers 

asserted H–2ALCs offer lower wages, 

provide reduced or nonexistent benefits, 

more frequently present challenging or 

unsafe working conditions, make travel 

difficult, and provide less certainty 

regarding work start dates. One farm 

owner pointed out there is a critical 

need for H–2ALCs, especially when a 

crop’s harvest or hauling season is very 

short. These comments provide context 

for suggestions in this section and 

others. In addition, the Department will 

continue to examine the role of H– 

2ALCs in the H–2A program to 

determine whether further regulation of 

H–2ALCs beyond these filing 

requirements and surety bond 

requirement (discussed below) is 

necessary to protect H–2A and U.S. 

farmworkers. 

One commenter mistakenly thought 

the Department proposed to remove 

paragraph (a) of the 2010 H–2A Final 

Rule from this subpart; the commenter 

expressed concern H–2ALCs would no 

longer be limited to places of 

employment within one AIE on a single 

Application for Temporary Labor 

Certification, in most cases. The 

Department repeats that this 

requirement was moved to § 655.130(e), 

not removed from the subpart entirely. 

A workers’ rights advocacy 

organization expressed support for the 

revisions to paragraph (e)(2), and it 

agreed that the changes proposed by the 

Department are helpful and clarify 

regulatory requirements. 

Although the Department did not 

propose changes to any of the H–2ALC 

documentation requirements listed in 

this section except the surety bond 

requirement, which is addressed below, 

a few commenters suggested revisions to 

the MSPA FLC registration paragraph 

and process, content requirements for 

an H–2ALC’s work contracts with fixedsite growers, and other additional 

documentation requirements. An agent 

requested the Department incorporate 

the enumerated exceptions to MSPA 

registration listed at 29 CFR 500.0 

through 500.271 in paragraph (b) of this 

section, a revision the commenter 

asserted would clarify who qualifies for 

an exception under MSPA and would 

ensure proper application of the MSPA 

registration requirement. Also related to 

MSPA and FLC registration, an 

employer recommended that the 

Department create an online system for 

employers. The Department respectfully 

declines. Repetition of MSPA 

registration exceptions is not warranted 

and could create confusion, as these 

exceptions, and any clarification of 

these exceptions, fall outside this 

subpart. Similarly, creation of a MSPA 

registration online system is outside the 

scope of this rulemaking. 

A workers’ rights advocacy 

organization suggested the Department 

require fixed-site growers to 

acknowledge their understanding of 

program and legal requirements when 

signing work contracts with an H–2ALC, 

while a trade association suggested the 

Department require H–2ALCs to provide 

a signed joint liability agreement for 

every farm to which they will supply 

labor. The Department appreciates these 

suggestions but declines to add these 

documentation requirements at 

§ 655.132. Except when an agricultural 

association signs on behalf of its 

employer-members that are named in a 

master Application for Temporary 

Employment Certification, each 

employer of the workers sought must 

review and sign declarations attesting to 

the accuracy of the job information and 

compliance with applicable laws and 

regulations. To the extent these 

suggestions raise issues of joint 

employment and joint liability, those 

issues are addressed in the Department’s 

discussion of proposed revisions to the 

definition of joint employment at 

§ 655.103. Finally, such additional 

documentation requirements were not 

presented for public notice and 

comment and, therefore, are beyond the 

scope of this rulemaking. 

However, with regard to the 

information H–2ALCs provide on the 

Form ETA–790A to identify their clients 

(i.e., the growers who contract with the 

H–2ALC to provide labor or services for 

their agricultural operations), the 

Department clarifies that an H–2ALC 

must identify each fixed-site 

agricultural business to which it will 

provide labor or services, as provided in 

§ 655.132(a) of this final rule and 

collected in an addendum to the Form 

ETA–790A, by providing the 

agricultural business’s full legal name 

and full trade names or ‘‘Doing Business 

As’’ names (DBAs) (if applicable). Full 

disclosure of legal and trade names or 

DBAs is consistent with the 

Department’s requirements for employer 

and agricultural association names on 

the Form ETA–790A. In addition, full 

disclosure of business names both 

apprises prospective applicants of the 

work to be performed and supports the 

Department’s efforts to protect workers. 

The workers’ rights advocacy 

organization also suggested the 

Department require additional 

recruitment-related documentation of 

H–2ALCs, such as evidence the H–2ALC 

recruited all U.S. workers, FLCs, and 

crew leaders employed directly by the 

fixed-site grower in the prior year. In 

response to the comment, the 

Department addressed this issue in the 

discussion of an employer’s contact 

with former U.S. workers under 

§ 655.153, and in relation to the 

definition of joint employment at 

§ 655.103. 

In proposed paragraph (c), the 

Department retained the requirement 

that an H–2ALC submit with its 

Application for Temporary Employment 

Certification proof of its ability to 

discharge its financial obligations in the 

form of a surety bond. This bonding 

requirement, which became effective in 

2009, was created because the 

Department’s experience indicated that 

H–2ALCs can be transient and 

undercapitalized, thus making it 

difficult to recover the wages and 

benefits owed to their workers when 

violations are found.96 By ensuring that 


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meet their obligations to their workers than fixedsite employers.’’). 

97 In addition, the Department noted that under 

its proposal to expand the definition of agriculture 

in § 655.103 to include reforestation and pine straw 

activities, employers in these industries may have 

qualified as H–2ALCs and been required to comply 

with the surety bond requirements. Because the 

Department declines to adopt this proposal, as 

discussed supra, comments addressing the 

application of the bonding requirement to the 

reforestation and pine straw industries are not 

discussed herein. 

these employers can meet their payroll 

and other program obligations, the 

Department is better able to prevent 

program abuse and limit any adverse 

effect on U.S. workers. See 20 CFR 

655.132(b)(3); 29 CFR 501.9. Following 

a final finding of violation, the WHD 

Administrator may make a claim to the 

surety for payment of wages and 

benefits owed to H–2A workers, workers 

in corresponding employment, and U.S. 

workers improperly rejected from 

employment, laid off, or displaced, up 

to the face amount of the bond. 29 CFR 

501.9(b). 

Based on its experience implementing 

the bonding requirement and 

enforcement experience with H–2ALCs, 

the Department proposed revisions 

intended to clarify and streamline the 

existing requirements and strengthen 

the Department’s ability to collect on 

such bonds. To address the large 

proportion of the surety bonds 

submitted by H–2ALCs that do not meet 

the requirements of 29 CFR 501.9, the 

Department proposed moving the 

substantive requirements governing the 

content of H–2ALC surety bonds to 20 

CFR 655.132(c) so that these 

requirements can be found in the same 

section as other requirements for the 

Application for Temporary Employment 

Certification. The Department also 

proposed to expand the capabilities of 

the online application system 

(historically the iCERT Visa Portal 

System (iCERT) and now the FLAG 

system) to permit electronic execution 

and delivery of surety bonds both as a 

means to address the issue of 

noncompliant bonds and to streamline 

its review of bond submissions. Under 

this proposal, electronic surety bonds 

will eventually be required for all H– 

2ALCs subject to the Department’s 

mandatory e-filing requirement. 

However, until such time as the 

Department’s proposed process for 

accepting electronic surety bonds is 

operational, the Department will accept 

the submission of an electronic (i.e., 

scanned) copy of the surety bond with 

the application, provided that the 

original bond is received within 30 days 

of the date that the temporary 

agricultural labor certification is issued. 

To ensure that the original bond is 

received during this time period, the 

Department proposed to revise 

§ 655.182 to specify that failure to 

timely submit a compliant, original 

surety bond constitutes a substantial 

violation, providing grounds for 

debarment or revocation of the 

temporary agricultural labor 

certification. 

To further improve compliance with 

the bonding requirement and streamline 

its review, the Department proposed to 

adopt a bond form with standardized 

language. Currently, the bonds received 

by the Department vary in wording and 

form, making it difficult to ensure that 

the bonds are sufficient and resulting in 

confusion regarding the legal 

requirements. The language used in the 

Department’s proposed bond form, 

ETA–9142A—Appendix B, which was 

included in the Paperwork Reduction 

Act (PRA) package of the NPRM, largely 

incorporated the existing bond 

requirements with certain clarifications 

for the regulated community and minor 

changes. For example, the proposed 

bond language clarified that the wages 

and benefits owed to workers may 

include the assessment of interest. 

Similarly, the proposal clarified the 

time period during which liability on 

the bond accrues (‘‘liability period’’), as 

distinguished from the time period in 

which the Department may seek 

payment from the surety under the bond 

(‘‘claims period’’). The Department 

proposed changing the bond 

requirement to cover not only liability 

incurred during the period of the 

temporary agricultural labor 

certification, but also liability incurred 

during any extension of the temporary 

agricultural labor certification, thus 

eliminating the need for H–2ALCs to 

amend the applicable bond or seek an 

additional bond (i.e., automatically 

extending the liability period to reflect 

any extension of the temporary 

agricultural labor certification). 

Additionally, the Department proposed 

extending and simplifying the claims 

period from ‘‘no less than 2 years’’ to 3 

years. Because this standardized 

language provides more specificity as to 

the length of the claims period, the 

Department proposed omitting language 

permitting the cancellation or 

termination of the claims period with 45 

days’ written notice. The Department 

explained that some sureties have 

mistakenly interpreted this language as 

permitting the early termination of 

bonds during the period in which 

liability accrues. 

Additionally, the Department 

proposed adjustments to the required 

bond amounts because current bond 

amounts, which range from $5,000 to 

$75,000 depending on the number of H– 

2A workers to be employed under the 

applicable temporary agricultural labor 

certification, often are insufficient to 

cover the wages and benefits owed by 

labor contractors. The Department 

proposed two distinct changes to the 

required bond amount computation. 

First, it proposed adjusting the 

required bond amounts annually to 

account for wage growth as measured by 

increases in the AEWR. Specifically, the 

Department proposed adjusting the 

existing required bond amounts 

proportionally on an annual basis to the 

degree that a nationwide average AEWR 

exceeds $9.25, the wage rate used to 

establish new bond amounts in the 

Department’s 2009–2010 rulemaking. 

2009 H–2A NPRM, 74 FR 45906, 45925; 

2010 H–2A Final Rule, 75 FR 6884, 

6941. The ‘‘average AEWR’’ used in this 

adjustment would be calculated and 

published when the Department 

calculates and publishes the AEWR by 

State in accordance with § 655.120(b). 

Second, in response to dramatic 

increases in the crew sizes certified in 

the last decade, the Department 

proposed increasing the required bond 

amounts for temporary agricultural 

labor certifications covering a 

significant number of H–2A workers. 

Currently, the highest bond amount, 

$75,000, applies to temporary 

agricultural labor certifications covering 

100 or more H–2A workers. Under the 

proposal, the bond amount applicable to 

temporary agricultural labor 

certifications covering 100 or more H– 

2A workers (determined by adjusting 

$75,000 to account for wage growth, as 

discussed above) is used as a starting 

point and is increased for each 

additional set of 50 H–2A workers. The 

interval by which the bond amount 

increases is based on an approximation 

of wages earned by 50 workers over a 2- 

week period, also updated annually to 

reflect increases in the AEWR. The 

NPRM included examples 

demonstrating this calculation. 84 FR 

36168, 36204–36205.97

The Department received only one 

comment addressing its proposal to 

move the substantive requirements 

governing the content of H–2ALC surety 

bonds to § 655.132(c). A coalition of 

workers’ rights advocacy organizations 

supported this proposal characterizing it 

as ‘‘a helpful, clarifying change.’’ 

Likewise, those who commented on the 

Department’s proposal to permit the 

electronic execution and delivery of 

surety bonds supported this proposal. 


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98 Interest assessed by WHD is governed by 31 

U.S.C. 3717. Interest assessed by the Department’s 

administrative tribunals is governed by Doyle v. 

Hydro Nuclear Servs., Nos. 99–041, 99–042, and 

00–012, 2000 WL 694384, at *16–17 (ARB May 17, 

2000). 

The Department hereby adopts these 

two proposals without modification. As 

the Department is in the process of 

developing a functional capability for 

accepting electronic surety bonds, it 

reminds the regulated community that 

until such time as the OFLC 

Administrator directs the use of 

electronic surety bonds, employers may, 

pursuant to § 655.132(c)(3)(ii), submit 

an electronic (i.e., scanned) copy of the 

surety bond with the application, 

provided that the original bond is 

received within 30 days of the date that 

the temporary agricultural labor 

certification is issued. Failure to timely 

submit a compliant, original surety 

bond has been added to § 655.182(d) 

and will constitute a violation that may 

provide grounds for debarment or 

revocation of the temporary agricultural 

labor certification. Further, the 

Department clarifies that it will 

generally consider such a failure as 

demonstrating a lack of good faith under 

§ 655.182(e)(4), making such a violation, 

by itself, a substantial violation meriting 

debarment or revocation. 

With respect to the Department’s 

proposal to require the use of a bond 

form with standardized language, 

namely the proposed Form ETA– 

9142A—Appendix B, a coalition of 

workers’ rights advocacy organizations 

supported the proposal, explaining that 

it would ‘‘promote efficiency during the 

review process and greater compliance 

with surety bond requirements.’’ An 

employers’ agent similarly supported 

this proposal. This agent, as well as a 

trade association representing the surety 

industry, noted that insurers and 

sureties should have the opportunity to 

review the Department’s proposed 

standardized bond language. However, 

another employers’ agent opposed the 

‘‘one size fits all approach’’ of using 

standardized bond language, arguing 

that ‘‘parties to the instrument, as 

private parties engaging in an arm’s 

length transaction, should have the 

contractual freedom to include 

additional protections, in amount or 

subject matter than called for under the 

regulations within one instrument.’’ 

This commenter did not express specific 

concerns relating to the provisions of 

proposed Form ETA–9142A—Appendix 

B. 

After considering these comments, the 

Department adopts its proposal to 

require the use of a standardized bond 

form. The Department notes that the 

language in the Department’s proposed 

bond form, Form ETA–9142A— 

Appendix B, was included in the PRA 

package of the NPRM. Further, to the 

extent that this proposed language 

differs in substance from the current 

bond requirements at 29 CFR 501.9, 

these differences were detailed in the 

NPRM. See 84 FR 36168, 36203–36205. 

An H–2ALC surety bond is a contract 

governed by Federal regulation between 

three parties: the H–2ALC, the surety, 

and the Department. As such, private 

parties to such a contract should not 

expect unfettered contractual freedom. 

The use of standardized bond language 

is necessary for the Department to 

ensure that the bonds submitted by H– 

2ALCs comply with the regulatory 

requirements and will facilitate 

processing efficiency as the Department 

will not be required to review bonds 

that vary considerably in wording and 

form. This is no different from the 

Department’s use of other standardized 

forms that make up the Application for 

Temporary Employment Certification 

and which become binding on the H–2A 

employer. Further, the use of a standard 

bond form does not prevent the H–2ALC 

and surety from entering into a separate 

contract, provided, of course, that such 

contract does not alter the parties’ 

obligations vis-a`-vis the Department, 

limit in any way the Department’s 

ability to collect on a bond, or 

undermine the purposes of the bonding 

requirement and/or H–2A requirements 

generally. 

The Department also received 

comments addressing the specific 

language and/or requirements proposed 

in the NPRM and incorporated into the 

proposed Form ETA–9142A—Appendix 

B. For example, the Department’s 

proposed bond language retained the 

requirement that a surety pay sums for 

wages and benefits owed to H–2A 

workers, workers in corresponding 

employment, and U.S. workers 

improperly rejected from employment, 

laid off, or displaced based on a final 

decision finding a violation or 

violations of 20 CFR part 655, subpart 

B, or 29 CFR part 501, but clarified that 

the wages and benefits owed may 

include the assessment of interest. In 

response, an employers’ agent stated 

that it ‘‘disagreed with interest being 

attached to the scope of coverage 

without quantification.’’ The 

Department notes that an assessment of 

interest may be required to make an 

employee whole, and both WHD and the 

Department’s administrative tribunals 

permit, and in some cases require, the 

assessment of interest on back wages. 

The required rate of interest is 

determined by law and is specified in 

WHD’s determination letters and final 

orders, as well as administrative case 

law.98 Further, a surety’s liability on any 

particular bond is capped at the face 

value of that bond; thus, any assessment 

of interest included for wages and 

benefits will not increase the potential 

liability of the surety. Accordingly, the 

Department adopts this proposed 

language as written. 

The Department received several 

comments addressing its proposals to 

clarify the time period during which 

liability on the bond accrues (‘‘liability 

period’’), as distinguished from the time 

in which the Department may bring a 

claim (‘‘claims period’’); to 

automatically include in the liability 

period any extensions of the applicable 

temporary agricultural labor 

certification; to extend the claims period 

for filing a claim; and to omit the 

provision permitting a surety to cancel 

a bond with 45 days’ written notice. A 

coalition of workers’ rights advocacy 

organizations supported the proposals 

noting that these would promote 

efficiency. Two trade associations and 

one employer opposed the proposal to 

extend and simplify the time period in 

which a claim can be filed against a 

surety from the current claims period of 

‘‘no less than 2 years’’ to 3 years, based 

on the mistaken understanding that this 

will increase a surety’s total liability to 

three times the face value of the bond. 

This confusion articulated in the 

comments is precisely why the 

Department sought to clarify and further 

distinguish the time period in which 

liability on the bond accrues from the 

time period in which the Department 

may bring a claim. As explained in the 

NPRM, extending the claims period to 3 

years (tolled by the commencement of 

any enforcement action) does not extend 

the accrual of liability. 84 FR 36168, 

36204. Instead, it merely allows the 

Department more time to complete its 

investigations while retaining the ability 

to seek recovery from the surety. The 

surety’s liability for a particular bond is 

still limited to the face value of that 

bond. 

A trade association representing the 

surety industry opposed the proposal to 

eliminate language permitting sureties 

to cancel a bond with 45 days’ written 

notice, stating that this will increase the 

surety’s risk in writing the bond and 

make it more difficult for employers to 

qualify for such a bond. It explained 

that ‘‘[i]t is critically important for a 

surety to maintain the ability to cancel 

bond coverage if the bonded employer 

is found to be in violation of the terms 

of its agreement with the surety or if the 


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bonded employer’s ability to perform 

the bonded obligations has materially 

changed and the surety is no longer able 

to offer security.’’ 

The Department appreciates this 

concern; however, as explained in the 

NPRM, this provision was never 

intended to permit a surety to cancel the 

bond during the liability period while 

the temporary agricultural labor 

certification is still in effect. Instead, it 

was intended as a means of ending the 

open-ended period in which claims 

could be filed by the Department. 84 FR 

36168, 36204. Because the Department 

now extends and simplifies the claims 

period from ‘‘no less than 2 years’’ to 3 

years (tolled by any enforcement 

action), there is no longer a need for this 

provision. Consistent with § 501.9(d), 

currently, WHD does not permit the 

cancellation of bonds prior to 2 years 

from the expiration of the temporary 

agricultural labor certification (tolled by 

any enforcement action). Moreover, 

during the tenure of this requirement, 

the Department has received few, if any, 

requests from sureties seeking to cancel 

a bond while the temporary agricultural 

labor certification was still in effect. The 

surety bond is an essential component 

of an H–2ALC’s Application for 

Temporary Employment Certification, 

necessary to demonstrate an applicant’s 

ability to discharge its financial 

obligations under the H–2A program. 

Accordingly, the Department believes 

that it is appropriate for the bond 

submitted with the Application for 

Temporary Employment Certification to 

cover liability accrued during the 

entirety of the temporary agricultural 

labor certification and declines to add a 

mechanism by which sureties can 

terminate the accrual of liability during 

this period. 

After carefully considering these 

comments, the Department adopts its 

proposals to clarify and distinguish the 

liability and claims periods, to 

automatically include in the liability 

period any extensions of the applicable 

temporary agricultural labor 

certification, to extend the claims 

limitations period to 3 years, and to 

omit as unnecessary the provision 

permitting a surety to cancel a bond 

with 45 days’ written notice, as 

proposed in the NPRM. 

Numerous comments from workers’ 

rights advocacy organizations noted that 

improvements are needed to help 

victimized workers access surety bond 

funds. Specifically, a joint comment of 

42 workers’ rights advocacy 

organizations suggested that the 

Department revise the language of 

proposed § 655.132(c) to make bonds 

payable either to the WHD 

Administrator or to workers who have 

received a judgment against the H– 

2ALC for violations of the temporary 

agricultural labor certification and job 

order, either through private litigation 

or State agency action, on the grounds 

that WHD does not have adequate 

resources to enforce all actions against 

H–2A employers. The Department 

declines to adopt this suggestion in this 

final rule. Permitting individual 

claimants to make demands on the 

bonds could lead to circumstances in 

which bond funds are depleted before 

the WHD Administrator completes an 

investigation and are not distributed 

proportionally among affected workers. 

The vast majority of bond-related 

comments focused on the Department’s 

proposed adjustments to the required 

bond amounts to account for wage 

growth, as measured by increases in the 

AEWR, and to reflect dramatic increases 

in the crew sizes being certified. In 

general, workers’ rights advocacy 

organizations supported the proposed 

adjustments, characterizing the proposal 

as a ‘‘modest improvement[,] . . . 

important because H–2ALCs are often 

undercapitalized and unable to pay back 

workers for labor violations.’’ Numerous 

workers’ rights advocacy organizations 

supported the proposal but described 

the increases as insufficient. A coalition 

of 42 workers’ rights advocacy 

organizations submitted a joint 

comment explaining that surety bond 

amounts are often insufficient to cover 

even unreimbursed inbound 

transportation expenses, let alone 

unpaid wages and other costs 

impermissibly borne by workers, and 

cited as support several prominent 

investigations in which WHD found that 

workers were entitled to wages and 

benefits exceeding the required surety 

bond amounts. This coalition supported 

increases to account for wage growth 

and increasingly large temporary 

agricultural labor certifications, but 

stated that, at a minimum, bond 

amounts should be sufficient to cover 

the costs of inbound and outbound 

transportation. Similarly, a commenter 

from academia supported these 

increases. 

In contrast, employers, employers’ 

agents, and trade associations typically 

opposed these increases to the required 

bond amounts. For instance, an 

employers’ agent urged the Department 

to maintain the existing bond amounts 

stating that these amounts are sufficient 

to ensure that H–2ALCs are able to 

discharge their financial obligations. A 

trade association stated that the 

proposed increases are ‘‘unnecessary 

and punitive’’ and would have the effect 

of harming the larger and bettercapitalized labor contractors. These 

commenters also stated that the 

Department failed to demonstrate the 

insufficiency of current bond amounts 

through data. Rather than adjust 

required bond amounts based on 

increases in the average AEWR and to 

account for temporary agricultural labor 

certifications covering 150 or more 

workers, this commenter suggested 

making across-the-board increases of 30 

percent to the required bond amounts. 

Two trade associations and an employer 

stated that the surety bonds are more 

akin to bail bonds than insurance 

policies because bonding companies do 

not rely on the reinsurance market to 

mitigate losses and instead scrutinize an 

applicant’s assets when evaluating the 

potential risk associated with a bond; 

they recommended proceeding with 

caution until a market emerges in which 

a surety can better mitigate its risk. 

Several commenters stated that 

increases in bond amounts may make it 

impossible for some H–2ALCs to obtain 

bonds. Others stated that the 

methodology for calculating the 

required bond amounts is 

‘‘unnecessarily complex.’’ A public 

policy organization recommended that 

the Department reduce the bond 

amounts required of H–2ALCs for which 

the Department has not submitted a 

surety bond claim in the previous 5 

years. 

Commenters with ties to the shearing 

industry, including a State agency, trade 

associations, several employers, and an 

agent, stated that the increased bond 

amounts would prove difficult for the 

industry as it tends to operate with very 

small crew sizes. For example, several 

commenters explained employers in 

this industry may employ fewer than 25 

H–2A workers in a given year, but 

because these workers are employed 

under multiple temporary agricultural 

labor certifications, these employers are 

required to obtain significantly more in 

total bonds than those who employ the 

same number of workers under a single 

temporary agricultural labor 

certification. These commenters also 

stated that some sureties are hesitant to 

issue multiple bonds for the same 

employer and suggested allowing 

employers to maintain a single bond for 

multiple temporary agricultural labor 

certifications filed over the course of a 

year. 

A trade association representing the 

surety industry concurred in the 

Department’s proposal to increase bond 

amounts as needed to accurately reflect 

the risk associated with wage 

requirements but noted that this may 

make it difficult for certain employers to 

obtain these bonds. This commenter 


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99Several commenters, though not those from the 

surety or insurance industries, stated that bonding 

companies do not rely on the reinsurance market 

and thus have no way in which to mitigate losses. 

While some sureties may choose not to rely on 

reinsurance, the Department notes this is by no 

means uniform in the industry. 

explained that employers may need to 

provide more detailed financial 

disclosures, tax returns, and/or credit 

scores to qualify for higher bond 

amounts and, in some cases, collateral 

may be required. 

Finally, an insurance provider and an 

employer both noted that the 

Department’s proposed methodology 

does not account for differences in the 

length of time H–2A workers will be 

employed and proposed that required 

bond amounts be set at five percent of 

an employer’s estimated gross payroll 

for its H–2A workers. As an alternative, 

the insurance provider suggested that 

back wages could be paid from an 

employer-funded trust administered by 

the Department. 

After carefully considering comments 

pertaining to the appropriate amount of 

surety to be required of H–2ALCs, the 

Department adopts the methodology for 

determining required bond amounts 

detailed in the NPRM, with one 

modification. Under the proposal in the 

NPRM, to calculate the required bond 

amount for a temporary agricultural 

labor certification, the Department 

would start with a base bond amount 

(equal to the amount of the bond 

required under the 2010 H–2A Final 

Rule) and adjust proportionally on an 

annual basis to the degree that a 

nationwide average AEWR exceeds 

$9.25, i.e., by multiplying the base by 

the average AEWR and dividing that 

number by $9.25. The Department 

stated that, until the Department 

published an average AEWR, it would 

use a simple average of the 2018 

AEWRs, which it calculated to be 

$12.20. However, given the increase in 

the AEWR since the publication of the 

NPRM, the Department has concluded 

that, until the Department publishes a 

different average AEWR, bond amounts 

will initially be calculated using an 

average AEWR of $14.28, based on the 

simple average of the 2021 AEWRs. The 

average AEWR will be adjusted when 

the underlying AEWRs are adjusted. 

Thus, for a temporary agricultural labor 

certification covering 100 H–2A 

workers, the Department will calculate 

the required bond amount according to 

the following formula: 

$75,000 (base amount) × $14.28 ÷ $9.25 

= $115,784 (updated bond amount). 

The Department has determined that 

further modification of the NPRM’s 

methodology for determining required 

bond amounts is unwarranted at this 

time. The Department declines to adopt 

a commenter’s suggestion that it use an 

across-the-board increase, rather than 

requiring additional incremental surety 

amounts for temporary agricultural 

labor certifications covering 150 or more 

H–2A workers, as an across-the-board 

increase would not fairly account for the 

proportionally greater back wage 

liability associated with larger crew 

sizes. As the Department noted in the 

NPRM, the current bond framework, 

which the commenter’s suggestion 

would perpetuate, ‘‘disproportionately 

advantages larger H–2ALCs while 

providing diminishing levels of 

protection for employees of such 

contractors.’’ See 84 FR 36168, 36205. 

Likewise, the Department disagrees 

with commenters arguing that bond 

amounts should not be increased. Based 

on the Department’s enforcement 

experience, bond amounts are often 

insufficient to cover the amount of 

wages and benefits owed by H–2ALCs, 

limiting the Department’s ability to seek 

back wages for workers. Id. at 36204. 

Indeed, as bond amounts have remained 

the same since 2010, these amounts do 

not reflect subsequent wage growth or 

the dramatic increase in the number of 

workers covered by temporary 

agricultural labor certifications. Id. at 

36204–36205. The Department believes 

that requiring additional surety for such 

temporary agricultural labor 

certifications is not punitive but rather 

necessary to ensure fairness among 

labor contractors and for workers. The 

Department recognizes that some H– 

2ALCs may not have sufficient financial 

resources and/or creditworthiness to 

obtain the higher required surety bond 

amounts and, as a result, will be unable 

to employ 150 or more H–2A workers 

under a single temporary agricultural 

labor certification. The Department 

notes that the purpose of the surety 

bond requirement is to ensure that labor 

contractors will be able to discharge 

their financial responsibilities, 

including meeting their payroll and 

other program obligations. To the extent 

that some labor contractors lack the 

financial resources and/or 

creditworthiness to obtain the requisite 

bonds, it may be appropriate for these 

contractors to hire fewer workers.99

Accordingly, this final rule adopts the 

Department’s proposal under which the 

bond amount applicable to temporary 

agricultural labor certifications covering 

100 or more H–2A workers is used as a 

starting point and is increased for each 

additional set of 50 H–2A workers. The 

interval by which the bond amount 

increases will be based on the amount 

of wages earned by 50 workers over a 2- 

week period and, in its initial 

implementation, will be calculated 

using an average AEWR of $14.28 as 

demonstrated: 

$14.28 (Average AEWR) × 80 hours × 50 

workers = $57,120 in additional 

bond for each additional 50 H–2A 

workers over 100. 

Thus, under this final rule, a 

temporary agricultural labor 

certification covering a crew of 275 H– 

2A workers will require additional 

surety of $171,360. This amount is 

calculated by determining the number 

of additional full sets of 50 workers 

beyond the first 100 workers covered by 

the temporary agricultural labor 

certification and then multiplying this 

number by the amount of additional 

surety required per each set of 

additional 50 workers (275¥100 = 175; 

175÷50 = 3.5; this is three additional 

sets of 50 workers; 3 × $57,120 = 

$171,360). This additional surety will be 

added to the bond amount required for 

temporary agricultural labor 

certifications of 100 or more H–2A 

workers resulting in a required bond 

amount of $287,144 ($115,784 required 

for temporary agricultural labor 

certifications of 100 or more H–2A 

workers + $171,360 in additional 

surety). 

The Department declines proposals to 

consider additional variables, such as 

the costs of inbound and outbound 

transportation or estimated gross 

payroll, or to replace the average AEWR 

with another measure of wages in its 

methodology for determining required 

bond amounts. While these proposals 

may in some instances permit the 

required bond amounts to more closely 

account for the potential back wage 

liability for particular temporary 

agricultural labor certifications, these 

would unduly complicate the 

calculation and review of the required 

bond amounts and slow the 

Department’s processing of H–2A 

applications. The Department believes 

at this time that the methodology 

included in the final rule is sufficient to 

address most monetary violations, 

including those stemming from a failure 

to provide inbound and outbound 

transportation, and thus to limit 

program abuse and any resulting 

adverse effect on U.S. workers. The 

Department will continue to monitor the 

efficacy of the surety bond requirements 

and will propose revisions to these 

requirements as needed to assure that 

bond amounts are sufficient. 

Likewise, the Department declines the 

proposal from commenters with ties to 

the shearing industry to allow such 


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100While the January 2021 draft final rule would 

have responded to these concerns by creating a 

lower tier of bonds with a proportionally lower 

bond amount for temporary agricultural labor 

certifications covering fewer than 10 workers, after 

further review, the Department has decided against 

creating a separate bond tier for temporary 

agricultural labor certifications covering fewer than 

10 H–2A workers because doing so would create a 

risk that workers employed under such temporary 

agricultural labor certifications will be left without 

sufficient recompense in the event that their H– 

2ALC employers fail to satisfy their financial 

obligations. 

101 In the proposed regulatory text, the 

Department inadvertently referenced only the job 

order content review at § 653.501(c), rather than 20 

CFR part 653, subpart F, in its entirety. To ensure 

SWA review of job orders submitted through the 

emergency situations provision is complete (e.g., 

includes a nondiscrimination content check under 

§ 653.501(d)(3)) and consistent with review of job 

orders under § 655.121, as intended, paragraph 

(c)(1) has been revised to conform with 

§ 655.121(c)(3). See 84 FR 36168, 36205 (NPRM 

noting proposed change to paragraph (c) ‘‘makes the 

process for filing job orders in emergency situations 

consistent with the process for filing job orders 

under proposed § 655.121’’). 

employers to maintain a single bond 

covering all temporary agricultural labor 

certifications in a given year, as doing 

so would require the Department, when 

reviewing applications from H–2ALCs, 

to check all prior applications filed 

during the year to ensure that the bond 

is sufficient to cover both the current 

application and prior applications, 

potentially slowing down the approval 

of such applications.100

The Department also declines to 

replace the surety bond requirement 

with an employer-funded trust. Unlike 

the bonding requirement, which helps 

to ensure that an H–2ALC is in 

compliance with its program 

obligations, see 2008 H–2A Final Rule, 

73 FR 77110, 77163 (citing 8 U.S.C. 

1188(g)(2)), the payment of back wages 

from an employer-funded trust would 

distribute responsibility for an H– 

2ALC’s noncompliance among all 

contributing employers, including those 

who meet their program obligations, and 

may not provide as robust a deterrent 

against individual noncompliance as 

surety bonds. Further, the creation of 

such a trust would require considerable 

initial funding, as well as Department 

resources, which could undermine the 

recovery of back wages in the shortterm. 

Finally, the Department declines to 

offer discounted bond amounts for those 

H–2ALCs for which the Department has 

not submitted surety bond claims in the 

previous 5-year period. Because WHD 

investigates only a fraction of the H– 

2ALCs that operate in a given year, the 

fact that WHD has not pursued an H– 

2ALC’s surety for the collection of 

unpaid back wages or found violations 

in the previous 5 years is not an 

indication of compliance or decreased 

potential liability. The length of the 

Department’s administrative appeals 

process and any ensuing Federal court 

litigation means that a noncompliant 

employer could litigate a back wage 

award for years to avoid losing such a 

discount, potentially incentivizing 

appeals. Further, the surety may 

consider an H–2ALC’s record of 

compliance when determining the 

premiums to be charged. 

4. Section 655.133, Requirements for 

Agents 

The NPRM did not propose changes 

to the requirements for agents to 

provide, at the time of filing, a copy of 

the agent agreement or other document 

demonstrating the agent’s authority to 

represent the employer as well as a copy 

of the agent’s MSPA FLC Certificate of 

Registration, if required under MSPA at 

29 U.S.C. 1801 et seq., that identifies the 

specific farm labor contracting activities 

the agent is authorized to perform. 

Therefore, this final rule retains the 

current requirements without change. 

5. Section 655.134, Emergency 

Situations 

The NPRM proposed minor 

amendments to this section to clarify 

procedures for accepting an emergency 

Application for Temporary Employment 

Certification filed by employers and to 

conform with other procedural changes 

proposed in the NPRM and adopted in 

this final rule. The Department received 

some comments on this provision, none 

of which necessitated substantive 

changes to the regulatory text. 

Therefore, as discussed below, this 

provision remains unchanged from the 

NPRM, except for technical corrections 

for clarity. 

Paragraph (a) of § 655.134 addresses 

the function of the emergency situations 

provision, while paragraph (b) addresses 

what an employer must submit to the 

NPC when filing an Application for 

Temporary Employment Certification 

and requesting a waiver of the filing 

timeframe due to an emergency 

situation. To better focus paragraphs (a) 

and (b) by topic, the Department 

proposed to move a parenthetical 

example of ‘‘good and substantial 

cause’’ from paragraph (a) to paragraph 

(b), where the regulation provides a 

nonexclusive list of factors that may 

constitute good and substantial cause. In 

addition, the Department proposed to 

expand the nonexclusive list of factors 

to include additional examples, such as 

the substantial loss of U.S. workers due 

to Acts of God or a similar unforeseeable 

man-made catastrophic event (such as a 

hazardous materials emergency or 

government-controlled flooding). 

One commenter noted the list of 

required documents in paragraph (b) 

was unclear and suggested the 

Department revise the wording or 

punctuation to avoid confusion about 

whether the Department meant to 

exclude only the first item in the list 

after the word ‘‘except’’ (i.e., evidence of 

a job order submitted pursuant to 

§ 655.121) or all of the items after the 

word ‘‘except.’’ The Department 

appreciates this suggestion and has 

revised the punctuation of this list of 

required documents to clarify that the 

only evidence excepted is a job order 

submitted pursuant to § 655.121. Under 

most circumstances, an employer using 

the emergency situations procedures 

would not need to submit a job order in 

advance of its Application for 

Temporary Employment Certification; 

therefore, there would not be evidence 

of a pre-filing job order. However, all 

other documentation required at the 

time of filing under § 655.130(a) is 

required at the time of filing under 

§ 655.134. In addition, an employer’s 

emergency waiver request submission 

must include a completed job order on 

the Form ETA–790/790A, including all 

required addenda, and a statement 

justifying the request for a waiver of the 

normal filing timeframe requirement. 

In paragraph (c), the Department also 

proposed changes to simplify the 

emergency application filing process for 

employers, provide greater clarity with 

respect to the procedures for handling 

such applications, and conform to other 

changes proposed in this rulemaking. 

For example, the Department proposed 

to eliminate the language referring to 

concurrent submission of the emergency 

situations filing to the NPC and SWA, 

as under this final rule employers 

submit job orders to the NPC and the 

NPC electronically transmits them to the 

SWA; the same process applies to 

emergency situations job orders. 

Further, the Department proposed 

language to clarify the transmittal and 

review procedures. The CO will 

promptly transmit a copy of the job 

order to the SWA serving the AIE for 

review. The SWA will review the job 

order for compliance with the 

requirements set forth in 20 CFR part 

653, subpart F,101 and § 655.122, and, 

within 5 calendar days of receiving the 

job order from the CO, the SWA will 

inform the CO of any deficiencies 

found. Based on the information 

provided by the SWA and the CO’s own 

concurrent review, the CO will make a 

decision to issue a NOD under § 655.141 

or a NOA under § 655.143; and, then, 

the CO will make a final determination 


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102Pursuant to § 655.17(b), the employer may 

request a waiver of the required time period(s) for 

filing an H–2B Application for Temporary 

Employment Certification based on good and 

substantial cause that ‘‘may include, but is not 

limited to, the substantial loss of U.S. workers due 

to Acts of God, or a similar unforeseeable manmade catastrophic event (such as an oil spill or 

controlled flooding) that is wholly outside of the 

employer’s control, unforeseeable changes in 

market conditions, or pandemic health issues.’’ 

2015 H–2B IFR, 80 FR 24042, 24116–24117. 

in accordance with §§ 655.160 through 

655.167. 

Finally, if the employer’s submission 

did not justify waiver of the filing 

timeframe and/or the CO determined 

there is not sufficient time to undertake 

an expedited test of the labor market, 

the CO’s NOD would include the 

reason(s) why the waiver request cannot 

be granted and provide the employer 

with an opportunity to submit a 

modified job order that brings the 

requested workers’ start date into 

compliance with the non-emergency 

filing timeframe requirement at 

§ 655.121(b) (i.e., first date of need must 

be no less than 60 days from the 

submission date). 

A workers’ rights advocacy 

organization objected to the existence of 

the emergency situations waiver, on 

principle, and to the extent it is 

continued in this final rule, urged the 

Department to limit its use. The 

workers’ rights advocacy organization 

expressed concern the emergency 

situations waiver request process 

undermines the SWA’s ability to 

evaluate job orders and assess U.S. 

worker availability, thereby 

undermining the Department’s statutory 

obligation. The Department appreciates 

the commenter’s concern and recognizes 

that a correction to paragraph (c)(1) is 

necessary to ensure SWA review of job 

orders submitted through the emergency 

situations provision is complete (e.g., 

includes a nondiscrimination content 

check under § 653.501(d)(3)) and 

consistent with review of job orders 

under § 655.121, as intended. Therefore, 

paragraph (c)(1) has been revised in this 

final rule to clarify that the SWA’s 

review encompasses 20 CFR part 653, 

subpart F, in its entirety, rather than 

only the job order content requirements 

at § 653.501(c). The revisions adopted in 

this final rule make the SWA’s 

involvement in reviewing the job order 

clear. See § 655.134(c)(1). Further, even 

where an employer justifies its request 

as a qualifying emergency situation, if 

the CO determines there is insufficient 

time to appropriately test the domestic 

labor market on an expedited basis and 

satisfy the Department’s statutory 

obligation, the CO will not approve the 

employer’s emergency situations waiver 

request. 

Commenters, including trade 

associations and agents, generally 

supported the proposed revisions to 

§ 655.134. A trade association expressed 

appreciation for the Department’s 

simplification and clarification of 

emergency situations waiver request 

procedures, noting that time is critical 

in emergency situations. This 

commenter specifically expressed 

support for the inclusion of an 

opportunity for the employer to modify 

its application or job order to bring it 

into compliance with non-emergency 

timeframe requirements in lieu of 

denial. 

Among commenters who generally 

supported the proposed revisions to 

§ 655.134, a couple objected to 

replacement of the term ‘‘unforeseen’’ 

with ‘‘unforeseeable,’’ which they 

viewed as a possible change in the 

standard of review and a higher 

threshold for employers to meet. 

However, the Department did not intend 

to create any material change in the 

regulatory standard though the use of 

the term ‘‘unforeseeable.’’ Rather, the 

revision is necessary to establish greater 

consistency—and avoid potential 

misunderstanding—between the H–2A 

standard for emergency situation 

waivers and a similar provision 

contained in the 2015 H–2B IFR at 

§ 655.17; the Department does not have 

a different foreseeability standard in H– 

2A than H–2B and using different terms 

could suggest that possibility.102

A workers’ rights advocacy 

organization expressed concern 

‘‘unforeseeable changes in market 

conditions’’ and ‘‘similar conditions 

that are wholly outside of the 

employer’s control’’ are terms that are 

‘‘too broad and too vague and might 

encompass situations which would not 

warrant . . . a waiver’’ of the normal 

timeframe and the resulting abbreviated 

U.S. worker recruitment period. For 

example, this commenter worried that 

normal but unpredictable market 

fluctuations could qualify as an 

emergency situation. However, normal 

market fluctuations, despite being 

individually unpredictable, are a 

foreseeable aspect of conducting 

business. As demonstrated in the 

nonexclusive list of situations that 

might justify an emergency situations 

waiver, the Department envisions 

circumstances which are unforeseeable 

and wholly outside of the employer’s 

control. 

6. Section 655.135, Assurances and 

Obligations of H–2A Employers 

a. Paragraph (c), Recruitment 

Requirements 

Although the Department proposed 

no changes to paragraph (c) in the 

NPRM, the Department is revising it in 

this final rule, as necessary, to 

reorganize the mandatory recruitment 

obligation provisions. As previously 

discussed in this preamble, commenters 

expressed concern about the placement 

of mandatory recruitment obligations in 

the proposed optional pre-filing 

recruitment provision at § 655.123. In 

addition, after considering comments, 

the Department decided not to adopt the 

proposed pre-filing recruitment 

provision, as explained above. To retain 

the mandatory recruitment obligation 

provisions and clarify their applicability 

to all employers engaged in recruitment 

under this subpart, the Department 

relocated the mandatory recruitment 

obligations paragraphs proposed at 

§ 655.123(d) and (e) to § 655.135(c). In 

this final rule, proposed paragraph (c) of 

§ 655.135 is now paragraph (c)(1), and 

proposed paragraphs § 655.123(d) and 

(e) are now paragraphs § 655.135(c)(2) 

and (3). This reorganization retains the 

requirement that an employer, in all 

cases, must accept and hire all qualified, 

available U.S. worker applicants 

through the end of the recruitment 

period set forth in § 655.135(d) and, if 

an employer requires interviews, the 

employer must conduct those 

interviews in a way that imposes little 

or no cost on U.S. worker applicants 

and ensures no less favorable treatment 

than that offered to H–2A workers. 

b. Paragraph (d), 30-Day Rule 

Under the 2010 H–2A Final Rule, 

employers of H–2A workers are required 

to hire any qualified, eligible U.S. 

worker who applies for the employer’s 

job opportunities during the first 50 

percent of the work contract period (‘‘50 

percent rule’’), unless an exemption for 

certain small employers applies. In the 

NPRM, the Department proposed to 

replace the 50 percent rule with a 30- 

day rule. The proposed 30-day rule 

would have required employers to 

provide employment to any qualified, 

eligible U.S. worker who applied for the 

job opportunity until 30 calendar days 

from the employer’s first date of need on 

the certified Application for Temporary 

Employment Certification, including 

any approved modifications. For those 

employers who would have chosen to 

stagger the entry of H–2A workers into 

the United States under proposed 

§ 655.130(f), the Department proposed 

to extend the mandatory hiring period 


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through the last date on which the 

employer expected a foreign worker to 

enter the country, or apply the 30-day 

period, if longer. The proposed change 

to the mandatory hiring period was 

intended to strike an appropriate 

balance between the need to ensure U.S. 

workers’ access to H–2A job 

opportunities and employer burdens 

and operational disruptions caused by 

hiring U.S. workers mid-season. As 

explained in the NPRM, the 30-day rule 

proposal was based on the Department’s 

analysis of hiring practices indicating 

relatively few U.S. workers applied or 

were referred for job opportunities after 

the initial 30-day period. The 

Department determined that this 

finding, in conjunction with other 

proposed changes, such as the proposed 

staggered entry provision and related 

mandatory hiring period, justified a 

change from the 50 percent rule to 

reduce administrative and employer 

burdens. See 84 FR 36168, 36207. The 

Department invited stakeholders to 

comment with data illustrating the costs 

and benefits of the 50 percent rule, 

particularly by providing 

comprehensive studies of the frequency 

with which H–2A employers hire U.S. 

workers pursuant to the 50 percent rule. 

However, the comments received, both 

in support of and in opposition to the 

proposal, were largely anecdotal. 

After consideration of all comments, 

the Department has decided, for the 

reasons explained below, not to adopt 

the proposed 30-day rule and, instead, 

will retain the 50 percent rule from the 

2010 H–2A Final Rule, as discussed 

below. 

The Department received several 

comments strongly opposing the 

proposed 30-day rule and elimination of 

the 50 percent rule, including comments 

from many workers’ rights and 

immigration advocacy organizations, 

several State employment agencies, two 

U.S. Senators, a U.S. Representative, a 

public policy organization, a labor 

union, a trade association, an 

international recruiting company, and a 

commenter from academia. The 

commenters’ primary concern was that 

the proposal would reduce employers’ 

obligations to recruit and hire U.S. 

workers, thus reducing U.S. workers’ 

access to these jobs. A U.S. 

Representative asserted the proposal 

would ‘‘undermine[ ] long-standing 

protections that help ensure employers 

are not incentivized to hire guest 

workers, who are vulnerable to 

exploitation and abuse due to their 

temporary immigration status, over 

domestic workers.’’ Quoting a district 

court decision, a workers’ rights 

advocacy organization opposed to the 

proposal noted that the 50 percent rule 

is a vital ‘‘safety net to protect the jobs 

of citizens’’ that ensures protections for 

‘‘small groups of available domestic 

employees who might not be known to 

[the Department] at the time of the 

initial certification . . . .’’ 

Several commenters emphasized the 

importance of the 50 percent rule to 

U.S. agricultural workers who seek 

employment in a job opportunity more 

than 30 days after the start date for 

various reasons related to unexpected 

events, migratory labor patterns, 

differing dates of seasonal need, and 

interest in improved pay and benefits. A 

workers’ rights advocacy organization 

noted that ‘‘uncertainty of agriculture 

caused by unexpected severe weather 

conditions’’ causes hardships for 

agricultural workers and asserted that 

under the proposed shortened 

recruitment period, workers displaced 

by crop loss would ‘‘have fewer 

alternative options,’’ and workers 

displaced after a natural disaster would 

have greater difficulty finding substitute 

employment. Another workers’ rights 

advocacy organization stated that the 50 

percent rule would protect U.S. worker 

job opportunities in the event an 

employer’s worker(s) leaves the job 

early, but after 30 days have elapsed, 

‘‘due to being injured, getting ill, having 

a family emergency, or any other 

eventuality.’’ A third workers’ rights 

advocacy organization stated that 

elimination of the 50 percent rule 

‘‘would make it difficult for [workers] 

. . . to change places of employment in 

cases of employer abuse.’’ A workers’ 

rights advocacy organization stated that 

the presence of U.S. workers at a 

worksite forces an H–2A employer to 

compete with other employers and 

makes it more likely that abusive H–2A 

employers will be exposed. Another 

advocacy organization expressed 

concern that the shortened recruitment 

period would reduce the period of time 

during which a U.S. worker may leave 

current employment to accept an H–2A 

job that pays a ‘‘higher wage and 

provides free transportation and 

housing if applicable . . . instead of 

settling for a non-H–2A job that may 

have lower pay and no legal 

requirement to provide transportation, 

housing, or other protections such as 

workers compensation.’’ One 

commenter asserted the proposal would 

make it easier for agricultural employers 

to avoid their obligations to U.S. 

farmworkers, including unionized 

farmworkers, by engaging in 

intentionally ‘‘ineffective recruitment’’ 

and ‘‘refus[ing] to hire qualified U.S. 

workers.’’ Other commenters stated that 

the proposal would increase recruitment 

efforts within a reduced window for 

Migrant Services Outreach Workers and 

asserted the longer recruitment period 

allows workers to overcome employer 

attempts to discourage domestic 

farmworkers from applying or shut them 

out entirely. 

Several workers’ rights and 

immigration advocacy organizations and 

a labor union noted that ‘‘[o]n many 

farms, hiring continues beyond the first 

day of work before the peak of the 

harvest season.’’ One of these 

commenters stated that ‘‘[s]ome U.S. 

workers work in agricultural jobs for 

part of the year, work in other industries 

such as construction and retail for a 

certain period of the year, and then 

return to agricultural jobs.’’ The 

commenter added that ‘‘[s]ome local 

areas of employment and migrant 

streams involve contiguous states’’ and 

agricultural workers ‘‘alter their 

migration patterns depending on the 

terms and conditions of employment.’’ 

A State employment agency asserted 

that ‘‘limiting the availability of the job 

order to 30 days after the Date of Need 

(DON) will effectively limit the ability 

of U.S. workers to follow the crops as 

in the past.’’ A workers’ rights advocacy 

organization noted that ‘‘[i]n areas 

where migration is typical, crews are 

called to work in stages,’’ with the 

number of crews ‘‘increas[ing] at peak 

season,’’ and reduction in the postcertification recruitment period would 

displace ‘‘[w]orkers who have reported 

for and worked in these jobs for years’’ 

by permitting employers ‘‘to reject U.S. 

workers who report to work on the exact 

date they had begun work the year 

before, which could be after the 30-day 

deadline.’’ 

Some commenters who opposed the 

proposal took issue with the hiring 

practices data the Department cited in 

the NPRM. A workers’ rights advocacy 

organization also commented that the 

Department’s data assume that the 

SWAs are properly implementing the 50 

percent rule, but there are multiple 

instances where the SWAs miscalculate 

the 50 percent rule period and shorten 

the recruitment period. Other 

commenters generally emphasized the 

continuing importance of the SWA 

referral process. One of these 

commenters cited a 2018 monitor 

advocate report indicating SWAs 

referred more than 35,000 U.S. workers 

for H–2A job opportunities in 2015. A 

State employment agency asserted the 

data on which the Department relied 

were insufficient to justify elimination 

of the 50 percent rule because it 

examined ‘‘only 20 percent of the 

selected H–2A applications audited.’’ A 


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workers’ rights advocacy organization 

asserted the decision to eliminate the 50 

percent rule was arbitrary and 

capricious because the Department 

failed ‘‘to present any evidence of 

disruption caused by the 50 [percent] 

rule’’ and failed to account for 

employers discouraging U.S. workers 

from applying for jobs. Two U.S. 

Senators expressed concern that the 

‘‘lack of any data in the NPRM reflecting 

the lengths of work contracts’’ 

prevented the public from ‘‘sufficiently 

respond[ing] to the potential effects of 

the Department’s proposal’’ and 

‘‘exacerbates the concern . . . that 

eliminating the 50 percent rule will 

harm U.S. workers.’’ 

The Senators also asserted ‘‘the 

Department fail[ed] to provide any 

quantitative analysis and offer[ed] 

generalized assertions to support its 

claim that the employer costs of 

compliance with the 50 percent rule 

outweigh the benefit to U.S. workers.’’ 

Similarly, a State agency that urged the 

Department to maintain the 50 percent 

rule noted the requirement is 

longstanding and ‘‘the data shows there 

have been minimal disruptions to 

agricultural employers.’’ Some 

commenters said that the rationale for 

eliminating the 50 percent rule was 

faulty because if the number of workers 

applying during the 50 percent rule 

period are low, then the cost to 

employers is negligible. Many workers’ 

rights advocacy organizations agreed 

and cited to the early congressional 

study indicating the 50 percent rule not 

only provides an important protection 

for U.S. workers but does so with 

minimal burden to employers. Several 

of these commenters noted the report’s 

conclusion that ‘‘[i]n comparing the 

tangible benefits and costs alone, the 

benefits of the 50 Percent Rule outweigh 

the costs’’ and that ‘‘the costs of the 50 

Percent Rule have been minimal and 

that the Rule has not had any particular 

negative impacts on either growers or 

U.S. workers.’’ Other commenters 

pointed to the Department’s 2010 H–2A 

Final Rule, which concluded that the 50 

percent rule’s benefits to workers 

outweighed the costs to employers, and 

that there was a lack of definitive data 

cutting in either direction. 

In contrast, many commenters, 

including trade associations, employers, 

agents, individual commenters, a State 

agency, and a public policy 

organization, expressed support for the 

proposal. Some stated that few workers 

apply beyond the first 30 days, so the 

impact on U.S. workers would be 

minimal. Others stated that the proposal 

also would provide employers with 

more certainty and reduced costs. 

Another stated that it was difficult to 

train workers who are hired months 

after the season starts, and others said 

the proposal would reduce workplace 

disruptions caused by hiring new 

workers later in the contract period. 

Some stated that it was very difficult for 

agricultural employers to find domestic 

workers for these jobs. A State agency 

commented that the proposal would 

allow States to conduct concentrated 

recruitment of domestic workers at the 

beginning of the period of need. Some 

commenters added that the proposal 

provides a clear, bright-line rule as to 

employers’ hiring obligations. An 

employer commented that once harvest 

begins, workers change location every 

30 to 45 days, and most U.S. workers 

hired under the rule refuse to travel, so 

their employment is short term. Another 

commenter said that the proposal would 

be beneficial to H–2A workers who may 

be displaced by domestic workers well 

into the contract. 

Some commenters who expressed 

support for the proposal to replace the 

50 percent rule also suggested that the 

Department should further reduce the 

period during which employers must 

hire U.S. workers. Commenters 

suggested that the Department require 

employers to hire U.S. workers during a 

set period, pre-season, ending no later 

than when the H–2A workers depart 

from their home country to travel to the 

United States (i.e., coinciding with the 

end of the employer’s positive 

recruitment period under 

§ 655.143(b)(3)). Other commenters 

suggested that the Department adopt the 

H–2B rule that requires recruitment 

until 21 days before the first date of the 

need (§ 655.40(c)). Alternatively, one 

commenter suggested that, given the 

shorter time period involved in the H– 

2A filing process, the Department could 

adopt a modified version of the H–2B 

rule’s recruitment period by reducing 

the recruitment period to as little as 7 

to 10 days before the first date of need. 

An agent commented that the job order 

should stay open for the entire 

recruitment period unless the employer 

notifies the Department that all jobs 

have been filled, at which time, the job 

order should be closed. The commenter 

also suggested that the job order should 

be reopened if workers are needed at 

any time during the contract period. 

An agent also objected to the proposal 

insofar as it eliminated the ‘‘small 

employer exemption’’ to the rule, which 

excused certain small businesses from 

any hiring obligation after the end of the 

positive recruitment period and 

encouraged the Department to retain the 

existing small employer exemption 

framework with the proposed 30-day 

rule. The commenter stated that it was 

unreasonable to require a small 

employer to continue recruiting U.S. 

workers even 30 days into the season, 

because smaller operations do not enjoy 

the same margins for error and cannot 

easily absorb workforce disruptions 

during the season. Additionally, the 

commenter stated that the Department 

failed to explain why the exemption 

should be removed from the regulations. 

Another commenter stated that the 

small employer exemption was 

important to maintain. 

The Department takes seriously its 

obligation to protect workers in the 

United States from potential adverse 

impact resulting from the employment 

of H–2A workers and appreciates the 

many comments it received on the 

proposed change to the postcertification mandatory hiring period. 

After careful consideration of all 

comments, and in light of the 

substantial concerns expressed by 

immigration and workers’ rights 

advocacy organizations, U.S. Senators 

and Representatives, State employment 

agencies, and others, the Department 

has decided not to adopt the proposed 

30-day rule. Instead, the Department 

will retain the 50 percent rule it has 

applied nearly continuously for 

decades. 

The Department notes, first, that in 

reaching its decision to retain the 

longstanding 50 percent rule, it was not 

persuaded by the congressionally 

required study to which several 

commenters referred, as that study was 

commissioned by the Secretary of Labor 

in 1990 and focused on the impact of 

the 50 percent rule in only two States— 

Virginia and Idaho. See 2008 H–2A 

NPRM, 73 FR 8538, 8553. The research 

firm that produced the study 

interviewed only 66 growers, 

constituting only 0.1 percent of Virginia 

and Idaho’s 64,346 farms at the time of 

the study. The study’s age and small 

size render it an unreliable measure of 

the current impact of the 50 percent 

rule. The reasoning in the 2010 H–2A 

Final Rule also was similarly not 

determinative here—in that rule, the 

Department reinstated the 50 percent 

rule because of a lack of definitive data. 

2010 H–2A Final Rule, 75 FR 6884, 

6922. 

Since then, the Department has 

conducted its own analysis of hiring 

practices, as noted in the NPRM. Based 

on a small set of recruitment reports 

obtained through the audit examination 

process, the hiring practices data cited 

in the NPRM demonstrate that most U.S. 

workers who apply for agricultural jobs 

do so before the start of the work 

contract. Based on these data, the 


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103The January 2021 draft final rule would have 

eliminated the small employer exemption because 

the mandatory hiring period under the 30-day rule 

would have been shorter than under the 50 percent 

rule. 

Department considered adopting the 

reduced recruitment period in the 

January 2021 draft final rule but 

acknowledged that some U.S. workers 

apply for these jobs after the employer’s 

first date of need. Specifically, the 

Department’s analysis of certified H–2A 

applications covering more than 33,510 

jobs indicated that 3,392 U.S. workers 

applied for the available job 

opportunities at some point from the 

beginning of the employer’s H–2A 

recruitment efforts through 50 percent 

of the work contract period and 16 

percent of these U.S. workers applied 

and/or were hired more than 30 days 

after the start date of work. 

Although the vast majority of workers 

who apply after the start date of work 

apply during the first 30 days of a work 

contract, the Department acknowledges 

that the analysis is based on a limited 

set of data available from employer 

recruitment reports selected for audit 

examination. After further consideration 

of comments and the available data, the 

Department agrees with commenters 

who note the burden the 50 percent rule 

imposes on employers in those limited 

cases where U.S workers apply beyond 

the proposed 30-day period is minimal 

and outweighed by the interests of the 

hundreds or potentially thousands of 

domestic migrant and seasonal 

farmworkers who may want to apply for 

the job opportunity more than 30 days 

after the first date of need. The 50 

percent rule was initially a creation of 

the INA and designed to enhance 

domestic worker access to job 

opportunities for which H–2A workers 

were recruited. The Department believes 

any burden on employers as a result of 

the 50 percent rule is outweighed by the 

interests of the Department in ensuring 

U.S. workers are provided fair notice of 

H–2A job opportunities and are not 

denied employment if they are qualified 

and available within an adequate period 

of time after the employer’s start date. 

Additionally, the Department shares 

the concerns of commenters that 

changing the hiring period through this 

final rule could reduce U.S. workers’ 

ability to access temporary and seasonal 

job opportunities and would raise the 

prospect of adverse impact resulting 

from the employment of H–2A workers. 

Furthermore, as several commenters 

pointed out, due to the nature of 

agricultural work, U.S. workers may 

need to seek new employment because 

of crop loss, or may need flexibility to 

follow crops as one work contract ends 

and another begins. These comments are 

consistent with comments from 

employers and associations that noted 

agricultural employers rarely need their 

entire workforce at the beginning of the 

season, but instead need a steadily 

increasing number of workers as the 

harvest intensifies. Both the proposed 

30-day rule and the longstanding 50 

percent rule weigh the same factors: on 

the one hand, ensuring U.S. worker 

applicants have a fair opportunity to 

apply for job opportunities so that they 

are not displaced by foreign workers; 

and on the other, recognizing the 

practical realities of agricultural work 

and the need to administer the INA in 

a way that is fair and reasonable for all 

affected parties, including employers. 

After considering the merits of the 

proposal and the significant number of 

comments expressing substantial 

concerns with a shorter hiring period, 

the Department has concluded that 

retaining the 50 percent rule best 

balances the objectives of ensuring the 

H–2A program operates in a way that is 

fair to all parties and provides adequate 

protections for U.S. workers, consistent 

with the Department’s statutory 

mandate. 

The Department is sensitive to the 

concerns regarding the impact on small 

businesses and appreciates the agent’s 

comment regarding the small employer 

exemption. In light of the Department’s 

decision to retain the 50 percent rule, 

and further consideration of the 

regulatory history, the Department has 

decided to retain the small employer 

exemption in this final rule.103 In 1986, 

the IRCA added the 50 percent rule to 

the INA as a temporary 3-year statutory 

requirement, which included an 

exemption for employers who, among 

other requirements, ‘‘did not, during 

any calendar quarter during the 

preceding calendar year, use more than 

500 man-days of agricultural labor, as 

defined in section 203(u) of title 29.’’ 8 

U.S.C. 1188(c)(3)(B)(iii). That exemption 

was included in the Department’s 1987 

H–2A IFR. 52 FR 20496, 20520. 

Although the statutory 50 percent rule 

and exemption were temporary, the 

corresponding requirements in the 1987 

regulations had no expiration date. See 

55 FR 29356, 29357 (July 19, 1990). In 

1990, ETA published an IFR to continue 

the 50 percent rule, and included the 

small employer exemption. Id. at 29358. 

In 2008, the Department eliminated the 

50 percent rule and created a 5-year 

transitional period during which 

employers were required to hire U.S. 

workers for 30 days after the employer’s 

first date of need. 2008 H–2A Final 

Rule, 73 FR 77110, 77128. The 30-day 

requirement did not include an 

exemption for small businesses, and the 

final rule offered no explanation for the 

omission. In 2010, the Department 

reinstated the 50 percent rule, including 

the small employer exemption, stating 

that the exemption ‘‘minimize[s] the 

adverse effect on those operations least 

able to absorb additional workers.’’ 2009 

H–2A NPRM, 74 FR 45906, 45917. In 

light of the Department’s decision to 

retain the longstanding 50 percent rule, 

the Department also is retaining the 

small employer exemption in this final 

rule. 

In addition to the comments 

addressed above, the Department also 

received a few comments addressing 

issues beyond the scope of the proposal 

to replace the 50 percent rule with the 

30-day rule. One commenter said that 

worker referrals preceding the date of 

need should not automatically reduce 

the number of H–2A workers certified in 

the application, and the employer 

should have the discretion to either 

reduce the number of H–2A positions or 

hire both domestic referrals and H–2A 

workers. Another commenter suggested 

that to mitigate the inconvenience of 

hiring U.S. workers after the start of the 

contract, the Department should 

facilitate the placement of displaced H– 

2A workers in immediate, subsequent 

H–2A employment elsewhere. Another 

suggested treating H–2A workers in the 

country the same as U.S. workers for 

purposes of recruitment, which would 

require employers to prove that no H– 

2A workers already in the country are 

available to fill the positions. However, 

these suggestions are beyond the scope 

of this rulemaking. 

The Department also invited 

comments on the proposed recruitment 

period for employers who chose to 

stagger the entry of H–2A workers. 

However, as the Department has 

decided not to adopt the proposed 

staggered entry provision, the issue of 

the related recruitment period is moot. 

Accordingly, under this final rule, 

unless the small employer exemption 

applies, an employer granted temporary 

agricultural labor certification must 

continue to provide employment to any 

qualified, eligible U.S. worker who 

applies until 50 percent of the period of 

the work contract has elapsed, and an 

employer must update the recruitment 

report for each U.S. worker who applies 

through the entire recruitment period. 

c. Paragraph (k), Contracts With Third 

Parties Comply With Prohibitions 

The Department received a few 

comments regarding this provision of 

the NPRM, which the Department 

considered. The Department now adopts 


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the language proposed without change. 

The current regulation requires 

employers to contractually forbid any 

engaged foreign labor contractor or 

recruiter (or their agents) from seeking 

or receiving payments or other 

compensation from prospective 

workers; the employer must provide 

documentation of the prohibition upon 

request. In the NPRM, the Department 

proposed to amend § 655.135(k) to 

clarify that employers engaging any 

foreign labor contractor or recruiter 

‘‘must contractually prohibit in writing’’ 

the foreign labor contractor or recruiter, 

or any agent of such contractor or 

recruiter, from seeking or receiving 

payments from prospective employees. 

As explained in the NPRM, the 

Department has specified the 

contractual language that employers 

must use to satisfy this requirement for 

employers’ convenience and to facilitate 

consistent and uniform compliance. 84 

FR 36168, 36208. 

The revision makes it clear that 

foreign labor contractors or recruiters 

and their agents are not to receive 

remuneration from prospective 

employees recruited in exchange for 

access to a job opportunity or any 

activity related to obtaining H–2A labor 

certification. To help monitor 

compliance with this prohibition, the 

Department has retained the 

requirement that employers make these 

written contracts or agreements 

available upon request by the CO or 

another Federal party. 

A farmer and agent opposed the 

proposal because they believed the 

existing regulation was sufficient and 

that employers should be able to draft 

their own language prohibiting fees. The 

agent argued further that requiring 

specific contractual language could 

expose employers to a nonsubstantive 

violation, and furthermore that the 

Department had not provided a reason 

that the existing regulation was 

problematic. The Department 

understands employers’ interest in 

drafting their own contractual language. 

However, the Department nonetheless 

has determined that it is necessary to 

require the specific language set forth in 

this provision to facilitate uniform 

application and compliance with the 

regulatory requirement. The previous 

regulatory requirement left room for 

employers to write language that may 

not have been clear or may not have 

conveyed the prohibition correctly. The 

language adopted in § 655.135(k) should 

serve to remove any doubt concerning 

contractual parties’ obligations under 

§ 655.135(k), and it makes it easier for 

employers to comply with the 

regulation. 

An international recruitment 

company, trade associations, and 

advocacy organizations explained that 

the Department has failed to prevent 

recruitment fees from being charged to 

foreign workers in the past, and that this 

has caused such foreign workers to be 

vulnerable to unlawful conduct and 

debts. One of the advocacy 

organizations opposed any changes that 

would lower wages or reduce worker 

protections or reduce Department 

oversight. The Department, in requiring 

the addition of this specific language 

under § 655.135(k) clarifies the existing 

legal requirements. The Department 

acknowledges that, while organizations 

or people have nonetheless collected 

recruitment fees in violation of existing 

law, the change adopted in this final 

rule relates only to the addition of 

specific language in order to facilitate 

consistent and uniform compliance. 

Furthermore, the Department’s 

processes and procedures meant to 

enforce this requirement are still in 

place. 

While noting that it approved of the 

additional contractual language 

proposed, one of the workers’ rights 

advocacy organizations went on to 

explain that this prohibition for third 

parties causes employers to 

intentionally remain ignorant of the 

recruitment process. It argued that 

workers are discouraged from coming 

forward for fear they will be denied a 

visa and fear of retaliation or 

blacklisting from recruiters and 

employers. The organization explained 

that unlawful conduct surrounding 

recruitment leads to debt for workers 

and human trafficking, and then 

detailed numerous examples from case 

law to support the assertion that 

recruiters are not abiding by the current 

regulations and are abusing foreign 

workers. The organization put forth 

numerous suggestions relating to 

increased enforcement and transparency 

regarding the recruitment process and 

increased worker protections. The 

Department appreciates the concerns 

the workers’ rights advocacy 

organization has raised regarding the 

treatment of workers. Although several 

of the suggestions are beyond the scope 

of this rulemaking, the Department has 

addressed related concerns in other 

relevant sections of this final rule. For 

example, the Department has retained 

the current regulations’ anti-retaliation 

provision and has added debarment of 

agents and attorneys for their own 

misconduct in this final rule. See 20 

CFR 655.135(h) and 655.182; 29 CFR 

501.20. The Department also believes 

the addition of the required contractual 

language is an important step toward 

ensuring that employers do not remain 

ignorant of the prohibitions and that any 

agreement with a third party clearly 

articulates the prohibitions. 

An agent suggested the regulation be 

revised further and argued that the 

employer’s inclusion of this contractual 

language should be a ‘‘legal safe harbor’’ 

to any claim brought against it to 

recover recruitment fees unless there is 

clear and convincing evidence that the 

employer knew or participated in the 

prohibited fees being requested. 

Through the proposed language in 

§ 655.135(k), the Department did not 

propose such a ‘‘legal safe harbor,’’ and 

was not attempting to affect the legal 

rights parties may have in any private 

civil claims. To the contrary, as the 

Department has previously made clear 

in both the 2008 and 2010 prior 

rulemakings, these contractual terms 

must be bona fide. 75 FR 6926. Creating 

a ‘‘legal safe harbor’’ could potentially 

undermine an employer’s incentive to 

assure the bona fides of the contractual 

provisions, thereby undermining these 

important worker protections. 

Accordingly, the Department declines to 

incorporate such a provision. 

7. Section 655.136, Withdrawal of an 

Application for Temporary Employment 

Certification and Job Order 

As discussed earlier in this preamble 

under § 655.124, the Department 

proposed to reorganize all withdrawal 

provisions so that, for example, the 

procedure for withdrawing the 

Application for Temporary Employment 

Certification and job order is located in 

the section of the rule where an 

employer at that stage of the labor 

certification process would look for 

such a provision. Accordingly, the 

NPRM proposed revisions to move the 

withdrawal provisions at § 655.172(b) of 

the 2010 H–2A Final Rule to this new 

section, and to clarify the timeframe and 

procedures by which an employer may 

request withdrawal. The Department 

received a few comments on this 

provision, none of which necessitated 

substantive changes to the regulatory 

text. Therefore, as discussed below, this 

provision remains unchanged from the 

NPRM. 

The Department proposed to move the 

content of § 655.172(b) of the 2010 H– 

2A Final Rule to a new provision at 

§ 655.136 located in the ‘‘Application 

for Temporary Employment 

Certification Filing Procedures’’ portion 

of the regulation, which begins at 

§ 655.130. As a result of this relocation, 

the withdrawal provisions relating to an 

Application for Temporary Employment 

Certification that is in process at the 


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NPC and the associated job order would 

be located in a section of the rule where 

the regulated community would be 

more readily able to locate and 

understand the actions required for 

withdrawal at that stage of processing. 

In addition, the Department proposed 

to remove language limiting withdrawal 

to the period after formal acceptance 

and expand this period to any time 

before the CO makes a final 

determination. This revision would 

allow employers to notify the NPC at 

any time after submitting an 

Application for Temporary Employment 

Certification of their desire to end 

processing of the application and job 

order. Finally, the Department proposed 

under § 655.136(b) to clarify that 

employers must submit withdrawal 

requests in writing to the NPC, 

identifying the Application for 

Temporary Employment Certification 

and job order to be withdrawn and 

stating the reason(s) for requesting 

withdrawal; however, the Department 

did not change the employer’s 

obligations to workers recruited in 

connection with the Application for 

Temporary Employment Certification 

and associated job order, as these 

obligations attach at recruitment and 

continue after withdrawal. 

The Department received no 

comments objecting to the proposed 

reorganization of the job order 

withdrawal provision from § 655.172(b) 

to § 655.136. One trade association 

supported a proposal to permit 

withdrawal any time after submission 

and up to the point of the CO’s final 

determination. Two commenters 

objected to requiring employers to 

comply with their obligations under the 

Application for Temporary Employment 

Certification and related job order after 

withdrawal, apparently without regard 

to the timing of withdrawal. Consistent 

with discussion in the preamble for 

§ 655.124, these comments objecting to 

an employer’s continuing obligations 

after withdrawal are outside of the 

scope of the proposed change at 

§ 655.136. The Department’s proposal 

was limited only to reorganizing the 

existing withdrawal provision from 

§ 655.172(b) to § 655.136 and minor 

clarifying edits, such as adding ‘‘and job 

order’’ to the statement of the 

employer’s continuing obligation to 

comply with the terms and conditions 

of employment after withdrawal with 

respect to all workers recruited in 

connection with that Application for 

Temporary Employment Certification, 

which includes the related job order. 

Accordingly, the Department is 

adopting § 655.136, as proposed, 

without change. 

D. Processing of Applications for 

Temporary Employment Certification 

1. Section 655.140, Review of 

Applications 

The NPRM proposed minor 

amendments to this section to conform 

existing procedures to other proposed 

changes, such as changes involving 

electronic filing and expansion of the 

first actions available to the CO after 

initial review of the Application for 

Temporary Employment Certification, 

job order, and any supplementary 

documentation necessary to issuance of 

a Final Determination. The Department 

received a few comments on this 

provision. After reviewing these 

comments, the Department has decided 

to adopt this provision as proposed in 

the NPRM, although first actions 

available to the CO will not include 

certification, as a result of the 

Department’s decision not to adopt the 

pre-filing positive recruitment proposal 

at § 655.123, as discussed below. 

In paragraph (a), the Department 

proposed to expand the first actions 

available to the CO after initial review 

of the Application for Temporary 

Employment Certification, job order, 

and any necessary supplementary 

documentation for compliance with all 

requirements under the subpart. In 

addition to the two first action options 

available to the CO under the 2010 H– 

2A Final Rule (i.e., issuance of a NOA 

under § 655.143, if the application 

meets acceptance requirements, or 

issuance of a NOD under § 655.141, if 

the application contained deficiencies), 

the Department proposed that the CO 

could issue a Final Determination under 

§ 655.160 as the first action. As 

explained in the NPRM, in combination 

with the pre-filing positive recruitment 

proposal at § 655.123, the proposed 

revision to § 655.140(a) would permit 

the CO to either certify or deny an 

Application for Temporary Employment 

Certification as the first action. The CO 

could issue a temporary agricultural 

labor certification as the first action if 

the employer satisfied all criteria for 

certification at the time of the CO’s 

initial review, which could be possible 

for an employer who engaged in the 

proposed pre-filing recruitment option 

at § 655.123. Or, the CO could issue a 

denial as the first action if an 

application was incurably deficient at 

the time of filing, such as an application 

filed by a debarred employer. 

The Department received a comment 

from a trade association that expressed 

support for the proposal, stating the 

ability to issue a Final Determination 

would expedite the application process 

in certain situations. An employer made 

a general comment expressing concern 

about the Department’s requirement that 

employers cure deficiencies through the 

NOD process before the CO accepts an 

application for further processing, 

asserting that inconsistent identification 

of deficiencies could create processing 

delays for some applications. The 

Department appreciates the 

commenter’s concern; however, the 

Department did not propose to change 

the criteria for the CO’s decision to issue 

a NOD. The CO makes every effort to 

identify and address deficiencies 

consistently across applications and 

cannot accept an application for further 

processing and recruitment until all 

deficiencies related to effective 

recruitment of U.S. workers are 

resolved. The Department intended to 

expand the range of actions available to 

a CO by adding the option to issue a 

Final Determination under § 655.160 as 

the first action; the criteria for the CO’s 

decision to issue a NOD remains 

unchanged. 

This final rule adopts proposed 

paragraph (a) without change. Although 

the Department’s decision not to adopt 

optional pre-filing recruitment removes 

certification as a possible first action, a 

Final Determination remains an 

available option for the CO’s first action 

because the CO may deny an 

Application for Temporary Employment 

Certification as the first action if the 

application is incurably deficient. 

Alternatively, the CO may issue a NOD 

that provides the employer with an 

opportunity to cure deficiencies in the 

application or a NOA that accepts the 

application for further processing and 

recruitment. 

The Department also proposed minor 

revisions to paragraph (b) explicitly 

addressing electronic communication, 

both to permit the CO to send electronic 

notices and requests to the employer 

and to permit the employer to send 

electronic responses to these notices 

and requests. The Department proposed 

to retain the option to use traditional 

methods that ensure next-day delivery 

because these methods will remain 

necessary in limited cases, such as 

when the employer is unable to file or 

communicate electronically. The same 

trade association expressed support for 

this proposed revision, stating that 

electronic submissions are more 

efficient. Therefore, this final rule 

adopts proposed paragraph (b) without 

change. 

2. Section 655.141, Notice of Deficiency 

The NPRM proposed amendments to 

this section to remove the option for 

employers to request expedited 

administrative review or a de novo 


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hearing of a NOD, and to clarify that an 

employer may submit a modified job 

order in response to a NOD and may 

appeal a denial issued by the CO of a 

modified application. The Department 

received some comments on this 

provision. After carefully reviewing 

these comments, the Department has 

decided not to make any changes to the 

proposed regulatory text. Therefore, as 

discussed below, this provision remains 

unchanged from the NPRM. 

The Department proposed removing 

language from paragraph (b) to conform 

to the language of the INA, which 

requires expedited administrative 

review, or a de novo hearing at the 

employer’s request, only for a denial of 

certification or a revocation of such 

certification. See 8 U.S.C. 1188(e)(1). 

Because a NOD is not a denial or 

revocation of certification and is, 

instead, an opportunity for employers to 

provide information or cure deficiencies 

before the CO makes a final 

determination, the Department’s 

proposal better aligns with the statutory 

requirements under the INA. 84 FR 

36168, 36209. 

Some commenters expressed general 

opposition to the proposed changes to 

paragraph (b) without further 

explanation. A commenter stated the 

proposal would complicate the program 

and make it more costly but did not 

explain why this would be the case. The 

Department disagrees with these 

assertions. As noted below, the 

Department believes that this change 

will simplify and streamline the 

temporary agricultural labor 

certification process. One commenter 

mistakenly believed the Department had 

justified this proposal on the basis of 

consistency with the H–2B program, but 

this was not a stated reason for the 

proposal. Other commenters believed 

they would not be able to fix errors in 

their filings or alert the CO to an 

addendum mistakenly not included in 

their original filing without the ability 

to appeal a NOD. However, the ability 

to appeal a NOD to BALCA is not 

required to address these issues. The 

employer can instead respond to the 

NOD with the necessary modification(s), 

correction(s), or omitted document(s). 

Specifically, under § 655.141, the 

employer retains the opportunity to 

respond to the NOD with additional 

information or documentation, 

including an amended job order, to 

address the identified deficiency or 

deficiencies in its application. 

Another set of commenters claimed 

removing the option to appeal a NOD to 

BALCA could delay the temporary 

agricultural labor certification process. 

Many commenters did not explain why 

they believed that delays would occur 

as a result of the Department’s proposed 

change. Two employers, however, 

provided more specific information. 

One employer stated the failure to 

include a document listing their 

proposed worksites as an attachment to 

a prior application delayed the arrival of 

their workers under the Department’s 

subsequent certification. The other 

employer noted that their agent quickly 

resolved previous NODs and asserted 

that losing the ability to request NOD 

review would slow the process because 

they would have to produce a ‘‘new and 

amended’’ job order. Neither commenter 

explained how the ability to appeal a 

NOD to BALCA would prevent delay, 

especially when the opportunity to 

correct deficient applications continues 

to be available pursuant to § 655.141 

and employers still must produce 

documentation, such as job orders, that 

meet all regulatory requirements. 

Some commenters stated they would 

be unable to expeditiously defend their 

application when a NOD is issued and 

would have to comply with the NOD or 

wait to appeal after a denial, risking 

extra expenses or a potential delay in 

worker arrivals. One of these 

commenters suggested the ability to 

appeal both NODs and denials is a more 

efficient use of the employer’s and the 

Department’s time. However, employers 

do not need to appeal a NOD in order 

to submit additional documents or 

otherwise address the identified 

deficiencies. As explained above, 

employers can provide these documents 

in their response to the NOD. In fact, the 

Department anticipates that the changes 

in this final rule will expedite 

resolution of the majority of 

applications and decrease expenses by 

providing one clear, singular route for 

resolving information and 

documentation issues that prevent 

acceptance and certification of 

Applications for Temporary 

Employment Certification or job orders. 

Based on OFLC’s experience 

administering the H–2A program, the 

appeal of a NOD to BALCA tends to add 

more time to case processing than a 

CO’s efforts to resolve remaining issues 

in a NOD response through mechanisms 

such as subsequent NODs or other 

communication that this final rule 

explicitly authorizes in § 655.142(a). 

Under this final rule, the Department 

preserves the enhanced need for 

timeliness in agriculture by simplifying 

the steps in the adjudication of H–2A 

applications. Rather than allowing an 

appeal of a NOD to BALCA, which, even 

if successful, could lead to subsequent 

NODs, appeal of those NODs, and then 

a CO’s denial and an appeal of that 

denial (i.e., separate appeals of multiple 

issues), this final rule consolidates 

consideration of remaining issues or 

deficiencies into one appeal of the CO’s 

determination. Notably, as explained in 

the NPRM, this approach provides the 

CO and employer more opportunities to 

resolve deficiencies that prevent 

acceptance or certification of 

Applications for Temporary 

Employment Certification or job orders 

and better ensures that only those issues 

that the CO and employer cannot 

resolve are subject to appeal before 

BALCA. See 84 FR 36168, 36209. The 

appeal process continues to include an 

expedited administrative review 

procedure, or an expedited de novo 

hearing at the employer’s request, of the 

denial in recognition of the INA’s 

concern for prompt processing of H–2A 

applications. 

An agent stated no data were 

provided on the rate of certifications 

following appeals of NODs that 

underwent BALCA review and 

suggested these data be used to 

determine whether to adopt the 

proposal. OFLC does not produce data 

on this rate. Moreover, the Department 

does not believe these data would be 

instructive of whether to adopt its 

proposal. Regardless of whether an 

application receives a NOA after an 

appeal of a NOD or after resolution with 

the CO, the post-NOA requirements that 

must be met for certification, such as 

recruitment requirements, are the same. 

These post-NOA requirements for 

certification do not typically relate to 

the deficiencies that would be raised in 

a NOD, thus the rate at which an 

application is certified following the 

appeal of a NOD is irrelevant. Another 

commenter claimed that, based on the 

small number of BALCA decisions out 

of the total number of H–2A 

applications filed each year, the current 

process should be preserved. This 

comment is unclear because the figures 

provided by the commenter do not 

distinguish between appeals from a 

NOD versus appeals from a denial of an 

application. To the extent the 

commenter is asserting an appeal of a 

NOD should be preserved because of the 

limited number of BALCA rulings 

related to these appeals, there could be 

several reasons for this number that are 

unrelated to the ability to appeal a NOD, 

including that many employers receive 

a NOA in the first instance or choose to 

respond to the NOD instead of 

appealing. 

Some commenters suggested the 

change may eliminate an opportunity 

for dialogue between the Department 

and the employer prior to a final 


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104See 84 FR 36168, 36198 (noting OFLC’s 

technology system will not permit electronic 

submissions where required fields and 

documentation have not been completed or 

uploaded and saved). 

105The purpose of § 655.141(b)(5) in the current 

regulations is to address situations where the 

employer fails to respond to the NOD or appeal and, 

accordingly, ‘‘abandons’’ the application. The 

Department has retained the relevant language in 

what will now be § 655.141(b)(4): ‘‘if the employer 

does not comply with the requirements of 

§ 655.142, the CO will deny the Application for 

Temporary Employment Certification.’’ 84 FR 

36168, 36276. 

106The Department also explained that this 

revision mirrors language included at § 655.32(a) of 

the 2015 H–2B IFR. See 80 FR 24042, 24122. 

determination. However, as explained 

above, the appeal of a NOD is not the 

only opportunity for the employer to 

engage in dialogue with the Department 

prior to a final determination. 

Employers have the option of 

responding to the NOD and working 

with the CO to resolve the deficiencies 

identified in the NOD. Several 

commenters believed the proposal 

would limit employers’ due process or 

result in undesired outcomes due to 

errors by the agency. The Department 

believes the proposed change continues 

to guard against the latter because 

employers can still request review 

before an administrative tribunal of a 

CO’s denial of an application. 

Employers also continue to decide 

whether they wish to seek review in the 

form of administrative review or a de 

novo hearing. In this way, the proposed 

change retains the due process 

protections afforded employers under 

sec. 218(e)(1) of the INA and better 

conforms with these statutory 

requirements. See 8 U.S.C. 1188(e)(1) 

(noting the regulations must provide for 

expedited administrative review, or, at 

the employer’s request, a de novo 

hearing, of a denial of certification or a 

revocation of such certification). And, as 

is the case now, employers may appeal 

this administrative decision or seek 

other appropriate relief in Federal court. 

An agent suggested that, in cases 

where the CO believes the employer 

will likely agree to the modification 

requirements, the NOD should provide 

the employer the option to accept the 

proposed changes by checking a box in 

iCERT or its successor (FLAG) instead of 

filing a formal NOD response. While 

there are circumstances when OFLC 

may address certain minor issues 

without the issuance of a formal NOD 

and response, the Department declines 

to adopt the agent’s suggestion to create 

this separate procedure for two reasons. 

First, it would necessitate judgment 

calls on whether the employer is likely 

to consent to the required modifications. 

Second, the Department’s electronic 

filing system is designed to prevent 

submission of obviously deficient, 

incomplete applications, which should 

reduce the need for the CO to issue 

nonsubstantive NODs.104

The NPRM also proposed adding 

language to § 655.141(b)(3) to clarify 

that the employer may submit a 

modified job order in response to a 

NOD. This proposal conforms paragraph 

(b)(3) with other paragraphs in 

§ 655.141, which allow the CO to issue 

a NOD for job order deficiencies and 

provide the employer an opportunity to 

submit a modified job order to cure 

these deficiencies. A commenter 

suggested that where the CO is unable 

to make a determination at least 30 days 

before an employer’s date of need, 

paragraph (b)(3) should include 

language requiring the Department to 

notify the employer or agent of the 

reason. However, this comment is 

beyond the scope of the Department’s 

proposal and cannot be implemented 

through this rulemaking. Because no 

commenter raised issues with the 

proposed language in paragraph (b)(3), 

the Department adopts this paragraph 

without change. 

Lastly, the NPRM proposed to remove 

language in § 655.141(b)(5) that purports 

to prohibit the employer from appealing 

the denial of a modified application.105

This clarification aligns § 655.141 with 

§ 655.142(c), which permits the appeal 

from a denial of a modified application. 

The Department received two 

comments, both supporting the 

proposal. This final rule therefore 

adopts paragraph (b)(5) as proposed. 

3. Section 655.142, Submission of 

Modified Applications 

The NPRM proposed to amend this 

section to clarify the standards and 

procedures that govern the employer’s 

submission of a modified Application 

for Temporary Employment 

Certification or job order. The 

Department received one comment on 

this provision; after reviewing this 

comment, the Department has decided 

not to make any changes to the 

regulatory text. Therefore, as discussed 

below, this provision remains 

unchanged from the NPRM. 

The provisions in this section govern 

the employer’s response to a NOD 

issued pursuant to § 655.141. The 

Department proposed revisions to 

paragraph (a) to clarify that an employer 

may submit a modified job order in 

response to a NOD, not only a modified 

Application for Temporary Employment 

Certification. This change conforms this 

section to the provisions at § 655.141 

that permit the CO to issue a NOD for 

Application for Temporary Employment 

Certification and/or job order 

deficiencies. In addition, the 

Department proposed to revise 

paragraph (a) to explicitly authorize the 

CO to issue multiple NODs, if necessary, 

to provide the CO with additional 

flexibility to resolve deficiencies that 

would otherwise prevent acceptance of 

an Application for Temporary 

Employment Certification and job 

order.106 For example, this may be 

necessary if the CO discovers a 

deficiency while reviewing submissions 

by the employer, such as an employer’s 

response to a NOD that raises other 

issues that require the CO to request 

additional modifications. 

In paragraph (b), the Department 

proposed clarifying revisions to explain 

the circumstances under which the CO 

will deny an Application for Temporary 

Employment Certification after 

reviewing an employer’s NOD 

response(s). If the modified Application 

for Temporary Employment 

Certification or job order does not cure 

the deficiencies the CO identified or 

otherwise fails to satisfy the criteria 

required for certification, the CO will 

issue a denial following the procedure 

outlined in § 655.164. 

Otherwise, the Department retained 

without change the provisions in 

paragraph (a) that allowed the CO to 

postpone issuing a final determination 

for 1 calendar day (up to a maximum of 

5 calendar days) for each day an 

employer fails to submit a timely 

response to a NOD and, if the employer 

fails to submit a response within 12 

calendar days after the NOD was issued, 

to deem the Application for Temporary 

Employment Certification abandoned. 

The Department also retained without 

change the provisions in paragraph (c) 

describing the opportunity to appeal the 

CO’s denial of a modified Application 

for Temporary Employment 

Certification. 

The Department did not receive 

comments opposed to the proposed 

changes in this section. One trade 

association expressed support for the 

changes, stating that they would reduce 

the burden on employers to resolve 

problems with the job order and would 

expedite application processing once 

problems are resolved. Therefore, the 

Department has adopted § 655.142 as 

proposed, without change. 

4. Section 655.143, Notice of 

Acceptance 

The NPRM proposed to amend this 

section to clarify current policy and 

ensure the NOA content requirements 

and timeline for issuance conforms to 


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other changed proposed in the NPRM, 

such as labor supply State 

determinations and requiring the CO to 

transmit the job order to the SWAs for 

interstate circulation. The Department 

received some comments on the changes 

proposed to this provision. As discussed 

below, in this final rule, the Department 

has made additional revisions to further 

clarify the NOA content requirements 

and conform this section both to 

regulatory changes adopted in the 2019 

H–2A Recruitment Final Rule and the 

Department’s decision not to adopt the 

pre-filing positive recruitment options 

proposed at § 655.123. 

The Department proposed no 

substantive changes to the notification 

timeline in paragraph (a). The proposed 

regulatory language included a technical 

revision to remove ‘‘are complete and’’ 

for clarity and to conform the language 

with the Department’s proposal in 

paragraph (b) to codify the current 

practice under which the CO issues a 

NOA when an Application for 

Temporary Employment Certification 

and job order is complete and compliant 

for recruitment purposes, even though 

requirements for certification that are 

unrelated to recruitment (e.g., final 

housing approval) may not have been 

completed yet. In addition, the 

Department proposed to revise the list 

of NOA content requirements to 

conform to other proposed changes in 

the NPRM. After considering comments 

on the Department’s proposals, and to 

conform this section to changes made 

through the 2019 H–2A Recruitment 

Final Rule, the Department has retained 

paragraph (a) without change but further 

revised paragraph (b) of this section, as 

discussed below. 

To avoid making unnecessary changes 

from the 2010 H–2A Final Rule, the 

Department has further reorganized the 

content of paragraph (b). Paragraphs 

(b)(1) through (3) now correspond to 

topics addressed in those paragraphs in 

the 2010 H–2A Final Rule: paragraph 

(b)(1) addresses interstate clearance of 

the job order, with revisions to conform 

with the NPC’s electronic transmission 

of the job order to the SWAs; paragraph 

(b)(2) addresses the employer’s positive 

recruitment and recruitment report 

obligations, with revisions to conform 

with the Department’s decisions 

discussed in §§ 655.123 and 655.154 of 

this preamble (i.e., not to adopt the 

proposed optional positive pre-filing 

recruitment provision and to require the 

NOA to provide instructions to the 

employer regarding additional positive 

recruitment requirements, if any, and 

related documentation retention 

requirements) and changes 

implemented through the 2019 H–2A 

Recruitment Final Rule; and paragraph 

(b)(3) addresses the positive recruitment 

period, with a proposed technical 

revision to cite to § 655.158 rather than 

repeat its content. In addition, the 

Department has redesignated the 

remaining paragraphs listed under 

paragraph (b). Paragraph (b)(4), which 

appeared as paragraph (b)(3) in the 

NPRM, requires the NOA to list 

outstanding documents and assurances 

required for certification. Paragraph 

(b)(5), which appeared as proposed 

paragraph (b)(4) in the NPRM, requires 

the NOA to notify the employer of the 

timeline for the CO’s final 

determination and adopts the proposed 

allowance for the CO to hold final 

determination inside the 30 days before 

the employer’s start date if the 

application is not certifiable by the 30- 

day mark but is expected to be certified 

before the employer’s first date of need. 

Finally, this final rule adds a new 

paragraph (b)(6) to accommodate a new 

provision added by the 2019 H–2A 

Recruitment Final Rule at paragraph 

(b)(5), effective October 21, 2019. Under 

paragraph (b)(6), the NOA will direct 

the SWA to provide written notice of 

the job opportunity to organizations that 

provide employment and training 

services to workers likely to apply for 

the job and/or to place written notice of 

the job opportunity in other physical 

locations where such workers are likely 

to gather, when appropriate to the job 

opportunity and AIE. 

A workers’ rights advocacy 

organization expressed concern about 

the CO issuing a NOA where the 

employer’s application is complete and 

compliant for recruitment purposes but 

the employer has not submitted all 

documentation required for 

certification. The Department believes 

the commenter may have 

misunderstood the provision and 

thought the CO’s issuance of a NOA in 

such circumstances would result in a 

temporary agricultural labor 

certification despite the employer’s 

failure to submit all required 

documentation. In fact, what was 

proposed is effectively how the current 

process works. The CO’s issuance of a 

NOA does not guarantee the employer 

will receive labor certification and does 

not absolve the employer of any 

recruitment requirements or 

documentation requirements in these 

cases. However, issuance of a NOA 

allows positive recruitment of U.S. 

workers to begin as early as possible— 

as soon as the application is complete 

and compliant for recruitment purposes. 

For example, positive recruitment may 

begin while the employer is making a 

housing repair the SWA identified 

during inspection. The employer can 

only receive certification after it has 

submitted all documentation and 

assurances necessary for certification, 

including the SWA’s housing 

certification. Therefore, in this final 

rule, paragraph (b)(4) allows the CO to 

issue a NOA listing any documentation 

or assurances that the CO has not yet 

received and without which 

certification will not be issued. 

An employer and a trade association 

generally supported the Department’s 

proposal to include an allowance for the 

CO not to issue a final determination 30 

days before the employer’s first date of 

need under one additional 

circumstance—when an Application for 

Temporary Employment Certification 

does not meet the requirements for 

certification on the 30th day before the 

first date of need but is expected to meet 

such requirements before the first date 

of need. The commenters asked the 

Department to clearly indicate this 

exception is limited to circumstances 

where CO must place a hold on an 

application that otherwise would be 

denied in order to afford the employer 

additional time to satisfy certification 

requirements. The Department 

appreciates the comment, which reflects 

the Department’s intent as discussed in 

the NPRM, but does not believe it is 

necessary to revise this section further. 

The proposed language, which is 

adopted in this final rule at paragraph 

(b)(5), clearly limits the CO’s authority 

to issue a Final Determination within 30 

days of an employer’s first date of need 

to the two scenarios specified: an 

employer’s untimely modification under 

§ 655.142 and when the CO holds an 

application that cannot be certified at 

the 30-day mark but is expected to be 

certifiable before the employer’s first 

date of need. 

5. Section 655.144, Electronic Job 

Registry 

The NPRM proposed minor 

amendments to this section to ensure 

the standards and procedures for 

posting the approved job order on the 

electronic job registry conforms with 

other changes proposed in the NPRM 

and is consistent with the Department’s 

current practices. The Department 

received a few comments on this 

provision; after reviewing these 

comments, the Department has decided 

not to make any substantive changes to 

the regulatory text proposed in the 

NPRM. Therefore, as discussed below, 

the Department is adopting this 

provision as proposed in the NPRM. 

In paragraph (a), the Department is 

deleting an obsolete sentence that stated 

job orders would be posted on the 


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electronic job registry after the 

Department initiated operation of the 

electronic job registry; as the electronic 

job registry is now fully operational, this 

sentence is no longer necessary. The 

Department is making two minor 

revisions to paragraph (b). First, rather 

than retaining both a detailed 

description of the period during which 

a job order will be posted on the 

electronic job registry and a reference to 

the regulatory provision where the 

primary description of that recruitment 

period is found (§ 655.135(d)), the 

Department is retaining only the 

reference to § 655.135(d). This approach 

is consistent with other similar 

revisions to simplify the regulation as a 

whole. Second, the Department 

proposed to add the phrase ‘‘in active 

status’’ to clarify job orders must remain 

in active status on the electronic job 

registry until the end of the recruitment 

period set forth in § 655.135(d). As 

discussed in the preamble to the NPRM 

as well as in the preamble to the 2019 

H–2A Recruitment Final Rule, after the 

job order has served as an electronic 

recruitment tool on the electronic job 

registry during the recruitment period at 

§ 655.135(d), the job order’s status on 

the electronic job registry will change to 

‘‘inactive’’ so that the information on 

the job order will still be available for 

public research and access. See 84 FR 

36168, 36210; 2019 H–2A Recruitment 

Final Rule, 84 FR 49439, 49444. 

The Department received two 

comments on this section regarding the 

collection and public availability of 

information related to H–2A job 

opportunities. A State government 

agency suggested the Department 

leverage the electronic job registry to 

collect additional demographic 

information, including the work 

location of foreign workers and the 

concentration of certified applications 

and workers. A workers’ rights advocacy 

organization urged the Department to 

expand and enhance publicly available 

information for a variety of purposes, 

including increasing transparency and 

effective monitoring and enforcement. 

The commenter asked the Department to 

make all job and employer information, 

across all forms and in supporting 

documentation, publicly available and 

accessible, in particular, to potential 

workers and their advocates. The 

commenter expressed concern about the 

speed with which the Department 

would post job orders to the electronic 

job registry and potential difficulties 

with public access to older job orders, 

in particular, as the result of the 

Department’s transition between 

electronic systems. 

The Department agrees it is important 

to collect H–2A program information 

and make it available to the public, 

which it currently accomplishes 

through the Disclosure Data section of 

the OFLC website. The Department will 

continue to collect detailed program 

information, including information 

about work locations and certification 

statistics sortable by occupation, and 

publish this information on the OFLC 

website. In early 2020, the Department 

significantly expanded the scope of 

labor certification decision data 

available to the public through the 

Disclosure Data section of the OFLC 

website. However, the Department 

declines to collect additional 

demographic information beyond that 

already required for program purposes 

because the labor certification stage of 

the immigration process involves the 

prospective recruitment of unnamed 

U.S. or foreign workers by an employer 

for often large numbers of job vacancies. 

Further, the intended use of the 

information published on the 

Department’s electronic job registry 

differs from the intended use of OFLC’s 

Disclosure Data. The electronic job 

registry is a recruitment tool designed 

for broad dissemination of available 

temporary or seasonal job opportunities 

to U.S. workers. As such, the electronic 

job registry provides information for job 

seekers, including work locations, 

duties to be performed, qualifications 

required, and dates of employment. 

As of December 27, 2019, the 

Department has transitioned the 

electronic job registry to a new webbased platform, SeasonalJobs.dol.gov. 

SeasonalJobs.dol.gov is a mobilefriendly online portal that leverages the 

latest technologies to automate the 

electronic advertising of H–2A job 

opportunities and ensures copies of H– 

2A job orders are promptly available for 

public examination. The portal is 

designed to help U.S. workers identify 

and apply for open seasonal and 

temporary job opportunities using 

robust and personalized search 

capabilities. In addition, the portal 

makes it easier to integrate employment 

postings with third-party job search 

websites to make the posted job order 

information more accessible to job 

seekers. As a publicly available 

resource, any interested party may 

search and review posted job 

opportunities. 

6. Section 655.145, Amendments to 

Applications for Temporary Labor 

Certification 

The NPRM proposed minor 

amendments to this section that 

contains the standards and procedures 

by which an employer may submit a 

written request to the CO to amend its 

Application for Temporary Employment 

Certification in order to increase the 

number of workers or make minor 

changes to the period of employment. 

Specifically, paragraph (b) contained 

technical corrections to replace 

references to the terms ‘‘job site’’ or 

‘‘place of work’’ with the proposed term 

‘‘place of employment’’ as defined 

under proposed revisions to § 655.103. 

The Department received a few 

comments on this provision, none of 

which necessitated changes to the 

regulatory text. Therefore, as discussed 

below, this provision remains 

unchanged from the NPRM. 

The Department received a few 

comments that presented situations in 

which an employer might want to 

correct typographical errors or make 

other changes to its application to 

respond to changes in market conditions 

after submission. As discussed in the 

preamble for § 655.121(e)(2), allowing 

applicants to request corrections to 

applications without restrictions would 

run counter to the Department’s efforts 

to modernize the temporary agricultural 

labor certification process. The 2010 H– 

2A Final Rule at § 655.145, to which 

changes have not been proposed, allows 

an applicant to request amendments to 

increase the number of workers or to 

make minor changes to the period of 

employment, which could be due to 

changes in market conditions or for 

other reasons. In addition, an employer 

may request modifications to its job 

order under § 655.121(e)(2) before 

submitting its Application for 

Temporary Employment Certification. 

Should an employer want to make 

changes to its application other than 

those permitted under these amendment 

provisions, the employer will need to 

file a new Application for Temporary 

Employment Certification to 

accommodate the changes needed. 

Depending on the circumstances, the 

new application may qualify as an 

emergency situation filing under 

§ 655.134, which allows for waiver of 

the normal filing timeframe 

requirements for reasons including 

‘‘good and substantial cause (which may 

include unforeseen changes in market 

conditions).’’ 

As for typographical errors, the 

Department reminds applicants to 

thoroughly review each application 

prior to submission, as they alone are 

responsible for ensuring an application 

is complete and accurate at the time of 

submission; the CO is not responsible 

for correcting an employer’s 

typographical errors. While some 

typographical errors may not impact the 


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CO’s final determination, if a 

typographical error creates a substantive 

issue that is apparent to the CO (e.g., an 

offered wage that is lower than 

required), the CO will issue a NOD 

requiring the employer to modify the 

application to address the deficiency. In 

situations where a typographical error 

mischaracterizes or misrepresents the 

job opportunity available in a way that 

does not create a regulatory deficiency 

that would trigger a NOD and the 

deficiency cannot be corrected during 

processing, the employer would be 

required to file a new Application for 

Temporary Employment Certification to 

accurately reflect the job opportunity for 

which it requests temporary labor 

certification to employ H–2A workers. 

E. Post-Acceptance Requirements 

1. Section 655.150, Interstate Clearance 

of Job Order 

The Department proposed to retain 

this section authorizing the interstate 

clearance of an employer’s approved job 

order with three minor amendments to 

conform with changes proposed to other 

provisions in the NPRM. After 

considering the comments it received in 

connection with this provision, the 

Department has adopted as final the 

proposed revised § 655.150 with one 

technical amendment, which is 

discussed below. Related comments, 

such as those regarding the NPC’s role 

in transmitting job orders to SWAs and 

electronic transmission of those job 

orders, are addressed in the preamble 

discussion of § 655.121. Similarly, 

comments regarding the Department’s 

proposal to revise the recruitment 

period at § 655.135(d) are addressed in 

the preamble discussion of § 655.135(d), 

and comments regarding the 

Department’s proposed process through 

which the OFLC Administrator will 

designate labor supply States or 

suggested additional changes to positive 

recruitment obligations are discussed in 

the preamble to § 655.154. 

As established under the 2010 H–2A 

Final Rule, after receiving the CO’s NOA 

under § 655.143, the SWA transmits the 

job order beyond the AIE and intrastate 

clearance, as directed in the NOA, at 

minimum, to all other States listed in 

the job order as anticipated worksites. 

Each SWA that receives the job order 

must keep the job order on its active file 

until the end of the recruitment period 

at § 655.135(d) and refer each qualified 

U.S. worker who applied during that 

period to the employer. 

In the NPRM, the Department first 

proposed that the NPC, rather than the 

SWA, would transmit the employer’s 

job order to each additional SWA under 

§ 655.150, consistent with the 

Department’s proposed revisions to 

§ 655.121. Second, the Department 

proposed to add language specifying 

that the NPC will transmit the approved 

job order to each State that the OFLC 

Administrator designates as labor 

supply State(s), if applicable, consistent 

with the Department’s proposal at 

§ 655.154(d). Finally, consistent with 

proposed revisions to other sections of 

the regulatory text, the Department 

proposed to simplify the language in 

paragraph § 655.150(b) by including a 

citation to the recruitment period at 

§ 655.135(d), rather than restating the 

language in the regulatory text under 

this paragraph. 

Two State government commenters 

suggested that the Department require 

employers to input job order 

information into SWAs’ online labor 

exchanges and/or other online 

recruitment tools, which they viewed as 

consistent with the Department’s 

adoption of electronic filing and 

sensitive to State resources and system 

investments. One of these commenters 

further asked the Department to clarify 

that employer identity information is 

not suppressed (i.e., withheld) in H–2A 

job orders, unlike non-H–2A job orders 

subject to § 653.501; the commenter 

thought such clarification would relieve 

SWAs of the task of manually entering 

that information in job order postings in 

the State labor exchange system. 

The Department is sensitive to SWA 

resource concerns, but the Department 

declines to impose a duplicative job 

order data entry requirement on 

employers. Such a requirement is 

inconsistent with the Department’s 

goals stated in the NPRM to eliminate 

redundancies, reduce or avoid 

duplication of burden on employers, 

and ensure a single point of entry for 

employers to access the H–2A program. 

Under this final rule, the employer will 

enter the job order information into the 

Department’s centralized electronic 

system, to which the SWAs have access 

and from which the SWAs can retrieve 

the entirety of the job order data— 

including employer identity 

information—for use in processing the 

job order and posting on their State 

labor exchange systems for intrastate 

clearance. To the extent these comments 

suggest the Department should require 

employers to conduct additional 

positive recruitment or post jobs 

electronically in SWA recruitment tools 

beyond the State labor exchange system, 

the Department respectfully declines to 

make any changes in response. The 

topic of employers’ electronic 

advertising obligations was addressed in 

the Department’s 2019 H–2A 

Recruitment Final Rule and is outside 

the scope of this rulemaking. As 

explained in the 2019 H–2A 

Recruitment Final Rule, the Department 

intended for the NPC’s posting of the job 

order in the Department’s enhanced 

electronic job registry system, as 

required under § 655.144, to facilitate 

broad electronic dissemination of the 

approved job opportunity. The 

electronic job registry system makes a 

standard set of job data available to 

third-party job search websites, which 

could include SWA online resources, 

allowing those job listing websites ‘‘to 

execute web-scraping protocols that 

extract new H–2A job opportunities 

from SeasonalJobs.dol.gov and index 

them for advertising to U.S. workers.’’ 

2019 H–2A Recruitment Final Rule, 84 

FR 49439, 49445. 

After consideration of these 

comments, the Department is adopting 

the proposed revisions to § 655.150, 

with one correction. The Department 

decided to revise paragraph (a) in this 

final rule to retain the phrase ‘‘at 

minimum’’ from the 2010 H–2A Final 

Rule’s paragraph (a). This phrase was 

inadvertently removed in the proposed 

paragraph. Reinserting this phrase is 

necessary to avoid an unintended and 

inappropriate gap in job order 

circulation. For example, a job 

opportunity may be located in an AIE 

that crosses State lines; however, all 

places of employment the employer 

listed are located in only one of the 

States in the AIE. To appropriately test 

the domestic labor market, the job order 

must be circulated to all SWAs with 

jurisdiction over the AIE, not only the 

one SWA with jurisdiction over the 

places of employment listed. Retaining 

‘‘at minimum’’ provides clarity and the 

necessary flexibility for the NPC and 

SWAs to ensure appropriate recruitment 

through the labor exchange system and 

does so without added burden to the 

employer. As a result, under this final 

rule, ‘‘at minimum,’’ the CO will 

transmit the job order for interstate 

clearance to the SWA in each State 

listed in the job order as an anticipated 

place of employment and the SWA in 

each State designated by the OFLC 

Administrator as a State of traditional or 

expected labor supply for job 

opportunity under § 655.154(d). 

2. Section 655.153, Contact With Former 

U.S. Workers 

The NPRM proposed minor 

amendments to this section containing 

the standards and procedures by which 

employers contact U.S. workers they 

employed in the occupation at the place 

of employment during the previous year 

to solicit their return to the job. See 


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107Under § 655.122(n), a worker’s abandonment 

of employment or termination for cause relieves an 

employer of responsibility for subsequent 

transportation and subsistence costs and the 

obligation to meet the three-fourths guarantee for 

that worker, and, in the case of a U.S. worker, to 

contact that worker under § 655.153, if the 

employer provides notice to the ETA NPC of the 

abandonment or termination. In the case of an H– 

2A worker, notification to DHS is also required 

pursuant to 8 CFR 214.2(h)(5)(vi)(B)(1). 

108See Notice, Information about the DOL 

Notification Process for Worker Abandonment, or 

Termination for Cause for H–2A Temporary 

Agricultural Labor Certifications, 76 FR 21041 (Apr. 

14, 2011). 

2010 H–2A Final Rule, 75 FR 6884, 

6929. This obligation aims to ensure 

that these U.S. workers, who likely have 

an interest in these job opportunities, 

receive notice of the job opportunities. 

The obligation also aims to prevent the 

employer from effectively displacing 

qualified and available U.S. workers by 

seeking H–2A workers. An employer, 

however, need not contact those U.S. 

workers it dismissed for cause or those 

who abandoned the worksite. The 

Department received some comments on 

this provision, none of which 

necessitated substantive changes to the 

regulatory text from the NPRM. 

Therefore, this final rule retains this 

section from the NPRM without change. 

Section 655.153 requires an employer 

to contact, by mail or other effective 

means (e.g., phone or email), U.S. 

workers it employed in the occupation 

at the place of employment during the 

previous year to solicit their return to 

the job. See 2010 H–2A Final Rule, 75 

FR 6884, 6929. This obligation aims to 

ensure that these U.S. workers, who 

likely have an interest in these job 

opportunities, receive notice of the job 

opportunities. It additionally aims to 

prevent the employer from effectively 

displacing qualified and available U.S. 

workers by seeking H–2A workers. An 

employer, however, need not contact 

those U.S. workers it dismissed for 

cause or those who abandoned the 

worksite. 

The Department proposed in the 

NPRM to add language to § 655.153 

requiring an employer to provide the 

notice described in § 655.122(n) 107 to 

the NPC with respect to a U.S. worker 

who abandoned employment or was 

terminated for cause in the previous 

year. The proposal also required an 

employer to provide the notice in a 

manner consistent with the NPC 

Federal Register notice issued under 

§ 655.122(n).108 The Department 

intended the proposal to ensure that 

there would be virtually 

contemporaneous documentation to 

support an employer asserting that a 

U.S. worker abandoned employment or 

that it terminated the U.S. worker for 

cause. Under the proposal, the employer 

would have to contact former U.S. 

workers who abandoned employment or 

were terminated for cause if, while 

subject to H–2A program requirements, 

it failed to provide notice in the 

required manner. 

The Department may not certify an 

application unless the prospective 

employer has engaged in positive 

recruitment efforts of able, willing, and 

qualified U.S. workers available to 

perform the work. See 8 U.S.C. 

1188(b)(4). The prospective employer’s 

positive recruitment obligation is 

distinct from, and in addition to, its 

obligation to circulate the job through 

the SWA system. Id. E.O. 13788 requires 

the Department, consistent with 

applicable law, to protect the economic 

interests of U.S. workers. See 82 FR 

18837 (Apr. 21, 2017), secs. 2(b) and 5. 

The requirement to notify the 

Department of abandonment and 

termination for cause protects the 

interests of able, willing, and qualified 

U.S. workers who might be available to 

perform the agricultural work, 

consistent with the INA. In addition, the 

notice could assist growers in the event 

U.S. workers who have abandoned 

employment or been terminated for 

cause later assert the employer failed to 

contact them as required by § 655.153. 

As the Department provided in the 

NPRM, the notice obligation should not 

increase the existing regulatory burden. 

Section 655.122(n) currently permits an 

employer to avoid the responsibility to 

satisfy the three-fourths guarantee as 

well as its return transportation and 

subsistence payment obligations when a 

U.S. worker voluntarily abandons 

employment or the employer terminates 

the worker for cause if the employer 

notifies the NPC not later than 2 

working days after the abandonment or 

termination. Employers already have a 

strong financial incentive to submit this 

notice to avoid responsibility for the 

three-fourths guarantee and return 

transportation and subsistence costs. 

The requirement to submit the notice to 

avoid § 655.153’s contact obligation is 

thus unlikely to change the current 

regulatory burden on employers. 

As noted above, § 655.153 currently 

permits employers to contact U.S. 

workers by mail or other effective 

means. In the NPRM, the Department 

reaffirmed that phone and email contact 

continue to be effective means to 

contact U.S. workers. The Department 

received no comments that suggested 

that permitting employers to contact 

U.S. workers by phone or email would 

be inconsistent with program 

requirements or undermine the interests 

of U.S. workers. Thus, the Department 

again reaffirms that contact by phone or 

email is permissible. 

In the NPRM, the Department 

observed that employers that are new to 

the program have employed U.S. 

workers in the occupation at the place 

of employment during the previous 

year. Further, there may be instances in 

which a regular user of the H–2A 

program might employ U.S. workers in 

the pertinent occupation at the place of 

employment to provide agricultural 

services and use the H–2A program 

again in the succeeding year. 

The NPRM clarified that in each of 

these instances, § 655.153 requires these 

employers to contact the U.S. workers 

employed in the previous year. This 

obligation applies to entities that 

employed U.S. workers in the previous 

year under the common law definition 

of employer incorporated in 

§ 655.103(b). The NPRM included the 

following example to demonstrate an 

instance in which a grower that 

employed U.S. workers under the 

common law in the previous year would 

assume an obligation to contact those 

U.S. workers under § 655.153 in the 

current year. Assume a grower used 

FLCs to provide U.S. workers during the 

previous year and then applied to 

employ H–2A workers in the following 

year. If the grower employed the U.S. 

workers under the common law of 

agency as a joint employer with a FLC 

in the previous year, then § 655.153 

would require the employer to contact 

those U.S. workers in the following 

year. 

The Department received numerous 

comments concerning this clarification, 

particularly related to a possible 

employer’s obligation to contact workers 

that an H–2ALC or FLC employed in the 

previous year. Multiple institutional 

commenters, as well as individual 

commenters, opposed the application of 

§ 655.153’s contact obligation to U.S. 

workers an H–2ALC or FLC employed 

in the previous year. It appears, 

however, that these commenters 

misunderstood the scope of the 

Department’s clarification. These 

commenters thought the clarification 

included an obligation to contact the 

U.S. workers who an H–2ALC or FLC 

employed at a grower’s worksite in the 

previous year even when the grower did 

not (jointly) employ such U.S. workers 

under the common law definition of 

employer. The Department hereby 

reaffirms, consistent with the language 

of the existing regulation and the 

preamble in the NPRM, that its proposal 

in the NPRM did not require U.S. 

worker contact when the grower had no 

employment relationship under the 

common law definition of employer 


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109See Scalia v. Munger Bros., Case No. 2:19–cv– 

02320 (E.D.CA. Nov. 19, 2019) (Consent Judgment 

and Order in which Defendants agreed to ‘‘contact 

and offer employment to all U.S. workers that 

worked for Defendants the previous year, including 

those hired through FLCs’’). 

with the U.S. worker in the previous 

year. Thus, if the H–2ALC or FLC with 

whom the grower contracted in the 

previous year was the only employer of 

the U.S. workers that worked at the 

grower’s farm, the grower has no contact 

obligation under § 655.153 in the 

subsequent year. The Department’s 

proposal merely clarified that when the 

grower jointly employed the U.S. 

workers in the previous year, it must 

contact those U.S. workers it jointly 

employed. 

These commenters also contended 

that the contracts between growers and 

H–2ALCs/FLCs regularly contain 

provisions prohibiting growers from 

‘‘poaching’’ the labor contractors’ 

workers. They accordingly submitted 

that the clarification will disrupt the 

parties’ contractual relations. One 

commenter submitted that farmers ‘‘will 

increasingly be unable to find FLCs 

willing to work for them because the 

[FLC] will want to avoid having his 

workers poached by his clients,’’ and 

that growers will not use labor 

contractors because ‘‘they will be 

concerned about breach of contract 

liability resulting from their required 

attempts to poach the [FLCs’] 

employees.’’ Another commenter 

remarked that the proposed requirement 

should be clarified such that contact 

with former workers must only occur in 

situations when a written agreement 

exists between a farmer and a contractor 

that specifies joint employment status, 

to avoid the perception of ‘‘poaching.’’ 

A few commenters that opposed the 

clarification appear to evince a clearer 

understanding that its scope only 

includes growers that employed U.S. 

workers in the previous year. A joint 

comment contended that the 

clarification ‘‘appears to be the first 

instance’’ in which the Department is 

applying § 655.153 to workers employed 

by labor contractors. The commenters 

interpreted the provision to apply only 

to ‘‘former [workers]’’ and not to ‘‘joint 

[workers employed by] the H–2A 

applicant and [FLCs]. If the Agency 

intended for joint employees to be 

contacted, it would have included 

specific language identifying joint 

[workers] within the regulation’’ 

(emphasis in original). Another 

comment provided that § 655.153 does 

not reference workers employed jointly 

by a grower and FLC, adding that the 

clarification would ‘‘require applicants 

to do more than is required by statute 

and regulations.’’ 

Similar to the other commenters, the 

joint comment also explained that the 

proposal would seriously disrupt the 

relationship between growers and FLCs, 

particularly the requirement that 

growers seek, in the joint comment’s 

words, to ‘‘steal’’ labor contractors’ 

workers. 

Finally, one commenter reiterated the 

concerns of the commenters described 

above, adding that application of the 

proposal is likely to result in labor 

contractors relying more frequently on 

H–2A workers rather than U.S. workers. 

The commenter also proposed ‘‘at a 

minimum’’ that the regulatory language 

be ‘‘revise[d] . . . to state explicitly that 

the obligation to contact former 

employees only extends to the 

employer’s own employees, not the 

employees of an FLC utilized by the 

employer, unless the FLC operates as a 

joint employer with the employer.’’ 

This commenter’s description 

captures precisely what the Department 

proposed in the NPRM. An employer’s 

obligation to contact U.S. workers 

employed in the previous year extends 

solely to U.S. workers the employer 

itself employed in the previous year. 

Thus, if the employer jointly employed 

the U.S. workers on its farm in the same 

occupation with an FLC in the previous 

year, then § 655.153, as currently 

written, requires the employer to 

contact the U.S workers. However, the 

contact obligation does not apply to U.S. 

workers an FLC alone employed in the 

previous year, using the common law 

definition of employer, even if the FLC 

employed the U.S. workers to perform 

services on the grower’s farm. The 

Department does not believe, as a 

commenter has suggested, that it is 

necessary to add language to § 655.153 

specifying that an employer must 

contact U.S. workers it jointly employed 

in the previous year. An entity that 

jointly employs workers is the 

‘‘employer’’ of such workers. The 

current language of § 655.153 

accordingly compels an H–2A employer 

that jointly employed U.S. workers in 

the occupation at the place of 

employment in the previous year to 

contact such workers. 

The Department is therefore not 

adopting the broader request of some 

commenters to exempt entirely an 

employer from § 655.153’s contact 

obligation when the employer jointly 

employed the pertinent U.S. workers 

with an FLC/H–2ALC in the previous 

year. Adoption of the commenters’ 

request would be inconsistent with the 

current language of § 655.153, which 

ensures that a prospective H–2A 

employer must contact all U.S. workers 

it employed in the job in the previous 

year before hiring H–2A workers to 

perform such work in the current year. 

Requiring employers to contact their 

own U.S. workers effectuates the 

statutory obligation of prospective H–2A 

employers to engage in ‘‘positive 

recruitment efforts’’ for qualified U.S. 

workers (8 U.S.C. 1188(b)(4)), provides 

job opportunities to specific U.S. 

workers who have recently performed 

the job at the pertinent location for the 

employer, and helps fulfill the 

Department’s obligation to certify an 

application only when there are not 

sufficient qualified workers to perform 

the agricultural work. See 8 U.S.C. 

1188(a)(1)(A). 

As mentioned above, multiple 

commenters objected to the proposal 

based on the potential for interference 

with the contractual obligation growers 

have historically assumed to refrain 

from hiring workers employed by their 

FLCs/H–2ALCs. However, as noted 

below, this is not a new requirement 

and the Department’s prior enforcement 

has not resulted in the kinds of 

problems envisioned by the 

commenters. This is likely because, as 

previously stated, the Department’s 

clarification does not require 

prospective H–2A employers to contact 

workers the employers did not employ 

in the previous year. Moreover, 

Congress clearly intended to ensure 

prospective employers recruit qualified, 

available U.S workers to perform the 

work prior to the employment of H–2A 

workers. This clarification helps to 

fulfill that intent. 

The commenters that suggested that 

this is the first time the Department is 

seeking to hold a grower responsible to 

contact U.S. workers it jointly employed 

in the previous year with a labor 

contractor are incorrect. The 

Department has pursued this approach 

successfully in Federal litigation.109

As the Department noted in the 

NPRM, in the event that the grower has 

not kept payroll records for such U.S. 

workers, the regulations implementing 

MSPA require FLCs to furnish the 

grower with a copy of all payroll 

records, including the workers’ names 

and permanent addresses. Growers must 

maintain these records for 3 years. See 

29 CFR 500.80(a) and (c). These records 

should provide the employer with 

contact information for the pertinent 

U.S. workers. 

The Department noted in the NPRM 

that it would not require employers that 

did not participate in the H–2A program 

in the previous year to provide the NPC 

the notice described in § 655.122(n) (in 

order to avoid the obligation to contact 

U.S. workers the employer terminated 


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for cause in the previous year or who 

abandoned the employment in the 

previous year). The Department 

received no comments warranting the 

reversal of this position. The 

Department accordingly adopts it. 

Another commenter suggested that 

the threshold for determining 

abandonment based on failure to report 

should be a ‘‘more reasonable’’ 3 days, 

not the ‘‘excessive’’ 5 days proposed, 

because 3 days is ‘‘a standard in the 

agricultural industry’’ and a longer 

period without a replacement worker 

could put perishable commodities at 

risk. The Department, however, did not 

propose and thus declines to make any 

change to its longstanding standard for 

determining whether a worker has 

abandoned employment. 

Finally, the proposed rule clarified 

that the employer’s contact with former 

U.S. workers must occur during the 

positive recruitment period (i.e., while 

the employer’s job order is circulating 

with the SWAs in the interstate 

clearance system and terminating on the 

date workers depart for the place of 

employment, as determined under 

§ 655.158) by including a reference to 

§ 655.158. The Department received no 

comments warranting the reversal of 

this proposal. The Department 

accordingly adopts it. 

3. Section 655.154, Additional Positive 

Recruitment 

In the NPRM, the Department 

proposed amendments to this section to 

clarify the standards and procedures by 

which the Department identifies States 

of traditional or expected labor supply 

for recruiting U.S. workers. The 

Department received some comments on 

this section, a few of which necessitated 

additional revisions in this final rule to 

clearly describe the traditional or 

expected labor supply State 

determination process and the 

recruitment required, both on the 

employer’s behalf and through employer 

action, as well as a minor change to 

paragraph (a), consistent with changes 

to recruitment methods in the 2019 H– 

2A Recruitment Final Rule that 

impacted this section. These revisions 

are discussed below. 

The INA requires employers to engage 

in positive recruitment of U.S. workers 

within a multi-State region of traditional 

or expected labor supply where 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. See 

8 U.S.C. 1188(b)(4). The Department 

satisfies this statutory requirement and 

the broader statutory obligation 

regarding U.S. worker availability 

through a combination of recruitment 

activities, including posting the job 

opportunity on an electronic job registry 

(§ 655.144), interstate clearance of the 

job order through the SWAs (§ 655.150), 

employer contact with former U.S. 

workers (§ 655.153), and additional 

positive recruitment (§ 655.154). The 

additional positive recruitment required 

of the employer under § 655.154 is 

discrete from, but occurs concurrently 

with, the multi-State recruitment the 

Department and SWAs conduct on 

behalf of the employer (i.e., electronic 

recruitment under § 655.144 and 

interstate employment service system 

recruitment under § 655.150). 

At the NPRM stage of this rulemaking, 

the Department was separately engaged 

in rulemaking that sought to modernize 

positive recruitment requirements, 

which culminated in the 2019 H–2A 

Recruitment Final Rule that became 

effective after the NPRM was published. 

That rulemaking addressed an 

employer’s statutory requirement to 

engage in positive recruitment of U.S. 

workers, generally, and resulted in the 

rescission of §§ 655.151 and 655.152, 

which involved print newspaper 

advertisements, and the enhancement of 

the Department’s electronic job registry 

and related electronic recruitment on 

the employer’s behalf. As explained in 

the 2019 H–2A Recruitment Final Rule, 

the Department determined that 

advertisement of the employer’s job 

opportunity through the Department’s 

electronic job registry under § 655.144 

will be sufficient, in most cases, to 

satisfy the employer’s multi-State 

recruitment obligations under § 655.154. 

However, in that rulemaking, the 

Department did not revise the 

additional positive recruitment 

obligations provision at § 655.154 or 

propose to codify the underlying 

process for designating labor supply 

States where the job order must be 

circulated and, within designated labor 

supply States, areas in which additional 

employer-conducted positive 

recruitment would be appropriate for 

the CO to order, as a means of reaching 

qualified U.S. workers who would make 

themselves available for job 

opportunities like the employer’s. 

The NPRM proposed amendments to 

this section to clarify the standards and 

procedures by which the Department 

identifies States of traditional or 

expected labor supply for recruiting 

U.S. workers. By proposing to add a 

new paragraph (d), the Department 

sought to provide more public 

transparency in the process for 

designating traditional or expected labor 

supply States and for determining 

whether and what additional positive 

recruitment should be required in those 

States as a condition of granting 

temporary agricultural labor 

certification. Specifically, the 

Department proposed to shift the 

responsibility for designating traditional 

or expected labor supply States and 

determining the particular methods of 

positive recruitment required within 

those States, if any, from the CO to the 

OFLC Administrator. Further, the OFLC 

Administrator would base traditional or 

expected labor supply State 

determinations primarily on 

information received from SWAs within 

the preceding 120 days and provide 

public notice by posting the 

determinations annually on OFLC’s 

public website. In addition to providing 

more public transparency, advance 

notice of labor supply State designations 

provides greater predictability for 

employers in advance of receiving 

instructions from the CO in the NOA. 

Given both the 2019 H–2A 

Recruitment Final Rule’s changes to 

positive recruitment requirements and 

the Department’s consideration of 

comments submitted in response to the 

NPRM, the Department has further 

revised § 655.154 in this final rule to 

clearly describe the traditional or 

expected labor supply State 

determination process and the 

recruitment required—both on the 

employer’s behalf and through employer 

action—to ensure an adequate test of the 

domestic labor market for the job 

opportunity. For example, the 

Department removed redundant 

language in paragraph (a) that described 

the nature of traditional or expected 

labor supply States and added a 

reference in that paragraph to the labor 

supply State determination process 

provision at paragraph (d). The resulting 

language clarifies that an employer’s 

positive recruitment obligations under 

§ 655.154 will be satisfied, in most 

cases, through the Department’s broad 

dissemination of job information 

through the Department’s electronic job 

registry. In addition, the Department 

revised paragraphs (c) and (d) to clarify 

the information included in the labor 

supply State determination that the 

OFLC Administrator will post on 

OFLC’s website and its use. The 

Department has considered whether 

OFLC Administrator’s annual 

determination should provide advance, 

public notice of additional positive 

recruitment requirements on OFLC’s 

website, including instructions on the 

precise nature of the additional 

recruitment, in order to accommodate 

employers that chose to begin 


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recruitment prior to receiving the NOA 

under proposed § 655.123. After careful 

consideration, this final rule provides 

that the OFLC Administrator’s annual 

determination under revised paragraph 

(d) identifies both designated labor 

supply State(s) where the job order must 

be transmitted under § 655.150(a) for 

interstate clearance and area(s) of labor 

supply within a designated State, if any, 

where an employer may be required to 

conduct additional positive recruitment 

to reach qualified U.S. workers who 

would make themselves available for 

the job opportunity. Consistent with the 

Department’s decision not to adopt the 

proposed optional pre-filing recruitment 

provision, this final rule does not 

require the Administrator’s annual 

determination to specify the precise 

nature of additional positive 

recruitment and the documentation or 

other supporting evidence that must be 

maintained by the employer. Instead, 

revised paragraph (c) of this final rule 

clarifies that the employer will receive 

instructions in the CO’s NOA regarding 

any additional positive recruitment 

requirements applicable to its job 

opportunity, which conforms with 

revisions at § 655.143(b)(2) and is 

consistent with the process in the 2010 

H–2A Final Rule. 

Several commenters supported the 

proposal as a means of enhancing the 

transparency and consistency of 

traditional or expected labor supply 

State determinations. Other commenters 

expressed concern regarding particular 

aspects of the proposal, as discussed 

below. One commenter urged the 

Department to eliminate the traditional 

or expected labor supply State 

designation process and related 

recruitment requirements entirely or use 

the State determination approach in the 

2008 H–2A Final Rule. The Department 

appreciates the comments but is unable 

to eliminate a requirement that is 

mandated by statute. Regarding the 

comment to adopt the determination 

approach in the 2008 H–2A Final Rule, 

the commenter did not fully explain 

their understanding of that labor supply 

State designation process and the 

reasoning for re-instituting those 

recruitment requirements; however, in 

the preamble to the 2008 H–2A Final 

Rule, the Department discussed 

requiring affirmative employer action in 

labor supply States only where the 

Department had made a factual 

determination that information it 

received justified a particular type of 

additional recruitment in a particular 

area. See 2008 H–2A Final Rule, 73 FR 

77110, 77132. The Department believes 

the commenter’s suggestion is addressed 

in this final rule, which requires 

affirmative action by the employer only 

where the OFLC Administrator 

identifies a particular area within a 

State based on specific, credible 

information about the availability of 

qualified U.S. workers and appropriate 

means of recruiting those workers. In 

addition, as discussed in the 2019 H–2A 

Recruitment Final Rule, ‘‘[§ ] 655.154 

does not afford the CO unlimited 

discretion; rather, it authorizes the CO 

to order the recruitment necessary to 

ensure an adequate test of the domestic 

labor market for the employer’s job 

opportunity, after taking into account 

the location and characteristics of the 

position.’’ 84 FR 49439, 49450. 

Two workers’ rights advocacy 

organizations noted that the 

Department’s proposal placing the labor 

supply State determination process at 

paragraph (d) effectively replaced the 

Proof of Recruitment provision at 

§ 655.154(d) in the 2010 H–2A Final 

Rule and expressed concern the 

Department had not retained the Proof 

of Recruitment provision in a different 

location. The commenters believed 

removing this provision would hinder 

the Department’s ability to enforce the 

H–2A regulations because it would 

eliminate the CO’s authority to specify 

the documentation or supporting 

evidence an employer must retain to 

prove compliance with the additional 

positive recruitment requirements. 

Although the document retention 

provision at § 655.167 already requires 

employers to retain evidence of 

compliance with § 655.154, the 

Department agrees with the commenters 

that the rule should address the type of 

evidence an employer is required to 

retain to show compliance with 

particular recruitment efforts required 

in designated traditional or expected 

labor supply States. The Department has 

determined that including such a 

provision provides greater clarity and 

predictability to employers, who want 

to properly document compliance, and 

facilitates its effective and consistent 

enforcement of this regulatory 

requirement. Therefore, the Department 

has revised paragraph § 655.143(b)(2) in 

this final rule to provide that the CO’s 

NOA will specify the documentation or 

other supporting evidence to be 

maintained by the employer to 

demonstrate compliance with positive 

recruitment requirements. 

One workers’ rights advocacy 

organization expressed concern and 

opposed the proposed traditional or 

expected labor supply State designation 

process because it would diminish the 

role of the SWAs because assigning the 

responsibility of making these State 

determinations to the OFLC 

Administrator would allow the OFLC 

Administrator to consider information 

from sources other than the SWA. The 

commenter was also concerned the 

proposed regulatory language would 

reduce the period of labor market 

information considered from 6 months 

to 120 days, and also expressed the 

language was vague and did not specify 

the sources of information the OFLC 

Administrator may consider or the 

weight given to the information from 

sources other than the SWA. 

The Department believes the 

commenter’s concerns are unwarranted. 

As is the case under the 2010 H–2A 

Final Rule, the Department anticipates 

the SWAs will continue to be the 

primary source of information regarding 

traditional or expected labor supply 

States based on their knowledge and 

expertise in local labor markets. The 

proposed determination process was not 

intended to diminish the role of the 

SWAs or substantively change the 

nature of information upon which 

traditional or expected labor supply 

designations will be based. Under the 

2010 H–2A Final Rule, the CO’s 

determination is based primarily on 

information about labor supply trends 

and information regarding interstate 

referral activities observed by the SWAs. 

The Department intended to formalize 

the existing communication between 

SWAs and OFLC, while making the 

process more transparent and 

predictable to employers seeking to 

employ H–2A workers. 

In the 2010 H–2A Final Rule, the 

Department also explained that it 

continues to welcome information on 

labor supply from SWAs, employers, 

and workers’ rights advocacy 

organizations to assist in its decisions 

on the best sources of labor and related 

recruitment activities to be required of 

employers. See 75 FR 6884, 6930; see 

also 2019 H–2A Recruitment Final Rule, 

84 FR 49439, 49450 (explaining the 

Department most often obtains 

information from the SWAs, but 

‘‘continues . . . to invite stakeholders to 

submit information on areas of 

traditional or expected labor supply and 

effective means of recruiting U.S. 

workers in those areas’’). The NPRM 

and this final rule merely reiterate the 

Department’s longstanding policy to 

consider reliable information from 

appropriate sources that may be helpful 

in determining States of traditional or 

expected labor supply. Appropriate 

sources may include, for example, 

information from other State or Federal 

agencies or information the Department 

receives from other relevant 

stakeholders, such as organizations that 


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provide employment and training 

services to workers who are likely to 

apply for agricultural job opportunities. 

Similarly, the proposal in the NPRM 

stated the OFLC Administrator’s 

determination would be based primarily 

upon information provided within 120 

calendar days preceding the 

determination. 

The Department’s decision to base 

traditional or expected labor supply 

State determinations primarily on 

information provided within 120 

calendar days preceding the 

determination reflects that although, 

based on the Department’s experience, 

these designations have not changed 

significantly from year to year because 

the information the Department receives 

does not change significantly from year 

to year, the designations should be 

informed by the most current 

information available. Notably, this 

provision does not limit the collection 

of information to the 120-day period 

preceding the OFLC Administrator’s 

determination. For example, 

information gathered over a 6- or 9- 

month period and submitted to the 

OFLC Administrator within the 120-day 

period before the OFLC Administrator’s 

determination can reflect current labor 

market activities across a wide range of 

seasonal agricultural production cycles 

and appropriately inform the annual 

determination process. This process 

prioritizes current information, without 

excluding older information that is 

relevant to the determination. 

The Department anticipates the 

majority of the information published in 

the OFLC Administrator’s annual 

determination will inform the CO’s 

transmission of the job order for 

interstate clearance under § 655.150, 

rather than impose additional employerconducted recruitment requirements 

under § 655.154. For example, if the 

Georgia SWA informs the OFLC 

Administrator that it receives interstate 

referrals, generally, from the Florida 

SWA, the OFLC Administrator would 

designate Florida as a labor supply State 

for Georgia in the labor supply State 

determination posted on OFLC’s 

website; however, this information, 

alone, would not support additional 

employer-conducted recruitment 

requirements in Florida without greater 

specificity from either SWA regarding 

the appropriate and effective means of 

recruiting qualified U.S. workers. 

Accordingly, when applying the posted 

labor supply State determination during 

application processing, the CO would 

transmit all job orders involving places 

of employment in Georgia to the Florida 

SWA for posting on its intrastate public 

job listing system; the CO would not 

instruct the employer to conduct 

additional positive recruitment 

activities in Florida. However, if the 

OFLC Administrator received more 

specific, credible information about 

effective recruitment methods, such as 

information specific as to the type of 

qualified workers available (e.g., tomato 

harvest workers), the area within the 

State where the workers may be found 

(e.g., Immokalee, Florida), and the 

methods for apprising the workers of a 

job opportunity (e.g., posting with a 

particular community organization 

engaged with those workers), the OFLC 

Administrator’s annual determination of 

labor supply States would identify this 

area and type of worker for additional 

recruitment and the CO’s NOA would 

include specific recruitment 

instructions and document retention 

information applicable to employers in 

Georgia that are seeking tomato harvest 

workers. 

The additional positive recruitment 

requirement will be effective on the date 

of publication for any employer that has 

not yet commenced positive 

recruitment. As the Department decided 

not to adopt the proposed optional prefiling positive recruitment provision, 

discussed in the preamble to § 655.123, 

this means that, once published, the 

additional positive recruitment 

requirements posted are in effect for any 

employer to whom the NPC has not yet 

issued a NOA in accordance with 

§ 655.143. One commenter remarked on 

the provision retained from the 2010 H– 

2A Final Rule at paragraph (b) that 

requires an employer’s additional 

positive recruitment efforts be no less 

than the kind and degree of recruitment 

efforts the employer ‘‘made’’ to obtain 

foreign workers. The commenter 

recommended the Department change 

the word ‘‘made’’ to the future tense 

‘‘makes’’ to avoid suggesting that foreign 

labor recruitment precedes U.S. worker 

recruitment. The Department has 

revised this provision to ‘‘may make’’ to 

clarify that the nature of the employer’s 

foreign worker recruitment efforts, not 

the timing of those efforts, is the subject 

of this provision. 

One workers’ rights advocacy 

organization reiterated its comment, 

submitted in connection with an H–2B 

program rulemaking, in which it urged 

the Department to require employers to 

conduct positive recruitment in labor 

surplus areas designated by the 

Department. As with comments 

discussed in §§ 655.151 and 655.152, 

this comment relates to a topic 

addressed in the 2019 H–2A 

Recruitment Final Rule and, therefore, it 

is outside the scope of the current 

rulemaking. However, as discussed in 

the 2019 H–2A Recruitment Final Rule, 

by requiring the CO to post H–2A job 

orders on the Department’s electronic 

job registry at SeasonalJobs.dol.gov, 

each H–2A job opportunity will be 

advertised broadly and disseminated to 

U.S. workers, including those in labor 

surplus areas. Further, to the extent a 

labor surplus in a particular State 

results in a trend of labor referrals to 

other States or submission of specific 

information provided to the OFLC 

Administrator regarding workers in a 

particular area who, if apprised, would 

make themselves available for work 

elsewhere, the labor supply State 

designation process will provide for 

additional recruitment in that State. 

The Department also received 

comments from a State governor and an 

individual commenter suggesting the 

Department expand H–2A program 

recruitment requirements to include an 

H–2ALC’s clients (i.e., the growers who 

contract with the H–2ALC to provide 

labor or services for their agricultural 

operations). One of these commenters 

explained that local workers would 

respond to recruitment for employment 

with a local grower but not for 

employment with an unfamiliar H– 

2ALC. The other commenter expressed 

concern with growers contracting with 

out-of-State H–2ALCs, who will bring 

H–2A workers into the State, rather than 

in-State FLCs, who employ local 

workers. These commenters urged the 

Department to expand an H–2ALC’s 

recruitment obligations to include 

recruitment requirements for its client 

growers. One suggested the Department 

require an H–2ALC to demonstrate that 

its client grower unsuccessfully 

solicited bids from contractors that do 

not use H–2A workers before 

contracting with an H–2ALC seeking a 

temporary labor certification, while the 

other suggested the Department require 

both the client grower and the H–2ALC 

to satisfy H–2A recruitment 

requirements. 

The Department declines to expand 

H–2A recruitment requirements to 

parties other than an employer filing an 

Application for Temporary Employment 

Certification or impose additional 

positive recruitment requirements on 

out-of-State H–2ALCs generally. The 

Department believes that an employer’s 

satisfaction of the several methods of 

recruitment required in the H–2A 

regulations will ensure an effective test 

of the labor market. The Department 

requires all employers to conduct 

recruitment through SWA circulation of 

job orders, a process that encompasses 

various SWA recruitment activities, and 

through advertisements posted on the 

Department’s electronic job registry, 


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which broadly disseminates job 

opportunity information on the internet. 

In addition, the H–2A regulations 

permit the CO to order specific 

additional positive recruitment 

activities, on a case-by-case basis, if the 

Department receives information that 

indicates these activities are necessary 

to effectively disseminate information 

about the job opportunity to U.S. 

workers. 

4. Section 655.155, Referrals of U.S. 

Workers 

The NPRM did not propose 

amendments to this section containing 

the standards by which SWAs refer 

qualified, able, willing, and available 

U.S. workers for employment in the H– 

2A program. The Department received 

some comments on this provision, none 

of which necessitated substantive 

changes to the regulatory text from the 

NPRM. Therefore, this final rule retains 

this section from the NPRM without 

change. 

The comments received on this 

section generally urged the Department 

to require additional SWA screening of 

the workers referred to employers 

through the employment services 

system. They suggested, for example, 

SWAs ‘‘vet’’ self-referring applicants 

and refer only U.S. workers who 

specifically request agricultural work. 

One stated that few referred workers are 

actually interested in the jobs to which 

they have been referred and considering 

uninterested workers is time consuming 

and costly for employers. In addition, 

these commenters suggested that SWAs 

verify the employment eligibility of 

each worker and confirm the worker is 

available for the entire period of 

employment before referring the worker 

to the employer. 

The Department respectfully declines 

to revise this section. Not only are these 

suggestions outside the scope of this 

rulemaking, but the Department 

discussed suggestions like these at 

length in the preamble to the 2010 H– 

2A Final Rule when declining to adopt 

them in that rulemaking. See 75 FR 

6884, 6905–6906. The Department’s 

position in this rulemaking remains the 

same as in 2010. Accordingly, the 

Department has decided to maintain 

§ 655.155 in this final rule without 

change. 

5. Section 655.156, Recruitment Report 

The NPRM proposed amendments to 

this section to simplify the regulatory 

text related to an employer’s obligation 

to report on its efforts to recruit U.S. 

workers, conform the regulatory text to 

other changes proposed in the NPRM, 

and clarify the content requirements for 

the recruitment report. The Department 

received a few comments on this 

provision, none of which necessitated 

substantive changes to the regulatory 

text from the NPRM. However, in 

response to a comment related to 

paragraph (b) of this section, the 

Department has made revisions to 

clarify that an employer must produce 

its updated recruitment report to the 

Department and not to any other Federal 

agency that might request it without 

independent investigative or other 

authority to do so. The Department also 

made clarifying edits to paragraph (a), as 

discussed below. Finally, the 

Department also revised this section to 

conform to the Department’s decision 

not to adopt the proposed staggered 

entry and optional pre-filing 

recruitment provisions in this final rule, 

and made minor technical edits to 

conform to the terminology used in 

§ 655.153. Otherwise, this final rule 

adopts the proposed changes from the 

NPRM. 

In the NPRM, the Department 

proposed to remove language in 

paragraph (a) related to the timing of the 

employer’s initial recruitment report 

submission, as this timing requirement 

was addressed at proposed § 655.123(d) 

for those employers who engage in 

optional pre-filing positive recruitment 

and at § 655.143(b)(2) for those 

employers who receive a NOA, which 

will contain instructions regarding precertification recruitment report 

submission. Consistent with the 

Department’s decision not to adopt 

proposed § 655.123, as discussed above, 

paragraph (a) in this final rule retains 

the 2010 H–2A Final Rule language 

requiring employers to submit the 

recruitment report on a date specified 

by the CO in the NOA. In addition, the 

Department has made a technical 

correction to paragraph (a) so that this 

paragraph refers to the NOA provisions 

at § 655.143, rather than the NOD 

provisions at § 655.141. 

In addition, the Department proposed 

to add language in paragraphs (a)(1) and 

(3) to make explicit the required content 

of a recruitment report. A recruitment 

report describes a particular recruitment 

activity clearly when it identifies the 

specific, proper name of the recruitment 

source—rather than only the general 

type of recruitment source (e.g., ‘‘web 

page’’ or ‘‘online job board’’)—and 

provides the date(s) of advertisement for 

that recruitment source. In addition, a 

recruitment report clearly describes the 

employer’s satisfaction of its obligation 

under § 655.153 to contact former U.S. 

workers when it either (1) affirmatively 

states the employer has no former U.S. 

workers to contact; or (2) states that, 

before submitting the recruitment 

report, the employer contacted former 

U.S. workers and describes the means 

the employer used to make that contact. 

In this final rule, the Department has 

made clarifying revisions to paragraphs 

(a)(1) and (3). In paragraph (a)(1), the 

Department revised ‘‘date’’ to ‘‘date(s),’’ 

to clarify that the recruitment report 

must identify the date—or range of 

dates—of each recruitment activity, 

which may be different for each 

recruitment activity. In addition, the 

Department revised paragraph (a)(3) to 

clarify that an employer’s statement in 

its recruitment report about contacting 

former U.S. workers must identify the 

date(s) of contact, as well as the means 

of contact, when describing the 

employer’s contact with such workers. 

Two workers’ rights advocacy 

organizations suggested the Department 

add to the recruitment report content 

requirements in paragraph (a). One 

suggested the Department align the H– 

2A and H–2B regulations by requiring 

H–2A recruitment reports to confirm (1) 

community-based organization(s) 

designated by the CO were contacted, if 

applicable; (2) additional recruitment 

was conducted, as directed by the CO; 

and (3) the bargaining representative 

was contacted, if applicable, and by 

what means, or that the employer 

posted the availability of the job 

opportunity to all employees in the job 

classification and area in which the 

work will be performed by the foreign 

workers. The other commenter thought 

the recruitment report should include a 

description of the employer’s 

recruitment of H–2A workers, including 

the resources expended in such efforts; 

a description of the recruitment 

activities of non-H–2A employers in the 

AIE for the occupation; and information 

about how the employer checks worker 

qualifications, if applicable. Paragraph 

(a)(1) already requires the employer to 

identify in the recruitment report each 

recruitment source used and the date(s) 

of recruitment using that source. This 

recruitment report content requirement 

encompasses all recruitment activities 

the CO identifies in the NOA. The 

Department appreciates the opportunity 

to clarify that paragraph (a)(1) requires 

an employer’s recruitment report to 

confirm contact with a communitybased organization or any other 

additional recruitment activity directed 

in the NOA, if applicable. However, the 

Department declines to revise paragraph 

(a)(1) further at this time. 

The Department declines to add in 

this rulemaking the suggested H–2B 

recruitment and recruitment report 

content requirements, or the additional 

content related to recruitment efforts 


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outside of the employer’s own efforts to 

recruit and hire U.S. workers. Neither 

adopting the H–2B program’s general 

requirement to contact a bargaining 

representative or post notice at the place 

of employment, nor including content 

in the recruitment report beyond the 

employer’s own efforts to recruit and 

hire U.S. workers during the H–2A 

recruitment period were proposed for 

public comment. As such, expanding 

the recruitment report content 

requirements in the manner suggested is 

outside the scope of this rulemaking. 

One of these commenters also urged 

the Department to make significant 

additional changes to the recruitment 

requirements and recruitment report 

procedures, beyond those the 

Department proposed for public 

comment. For example, the commenter 

suggested the Department require 

employers to submit a recruitment 

report before certification is granted 

and, again, on the first date of need. In 

addition, the commenter suggested that 

the Department transmit the recruitment 

report to the SWA to solicit the case-bycase analysis of the employer’s 

recruitment efforts, as compared with 

those of non-H–2A employers in the 

area, and the location of historical and/ 

or current labor supply patterns to 

inform additional positive recruitment 

activities under § 655.154(b). This 

commenter also suggested the 

Department ask the SWA to provide a 

list of all U.S. worker referrals to each 

job so the Department can review both 

the SWA’s list and the employer’s list 

and contact all listed workers to verify 

the accuracy of the employer’s report. 

The commenter further suggested a 

website portal be created to allow 

workers to report unlawful rejections. 

These suggestions also are beyond the 

scope of this rulemaking and would 

require public notice and solicitation of 

comments. However, the Department 

reminds concerned parties that workers 

may call WHD’s hotline at (466) 487– 

9243 (this is not a toll-free number) or 

1 (866) 4US–WAGE (toll-free number) 

and/or contact their local district WHD 

office to file a complaint if they believe 

they have been unlawfully rejected. In 

addition, workers may call other federal 

agencies that enforce antidiscrimination laws if they believe an 

H–2A employer has unlawfully rejected 

them. For example, workers can call the 

Immigrant and Employee Rights Section 

of DOJ’s Civil Rights Division at 1 (800) 

255–7688 if they believe an H–2A 

employer rejected them or fired them 

because of their citizenship, 

immigration status, or national origin. 

The Department also proposed 

revisions to paragraph (b), the provision 

addressing the employer’s obligation to 

update its recruitment report throughout 

the positive recruitment period at 

§ 655.135(d) and submit it for review, if 

requested. An agent remarked on the 

revised language that would expand an 

employer’s obligation to produce its 

recruitment report, beyond the 

Department, to ‘‘any other Federal 

agency.’’ The commenter expressed 

concern such information sharing could 

have a ‘‘significant chilling effect on 

workers’’ and is beyond the 

Department’s statutory authority. The 

Department has determined that further 

revision to paragraph (b) is necessary to 

more clearly reflect the Department’s 

intent. The Department intended to 

retain the requirement for an employer 

to produce its recruitment report to the 

Department, upon the Department’s 

request, not to any Federal agency that 

might request it without independent 

authority to do so. In addition, the 

Department’s intention was to clarify 

that the information sharing provision at 

§ 655.130(f) in this final rule applies to 

recruitment reports the Department may 

share with other Federal agencies with 

authority to enforce compliance with 

program requirements as appropriate for 

investigative and enforcement purposes. 

The Department agrees the proposed 

language in paragraph (b) was overbroad 

and could be misunderstood or 

misused, resulting in the sharing of an 

employer’s recruitment report with a 

Federal agency not involved in H–2A 

program enforcement and integrity 

activities or for purposes other than 

program-related investigative or 

enforcement purposes. The 

Department’s rationale for revising both 

§§ 655.130(f) and 655.156(b) to more 

clearly address intergovernmental 

information sharing, and the parameters 

for such sharing, along with this 

commenter’s related concerns, are 

discussed in the preamble to 

§ 655.130(f). Accordingly, the 

Department has revised paragraph (b) to 

require employers to produce 

recruitment reports only to the 

Department (e.g., OFLC or WHD) and 

only upon the Department’s request, 

and to clarify that the same scope of 

information sharing applies to 

recruitment reports as applies to 

information received in the course of 

processing Applications for Temporary 

Employment Certification or in the 

course of conducting program integrity 

measures such as audits. Otherwise, the 

Department has adopted this section as 

proposed in the NPRM, without change. 

6. Sections 655.157, Withholding of U.S. 

Workers Prohibited, and 655.158, 

Duration of Positive Recruitment 

The NPRM proposed minor 

amendments to these sections in the 

form of technical corrections for 

conformity within the subpart. The 

Department received no comments 

related to the prohibition of withholding 

U.S. workers at § 655.157 and only one 

comment expressing general support 

regarding the duration of positive 

recruitment at § 655.158, which the 

Department had retained from the 2010 

H–2A Final Rule. Therefore, this final 

rule adopts the proposed changes to 

these sections from the NPRM without 

change. 

F. Labor Certification Determinations 

1. Section 655.161, Criteria for 

Certification 

The NPRM proposed minor 

amendments to this section to clarify 

existing rules and procedures. In 

paragraph (a), the Department proposed 

to use a clear statement that the 

employer must comply with all 

applicable requirements of 20 CFR parts 

653 and 654 and all requirements of 20 

CFR part 655, subpart B, that are 

necessary for certification, without the 

nonexclusive list of those requirements 

that appeared in the 2010 H–2A Final 

Rule. Similarly, the Department’s 

proposed revisions to paragraph (b) 

simplified regulatory language to more 

clearly state that the CO will count as 

available any U.S. worker whom the 

employer must consider and whom the 

employer has not rejected for a lawful, 

job-related reason. The Department 

received no comments on the proposed 

amendments to the regulatory text. 

Therefore, this final rule adopts the 

proposed changes from the NPRM 

without change. 

2. Section 655.162, Approved 

Certification 

The NPRM proposed minor 

amendments to this section to 

modernize and simplify the 

Department’s issuance of temporary 

agricultural labor certifications to 

employers and the delivery of those 

certifications to USCIS, while 

maintaining program integrity. The 

Department received a few supportive 

comments on this provision, none of 

which necessitated changes to the 

regulatory text. Therefore, as discussed 

below, this provision remains 

unchanged from the NPRM. 

Under this final rule, the Department 

will issue temporary agricultural labor 

certifications electronically using a 

Final Determination notice that 


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110When an employer submits the petition to 

USCIS, it must comply with DHS regulations and 

USCIS petition form instructions, which may 

include printing and submitting a copy of the 

temporary agricultural labor certification. 

confirms certification and contains 

succinct, essential information about the 

certified application. The CO will send 

the Final Determination notice, as well 

as a copy of the certified Application for 

Temporary Employment Certification 

and job order, both to the employer and 

USCIS using an electronic method 

designated by the OFLC 

Administrator.110 In cases where an 

employer is permitted to file by mail as 

set forth in § 655.130(c), the Department 

will deliver certification documentation 

to the employer using a method that 

normally assures next-day delivery. The 

Department will send the same 

information to USCIS, using the same 

electronic method used to transmit the 

temporary agricultural labor 

certification to the employer, regardless 

of the employer’s method of filing. 

Finally, consistent with current 

practice, the Department will send a 

copy of the certification documentation 

to the employer and, if applicable, to the 

employer’s agent or attorney. 

3. Section 655.164, Denied Certification 

The NPRM proposed minor 

amendments to this section to 

modernize the Department’s issuance of 

Final Determination notices that deny 

temporary agricultural labor 

certifications and to simplify the 

regulatory text by replacing details 

about the procedure for appealing a 

Final Determination with references to 

§ 655.171, the section of the regulation 

containing the standards and 

procedures for appeals. The Department 

received a few supportive comments on 

this provision, none of which 

necessitated changes to the regulatory 

text. Therefore, this provision remains 

unchanged from the NPRM. 

4. Section 655.165, Partial Certification 

The NPRM proposed minor 

amendments to this section to 

modernize the Department’s issuance of 

partial temporary agricultural labor 

certifications to employers and the 

delivery of those certifications to USCIS, 

in addition to other amendments 

conforming to proposed changes in 

other sections of the regulation. The 

Department received a few comments 

on this provision, none of which 

necessitated changes to the regulatory 

text. Therefore, as discussed below, this 

provision remains unchanged from the 

NPRM. 

The Department received no 

comments expressing opposition to the 

proposed changes, but it did receive 

comments from two employers and an 

agent expressing opposition to the 

general practice of issuing partial 

temporary agricultural labor 

certifications. Two of these commenters 

stated that the Department should not 

reduce a temporary agricultural labor 

certification by the number of U.S. 

workers hired if the employer attests 

that it still has a need for the full 

number of requested H–2A workers, 

notwithstanding the hiring of any U.S. 

workers. The commenters believed this 

approach would be helpful to employers 

where conditions change and would not 

adversely affect the wages or working 

conditions of U.S. workers, as the 

employer’s obligation to hire qualified 

and available U.S. workers and displace 

an H–2A worker to accommodate the 

hiring of a U.S. worker, if necessary, 

would continue throughout the 

recruitment period. One of these 

commenters acknowledged that 

§ 655.166 permits a redetermination 

based on unavailability of U.S. workers 

but asserted that process is time 

consuming and costs the employer 

additional filing fees to submit amended 

petitions with USCIS. This commenter 

suggested that it would be more 

effective and efficient to discontinue 

issuing partial temporary agricultural 

labor certifications and rely on the 

employer’s attestation to continue hiring 

any qualified and available U.S. 

workers. 

The Department appreciates the 

commenter’s suggestion, but the 

Department did not propose such a 

change, nor suggest it was open to 

considering comments on this issue in 

the NPRM. Therefore, this comment is 

beyond the scope of this rulemaking and 

the Department has adopted the 

proposed changes to § 655.165 without 

amendment. 

5. Section 655.166, Requests for 

Determinations Based on 

Nonavailability of U.S. Workers 

The NPRM proposed minor 

amendments to this section to 

modernize the Department’s receipt and 

issuance of redetermination decisions, 

consistent with the electronic filing and 

certification procedures proposed in 

§§ 655.130 and 655.162, in addition to 

other technical amendments to simplify 

the provision generally. The Department 

received no comments on the proposed 

amendments to the regulatory text. 

Therefore, this final rule adopts the 

proposed changes from the NPRM 

without change. 

6. Section 655.167, Document Retention 

Requirements of H–2A Employers 

The NPRM proposed minor 

amendments to this section to clarify 

under paragraph (c)(1) that employers 

must document compliance with each 

recruitment step applicable to the 

Application for Temporary Employment 

Certification. The Department also 

proposed to add a new paragraph at 

(c)(7) clarifying that if a worker 

voluntarily abandons employment 

before the end of the contract period, or 

is terminated for cause, as set forth in 

§ 655.122(n), employers must retain 

records demonstrating they notified the 

NPC and DHS. The Department received 

a few comments on this provision, none 

of which necessitated changes to the 

regulatory text. However, as discussed 

below, the Department believes it is 

necessary to make minor conforming 

amendments due to prior revisions 

currently in effect based on the 

Department’s 2019 H–2A Recruitment 

Final Rule and one technical revision. 

The Department received two 

comments objecting to the requirement 

that employers retain records associated 

with notifying the NPC and DHS of 

workers who abandon employment or 

are terminated for cause. These 

commenters asserted such a 

requirement created an unnecessary 

burden because the three-fourths 

guarantee and return transportation 

obligations already provide an adequate 

incentive for employers to provide 

timely notice to the Department. One of 

the commenters also asserted the 

Department lacked authority to impose 

the requirement, as proposed, and that 

USCIS must engage in its own 

rulemaking if it wishes to require 

employers to retain this documentation. 

The Department appreciates the 

comments received, but respectfully 

disagrees. As explained below and in 

the preamble for §§ 655.122(n), 655.141, 

and 655.153, the requirement to retain 

documentation demonstrating the 

employer provided notice of 

abandonment or termination is 

necessary for the Department’s 

administration and enforcement of the 

temporary agricultural labor 

certification program; thus, the 

imposition of such recordkeeping 

obligations is within the Department’s 

authority under the INA. As stated in 

the NPRM, the Department encounters 

H–2A employers that claim to have 

properly notified the NPC regarding 

workers who have abandoned 

employment or have been terminated 

for cause, but the employers frequently 

cannot produce records of such 

notification when requested. Requiring 


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each employer to maintain records of 

the notification to the NPC, and to DHS 

in the case of a worker in H–2A 

nonimmigrant status, supports the 

Department’s enforcement policy of 

investigating claims of abandonment or 

termination. Further, retention of these 

records also may benefit the employer. 

For example, in the event a U.S. worker 

who abandoned employment or whom 

the employer terminated for cause later 

claims the employer failed to make 

contact to solicit their return to work, 

the employer’s retained record of its 

contemporaneous notice to the NPC 

could demonstrate that the employer 

was not required to contact that 

particular U.S. worker under § 655.153. 

In addition, the Department is not 

imposing a record retention requirement 

on behalf of DHS; DHS already has a 

record retention obligation in this 

context. See, 8 CFR 214.2(h)(5)(vi)(B)(2). 

In addition, the Department does not 

believe the requirement will impose a 

significant burden on employers. As the 

commenters noted, many employers 

already provide the Department notice 

of abandonment or termination to take 

advantage of incentives provided in 

§§ 655.122(n) and 655.153; for these 

employers, the only change is a 

requirement to add a copy of the notice 

to the employer’s document retention 

file. In the NPRM, the Department 

assessed the proposed burden of this 

recordkeeping requirement and 

determined the total annual cost, among 

just over 4,900 employers, would range 

from $10,890 in 2020 to $15,988 in 

2029. The Department believes the 

minimal burden imposed on employers 

by this recordkeeping requirement is 

outweighed by the Department’s interest 

in ensuring program integrity. 

Therefore, the Department has 

adopted the proposed changes to 

§ 655.167, with additional revisions 

necessary to conform to a change 

adopted in § 655.175 of this final rule 

and the current provisions in effect, 

which were revised as a result of the 

2019 H–2A Recruitment Final Rule, and 

to remove an unnecessary parenthesis. 

Accordingly, this final rule reflects the 

elimination of paragraph (c)(1)(ii) of the 

2010 H–2A Final Rule—the document 

retention requirements associated with 

print newspaper advertisements—and 

the redesignation of paragraphs 

(c)(1)(iii) and (iv) as paragraphs (c)(1)(ii) 

and (iii), which the 2019 H–2A 

Recruitment Final Rule made effective 

October 21, 2019. 

G. Post-Certification 

1. Section 655.170, Extensions 

The NPRM did not propose changes 

to the standards and procedures by 

which an employer may apply to the CO 

for a short- or long-term extension to its 

certified Application for Temporary 

Employment Certification. However, the 

Department is making one minor 

technical amendment under paragraph 

(b) to replace the term ‘‘12 months’’ 

with ‘‘1 year’’ as the maximum period 

for a long-term extension, except in 

extraordinary circumstances, to ensure 

greater consistency with the use of that 

same term adopted under § 655.103(d) 

of this final rule 

2. Section 655.171, Appeals 

The NPRM proposed substantive 

amendments to this section containing 

the standards and procedures by which 

an employer may request an 

administrative review or a de novo 

hearing before an ALJ regarding a 

decision issued by the CO, where 

authorized under this subpart. As 

discussed in detail below, the 

Department received numerous 

comments opposing all or some of the 

proposed changes to § 655.171. After 

carefully considering these comments, 

the Department has decided to largely 

adopt the regulatory text proposed in 

the NPRM, with several minor revisions, 

as discussed below. Such revisions 

include the addition of regulatory 

language the Department adopted in a 

different final rule, Rules Concerning 

Discretionary Review by the Secretary 

(85 FR 30608), and other modifications 

that either respond to concerns raised 

by commenters or provide further 

clarity. Some comments simply opposed 

all changes regarding the appeals 

section without explanation, and do not 

necessitate changes to the regulatory 

text. Other comments referenced 

§ 655.171 but appear to address changes 

related to § 655.141; the Department has 

already addressed those comments in 

the section of the preamble addressing 

§ 655.141. 

a. Discretionary Review by the Secretary 

Between the publication of the 

proposed rule at 84 FR 36168 (July 26, 

2019) and this final rule, the 

Department published Rules Concerning 

Discretionary Review by the Secretary 

(85 FR 30608), which affected the 

language of this section. The current 

iteration of § 655.171, with the changes 

effectuated by the Rules Concerning 

Discretionary Review by the Secretary, is 

different from the iteration of § 655.171 

that was in effect when the proposed 

rule was published. Specifically, the 

Rules Concerning Discretionary Review 

by the Secretary removed the language 

in paragraphs (a) and (b)(2) that stated 

the decision of the ALJ was the final 

decision of the Secretary, and it added 

language, pursuant to 29 CFR 18.95 

stating that the Secretary could assume 

jurisdiction over a ‘‘case for which a de 

novo hearing is sought or handled under 

20 CFR 655.171(b),’’ after the BALCA 

had issued a decision. 29 CFR 

18.95(b)(2). 

In the NPRM, the Department had 

already proposed removing language 

from the prior regulations that stated the 

ALJ’s decision is the final decision of 

the Secretary. This language was 

thought to be unnecessary in light of the 

Office of Administrative Law Judge’s 

(OALJ) Rules of Practice and Procedure 

for Administrative Hearings, which state 

that the ALJ’s decision is the final 

agency action for purposes of judicial 

review when the applicable statute or 

regulation does not provide for a review 

procedure, as here. See 29 CFR 18.95; 20 

CFR 655.171. The removal of the ‘‘final 

decision’’ language was consistent with 

the H–2B regulations, which lack 

similar language, and does not affect the 

issue of whether the parties may appeal 

to the ARB, which is governed by other 

authorities issued by the Department. 

See 20 CFR 655.61; Secretary’s Order 

02–2012, Delegation of Authority and 

Assignment of Responsibility to the 

Administrative Review Board, 77 FR 

69378 (Nov. 16, 2012). However, 

because the aforementioned Rules 

Concerning Discretionary Review by the 

Secretary removed this language from 

the regulations, the issue of the removal 

of the language is now moot. 

The Department has merged the 

language added to this subsection by the 

issuance of Rules Concerning 

Discretionary Review by the Secretary 

with the originally proposed text. 

b. Request for Review 

The prior text of § 655.171 outlined 

the procedure by which an employer 

may request administrative review, the 

timeline for doing so, and how the ALJ 

must make a decision. General 

information on the request for review 

was previously located in sections of the 

H–2A regulations that discussed the 

CO’s authority and procedure for 

issuing a specific decision (e.g., denied 

certification). See, e.g., § 655.164. As 

proposed in the NPRM, the Department 

has amended the regulations so that the 

language regarding the requests for 

review are located in one location. The 

language conforms with the 

corresponding appeals section in the H– 

2B regulations to the extent possible to 


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provide consistency across the 

programs. 

To clarify an employer’s existing 

administrative exhaustion obligations, 

the NPRM specified in paragraph (a) 

that when a hearing or administrative 

review of a CO’s decision is authorized 

in this subpart, an employer must 

request such review in accordance with 

§ 655.171 in order to exhaust its 

administrative remedies. No comments 

were received on the text regarding the 

administrative remedies, and the 

Department has adopted this language 

unchanged from the NPRM. 

The newly added paragraph (a) 

describes the content of the request for 

review and the procedures for its 

submission. This language was drawn 

from the H–2B procedures at § 655.61 as 

well as the already existing text in the 

H–2A regulations. In paragraph (a)(1), 

the Department proposed to extend the 

time in which an employer may file a 

request for review from 7 calendar days 

to within 10 business days of the date 

of the CO’s decision to more closely 

align with the timeframe to request 

review under the H–2B regulations. It 

also proposed that the request for 

review must be received by—rather than 

sent to—the Chief ALJ and the CO 

within 10 business days of the CO’s 

decision. The Department believes that 

specifying a time for receipt of the 

request for review is reasonable because 

it enables the Department to more easily 

determine if a request was filed in a 

timely manner. The longer period of 

time provided to file a request for 

review allows the employer more time 

to develop a robust request, which, in 

the case of a request for administrative 

review, will also serve as the employer’s 

brief to the OALJ. To this end, the 

Department has included in the 

regulations that the request must 

include the specific factual issues the 

employer seeks to have examined as 

part of its appeal. Having this 

information allows for the prompt and 

fair processing of appeals by providing 

the ALJ and the CO adequate notice 

regarding the nature of the appeal. One 

commenter supported the proposal to 

determine timeliness based on the 

receipt of the request for review. The 

Department received no comments that 

opposed the changes in paragraph (a)(1), 

and therefore the Department has 

adopted the proposed language 

unchanged from the NPRM. 

In paragraph (a)(1), the Department 

has also added the phrase ‘‘[e]xcept as 

provided in § 655.181(b)(3).’’ Upon 

review of the proposed §§ 655.171 and 

655.181, it became apparent that the 

regulatory text, as drafted, contained 

confusing information regarding the 

timelines for submitting appeal 

requests. This added phrase makes clear 

that § 655.181(b)(3), while referencing 

§ 655.171, does not change the existing 

timelines to file appeal requests under 

§ 655.181. 

In paragraph (a)(4), the Department 

proposed including language that the 

request for review clearly state whether 

the employer is requesting 

administrative review or a de novo 

hearing. The Department has found that 

in the past, some requests did not 

identify the type of review sought by the 

employer, which would result in delays 

(as the ALJ asked for clarification) or a 

type of review not desired by the 

employer (as the ALJ presumed the 

employer requested a hearing). The 

Department also proposed that the case 

will proceed as a request for 

administrative review if the request 

does not clearly state the employer is 

seeking a hearing. See 8 U.S.C. 

1188(e)(1) (noting the regulations must 

provide for expedited administrative 

review or, at the employer’s request, for 

a de novo hearing). 

The Department received a few 

comments regarding this proposal. One 

commenter supported the change and 

stated that this will expedite the appeals 

process by avoiding ambiguity. Another 

commenter opposed the proposal and 

characterized it as placing a burden on 

the employer to identify the type of 

review requested. Another commenter 

asked for clarification on whether an 

employer had to go through 

administrative review before it could 

ask for a de novo hearing. The 

Department disagrees with the 

characterization that articulating which 

type of appeal an employer desires is a 

burden. The INA requires the 

regulations provide for an expedited 

procedure for review, ‘‘or, at the 

applicant’s request,’’ a de novo hearing. 

8 U.S.C. 1188(e)(1). The employer may 

request whichever it prefers. The 

Department agrees with the comment 

that the proposed change will improve 

judicial efficiency and provide for more 

orderly and consistent administration of 

appeal proceedings, and therefore has 

adopted the proposed language. Finally, 

in response to the commenter seeking 

clarification, an employer does not need 

to go through administrative review 

before asking for a hearing. Therefore, 

the Department has adopted the 

proposed language unchanged from the 

NPRM. 

In paragraph (a)(7), the Department 

proposed to clarify that where the 

request is for administrative review, the 

request may only contain evidence that 

was before the CO at the time of their 

decision. This language has been 

adopted unchanged from the NPRM. 

The Department included this language 

in paragraph (a), which tracks language 

in the administrative review section 

(paragraph (d)), so that employers or 

their representative(s) can prepare their 

requests accordingly. The Department 

has also included language that an 

employer may submit new evidence 

with its request for a de novo hearing, 

which will be considered by the ALJ if 

the new evidence is introduced during 

the hearing. The Department included 

this language in paragraph (a), which 

tracks language in the de novo hearing 

section (paragraph (e)), so that 

employers or their representative(s) can 

assemble their requests and prepare 

their cases accordingly. Comments 

regarding evidence submission are 

discussed in the administrative review 

and de novo hearing sections below. 

c. Administrative File 

Proposed paragraphs (b) and (c) drew 

on existing language in the H–2A 

regulations and language from the H–2B 

appeals procedures to reorganize 

information on the administrative file 

and the assignment of the case into 

separate sections. Though not proposed 

in the NPRM, the Department has 

decided to change how it refers to the 

‘‘administrative file’’ or ‘‘appeal file.’’ 

Both terms have been used. To be 

consistent, the Department will simply 

refer to the document that OFLC 

compiles and transmits as the 

‘‘administrative file.’’ This is a 

nonsubstantive change that is made 

only to provide clarity in the regulation. 

The Department proposed paragraph 

(b) to specify that the CO would send a 

copy of the OFLC administrative file to 

the Chief ALJ as soon as practicable. 

One commenter approved of this 

additional language but suggested that 

the regulations go further and require 

that the administrative file be 

transmitted within a specific timeframe. 

This commenter also suggested that 

because applications are filed 

electronically, a 48- or 72-hour deadline 

for transmittal should be feasible. 

Another commenter suggested that 

compiling the administrative file was 

simply a matter of printing it. The 

Department understands the concern for 

expediency and the sensitive timing of 

these cases, but compiling the 

administrative file is not as simple as 

suggested. As with any type of 

government or court record, the 

administrative file must be assembled 

and reviewed for accuracy and 

completeness. Because the length of this 

process is dependent on a variety of 

factors, including the length of the 

record, the Department has determined 


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that a specific timeframe is not 

practicable. The Department believes 

adding the language that the CO will 

send the administrative file as soon as 

practicable balances expediency with 

the realities of agency resources and 

therefore has adopted the proposed 

language that the file must be sent as 

soon as practicable. 

A number of commenters believed 

that the administrative file would not be 

transmitted to the employer. This is not 

the case. The current regulations do not 

explicitly state that the administrative 

file will be sent to the employer and the 

NPRM mirrored that same language. 

However, in response to these concerns, 

the text of paragraph (b) has been 

amended to state that the CO will 

transmit the administrative file to the 

Chief ALJ as well as to the employer, the 

employer’s attorney or agent (if 

applicable), and the Associate Solicitor 

for Employment and Training Legal 

Services, Office of the Solicitor, U.S. 

DOL (counsel). 

d. Assignment 

In paragraph (c), the Department 

proposed language to clarify that the 

ALJ assigned to the case may be a single 

member or a three-member panel of the 

BALCA. The proposed amendments to 

paragraphs (b) and (c) mirror the 

wording and organization of the appeals 

section in the H–2B regulations. See 

§ 655.61(b) and (d). The Department did 

not receive any comments regarding 

paragraph (c) and has adopted the 

paragraph as proposed. 

e. Administrative Review 

The prior regulations regarding 

administrative review give only a brief 

overview of the process. In the NPRM, 

the Department proposed adding a 

specific briefing schedule, explaining 

the standard and scope of review, and 

providing a revised timeline for 

decisions in cases of administrative 

review. The Department received 

numerous comments on these changes. 

After carefully considering these 

comments, the Department has decided 

to substantially adopt the proposed 

language. The changes made, and the 

reasons for making those changes, are 

discussed below. 

In paragraph (d)(1), the Department 

outlined a briefing schedule; numerous 

commenters opposed the proposed 

change. Some argued that the counsel 

for the CO would have an advantage in 

the appeal process. One commenter 

suggested that this was because counsel 

would be able to respond item-by-item 

to the arguments made by the 

employers. One commenter was 

concerned that because the counsel for 

the CO has 7 days after receiving the 

administrative file to submit a brief, and 

because there is no set deadline for 

when the administrative file must be 

transmitted to the counsel for the CO, 

the counsel for the CO would have 

significantly more time to write a brief 

than the employer. Some commenters 

expressed opposition on the grounds 

that employers would not have the 

administrative file with them when 

writing their briefs, as the brief must be 

submitted with the request for review. 

While many of those commenters who 

expressed opposition on this ground 

believed they would never receive the 

administrative file, which is not the 

case, the concern that they would have 

to write a brief without the 

administrative file is noted. Some 

suggested that not having concurrent 

briefing would slow down the process 

of review. 

The Department understands the 

commenters’ concerns about timing and 

fairness. As noted in the NPRM, because 

there was no regulatory briefing 

schedule, concurrent or otherwise, there 

was often inconsistency among cases, 

and neither party knew when briefs 

would be due until an ALJ issued an 

order. Also, it was not uncommon that, 

due to the practice of simultaneous 

briefing, issues raised by the employer 

were not addressed by the counsel for 

the CO. A set briefing schedule will 

ensure consistency of deadlines 

between cases and thus efficiency in the 

appeals process. The CO filing a brief in 

response to the employer’s brief allows 

for a complete set of arguments, as 

appropriate, which, in turn, more 

effectively assists the ALJ’s decisionmaking process. Through this updated 

rule, the employer has been given 10 

business days, instead of 7 calendar 

days, to file its request for review. This 

provides the employer with ample time 

to write a brief in support of its case and 

provides the employer as much, if not 

more, time than the CO to draft and file 

its brief. 

The Department does not agree that 

the counsel for the CO will have an 

advantage over the employer with 

respect to the briefing schedule. The 

administrative file contains documents 

the employer has submitted to OFLC 

with its applications, and it contains 

communication back and forth between 

OFLC and the employer. The employer 

should therefore have the vast majority, 

if not all, of the documents contained in 

the administrative file at the time it files 

its request for review. Furthermore, the 

administrative file must be assembled 

and transmitted to the parties ‘‘as soon 

as practicable.’’ A nonconcurrent 

briefing structure may extend the 

timeline for adjudication of an appeal, 

but the Department nonetheless believes 

that the benefit of a set time schedule 

for briefing, and the benefits of having 

a complete set of arguments, ultimately 

provide a more efficient and reliable 

process. 

The Department invited the public to 

comment on other ways it could address 

a briefing procedure while still ensuring 

expedited review. The public submitted 

no such proposals, except to argue that 

no change should be made and that the 

Department should keep concurrent 

briefing. However, as stated, the 

regulations did not establish a briefing 

schedule. To the extent that the 

argument to ‘‘keep’’ concurrent briefing 

is a proposal, the Department explained 

in the proposal and above why it has 

decided to adopt the proposed 

approach. 

In paragraph (d)(2), the Department 

has set out clearly the standard of 

review for administrative review cases. 

The Department did not receive 

comments on the proposed paragraph 

(d)(2) and the Department has adopted 

this section as proposed. The 

Department has incorporated the 

arbitrary and capricious standard of 

review into requests for administrative 

review, codifying a well-established and 

longstanding interpretation of the 

standard of review for such requests. 

See, e.g., J and V Farms, LLC, 2016– 

TLC–00022, at 3 & n.2 (Mar. 7, 2016). 

In paragraph (d)(3), the Department 

has included language providing that 

the scope of administrative review is 

limited to evidence in the OFLC 

administrative file that was before the 

CO when the CO made their decision. 

The Department included this language 

because the administrative file may 

contain new evidence submitted by the 

employer to the CO after the CO has 

issued their decision, such as when the 

employer submits a request for review 

with new evidence, or a corrected 

recruitment report with new 

information, after the CO has denied 

certification. Although such evidence is 

in the administrative file, this change 

was proposed to clarify that the ALJ 

may not consider this new evidence 

because it was not before the CO at the 

time of the CO’s decision. Despite some 

commenters’ assertion that the 

Department is removing the ability to 

submit new evidence on administrative 

review, this amendment incorporates 

legal principles already in existence for 

H–2A cases, namely, that administrative 

review is limited to the written record 

and written submissions, ‘‘which may 

not include new evidence.’’ 

§ 655.171(a). A de novo hearing is the 


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only avenue by which an employer may 

introduce new evidence. 

The Department has adopted the 

substance of paragraph (d)(3) but has 

reorganized the wording of this 

paragraph for clarity. The language now 

mirrors more closely the similar 

language in paragraph (e)(2). The 

Department has also added for clarity 

the fact that the ALJ must affirm, 

reverse, or modify the CO’s decision, or 

remand to the CO for further action, 

‘‘except in cases over which the 

Secretary has assumed jurisdiction 

pursuant to 29 CFR 18.95.’’ This 

concluding phrase was not in the 

NPRM, nor was it in the amended 

language of § 655.171 in the Rules 

Concerning Discretionary Review by the 

Secretary (85 FR 30608). However, the 

principle that the Secretary may assume 

jurisdiction over cases in which 

administrative review was requested is 

contained within the Rules Concerning 

Discretionary Review by the Secretary 

and is now a part of the current 

regulations. 29 CFR 18.95(b)(1) states 

that a decision by the BALCA 

constitutes the final administrative 

decision except in cases over which the 

Secretary has assumed jurisdiction, 

which include ‘‘any case for which 

administrative review is sought or 

handled in accordance with 20 CFR 

655.171(a).’’ The addition of the 

language in paragraph (d)(3) codifies the 

principle of 29 CFR 18.95(b)(1) in this 

section of the regulations. This also 

makes the language more consistent 

with similar language located in 

paragraph (e)(2). 

In proposed paragraph (d)(4), the 

Department has modified the timeline 

in which the ALJ should issue a 

decision from 5 business days to 10 

business days after receipt of the OFLC 

administrative file, or within 7 business 

days of the submission of the CO’s brief, 

whichever is later. This schedule 

conforms to the timeline in the H–2B 

appeals procedures while continuing to 

provide for an expedited review 

procedure. See § 655.61(f). No 

comments were received on paragraph 

(d)(4). The Department has made one 

change to proposed paragraph (d)(4) for 

clarity. The paragraph had modified the 

individuals and entities that receive the 

ALJ’s decision to align with the 

recipients of ALJ decisions under the H– 

2B regulations, namely, the employer, 

the CO, and counsel for the CO. See 

§ 655.61(f). In this final rule, the 

Department has added text to clarify 

that the employer’s attorney or agent (if 

applicable) will also receive the 

decision. 

f. De Novo Hearing 

The Department proposed changes 

related to the de novo hearing process. 

After carefully considering the 

comments it received on this proposal, 

the Department has decided to adopt the 

proposed language, with minimal 

changes, as discussed below. 

In paragraph (e)(1)(ii), the Department 

proposed changing the time in which an 

expedited hearing must occur from 5 to 

14 business days after the ALJ’s receipt 

of the OFLC administrative file. This 

proposed change was based on the 

Department’s administrative experience, 

and it was intended to allow the parties 

reasonable time to adequately prepare 

for a hearing while effectuating the 

INA’s concern for prompt processing of 

H–2A applications. 

Some commenters opposed the 

proposal that the hearing must occur 

within 14 business days of the ALJ’s 

receipt of the administrative file rather 

than within 5 business days. One 

explained that because there was no 

time certain for the CO to send the 

administrative file to the Chief ALJ and 

related parties, extending the time for a 

hearing could cause ‘‘irreparable harm’’ 

to employers while they wait. The 

commenter further argued that this time 

extension combined with the 10 

calendar days in which the ALJ may 

issue an opinion, along with alleged 

delays by DHS and DOS, means that it 

is unlikely an employer will have its 

workers by its start date of need. 

The Department understands the 

concerns regarding timing and 

expediency but has adopted the 

language as proposed. As stated in the 

NPRM, the experience of the 

Department is that scheduling a hearing 

within 5 business days is very difficult 

for not only the parties, but also the ALJ. 

The extension of time is meant to 

provide more preparation time, 

flexibility, and time for the parties to 

potentially settle the case. The 

Department believes that holding a 

hearing within 14 business days is still 

working within an expedited timeline. 

To the extent commenters suggested late 

arrival of workers is caused by alleged 

delays from DHS or DOS, those 

comments cannot be resolved by this 

regulatory process and are not within 

the Department’s purview. 

In paragraph (e)(1)(iii), the 

Department had proposed to provide the 

ALJ broad discretion to limit discovery 

and the filing of pre-hearing motions in 

a way that contributes to a fair hearing 

while not unduly burdening the parties. 

As is the case with the 2010 H–2A Final 

Rule, 29 CFR part 18 governs rules of 

procedure during the hearing process, 

subject to certain exceptions discussed 

in this section and part 18. Although 29 

CFR 18.50 through 18.65. permits an 

ALJ to exercise discretion in matters of 

discovery, the Department’s language 

makes explicit the ALJ’s broad 

discretion to limit discovery and the 

filing of pre-hearing motions in the 

circumstances of a hearing under the H– 

2A program. The Department has 

included this language because in the 

H–2A program, the time to hold a 

hearing and to issue a decision 

following that hearing are expedited. 

This expedited timeline makes the need 

for limits on requests for discovery and 

the filing of pre-hearing motions is 

particularly pronounced. The 

administrative procedures in 29 CFR 

part 18, and particularly the sections on 

discovery and motions, were not 

specifically designed for the H–2A 

program, nor for situations that require 

an accelerated adjudication process, as 

is required by the H–2A program. As 

such, the Department has provided the 

ALJ with broad discretion to restrict 

discovery and the filing of pre-hearing 

motions to situations where they are 

needed to ensure fundamental fairness 

and expeditious proceedings. One 

commenter sought clarification 

regarding the ALJ’s discretion and asked 

if this text was a change to current 

practice. The proposed regulation was 

not a change to current practice, but 

rather a codification of the same. No 

other comments were received in 

relation to this subsection and the 

Department has adopted it as proposed. 

In paragraph (e)(1)(iv), the 

Department proposed a 10-calendar-day 

timeframe in which an ALJ must issue 

a decision after a hearing. The 

Department invited the public to 

comment on whether this time period 

should be modified, but no proposals 

were received. The Department has 

adopted the language as proposed. 

In paragraph (e)(1)(v), the Department 

clarified that for cases in which the 

employer waives its right to a hearing, 

the proper standard and scope of review 

is the standard and scope used for 

administrative review. Under the INA, 

the regulations must provide for 

expedited administrative review or, at 

the employer’s request, a de novo 

hearing. See 8 U.S.C. 1188(e)(1). If the 

employer requests a de novo hearing but 

then waives its right to such a hearing, 

the case reverts to administrative 

review. In that circumstance, the 

standard and scope of review for 

administrative review applies. 

Similarly, should an ALJ determine that 

a case does not contain disputed 

material facts to warrant a hearing, 

review must proceed under the standard 


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and scope used in cases of 

administrative review. As no comments 

were received on this clarification, the 

Department has adopted the language as 

proposed. 

In paragraph (e)(2), the Department 

has articulated the standard and scope 

of review for de novo hearings. The 

Department has clarified that the ALJ 

will review the evidence presented 

during the hearing and the CO’s 

decision de novo. This standard of 

review recognizes that new evidence 

may be introduced during the hearing 

and allows the ALJ, as permitted under 

sec. 218(e)(1) of the INA, to review such 

evidence and other evidence introduced 

during the hearing de novo. See 8 U.S.C. 

1188(e)(1) (noting regulations shall 

provide for a de novo administrative 

hearing at the applicant’s request). 

Similarly, the INA permits the ALJ to 

review the CO’s decision de novo when 

the employer requests a de novo 

administrative hearing. See id. This is 

the standard of review under the INA, 

and the Department has codified it in 

the regulations so that the standard is 

clearly and consistently applied. As no 

comments were received regarding the 

standard of review, the Department has 

adopted the language as proposed. 

The Department has recognized that 

there may be instances when the issues 

to be resolved are purely legal, or when 

only limited factual matters are 

necessary to resolve the issues in the 

case. Paragraph (e)(2) has been revised 

to address this possibility and provide 

that the ALJ may resolve the issues 

following a hearing based only on the 

disputed factual issues, if any. Two 

commenters suggested that the proposed 

language would limit the issues an ALJ 

could review and adjudicate. This was 

not the intention, and the language in 

this rule simply codifies an already 

existing practice. Currently, the OALJ 

already relies on mechanisms, 

including, but not limited to, status 

conferences and pre-hearing exchanges, 

to determine which issues raised in the 

request for review can be resolved as a 

matter of law and which issues involve 

disputed material facts requiring the 

introduction of new evidence during a 

hearing. Should an ALJ determine that 

an issue is purely legal and does not 

contain disputed material facts to 

warrant a hearing, review must proceed 

under the standard and scope used in 

cases of administrative review. The 

wording of this language has been 

slightly revised in this final rule for 

clarity, but the substance remains the 

same as it was in the NPRM. 

The Department proposed and 

subsequently adopted language that 

states that if new evidence is submitted 

with a request for de novo hearing, and 

the ALJ determines that a hearing is 

warranted, the new evidence submitted 

with the request for review must be 

introduced during the hearing to be 

considered by the ALJ. This allows for 

the introduction of new evidence, and 

for the de novo review of that evidence 

by the ALJ, while ensuring new 

evidence submitted with a request for 

review is subject to the same procedures 

that apply to new evidence introduced 

during a hearing, such as the 

opportunity for cross-examination and 

rebuttal. 

Finally, as part of its efforts to 

conform this section with the appeals 

section in the H–2B regulations, the 

Department has moved the language 

that the ALJ must affirm, reverse, or 

modify the CO’s decision, or remand to 

the CO for further action, except in 

cases over which the Secretary has 

assumed jurisdiction pursuant to 29 

CFR 18.95, from proposed paragraph 

(e)(3) to proposed paragraph (e)(2), 

which addresses the standard and scope 

of review. 

In paragraph (e)(3), the Department 

has adopted changes regarding the 

issuance of the decision for a de novo 

hearing as proposed with only the one 

minor change. Paragraph (e)(3) had 

modified the individuals and entities 

that receive the ALJ’s decision to align 

with the recipients of ALJ decisions 

under the H–2B regulations, namely, the 

employer, the CO, and counsel for the 

CO. See 20 CFR 655.61(f). In this final 

rule, the Department, in paragraph 

(e)(3), has added that employer’s 

attorney or agent (if applicable) will also 

receive the decision. 

g. Other Comments 

Finally, there were some general 

comments, which the Department 

addresses here. As discussed below, the 

Department has not made any changes 

in response to these comments. One 

commenter proposed that the CO be 

prohibited from denying applications 

that are similar to previously approved 

applications unless the CO provides 

notice to employers that, as the 

commenter characterized it, those 

previously approved temporary 

agricultural labor certifications could no 

longer be ‘‘relied upon’’ for future 

applications. The Department declines 

to adopt this suggestion. The 

Department rejects the suggestion that 

previously approved applications 

mandate approval in the future. Each 

application for a temporary agricultural 

labor certification must be processed on 

its own merits, and each must be 

processed according to the time and 

place for which the job opportunity will 

take place. See 8 U.S.C. 1188(a) and (b) 

(noting that a temporary agricultural 

labor certification certifies, among other 

things, that 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’’). The regulatory appeals 

process provides an adequate 

opportunity for employers to seek 

review of the CO’s decisions, as is 

required by statute. 8 U.S.C. 1188(e)(1). 

To the extent that this commenter 

alleged that previous applications may 

have been processed or adjudicated 

outside a regulatory timeline, such an 

allegation falls outside the scope of this 

rule to address specific prior 

applications or appeals. 

One commenter expressed concern 

that the Department would eliminate 

the opportunity to appeal from an ALJ’s 

temporary agricultural labor 

certification decision to the 

Department’s ARB. However, employers 

did not previously have the ability to 

appeal a temporary agricultural labor 

certification decision to the ARB, nor 

was such an option proposed in the 

NPRM. 

One commenter suggested that the 

Department establish a system by which 

employers could seek out advisory 

opinions, which could be adjudicated 

through the appellate system, and 

which would clarify the Department’s 

interpretation of the regulations. This 

submitted comment is beyond the scope 

of the proposed rule and cannot be 

implemented through this regulatory 

rulemaking. 

3. Section 655.172, Post-Certification 

Withdrawals 

The NPRM proposed technical 

amendments to this section to relocate 

the job order withdrawal provision from 

§ 655.172(a) to § 655.124, in addition to 

amendments to relocate the Application 

for Temporary Employment 

Certification withdrawal provision from 

§ 655.172(b) to § 655.136, as discussed 

above in the preamble for those 

sections. The Department proposed to 

reorganize these withdrawal provisions 

so that, for example, the procedure for 

withdrawing the Application for 

Temporary Employment Certification is 

located in the section of the rule where 

an employer at that stage of the 

temporary agricultural labor 

certification process would look for 

such a provision. The Department also 

proposed language in this section 

reiterating current requirements that 

withdrawal does not nullify an 

employer’s obligation to comply with all 

the terms and conditions of employment 


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under the certified Application for 

Temporary Employment Certification. 

The Department received no 

comments on the proposed amendments 

to reorganize the withdrawal provisions 

in the regulatory text. Therefore, this 

final rule adopts the proposed changes 

from the NPRM without change. 

Accordingly, an employer seeking 

withdrawal of a certified Application for 

Temporary Employment Certification 

must submit a withdrawal request, in 

writing, to the NPC. In the withdrawal 

request, the employer must identify the 

temporary agricultural labor 

certification to be withdrawn and state 

the reason(s) for the employer’s request. 

Similar to the withdrawal provisions at 

§§ 655.124 and 655.136, this section 

adopts the proposed language to 

reiterate that the withdrawal of a 

temporary agricultural labor 

certification does not nullify an 

employer’s obligations to comply with 

the terms and conditions of employment 

under the certification with respect to 

all workers recruited in connection with 

the application and job order. 

The Department received two 

comments stating that employers should 

not be bound to comply with obligations 

under the Application for Temporary 

Employment Certification and related 

job order after withdrawal, apparently 

without regard to the timing of 

withdrawal. These comments have 

already been addressed above in the 

section of the preamble related to 

§ 655.124. 

4. Section 655.173, Setting Meal 

Charges; Petition for Higher Meal 

Charges 

The NPRM proposed minor 

amendments to this section that 

contains the methodology for setting the 

annual rates at which an employer may 

charge workers for meals and the 

procedures by which an employer may 

request approval from the CO for a 

higher meal charge amount. The 

Department received a few comments 

related only to the proposal to establish 

a ceiling on the meal charge amount the 

CO may approve. As discussed in detail 

below and after carefully considering 

these comments, the Department has 

decided to largely adopt the regulatory 

text proposed in the NPRM, with 

revisions to remove language related to 

establishing a maximum higher meal 

charge amount. 

As provided in § 655.122(g), 

employers must provide each worker 

three meals a day or furnish free and 

convenient cooking and kitchen 

facilities so that the worker can prepare 

meals. If an employer provides workers 

with three meals per day, rather than 

providing them with free and 

convenient cooking and kitchen 

facilities, the employer may not charge 

workers more than the allowable meal 

charge set by the Department’s 

regulations at § 655.173(a) for providing 

those meals, unless and until the CO 

authorizes the employer to charge a 

higher amount pursuant to § 655.173(b). 

The Department proposed no changes 

to the existing methodology used to 

annually adjust the standard amount an 

employer may charge workers for 

providing them with three meals per 

day. The Department proposed to 

update the amount stated in paragraph 

(a) to reflect the current standard meal 

charge amount in effect (i.e., $14.00 per 

day) and to more clearly characterize it 

as the starting point for future annual 

updates. 85 FR 16133 (Mar. 20, 2020). 

In addition, the Department proposed to 

make the annual adjustments effective 

on a date no more than 14 calendar days 

after publication in the Federal 

Register, to provide employers a brief 

period for adjustment to the updated 

rate, consistent with the Department’s 

proposed approach to wage rate 

updates. See, e.g., § 655.120(b)(3). The 

Department did not receive comments 

on these revisions to paragraph (a). 

However, consistent with the 

Department’s reasoning and decision 

not to adopt an adjustment period of up 

to 14 calendar days for both AEWR 

updates and prevailing wage updates, 

the Department has not adopted the 

proposed adjustment period for meal 

charge updates. Therefore, apart from a 

grammatical edit and removal of the 

proposed 14-day adjustment period, the 

Department has adopted paragraph (a) 

without change in this final rule. 

In paragraph (b), the Department 

proposed to retain the basic process an 

employer may follow to petition the CO 

for authorization to charge workers 

more than the standard meal charge set 

under paragraph (a), with revisions for 

clarity and to address situations in 

which an employer’s higher meal charge 

petition is based on its use of a third 

party to provide meals to workers (e.g., 

hiring a food truck to prepare and 

deliver meals or engaging restaurants 

near the housing or place of 

employment to provide meals). In 

paragraph (b)(1), the Department 

clarified that the CO will deny the 

employer’s petition, in whole or in part, 

if the documentation the employer 

submits to the CO does not justify the 

higher meal charge requested, with 

paragraph (c) retaining the employer’s 

option to appeal. 

In paragraph (b)(1)(i), the Department 

retained the 2010 H–2A Final Rule’s 

documentation requirements for 

employers that directly provide meals to 

workers (i.e., through its own kitchen 

facilities and cooks), with clarification 

that the employer’s documentation must 

include only permitted costs. The 

Department proposed a new paragraph 

(b)(1)(ii) to address documentation 

requirements applicable to employers 

that provide meals to workers through a 

third party. Specifically, the employer’s 

documentation must identify each third 

party engaged to prepare meals, describe 

how the employer’s agreement with 

each third party will fulfill the 

employer’s obligation to provide three 

meals a day to workers, and document 

each third party’s charges to the 

employer for the meals to be provided. 

The employer must retain records of 

payments to the third party and 

deductions from a worker’s pay, as 

provided in § 655.167(b). Finally, the 

employer, or anyone affiliated with the 

employer, is prohibited from receiving a 

direct or indirect benefit from a higher 

meal charge to a worker. The 

Department did not receive comments 

on these proposals and is adopting them 

without change in this final rule. 

In paragraph (b)(2), the Department 

clarified the effective date and scope of 

validity of an approved higher meal 

charge petition. In addition to waiting 

for the CO’s approval, which may 

specify a later effective date, an 

employer must disclose to workers any 

change in the meal charge or deduction 

before it may begin charging the higher 

rate. Further, the Department clarified 

that the CO’s approval of a higher meal 

charge is valid only for the meal 

provision arrangement presented in the 

higher meal charge petition and only for 

the meal charge amount the CO 

approved. If the approved meal 

provision arrangement changes, the 

employer would not be permitted to 

charge workers more than the standard 

meal charge set under paragraph (a) 

until the employer repeated the higher 

meal charge petition process for the new 

meal provision arrangement and 

received the CO’s authorization to 

charge a higher amount. The 

Department did not receive comments 

on these revisions and is adopting them 

without change in this final rule. 

Finally, the Department also proposed 

to reintroduce an objective ceiling on 

meal charges through a maximum 

higher meal charge amount. In part, the 

Department thought an upper limit on 

meal charges could help to ensure that 

an employer’s choice to engage a third 

party to provide three meals a day to 

workers would not unreasonably reduce 

workers’ wages. The maximum higher 

meal charge amount the Department 

proposed was derived from the last 


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maximum allowable higher meal charge 

amount published in the Federal 

Register and effective in 2008, updated 

using the same methodology as in 

paragraph (a). The Department invited 

comments on methods for processing 

and evaluating higher meal charge 

requests involving third party prepared 

meals, including alternative methods for 

determining and updating a higher meal 

charge ceiling that would not inhibit the 

provision of sufficient, adequate meals 

and will not reduce workers’ wages 

without justification. 

The Department received several 

comments from trade associations, 

agents, and an employer that expressed 

strong opposition to the proposal to 

impose a ceiling for higher meal charge 

petitions. The commenters generally 

viewed the ceiling as ‘‘artificial.’’ Some 

expressed concern that the maximum 

rate proposed would often be below 

actual meal costs, with one asserting 

that such a limitation would result in 

some employers providing smaller and 

lower quality meals to their workers to 

stay within budget. Another agent saw 

no added benefit from a maximum 

amount because higher meal charge 

requests are subject to the CO’s 

approval, so there is no need to place an 

arbitrary limit on the CO’s discretion. 

The Department did not receive 

comments suggesting alternative 

methods to determine an appropriate 

higher meal charge limitation. 

After consideration of the comments 

received, the Department has decided 

not to adopt the proposed ceiling on the 

meal charge amount the CO may 

approve and, therefore, has revised 

paragraphs (b) introductory text and 

(b)(1) to remove language related to a 

maximum higher meal charge amount. 

The Department appreciates and shares 

commenters’ concerns that the proposal 

would not adequately account for 

various factors that could influence the 

costs of employer-provided meals, such 

as the variance of food costs across 

localities or the need to accommodate a 

worker’s dietary restrictions, and could 

result in employers providing smaller 

and lower quality meals to their workers 

to stay within budget in certain 

circumstances. The Department also 

agrees the proposal would have placed 

an unnecessarily rigid limitation on the 

CO’s discretion and might have 

prevented the CO from approving higher 

meal charge requests even in cases 

where the employer provides ample 

documentation of actual costs, 

compelling justification for the higher 

meal charge, and solid evidence the 

employer could not have provided 

adequate meals at a lower cost. 

The Department has therefore 

determined that the reasonable 

approach, at this time, is to allow the 

CO to determine whether to approve 

higher meal charge petitions, on a caseby-case basis, based on the CO’s 

evaluation of the employer’s 

documentation. Particularly in meal 

arrangements involving third-party 

preparers, the CO will consider whether 

the employer has demonstrated it 

cannot provide the required meals for 

the standard costs permitted by 

paragraph (a) and the higher meal 

charge requested, based on the meal 

provision arrangements presented in the 

petition, is necessary, not merely 

convenient or a means of reducing an 

employer’s housing costs (e.g., when 

motel rooms with kitchenettes are 

available at a higher rate). In 

administering this final rule, the 

Department will continue to consider 

ways to best protect workers from 

improper deductions, while also 

providing sufficient discretion to the CO 

and adequately accounting for the 

various factors that may influence the 

cost of employer-provided meals. 

One State government commenter 

reiterated a comment submitted in 

connection with the meal provision 

obligation at § 655.122, stating that even 

where an employer provides three meals 

per day that satisfy minimum Federal 

standards, a worker may need to 

supplement those meals through 

individually purchased and stored food 

to satisfy nutritional and caloric needs 

and urging the Department to allow this 

practice. A pattern of workers finding it 

necessary to supplement employerprovided meals might suggest that the 

employer’s meals are insufficient and its 

meal provision arrangement should be 

reevaluated. However, where an 

employer is providing sufficient meals 

and workers wish to supplement those 

meals with additional food (e.g., 

snacks), the Department notes that 

nothing in the regulations prohibits or 

prevents workers from purchasing, 

storing, and eating food not provided by 

the employer. 

5. Section 655.174, Public Disclosure 

The NPRM did not propose changes 

to the longstanding practice of 

providing publicly accessible 

information about users of the H–2A 

program on the OFLC website. 

Therefore, this final rule retains the 

current requirements. 

6. Section 655.175, Post-Certification 

Amendments 

The 2010 H–2A Final Rule does not 

permit amendments to an application 

after the CO issues a Final 

Determination. Thus an employer that 

experiences changed circumstances 

after certification is required to submit 

a new and substantially similar 

Application for Temporary Employment 

Certification and job order. The NPRM 

proposed to add a new provision 

permitting an employer to request minor 

amendments to the places of 

employment listed in the certified 

Application for Temporary Employment 

Certification and job order under 

limited circumstances and subject to 

certain conditions. The proposal was 

intended to recognize that an employer 

may experience changed circumstances, 

wholly outside of their control, after 

certification, necessitating adjustments 

to certain aspects of the anticipated 

work plan. The Department’s proposed 

provision would have allowed for 

narrowly tailored post-certification 

amendments to alleviate the burdens 

with filing and processing a new 

Application for Temporary Employment 

Certification and provide employers 

with a certain degree of flexibility to 

more quickly respond to changing 

needs, without compromising the H–2A 

program’s integrity or changing the 

terms and conditions of employment to 

which the employer already attested. 

The Department received a significant 

number of comments on this provision. 

After careful consideration of 

comments, the Department has decided 

not to adopt the proposed postcertification amendments provision at 

§ 655.175, as discussed in detail below. 

The majority of comments from 

employers, associations, and agents that 

addressed the proposed postcertification amendment provision 

expressed general support and viewed 

this provision as a practical, reasonable 

administrative improvement that would 

simplify the H–2A program, reduce 

burdens on employers by providing 

flexibility to accommodate changed 

circumstances after certification within 

limits appropriate to protect program 

integrity, and improve the accuracy of 

information available to the Department 

regarding worker location, especially in 

the case of workers that travel from site 

to site when employed by FLCs or 

itinerant employers. An agent explained 

that requiring an employer to file a new 

application to add a place of 

employment within the certified AIE is 

burdensome and restrictive because the 

employer has already completed a labor 

market test for that area and the period 

of need. Several of the comments 

provided examples of the types of 

circumstances in which a postcertification amendment would help 

producers stay in compliance with the 


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rule while adapting to on-the-ground 

conditions. For example, situations like 

late snow, drought, or excessive rain 

may prevent access to rangeland, or 

wildfire or drought may alter or 

eliminate vegetation on the rangeland, 

such that ranchers must relocate herds, 

on short notice, to other rangeland with 

vegetation of sufficient quality and 

quantity available for grazing. Other 

examples commenters cited included 

severe adverse weather, changes in 

vegetative growing conditions, sudden 

presence of predators, disaster 

situations, and unanticipated planting 

to replace lost crops. An agent requested 

the Department include examples, 

unrelated to weather, constituting good 

and substantial cause. Commenters 

provided non-weather examples 

including wildfires, predators, and 

inability to access certain locations due 

to route conditions, which are discussed 

above. 

The Department also received a 

significant number of comments from 

workers’ rights advocacy organizations, 

labor unions, State agencies, and elected 

officials expressing concerns about the 

proposed post-certification amendments 

provision. Commenters expressed 

concern that this provision would 

provide employers with unilateral 

ability to make mid-season changes to 

the terms and conditions of 

employment, which they asserted is 

unfair to workers who are not able to 

negotiate or appeal changes made after 

the job begins. These commenters also 

expressed concerns that the proposal 

might jeopardize the labor market test, 

create occupational instability, 

complicate wage determinations, hinder 

the work of workers’ rights advocacy 

organizations, lead to worker 

exploitation, disadvantage employers 

that do not employ H–2A workers, and 

result in employer abuse of the 

attestation-based process. 

In response to the Department’s 

request for comments on ways to 

balance employers’ need to adapt 

quickly to changed circumstances with 

the Department’s need to protect 

program integrity, a workers’ rights 

advocacy organization asserted that the 

timeline for processing an Application 

for Temporary Employment 

Certification is already short enough to 

accommodate an employer’s need to 

adapt to changing circumstances. The 

commenter asserted the proposal would 

violate the Department’s statutory 

obligation by relying on employer 

assurances that they met all program 

requirements, including those vital to 

workers’ rights (e.g., workers’ 

compensation and wage rate for a new 

State). Two U.S. Senators requested the 

Department abandon the proposal, 

asserting the Department can balance its 

goals within the current regulatory 

framework, specifically the precertification amendment provision at 

§ 655.145 and the emergency situations 

waiver provision at § 655.134. In 

contrast, a few trade associations 

thought the proposal was sufficiently 

limited to allow employers to react 

quickly to unforeseen circumstances 

without compromising the integrity of 

the temporary agricultural labor 

certification. 

A workers’ rights advocacy 

organization asserted that the 

Department had not provided sufficient 

data or rationale to explain how this 

proposal furthers regulatory or statutory 

goals. This commenter also stated that 

even if the employer provides a copy of 

the amended temporary agricultural 

labor certification to workers, H–2A 

workers who are told to work at 

different worksites, possibly in different 

States, may not be certain that the work 

is permitted under their H–2A visa. This 

commenter also believed the proposed 

post-certification amendment process 

would be abused by H–2ALCs and 

would permit employers to use the 

process as a ‘‘tool to further their illegal 

preference for H–2A workers.’’ 

Some commenters asserted the 

proposal conflicted with workers’ need 

to know the job terms before accepting 

an H–2A job opportunity, which could 

negatively affect U.S. workers’ access to 

jobs and deter them from applying. Two 

U.S. Senators and one of the workers’ 

rights advocacy organizations asserted 

the employment of foreign workers at 

worksites not disclosed to U.S. workers 

would not only disadvantage U.S. 

workers, but may increase the risk of 

exploitation, trafficking, and labor 

abuses. The senators further asserted 

that, in conjunction with the 

Department’s proposal to determine the 

AEWR for specific occupations, postcertification amendments to worksites 

would unnecessarily complicate wages 

for employers and workers, greatly 

increasing the risk of workers being paid 

an incorrect wage. The senators also 

believed the proposal unnecessarily 

increased the administrative burden on 

employers and defeated the 

Department’s objective of simplifying 

the H–2A program. 

Some commenters viewed postcertification changes to worksites as 

compounding their general concerns 

about the labor market test, the 

proposed option for staggered start 

dates, and the proposed 30-day period 

replacing the 50 percent rule. Two 

workers’ rights advocacy organizations 

expressed concern the proposal did not 

require additional recruitment. One of 

the commenters asserted workers must 

know where they will be required to 

work in order to assess housing, 

transportation, terrain, facilities, quality 

of crops, and other factors that affect 

workers’ interest in potential 

employment. This commenter expressed 

particular concern about situations in 

which the certified AIE crosses State 

lines because the proposal would not 

require the employer to conduct 

additional positive recruitment in the 

new State or allow the SWA in the new 

State to evaluate the job order and 

availability of workers, which it feared 

would result in lost job opportunities 

for U.S. workers. 

A State governor expressed concern 

the proposal could create hardships for 

U.S. workers who have to find their way 

to the new worksite or risk being fired, 

which they believed would be a 

particular concern in a situation where 

the employer has a ‘‘no rehire policy’’ 

and might invoke the policy to refuse to 

hire those workers who had to quit or 

were fired for refusing to report to an 

additional work location. One of the 

workers’ rights advocacy organization 

commenters expressed concern about 

U.S. workers who might lose jobs at the 

added place of employment, such as 

former workers with seniority at that 

worksite who might not be contacted to 

determine whether they are available for 

the job. The commenter expressed 

particular concern about situations in 

which an H–2ALC adds a place of 

employment where workers were 

directly hired by the farmer in prior 

years. 

A State governor and one of the 

workers’ rights advocacy organizations 

feared that the proposal would permit 

misuse of the program by employers, 

such as reforestation contractors, 

employing workers in many locations, 

because these employers might test the 

labor market in one AIE, but actually 

employ workers in another area. The 

governor further expressed concern the 

proposal would not provide the SWA 

sufficient time to test the labor market 

for domestic workers in the new 

locations because amendments to 

worksites after certification would 

require changes to the job order in the 

SWA system, as well as changes to 

recruitment posters and advertising that 

the SWA creates to notify the 

community of the jobs available. The 

governor also noted domestic workers at 

the new locations will need to be made 

aware of the change in order to know if 

they are in corresponding employment 

under the H–2A certification. 

In addition to comments expressing 

support or opposition to the proposed 


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post-certification amendments, the 

Department received several comments 

requesting specific changes to the 

proposal or suggesting alternatives to 

one or more aspects of the proposal. 

Comments from employers, 

associations, and agents generally urged 

the Department to expand the scope of 

post-certification amendments, ease the 

proposed restrictions on the 

amendments, and clarify requirements 

for approval of amendment requests. 

Some commenters mistakenly believed 

the provision would permit employers 

to increase the number of workers and 

add work locations after certification as 

they acquire additional work (e.g., new 

contracts or fields) in the normal course 

of business. Several commenters also 

urged the Department to provide 

additional guidance and clarity 

regarding various aspects of the 

proposed provision. An international 

recruitment company asked the 

Department to define more clearly the 

terms ‘‘minor changes,’’ ‘‘good and 

substantial cause,’’ ‘‘circumstance(s) 

underlying the request,’’ ‘‘reasonably 

foreseen,’’ ‘‘wholly outside the 

employer’s control,’’ and ‘‘material 

terms and conditions.’’ An agent and 

two farm owners urged the Department 

to be flexible in evaluating ‘‘good and 

substantial cause,’’ expressing concern 

that if an employer’s burden of proof is 

too high it could render postcertification amendments unworkable. 

One of these commenters believed the 

Department should apply a more 

flexible definition of ‘‘good and 

substantial cause’’ than it applies to 

emergency situation requests under 

§ 655.134. 

Regarding the time provided for the 

CO to review these requests, several 

commenters simply stated postcertification amendment requests 

should be processed as quickly as 

possible or otherwise without delay. An 

international recruiting company 

suggested employers submit real-time 

updates regarding the workers’ location 

to the NPC, rather than submitting 

individual requests and waiting up to 3 

days for CO approval. In contrast, a 

workers’ rights advocacy organization 

opposed the proposed 3-business-day 

review period, asserting this would not 

provide sufficient time to review the 

request and assess the effect on the labor 

market test. 

The Department also received 

comments addressing time limitations 

on post-certification amendment 

requests. A workers’ rights advocacy 

organization argued if the Department 

adopts a post-certification amendment 

provision, the amendments must be 

limited to a post-certification time 

period shorter than 30 days after 

certification, the shortest period the 

Department mentioned as an option in 

the NPRM. An individual commenter 

suggested the Department either permit 

post-certification amendments until 50 

percent of the work contract period has 

elapsed or extend the employer’s hiring 

obligation to 30 days after any 

amendment to the temporary 

agricultural labor certification. In 

contrast, a few trade associations urged 

the Department to permit employers 

‘‘ample’’ time to submit postcertification amendments requests 

because the circumstances necessitating 

these amendments are not bound by any 

regulatory limit and can happen at any 

time. 

After careful consideration of all 

comments, as stated above, the 

Department has decided not to adopt 

the post-certification amendment 

provision in this final rule. Although 

the Department did not intend for the 

proposed provision to have permitted 

post-certification amendments that 

changed the terms and conditions of 

employment (e.g., adding places of 

employment in a different AIE than 

certified), the Department recognizes 

commenters’ concerns. The Department 

is sensitive to the concerns about the 

potential for changed terms and 

conditions of employment and ensuring 

U.S. workers’ access to job 

opportunities. The Department agrees 

that permitting employers to add places 

of employment beyond the AIE and the 

States certified would change the terms 

and conditions of employment without 

CO review, could permit employers to 

use the post-certification amendment 

process in a way that undermines the 

Department’s underlying finding 

regarding U.S. worker availability, and 

could require the employer to secure 

additional documentation of the type 

that would have been subject to the 

CO’s review during application 

processing (e.g., evidence of workers’ 

compensation compliance in the new 

State and, potentially, housing). These 

types of changes are beyond the scope 

of what the Department believes is 

appropriate to permit under a postcertification, expedited review process. 

The Department appreciates the 

concerns of a workers’ rights advocacy 

organization and State governor 

regarding potential job losses for 

workers with seniority at that worksite 

who might not be contacted to 

determine whether they are available for 

the job and workers who may be unable 

or unwilling to report to a new worksite. 

The Department agrees an effective postcertification amendment provision 

should require the employer to contact 

former U.S. workers for each added 

place of employment and solicit their 

return to the job opportunity and that 

the post-certification amendment 

process may require a carefully tailored 

expedited process to guarantee 

employers engage in such contact. The 

Department also appreciates and agrees 

with commenters’ concern about the 

necessity of providing sufficient time to 

assess the effect of the amendment on 

the labor market test. Finally, the 

Department appreciates the State 

governor’s comment expressing concern 

regarding the process for apprising 

corresponding workers at new worksites 

of their rights and protections and the 

Department agrees that an effective postcertification amendment provision must 

more clearly address employers’ 

obligation to reevaluate whether its 

workers are engaged in corresponding 

employment and timely disclose to 

workers approved amendments to the 

work contract, in compliance with 

§ 655.122(q). 

While the Department understands 

the importance of providing flexibilities 

that permit employers and associations 

to quickly respond to exigent 

circumstances requiring minor 

amendments to places of employment 

after their applications are certified, the 

Department has determined that the 

proposal would require significant 

revisions to provide greater clarity to 

employers and ensure post-certification 

amendments do not adversely affect 

workers similarly employed in the AIE 

and those U.S. workers seeking 

employment. In light of the substantial 

and numerous commenter concerns, the 

Department does not believe the 

proposal, even with significant 

revisions, will satisfy the policy 

considerations underlying this final 

rule. Notwithstanding, as noted by the 

U.S. Senators and workers’ rights 

advocacy organization commenters, the 

Department agrees that the existing 

regulations already provide a limited 

degree of flexibility to employers to 

react to exigencies and changing 

circumstances. Accordingly, the 

Department declines to adopt the 

proposal in the NPRM at this time. 

Under this final rule, as under the 2010 

H–2A Final Rule, the employer may 

request certain amendments under the 

provisions set forth at § 655.145, in 

situations where the employer could 

foresee the need for amendment after 

filing, but prior to the CO issuing a Final 

Determination, and, if necessary, may 

file a new Application for Temporary 

Employment Certification, using the 

emergency situations procedures at 


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§ 655.134 to address changes not 

permitted under § 655.145. For example, 

if unusually heavy storms and rains 

occur after the employer submits its 

Application for Temporary Employment 

Certification, the employer can assess 

impacts on crop conditions and its 

temporary need and may determine it is 

appropriate to reduce staffing levels for 

the job opportunity described on the 

pending Application for Temporary 

Employment Certification and file an 

emergency situation Application for 

Temporary Employment Certification to 

address its need for labor or services 

under the new circumstances at other 

place(s) of employment or with adjusted 

duties. 

The Department will continue to 

consider how best to accommodate the 

needs of employers to make minor postcertification amendments to places of 

employment due to unforeseen 

circumstances over which the employer 

has no control, while also sufficiently 

limiting the scope of these amendments 

to ensure employers provide effective 

notice of job opportunities to non-H–2A 

workers—both former U.S. workers and 

workers in corresponding employment 

at each place of employment added to 

the temporary agricultural labor 

certification—and guarantee changes to 

specific work locations are minimal for 

workers, terms and conditions of 

employment remain unchanged, and the 

underlying labor market test for the AIE 

remains valid for the certification. 

H. Integrity Measures 

1. Section 655.180, Audit 

The NPRM proposed minor 

amendments to this section to clarify 

the procedures by which OFLC 

conducts audits of applications for 

which temporary agricultural labor 

certifications have been granted. The 

Department received a few comments 

on this provision, none of which 

necessitated changes to the regulatory 

text. Therefore, as discussed below, this 

provision remains unchanged from the 

NPRM. 

The Department proposed five 

revisions to this section in the NPRM. 

First, the Department proposed 

revisions to paragraphs (b)(1) and (2) to 

clarify that audit letters will specify the 

documentation that employers must 

submit to the NPC, and that such 

documentation must be sent to the NPC 

not later than the due date specified in 

the audit letter, which will be no more 

than 30 calendar days from the date the 

audit letter is issued. Second, in 

paragraph (b)(2), the Department 

proposed to revise the timeliness 

measure from the date the NPC receives 

the employer’s audit response to the 

date the employer submits its audit 

response. This change is more 

consistent with other filing 

requirements contained in this final rule 

and better ensures employers’ ability to 

timely submit their responses. Third, 

the Department proposed to revise 

paragraph (b)(3) to clarify that partial 

audit compliance does not prevent 

revocation or debarment. Rather, 

employers must fully comply with the 

audit process in order to avoid 

revocation under § 655.181(a)(3) or 

debarment under § 655.182(d)(1)(vi) 

based on a finding that the employer 

impeded the audit. Fourth, the 

Department proposed to add language to 

paragraph (c) to codify the current 

practice of a CO issuing more than one 

request, and sometimes multiple 

requests, for supplemental information 

if the circumstances warrant. This 

practice ensures that employers have 

every opportunity to comply fully with 

audit requests and that the CO’s audit 

findings are based on the best record 

possible. Finally, the Department 

proposed revisions in paragraph (d) to 

clarify the referrals a CO may make as 

a result of audit, including updating the 

name of the office within the DOJ, Civil 

Rights Division, Immigrant and 

Employee Rights Section, that will 

receive referrals related to 

discrimination against eligible U.S. 

workers. 

The Department received two 

comments expressing general support 

for the proposed changes and one 

comment suggesting that only WHD 

conduct audit examinations of certified 

Applications for Temporary 

Employment Certification. Although the 

Department appreciates the suggestion, 

the NPRM did not propose changes 

related to which agency would conduct 

audit examinations. Therefore, this 

suggestion is outside the scope of this 

rulemaking. 

2. Section 655.181, Revocation 

The NPRM proposed minor 

amendments to paragraph (b)(2) of this 

section to clarify that if an employer 

does not appeal a Final Determination 

to revoke a temporary agricultural labor 

certification according to the procedures 

in proposed § 655.171, that 

determination will become the final 

agency action. The Department 

proposed to remove language referring 

to the timeline for filing an appeal, as 

that information was provided in 

proposed § 655.171. The Department 

received some comments generally 

supporting these proposals, and no 

comments in opposition. However, as 

explained below, the Department has 

decided not to adopt the proposed 

revisions in this final rule. 

The proposed deletion of paragraph 

(b)(2)’s current 10-calendar-day timeline 

for appealing, combined with the 

proposed retention of paragraph (b)(2)’s 

reference to the appeal procedures of 

§ 655.171, would have resulted in an 

unintended change in paragraph (b)(2)’s 

appeal timeline. The Department did 

not intend to change any of the current 

timelines in paragraph (b). This final 

rule therefore retains the timelines 

stated in current paragraphs (b)(1) and 

(2), both of which now reference 

paragraph (b)(3). Paragraph (b)(3), in 

turn, retains a reference to the appeal 

procedures of § 655.171, but now 

clarifies that while the appeal 

procedures of § 655.171 apply to any 

appeals filed under paragraph (b)(1) or 

(2), the timelines to file an appeal, as 

stated in paragraphs (b)(1) and (2), 

continue to apply. 

Additionally, the Department has 

removed language from the proposed 

paragraph (b)(3), stating that the ALJ’s 

decision is the final agency action, in 

light of an intervening change to the 

current paragraph (b)(3). As discussed 

elsewhere, between the publication of 

the 2019 proposed rule at 84 FR 36168 

and this final rule, the Department 

published Rules Concerning 

Discretionary Review by the Secretary 

(85 FR 30608), which affected the 

language of this section. The current 

iteration of § 655.181(b)(3), with the 

changes made by the Rules Concerning 

Discretionary Review by the Secretary, is 

different than the iteration of 

§ 655.181(b)(3) that was in effect when 

the NPRM was published. Specifically, 

the Rules Concerning Discretionary 

Review by the Secretary removed the 

language in paragraph (b)(3) that stated 

the decision of the ALJ was the final 

decision of the Secretary, consistent 

with the principle that the Secretary 

could assume jurisdiction over a de 

novo appeal pursuant to 29 CFR 18.95. 

Section 655.171 of this final rule 

contains language implementing that 

principle, which § 655.181(b)(3), in 

turn, incorporates by stating that the 

appeal procedures of § 655.171 apply. 


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3. Section 655.182, Debarment; 29 CFR 

501.16, Sanctions and Remedies— 

General; 29 CFR 501.19, Civil Money 

Penalty Assessment; 29 CFR 501.20, 

Debarment and Revocation; 29 CFR 

501.21, Failure To Cooperate With 

Investigations; 29 CFR 501.41, Decision 

and Order of Administrative Law Judge; 

29 CFR 501.42, Procedures for Initiating 

and Undertaking Review; 29 CFR 

501.43, Responsibility of the Office of 

Administrative Law Judges; 29 CFR 

501.44, Additional Information, if 

Required; and 29 CFR 501.45, Decision 

of the Administrative Review Board 

The NPRM proposed amendments to 

the debarment provision in § 655.182 to 

improve integrity and compliance with 

program requirements, and to establish 

consistency in holding program 

violators accountable among the H–2A 

regulations and the other labor 

certification programs administered by 

the Department. The NPRM also 

proposed amendments to WHD’s 

debarment provision at 29 CFR 501.20 

to conform with the proposed changes 

to 20 CFR 655.182(a) regarding the 

ability to debar an agent or attorney, and 

their successors in interest, based on the 

agent’s or attorney’s own substantial 

violations. The Department received 

some comments on these provisions, 

none of which necessitated substantive 

changes to the regulatory text. As noted 

above, the Department has revised 

§ 655.182(h) to confirm its approach to 

debarment of associations, employermembers of associations, and joint 

employers. Therefore, as discussed 

below, these provisions remain 

substantively unchanged from the 

NPRM. 

The Department proposed to revise 

§ 655.182 to clarify that if an employer, 

agent, or attorney is debarred from 

participation in the H–2A program, the 

employer, agent, or attorney, or their 

successors in interest, may not file 

future Applications for Temporary 

Employment Certification during the 

period of debarment. Under the 

proposal, if such an application is filed, 

the Department will deny the 

application without review, rather than 

issuing a NOD before denying the 

application, as it does under the current 

regulations. 

The Department also proposed to 

revise § 655.182 to allow for the 

debarment of agents or attorneys, and 

their successors in interest, based on 

their own misconduct. Since the 2008 

H–2A Final Rule, the H–2A regulations 

have allowed the Department to debar 

an agent or attorney based on its 

participation in the employer’s 

substantial violation. See § 655.182(b); 

2010 H–2A Final Rule, 75 FR 6884, 

6936–6937; 2008 H–2A Final Rule, 73 

FR 77110, 77188. As explained in the 

NPRM, the proposed revisions would 

allow the Department to hold agents and 

attorneys of the employer accountable 

for their own substantial violation(s), as 

well as for their participation in the 

employer’s substantial violation(s), as 

that term is defined in § 655.182(d). The 

Department also proposed conforming 

revisions to the definition of ‘‘successor 

in interest’’ in § 655.103(b) to reflect that 

a debarred agent’s or attorney’s 

successor in interest may be held liable 

for the debarred agent’s or attorney’s 

violation. The Department has adopted 

these changes as proposed. However, 

the Department has made one 

additional, minor revision to 

§ 655.182(b), consistent with revisions 

to § 655.103(b), to clarify that neither a 

debarred employer, agent or attorney, 

nor a successor in interest to a debarred 

employer, agent or attorney may file an 

H–2A application. 

The Department received one 

comment expressing support for the first 

proposal and several comments 

expressing general support for the 

second. Some commenters expressed 

concern, however, that the Department 

would not seek to debar the employer 

where the Department is pursuing 

debarment of an agent or attorney based 

on the agent’s or attorney’s own 

misconduct. The Department believes 

these concerns are misplaced. Under the 

changes adopted in this final rule, the 

Department may pursue debarment 

against the agent or attorney for their 

own misconduct in those rare instances 

where the Department determines the 

agent or attorney commits a substantial 

violation that the Department finds it 

cannot or, in its discretion, should not, 

attribute to the employer. The 

Department anticipates that, in most 

instances, it would be appropriate to 

debar the employer as well as the agent 

or attorney, because the ultimate 

responsibility for ensuring compliance 

with the program rests with the 

participating employer. 

Some agent commenters objected to 

statements in the NPRM that expressed 

the Department’s concern with the role 

of agents in the H–2A program. The 

Department’s intent was simply to note 

that, in its experience, the participation 

of agents in the program can, but 

certainly does not always, undermine 

program compliance. 

The Department received several 

other comments about the debarment 

provisions that were unrelated to the 

changes the NPRM proposed, and 

therefore are beyond the scope of the 

current rulemaking. For instance, some 

employer and employer association 

commenters requested changes to ease 

the standard for debarment, such as 

requesting a de minimis exception from 

the kinds of violations that would lead 

to debarment from the H–2A program. 

Save for the addition of an H–2ALC’s 

failure to submit an original surety bond 

at § 655.182(d)(2) (discussed in the 

surety bond section above), the 

Department proposed no changes to the 

kinds of violations that are sufficient to 

warrant debarment, and thus the 

Department cannot consider this 

recommendation in the current 

rulemaking. The Department notes, 

however, that the Department considers 

debarment only in the case of 

substantial violations, as required by the 

statute. See 8 U.S.C. 1188(b)(2)(A). 

Another commenter opposed shared 

debarment authority between WHD and 

OFLC. This comment is outside the 

scope of the current rulemaking, as the 

NPRM did not propose changes to the 

Department’s longstanding practice, 

reflected in the associated regulations, 

that both WHD and OFLC have 

debarment authority. 

A workers’ rights advocacy 

organization commented that the 

proposed changes were insufficient to 

address perceived shortcomings to the 

H–2A debarment procedures. 

Specifically, the commenter noted a 

need to improve the debarment 

procedures’ treatment of successors in 

interest and cited specific enforcement 

efforts as demonstrative of the 

limitations of the regulation’s current 

provision. The commenter also 

advocated that the Department’s 

debarment procedures should promote 

employee participation in WHD 

investigations. The Department 

appreciates these comments but notes 

that the suggestions are not within the 

scope of the current rulemaking, as the 

Department did not propose any 

changes to the debarment procedures 

generally. As noted above, however, the 

Department proposed and is adopting as 

final conforming revisions to the 

definition of ‘‘successors in interest’’ in 

§ 655.103(b) to reflect the changes 

detailed above. 

I. Labor Certification Process for 

Temporary Agricultural Employment in 

Range Sheep Herding, Goat Herding, 

and Production of Livestock Operations 

The NPRM proposed amendments to 

certain provisions in this section largely 

to conform the labor certification 

process for temporary agricultural 

employment in range sheep herding, 

goat herding, and production of 

livestock operations to other changes 

proposed in the NPRM. The Department 


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received many comments on this 

section; the vast majority of which were 

outside the scope of this rulemaking and 

none of which necessitated substantive 

changes to the regulatory text. 

Therefore, as discussed in detail below, 

the provisions contained in this section 

remain unchanged from the NPRM 

except for minor technical or clarifying 

changes. 

1. Modernizing Recruitment 

Requirements 

Between the publication of the 2019 

proposed rule at 84 FR 36168 and this 

final rule, the Department published the 

2019 H–2A Recruitment Final Rule that 

amended § 655.225 by removing 

paragraph (d) and redesignating 

paragraph (e) as paragraph (d). This 

final rule incorporates those changes. 

2. Regulatory Revisions Implemented by 

This Final Rule 

As proposed in the NPRM, the 

Department has revised §§ 655.200 

through 655.235 to conform to the other 

revisions in this final rule. Minor 

changes include replacing a dash 

between two sections with the word 

‘‘through’’ (e.g., replacing ‘‘§§ 655.200– 

655.235’’ with ‘‘§§ 655.200 through 

655.235’’) for technical consistency with 

other sections of this final rule. The 

Department received no comments 

regarding these minor changes, or the 

substantive changes discussed below, 

and therefore has adopted all proposed 

revisions in §§ 655.200 through 655.235. 

Aside from technical changes, the 

Department has made one minor change 

to the proposed text in § 655.215(b)(1), 

which is discussed further below. 

The Department has revised § 655.205 

to reflect revisions to the normal job 

order filing procedures in § 655.121 and 

to clarify variances from § 655.121 that 

remain for job opportunities involving 

herding or production of livestock on 

the range. 

In addition, consistent with the 

Department’s reasoning and decision 

not to adopt the transition period for an 

employer to implement a new higher 

AEWR proposed in § 655.120(b), the 

Department did not adopt similar 

transition period language proposed in 

§ 655.211(a)(2). The final rule requires 

an employer to start paying the higher 

rate on the effective date published in 

the Federal Register. The Department 

has also added the phrase ‘‘at least’’ to 

§ 655.211 to clarify that employers must 

pay at least the rate required by the 

regulations, but as the regulations are 

meant to provide a minimum, 

employers may of course choose to offer 

and pay a higher rate. The phrase also 

provides consistency with §§ 655.120 

and 655.210(g). 

The Department has also simplified 

and revised § 655.215(b) introductory 

text and (b)(1) to conform to other 

revisions in this final rule. In paragraph 

(b) introductory text, detailed language 

about additional required information is 

obsolete, as the job order Form ETA– 

790/790A addenda include data fields 

for employers to provide detailed 

information about the job opportunity. 

The obsolete language was removed. 

As the language promulgated in the 

Department’s 2015 H–2A Herder Final 

Rule could have been interpreted to 

permit an Application for Temporary 

Employment Certification for herding or 

production of livestock on the range to 

cover multiple AIEs in more than two 

contiguous States but not a smaller 

geographic area, such as multiple AIEs 

within one State, the Department has 

included one minor change to language 

in paragraph (b)(1) for clarity. See 2015 

H–2A Herder Final Rule, 80 FR 62958, 

62998, 63068. Specifically, an 

Application for Temporary Employment 

Certification may cover multiple AIEs in 

one State, or multiple AIEs in two or 

more contiguous States. Accordingly, 

the text in this final rule has been 

revised to make clear that an 

‘‘Application For Temporary 

Employment Certification and job order 

may cover multiple [AIEs] in one or 

more contiguous States,’’ as opposed to 

saying ‘‘and one or more contiguous 

[S]tates’’ as originally proposed 

(emphasis added). 

Trade associations, an agent, and 

individual employers suggested 

removing the ‘‘contiguous State’’ 

restriction, stating that this limitation 

hinders access to job opportunities. 

However, the Department’s proposed 

revisions for this subpart were meant to 

serve as clarification only, and the 

Department did not propose substantive 

changes to the regulatory requirements. 

Therefore, the comments requesting that 

the Department remove the ‘‘contiguous 

State’’ restriction are outside the scope 

of this rulemaking. 

In addition to minor revisions to 

§ 655.220(b) and (c) for consistency 

within this final rule, the Department 

has revised paragraph (b) to reflect the 

centralization of job order dissemination 

from the NPC to the SWAs as set forth 

in § 655.121. Consistent with § 655.121, 

after the content of a job order for 

herding or production of livestock on 

the range has been approved, the NPC 

will transmit the job order to all 

applicable SWAs to begin recruitment. 

The Department also recently rescinded, 

in the separate 2021 H–2A Herder Final 

Rule, the 364-day provision that 

governed the adjudication of temporary 

need for employers of sheep and goat 

herders (§ 655.215(b)(2)) to ensure the 

Department’s adjudication of temporary 

or seasonal need is conducted in the 

same manner for all H–2A applications. 

The text at § 655.215(b)(2) in this rule 

has been updated to reflect this 

recission. 

Finally, the Department has made 

minor revisions in § 655.225(b) and (d) 

to simplify the language and reflect 

procedural changes made elsewhere in 

this final rule, such as revisions to the 

duration of the recruitment period at 

§ 655.135(d). 

3. Other Comments 

A significant number of comments 

from a trade association, individual 

employers, and other commenters urged 

the Department to reconsider the wage 

rate methodology for herding and range 

livestock opportunities. However, the 

Department explicitly stated in the 

NPRM that it was not reconsidering, and 

therefore not seeking public comment 

on, this wage rate methodology. 84 FR 

36168, 36220–36221. As a result, the 

comments regarding the wage rate 

methodology for herding and range 

livestock job opportunities are outside 

the scope of this rulemaking and will 

not be addressed further. 

An immigration advocacy group, 

trade associations, and individual 

employers and other commenters 

expressed concerns and suggested 

changes regarding housing, the 

frequency of record keeping, the 

frequency of pay for employees, and the 

cost and profitability of business. A 

trade association and individual 

employers offered a number of 

suggested changes, which included the 

Department putting all forms and 

procedures online, providing for 

reimbursement for in-bound travel, 

allowing for a wage credit, and 

removing overtime pay statutes for 

sheepherders. However, the Department 

did not propose changes regarding these 

substantive issues and, thus, the 

comments are outside the scope of this 

rulemaking. With regard to removing or 

exempting specific occupations from 

statutory requirements, the suggestion 

would require a legislative change. 

Other comments from a trade 

association, a State agricultural 

department, and individual employers 

and other commenters were general in 

nature and discussed the industry 

overall and expressed concern about the 

viability of their businesses moving 

forward. The Department understands 

the industry has concerns; however, 

these aforementioned comments and 


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111See TEGL No. 17–06, Change 1, Special 

Procedures: Labor Certification Process for 

Employers in the Itinerant Animal Shearing 

Industry under the H–2A Program (June 14, 2011), 

https://wdr.doleta.gov/directives/corr_

doc.cfm?docn=3041; TEGL No. 33–10, Special 

Procedures: Labor Certification Process for Itinerant 

Commercial Beekeeping Employers in the H–2A 

Program (June 14, 2011), https://wdr.doleta.gov/ 

directives/corr_doc.cfm?DOCN=3043; TEGL No. 

16–06, Change 1, Special Procedures: Labor 

Certification Process for Multi-State Custom 

Combine Owners/Operators under the H–2A 

Program (June 14, 2011), https://wdr.doleta.gov/ 

directives/corr_doc.cfm?DOCN=3040. The NPRM 

also proposed to incorporate reforestation and pine 

straw activities into the H–2A program. Those 

activities have been considered under the H–2B 

program, and variances for the unique 

characteristics of those activities are provided for in 

TEGL No. 27–06, Special Guidelines for Processing 

H–2B Temporary Labor Certification in Tree 

Planting and Related Reforestation Occupations 

(June 12, 2007), https://wdr.doleta.gov/directives/ 

corr_doc.cfm?DOCN=2446. However, following a 

consideration of the public submissions, and as 

discussed in the preamble to § 655.103(c), above, 

this final rule does not incorporate reforestation and 

pine straw activities into the H–2A program, and 

thus no specific variances are included for these 

activities. 

112Compliance with § 655.122(l), as revised by 

this rule, requires an employer to ‘‘pay the worker 

at least the AEWR; a prevailing wage, if the OFLC 

Administrator has approved a prevailing wage 

survey for the applicable crop activity or 

agricultural activity and, if applicable, a distinct 

work task or tasks performed in that activity, 

meeting the requirements of § 655.120(c); the 

agreed-upon collective bargaining rate; the Federal 

minimum wage; or the State minimum wage rate, 

whichever is highest, for every hour or portion 

thereof worked during a pay period.’’ 

113See TEGL No. 17–06, Change 1, Special 

Procedures: Labor Certification Process for 

Employers in the Itinerant Animal Shearing 

Industry under the H–2A Program, Attachment A, 

Section I.A (June 14, 2011). 

114 In the NPRM, the Department expressed its 

intent to codify existing practice, including regional 

surveys where appropriate, through 

§ 655.120(c)(1)(vi). 84 FR 36168, 36187. 

suggestions are not within the scope of 

this rulemaking. 

J. Labor Certification Process for 

Temporary Agricultural Employment in 

Animal Shearing, Commercial 

Beekeeping, and Custom Combining 

1. Section 655.300, Scope and Purpose 

The NPRM proposed to establish 

certain variances to the procedures for 

temporary agricultural labor 

certification for employers who seek to 

hire H–2A workers in animal shearing, 

commercial beekeeping, and custom 

combining to address the unique 

occupational characteristics of these 

occupations. To date, the Department 

has processed Applications for 

Temporary Employment Certification in 

these occupations using TEGLs specific 

to each of these occupations, which 

specify applicable variances from H–2A 

program requirements.111

In order to employ H–2A workers 

under these procedures, an employer’s 

job opportunity must be in one of the 

covered occupations and must involve 

agricultural work to be performed on a 

scheduled itinerary covering multiple 

AIEs, including in multiple contiguous 

States. Unless otherwise specified in 

these variances, set forth in new 

§§ 655.300 through 655.304, employers 

must also comply with all H–2A 

requirements in §§ 655.100 through 

655.185, including payment of at least 

the highest applicable wage rate, 

determined in accordance with 

§ 655.122(l) for all hours worked.112

The Department is adopting the 

variances proposed in the NPRM with 

minor revisions and technical changes. 

The Department received many 

comments on the proposed procedures 

in §§ 655.300 through 655.304. All of 

the commenters supported the proposed 

incorporation of variances for the 

commercial beekeeping, animal 

shearing, and custom combining 

occupations in the Department’s H–2A 

regulations. 

Some commenters requested 

additional variances not proposed in the 

NPRM. Several employer commenters 

requested a variance from the H–2A 

wage requirements in the case of job 

opportunities that involve animal 

shearing. The commenters stated that 

employers of animal shearers generally 

pay per piece or head, not hourly, and 

need a regional or national piece rate 

prevailing wage for shearers. The 

Department notes that the H–2A 

program does not prohibit the payment 

of a piece rate to covered workers, so 

long as the piece rate is accurately 

disclosed and the worker’s average 

hourly earnings for the pay period equal 

at least the highest of the AEWR, 

prevailing hourly wage, agreed-upon 

collective bargaining rate, or the Federal 

or State minimum wage. Indeed, 

historical prevailing wage rates for 

animal shearing have often been 

published as piece rates. Additionally, 

the Department believes that the 

prevailing wage methodology adopted 

in this final rule at § 655.120(c)(1) 

adequately addresses the needs of 

animal shearing employers and removes 

the need for the prevailing wage 

variance specified in the TEGL. The 

TEGL permitted use of a prevailing 

piece rate finding from an adjoining or 

proximate State or based on aggregated 

survey data for the occupation in a 

region to address situations such as 

inadequate sample sizes that would 

otherwise prevent a prevailing piece 

rate finding in a particular State.113

Under this final rule, a prevailing wage 

survey may cover a regional area, where 

appropriate, based on the factors at 

§ 655.120(c)(1)(vi).114 Because the 

prevailing wage methodology adopted 

in this final rule accommodates the 

potential for a regional survey, a specific 

variance is no longer required to address 

situations in which a statewide survey 

fails to generate a prevailing piece rate 

wage result for this occupation. In 

addition, as a prevailing wage survey 

may set a prevailing wage by the piece 

rate based on employer responses, a 

specific variance is not required to 

accommodate piece rates. Regardless, 

the Department notes that this final rule 

does not require employers to change 

their existing payment practices, as the 

obligation to pay at least the amount 

required by § 655.122(l) continues 

unchanged. 

A workers’ rights advocacy 

organization submitted a comment that 

mentions reports of violations regarding 

the adequate payment for compensable 

time for workers employed as animal 

shearers and custom combining workers 

for travel time. In response, the 

Department reiterates that employers 

must account for all hours worked by 

the employee in meeting their wage 

obligations in § 655.122(l). As 

previously noted, in determining 

compensable hours worked under the 

H–2A Program, the Department applies 

FLSA hours worked principles. The 

principles applied in determining 

compensable hours worked are 

explained in more detail in 29 CFR part 

785. As such, the Department reminds 

employers that any employee 

performing work while traveling (e.g., 

driving a combine or employer housing 

between locations, or transporting other 

workers along an itinerary) constitutes 

hours worked. See § 785.41. 

Additionally, certain transportation 

time may constitute hours worked for 

passengers. See §§ 785.33 through 

785.41. 

Some commenters requested a meal 

allowance credit towards the wage rate 

for workers in herding and range 

livestock production occupations. As 

explained in the preamble to the NPRM, 

however, the Department is not 

reconsidering and thus did not seek 

comment on the wage rate methodology 

for herding and range livestock 

production job opportunities. These 

comments are outside the scope of this 

rulemaking. 

2. Section 655.301, Definition of Terms 

The NPRM proposed definitions for 

the occupations subject to the 

procedures in §§ 655.300 through 

655.304. As discussed below, the 

Department is adopting § 655.301 from 


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115 In light of this final rule’s promulgation of 

specific variances to the procedures for H–2A 

temporary labor certification as necessary to 

address the unique occupational characteristics of 

animal shearing, commercial beekeeping, and 

custom combining for employers who seek to hire 

temporary agricultural foreign workers in these 

occupations, the rule also repeals § 655.102’s 

authorization of the TEGLs, and it replaces it with 

a new § 655.102 that provides a transitional period 

for the orderly and seamless implementation of 

these variances in lieu of the TEGLs. 

the NPRM with clarifying and 

conforming changes. Commenters 

generally supported the proposed 

definitions. A workers’ rights advocacy 

organization recommended adding a 

sentence to the definition of commercial 

beekeeping stating that the definition 

includes work performed under the 

supervision of either a fixed-site farmer/ 

rancher or an itinerant beekeeping 

employer providing services to a fixedsite farmer/rancher, purportedly to 

‘‘ensure accurate coverage of all 

applicable job opportunities.’’ However, 

the commenter did not provide any 

explanation as to why the identity of the 

supervisor of an itinerant beekeeping 

worker is relevant to coverage of 

applicable job opportunities. The 

Department declines to adopt the 

commenter’s proposal. Some 

commenters argued that itinerant 

beekeepers have been erroneously 

subject to the MSPA FLC registration 

requirements. The Department 

disagrees. Beekeepers providing 

pollination services on land that they do 

not own or operate are subject to MSPA 

FLC registration requirements. 

Moreover, the Department did not 

propose any substantive changes to 

§ 655.132’s requirement that H–2ALCs 

submit a copy of their MSPA 

registration certificate ‘‘if required by 

MSPA.’’ These comments are therefore 

outside the scope of this rulemaking. 

A workers’ rights advocacy 

organization proposed expanding the 

definition of ‘‘custom combining’’— 

though it did not provide a rationale for 

doing so—to cover additional types of 

equipment beyond that used in 

combining, and additional worksites 

beyond those covered by the definition 

of agriculture. The Department rejects 

the proposal. To avoid the possibility 

that readers will construe the definition 

more broadly than intended, the 

Department has deleted the following 

terms from the proposed definition of 

‘‘custom combining’’ ‘‘associated with’’ 

and ‘‘including.’’ The Department also 

has made other minor revisions for 

clarity, such as specifying that the type 

of equipment involved in the covered 

activities is combine equipment. 

Several trade associations suggested 

that the NPRM inadvertently omitted 

certain aspects of custom combining, 

such as custom harvesters that harvest 

not only grain but also silage for 

livestock feed. The omission was not 

inadvertent. Harvesting silage does not 

require a combine, but rather a chopper 

or mower, and therefore falls outside the 

definition of custom combining. The 

TEGL was intended to cover only 

custom combining harvesters, as 

evidenced by the regulation authorizing 

promulgation of the TEGLs (i.e., 

§ 655.102, which authorized special 

procedures for processing H–2A 

applications for, among other things, 

‘‘custom combine harvesting crews’’).115

The definition adopted in this final rule 

clarifies that intent. 

In proposing the occupational 

definitions at § 655.301, the Department 

acknowledged that some of the listed 

activities may not otherwise constitute 

agricultural work under the current 

definition of agricultural labor or 

services in § 655.103(c) but are a 

necessary part of performing this work 

on an itinerary (e.g., transporting 

equipment from one field to another). 

See 84 FR 36168, 36222. Accordingly, 

and solely for the purposes of the 

proposed variances in §§ 655.300 

through 655.304, the Department 

explained that it would include these 

activities in the occupational 

definitions. Id. The Department did not 

receive any comments opposing the 

inclusion of specific activities listed in 

the proposed definitions. However, the 

Department acknowledges that only 

duties that fall within the definition of 

agricultural labor or services under 

§ 655.103(c) may be certified under the 

H–2A program. Additionally, an 

application for a job opportunity that 

contains non-agricultural duties, or a 

combination of agricultural and nonagricultural duties, could not otherwise 

be certified. See generally § 655.161(a); 

2010 H–2A Final Rule, 75 FR 6884, 

6888. Accordingly, the Department 

clarifies in this final rule that, under the 

variances adopted in §§ 655.300 through 

655.304, the activities included in the 

occupational definitions at § 655.301 are 

eligible for certification under the H–2A 

program. The Department therefore has 

made a technical, conforming revision 

to add new paragraph § 655.103(c)(5), 

which expressly provides that, for the 

purposes of § 655.103(c), agricultural 

labor or services includes animal 

shearing, commercial beekeeping, and 

custom combining activities as defined 

and specified in §§ 655.300 through 

655.304. 

3. Section 655.302, Contents of Job 

Orders 

a. Paragraph (a), Content of Job Offers 

A workers’ rights advocacy 

organization expressed general support 

for proposed § 655.302, but they 

recommended that job orders be 

required to include additional 

information about workers’ 

compensation, rates of pay, the offered 

wage, and productivity standards for 

each State in which work will be 

performed. No change is required to 

address this comment. Unless a specific 

variance under § 655.302 is applicable 

and provides otherwise, an employer’s 

job order must still comply with each of 

the content requirements at § 655.122. 

See § 655.302(a). For example, in order 

to satisfy its obligation to provide 

workers’ compensation insurance 

coverage for injury and disease ‘‘arising 

out of and in the course of the worker’s 

employment’’ and ‘‘for the entire period 

of employment’’ under § 655.122(e), an 

employer requiring work in multiple 

States (including a single AIE that 

crosses State lines) must satisfy this 

obligation in each State in which work 

will be performed. Similarly, 

§ 655.122(c) and (l) require the employer 

to disclose the wage rate(s) offered and 

productivity standards in the job order. 

The Department’s modernized job order 

form, Form ETA–790A, facilitates full 

disclosure of job offer information. 

b. Paragraph (b), Job Qualifications and 

Requirements 

A workers’ rights advocacy 

organization opposed the Department’s 

proposal to allow a job offer for the 

animal shearing and custom combining 

occupations to include a statement that 

applicants must possess up to 6 months 

of experience in similar occupations, 

and for the commercial beekeeping 

occupation to include a statement that 

applicants must possess up to 3 months 

of experience in similar occupations. 

The Department is retaining the NPRM 

proposal. The proposal was consistent 

with the TEGLs for these occupations. 

This final rule does not mandate that 

employers seeking workers for these 

occupations require such experience; 

rather, this final rule recognizes that 

such experience is consistent with the 

experience employers normally choose 

to require for these occupations, as has 

been observed in filings with OFLC. 

These occupations typically involve 

specialized skills (e.g., operating heavy 

equipment; using shearing tools quickly 

and close to an animal’s skin without 

injury; or detecting and addressing bee 

health issues). The regulatory text 

specifies the maximum amount of 


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experience that an employer may 

require absent an affirmative 

demonstration that such experience is a 

normal and accepted requirement. This 

provision does not mean an employer 

must require the maximum amount of 

experience in the job order—it simply 

sets a ceiling for what are considered to 

be normal requirements. Further, in the 

event that a SWA or OFLC CO obtains 

information indicating that the amount 

of experience required by the employer 

is not usual for a given State, AIE, or job 

opportunity, nothing in this rule 

precludes the SWA and/or OFLC from 

assessing the normalcy of the 

experience requirement under 

§ 655.122(b). 

The same commenter also requested 

that § 655.302(b) be revised to remove 

the verifiable experience requirement 

because such requirements are used as 

a barrier to exclude U.S. workers, but 

they are rarely applied to foreign 

workers. The Department does not 

believe that this change is necessary. 

The Department’s regulations have long 

prohibited the preferential treatment of 

H–2A workers over other workers, 

including by prohibiting the imposition 

on U.S. workers of any restrictions or 

obligations that will not be imposed on 

the employer’s H–2A workers. See 

§ 655.122(a)(1). These protections 

continue to apply under this final rule. 

Employers should therefore ensure that 

any restrictions or obligations imposed 

on U.S. applicants are also imposed on 

H–2A workers, and the employer retains 

records of the imposition of these 

restrictions or obligations in the event of 

an audit by OFLC or enforcement by 

WHD. 

An employer commenter opposed the 

provision in § 655.302(b) permitting 

beekeeping employers to specify in the 

job order that applicants must possess a 

valid driver’s license or be able to obtain 

such a license no later than 30 days after 

the worker’s arrival to the place of 

employment. The commenter noted that 

beekeeping employers do not require all 

workers to drive and when they do, it 

is often not possible to obtain a license 

within 30 days. This comment seemed 

to misunderstand the nature of the 

provision in § 655.302(b). Nothing in the 

regulation would require an employer to 

impose a driver’s license requirement or 

to require workers to obtain a license 

within 30 days for every job order. On 

the contrary, only to the extent 

beekeeping employers choose to require 

that workers possess a driver’s license, 

§ 655.302(b) provides that the job offer 

may require that applicants either 

possess a driver’s license or be able to 

obtain one within 30 days. However, 

nothing in § 655.302(b) would prevent 

an employer from allowing applicants 

more than 30 days to obtain a driver’s 

license. 

c. Paragraph (c), Communication 

Devices 

Pursuant to § 655.122(f), employers 

must provide each worker, without 

charge or deposit charge, all tools, 

supplies, and equipment required to 

perform the duties assigned. Due to the 

potentially remote, isolated, and unique 

nature of the work to be performed by 

workers in animal shearing and custom 

combining occupations, the NPRM 

proposed to require the employer to 

provide each worker, without charge or 

deposit charge, effective means of 

communicating with persons capable of 

responding to the worker’s needs in case 

of an emergency. The proposed 

requirement is consistent with that same 

requirement in place for workers 

primarily engaged in the herding and 

production of livestock on the range 

under the H–2A program, see 

§ 655.210(d)(2), as well as those 

currently in place in the TEGLs for these 

occupations. Therefore, as discussed 

below, the Department is adopting 

paragraph (c) from the NPRM with a 

change for flexibility. 

Several employer and association 

commenters opposed the requirement to 

provide communication devices for 

each worker in an animal shearing and 

custom combining crew. The 

commenters argued that crews in these 

occupations do not generally perform 

work in areas that are as remote and 

isolated as workers engaged in herding 

and production of livestock on the 

range. They also noted that workers 

generally have their own 

communication devices, so there is no 

need for the employer to bear the cost 

of providing a device to each worker. A 

workers’ rights advocacy organization, 

on the other hand, argued that 

communication devices should be 

provided for all workers in those 

occupations, as well as for workers in 

commercial beekeeping occupations. 

In light of the comments, the 

Department has decided to modify the 

NPRM proposal. This final rule requires 

the employer to provide at least one 

communication device to each animal 

shearing and custom combining crew 

(i.e., group of workers working together 

as a unit). The Department’s intent is to 

ensure that each worker have a 

meaningful way to seek assistance in 

case of emergencies. The Department’s 

interest in ensuring meaningful access 

to communication devices may be 

accomplished by requiring one 

communication device per crew. Each 

worker in the crew must have 

meaningful access to that device in the 

case of an emergency. To have 

meaningful access, each worker in the 

crew must be notified as to the location 

of the communication device at all 

times (e.g., stored in a particular vehicle 

or equipment), trained in operation of 

the device (e.g., informed of any 

passcodes), and be free to use the device 

to contact first responders or other 

emergency responders directly, without 

first contacting the employer or crew 

leader. Employers must have the ability 

to address language barriers in the event 

of an emergency. Employers can address 

language barriers by having on-call staff 

or otherwise making available (e.g., 

through a conference call), a person 

capable of speaking the worker’s 

language and communicating the 

worker’s needs, or by using translation 

technology (e.g., computer software, 

translation devices). This modification 

strikes a balance between the need to 

ensure that workers have access to a 

communication device for emergencies, 

while heeding the employer 

commenters’ arguments that workers in 

the animal shearing and custom 

combining occupations usually work as 

a crew, and therefore individual devices 

are not necessary. Additionally, the 

Department agrees that, in contrast to 

herding and livestock workers on the 

range, these occupations are more likely 

to be working on farms and ranches, 

rather than in remote areas. However, 

the relatively less remote nature of the 

worksites characterizing these 

occupations (when compared to range 

herding and production of livestock) 

does not obviate the need for 

communication devices; this work can 

be dangerous and may occur in remote 

areas, thus necessitating that workers 

have the ability to call for help in case 

of an emergency. 

The Department does not believe 

communication devices should be 

mandated for commercial beekeepers, 

contrary to the suggestion by a workers’ 

rights advocacy organization. The TEGL 

for that occupation does not currently 

include such a requirement because 

workers in that occupation generally 

work in less remote locations where 

phones are more easily accessible. 

The NPRM also posed questions about 

whether the regulation should identify 

other specific tools the employer must 

provide to each worker in the covered 

occupations. A workers’ rights advocacy 

organization requested that the 

Department modify the proposed 

§ 655.302(c) to include an explicit, 

nonexclusive list of such items that are 

typically required by the nature of the 

work under this subpart, to ensure 

employers provide the tools, supplies, 


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and equipment necessary for workers to 

do the job. Employer association 

commenters opposed the requirement 

that employers provide all tools, but 

they provided little detail regarding the 

tools that employers should not be 

required to provide to workers in 

commercial beekeeping and custom 

combining occupations. 

This final rule retains the proposal in 

the NPRM, which does not identify the 

specific tools the employer must 

provide to workers in the covered 

occupations. There is much variability 

in the tools necessary to perform the 

work in these occupations, and they 

may vary by employer, region, and type 

of work. 

Employer association commenters in 

the animal shearing occupations 

opposed the requirement that the 

employer provide all tools to shearing 

workers, arguing that shearing workers 

generally have their own set of shears 

and that requiring the employer to 

provide them would be burdensome and 

unnecessary. The requirement to 

provide all necessary tools to workers is 

not unique to animal shearing 

employers, as all H–2A employers must 

provide to the worker, without charge or 

deposit charge, all tools, supplies, and 

equipment required to perform the 

duties assigned. See § 655.122(f). In 

addition, the Department’s regulation at 

§ 655.122(p) prohibits an employer from 

making an unlawful deduction that is 

primarily for the benefit or convenience 

of the employer. Because all tools, 

supplies, and equipment required to 

perform the duties assigned are 

primarily for the benefit of the 

employer, these tools must be provided 

to the worker free of charge. See 29 CFR 

531.3(d)(2). While employers must 

provide tools free of charge to workers, 

workers may choose to use their own 

tools if that is their preference. 

d. Paragraph (d), Housing 

The NPRM proposed that for job 

opportunities involving animal shearing 

and custom combining, the employer 

must specify in the job order that 

housing will be provided as set forth in 

§ 655.304. This final rule retains the 

requirement in this section. The specific 

housing requirements for these 

occupations are discussed below in the 

preamble to § 655.304. 

4. Section 655.303, Procedures for Filing 

Applications for Temporary 

Employment Certification 

The NPRM proposed that employers 

in the covered occupations continue to 

satisfy the regular requirements for 

filing an Application for Temporary 

Employment Certification under 

§§ 655.130 through 655.132, and that, 

consistent with the TEGLs, employers 

seeking workers in the covered 

occupations continue to provide the 

specific locations, estimated start and 

end dates, and, if applicable, names for 

each farm or ranch for which work will 

be performed. The NPRM, however, 

proposed an exception to the geographic 

limitations in §§ 655.130 through 

655.132 for applications subject to the 

procedures in §§ 655.300 through 

655.304. This exception allows such 

agricultural work to be performed on a 

scheduled itinerary covering multiple 

AIEs, including in multiple contiguous 

States. Further, the NPRM proposed an 

additional exception for applications in 

the commercial beekeeping occupation. 

Consistent with the current TEGL for 

that occupation, the NPRM proposed 

allowing such applications to include 

one noncontiguous State at the 

beginning and end of the period of 

employment for retrieving bee colonies 

from and returning them to their 

overwintering location. Commenters 

expressed general support for the 

procedures in § 655.303. Therefore, as 

discussed below, this final rule retains 

the proposal in the NPRM with minor 

technical revisions. 

Several employers and employer 

associations and agent commenters 

opposed the NPRM’s proposal that 

applications for the covered occupations 

limit itineraries to contiguous States. 

Some of the employer and association 

commenters opposed the proposal on 

the basis that it would be a change from 

the geographic scope permitted under 

current practice and that the change 

would not permit them to continue 

performing the job duties associated 

with these occupations. Other 

commenters expressed concern that the 

proposal was limited to a starting State 

and its contiguous States only, which 

was not the intent of the proposal. The 

Department’s use of the term 

‘‘contiguous’’ was not intended to 

anchor all States on the itinerary to the 

starting State. Rather, the proposal was 

intended to permit covered employers 

to file applications with an itinerary 

spanning multiple States so long as each 

of the States included in the itinerary 

shared a border with another State on 

the itinerary. In other words, the 

Department intended to describe an 

itinerary covering a contiguous grouping 

of States akin, but not limited, to 

recognized regional groupings of States 

(e.g., USDA farm production regions). 

For example, an animal shearing 

application could include an itinerary 

with work to be performed in California, 

Oregon, Idaho, and Utah; but not 

California, Oregon, Idaho, and Colorado, 

as Colorado is not contiguous to any of 

the other States on the itinerary. A 

beekeeping application could include 

an itinerary with work in Texas, North 

Dakota, and South Dakota; or Texas, 

California, and Oregon; but not Texas, 

North Dakota, and California. Where an 

employer has planned work in groups of 

States that are not contiguous, or for 

beekeeping employers that are not 

contiguous apart from the overwintering 

State, the employer must file more than 

one Application for Temporary 

Employment Certification, where each 

satisfies the contiguous State itinerary 

requirement. 

In adopting the NPRM proposal 

regarding contiguous States, the 

Department expects that most 

participating employers will be able to 

continue filing applications with 

minimal or no changes to current 

practice. Employers generally limit the 

time and distances between work 

locations on the itinerary, both for their 

own profitability and to satisfy wage 

and hour guarantees to workers. 

Further, the distances that can be 

covered within one itinerary are limited 

by the seasonality of the need for the 

duties to be performed. Therefore, 

employers typically file applications in 

which work will be performed along a 

contiguous-State route, involving a 

grouping of States. 

Contrary to some commenters’ 

suggestion, the limitation serves to 

advance legitimate Departmental goals 

while recognizing the need for 

employers in the covered occupations to 

have ample flexibility to follow an 

itinerary over a large geographic area. 

This final rule serves to ensure that 

applications reflect bona fide job 

opportunities for full-time, temporary 

work through the employer’s asserted 

period of need. An employer must have 

sufficient evidence of the work it 

expects to perform across the itinerary 

at the time it submits its Application for 

Temporary Employment Certification. 

Long distances between places of 

employment on an itinerary suggest a 

lack of full-time work throughout the 

work contract. Although the threefourths guarantee provides an assurance 

to workers of the minimum hours and 

wages they can expect under the work 

contract, that guarantee is intended to 

address the normal variability of 

weather, crop readiness, and other 

circumstances in agricultural work. The 

three-fourths guarantee is not intended 

to allow an employer to include periods 

without work, as would be the case 

during travel between distant places of 

employment. The Department further 

notes that the limitation in § 655.303 is 


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116See TEGL No. 17–06, Change 1, Special 

Procedures: Labor Certification Process for 

Employers in the Itinerant Animal Shearing 

Industry under the H–2A Program, Attachment B, 

Sections I.B. and II.B (June 14, 2011), https://

wdr.doleta.gov/directives/attach/TEGL/TEGL17-06- 

Ch1.pdf. 

117See TEGL No. 17–06, Change 1, Special 

Procedures: Labor Certification Process for 

Employers in the Itinerant Animal Shearing 

Industry under the H–2A Program, Attachment B 

(June 14, 2011), https://wdr.doleta.gov/directives/ 

attach/TEGL/TEGL17-06-Ch1.pdf; TEGL No. 16–06, 

Change 1, Special Procedures: Labor Certification 

Process for Multi-State Custom Combine Owners/ 

Operators under the H–2A Program, Attachment A 

(June 14, 2011), https://wdr.doleta.gov/directives/ 

attach/TEGL/TEGL16-06-Ch1.pdf; TEGL No. 33–10, 

Special Procedures: Labor Certification Process for 

Itinerant Commercial Beekeeping Employers in the 

H–2A Program, Attachment A (June 14, 2011), 

https://wdr.doleta.gov/directives/corr_

doc.cfm?DOCN=3043. 

consistent with the requirement in 

§ 655.215(b)(1) for herding and range 

livestock applications. 

In addition, under the applicable 

hours worked principles, only certain 

time spent traveling between worksites 

constitutes compensable hours worked. 

See 29 CFR part 785. Because it is 

possible that time spent traveling 

between worksites would not constitute 

compensable hours worked for many H– 

2A and corresponding workers, 

permitting itineraries to include 

noncontiguous States (apart from those 

necessary for overwintering bees) could 

result in several non-compensable hours 

worked for these workers during longer 

trips. 

Employer and employer association 

commenters expressed concern that the 

proposed § 655.303 would change 

current practice under the TEGLs by 

requiring an employer to file one H–2A 

application for each crew of itinerant 

workers. Those commenters noted that 

under current practice, employers with 

multiple crews sometimes operate along 

a single itinerary, traveling to separate 

locations when needed, and requested 

additional flexibility in the number of 

itineraries that may be filed under a 

single application. They stated that 

switching workers between crews 

sometimes becomes necessary—for 

example, if a worker is sick and another 

worker is needed to fill in to complete 

a job. 

The NPRM proposal was intended to 

be consistent with the procedures and 

policy established in the TEGLs. In the 

TEGLs, the Department permitted a 

variance from § 655.132(a) to allow, for 

example, an itinerant animal shearing 

employer ‘‘who desires to employ one 

or more nonimmigrant workers on an 

itinerary’’ to submit ‘‘a planned 

itinerary of work in multiple 

[S]tates.’’ 116 The NPRM inadvertently 

introduced confusion by using the term 

‘‘crew,’’ rather than ‘‘itinerary,’’ though 

no distinction from current practice was 

intended. The Department understands 

that employers may divide workers into 

various crews, with all of the crews 

performing work along the same 

planned route, with different crews 

working at different farms or ranches 

within the same area or some crews 

moving ahead of others to the next 

location on the planned route. 

Depending on agricultural needs (e.g., 

farm size and/or crop conditions) at 

each farm or ranch, the number of 

workers or crews needed at each 

worksite may vary. As long as all of the 

workers covered by the application were 

performing labor or services along the 

same planned route, the Department 

would consider the employer to have 

one itinerary, even if the workers might 

be assigned to different particular 

contracts along that route. This 

understanding is consistent with a nonitinerant H–2ALC employing workers 

performing work at different locations 

within a single AIE. 

To the extent employers in the 

covered occupations present work 

itineraries that contain different 

planned routes for some of the workers, 

they would be required to file more than 

one Application for Temporary 

Employment Certification. However, to 

the extent employers present an 

itinerary that contains one planned 

route for all of the workers, in which 

some workers are briefly assigned to 

different farm contracts, they will be 

able to file one Application for 

Temporary Employment Certification. 

For example, where an employer assigns 

some workers to farm contracts along 

one travel route and other workers to 

farm contracts along a different travel 

route, and the two groups of workers 

travel and work separately throughout 

the period of employment (or during all 

but a few occasions, such as for a 

particularly large job or at the beginning 

or end of the employer’s period of 

need), the employer has two distinct 

itineraries that cannot be combined on 

a single Application for Temporary 

Employment Certification. In contrast, 

an employer has a single itinerary and 

can file one Application for Temporary 

Employment Certification where its 

planned route involves all of the 

workers traveling together or along the 

same path and working in the same 

general areas at approximately the same 

times. The fact that some workers are 

assigned to one client farm and other 

workers are assigned to a different client 

farm in the same AIE does not create a 

separate itinerary. Likewise, and absent 

some countervailing information 

suggesting truly distinct itineraries, an 

employer has one itinerary and can file 

one Application for Temporary 

Employment Certification in situations 

where some workers remain longer in 

one location on the employer’s planned 

route performing their assigned farm 

contracts than other workers and some 

workers travel ahead to begin to work 

on other farm contracts at the next 

location on the employer’s planned 

route. 

In light of the above clarification 

regarding the intended meaning, this 

final rule retains the proposal in the 

NPRM with minor technical revisions. 

Employer association commenters 

also asked that DOL make available the 

application procedure in § 655.205 to 

applications that involve animal 

shearing. This change is unnecessary as 

an animal shearing employer—or any 

other employer—with an emergency 

situation justifying waiver of the normal 

filing timeframes can file its application 

under § 655.134. 

5. Section 655.304, Standards for Mobile 

Housing 

As discussed below, the Department 

is adopting § 655.304 from the NPRM 

with some changes. Due to the unique 

nature of animal shearing and custom 

combining occupations, the NPRM 

proposed to permit employers to 

provide mobile housing for workers 

engaged in these occupations. The 

Department chose not to permit 

commercial beekeeping employers to 

provide mobile housing for workers 

engaged in that occupation. This 

approach is consistent with the relevant 

TEGLs.117 The NPRM included 

proposed standards for mobile housing 

for workers engaged in the animal 

shearing and custom combining 

occupations, which largely incorporated 

the housing standards in the TEGLs, 

with two key exceptions. 

First, the TEGL for workers engaged 

in animal shearing occupations 

expressly provides that an animal 

shearing contractor may lease a mobile 

unit owned by a crew member or other 

person or make some other type of 

‘‘allowance’’ to the unit owner. Under 

the proposed rule, such an arrangement 

with a crew member (e.g., employee) is 

not permitted. Employer and employer 

association commenters opposed this 

proposal, opining that it appeared the 

Department is attempting to require 

employees to live in employer-furnished 

housing and forbidding workers from 

living and traveling in their own 

lodging, if so preferred. The Department 

is not prohibiting workers from 

choosing to live and travel in their own 

mobile housing unit, if so preferred. As 


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118One workers’ rights advocacy organization 

commented that because it is ‘‘possible that 

worksites of intended employment may include 

provincial land owned or operated by Canadian 

employers,’’ this final rule should be extended to 

cover such worksites. This comment appears to be 

based on an inaccurate reading of the custom 

combine TEGL. TEGL No. 16–06, Change 1, Special 

Procedures: Labor Certification Process for MultiState Custom Combine Owners/Operators under the 

H–2A Program (June 14, 2011), https://

wdr.doleta.gov/directives/corr_

doc.cfm?DOCN=3040. That TEGL acknowledges 

that worksites located in the United States may be 

owned or operated by Canadian employers, and 

therefore states that if such employers provide 

mobile housing units or other similar vehicles, 

those employers must submit an inspection report 

of such vehicles conducted by an authorized 

representative of the Canadian Federal or provincial 

government. Nothing in this final rule permits 

worksites of intended employment to be located in 

Canada. 

commenters noted, all workers are free 

to decline employer-provided housing; 

however, WHD’s enforcement 

experience indicates that most workers 

tend not to reject this housing, and any 

investigation will closely review 

whether the worker’s rejection of the 

housing was truly voluntary. However, 

the INA requires every H–2A employer 

to furnish housing at no cost to workers. 

See 8 U.S.C. 1188(c)(4). Consistent with 

this statutory requirement, it is the 

employer’s obligation to offer and 

furnish such housing at no cost to the 

worker; permitting an employer to rely 

on the workers to provide their own 

such housing, including through a lease 

agreement, is inconsistent with this 

statutory requirement. 

Second, the proposed standards 

deviated from the TEGLs’ approach of 

permitting employers of animal shearing 

and custom combining workers to 

provide housing that met the range 

housing standards (§ 655.235) at all 

times. In contrast, the NPRM proposed 

to allow such employers to comply with 

the range housing standards only when 

the housing is located on the range and 

proposed mobile housing standards to 

be used when the housing is not on the 

range. A workers’ rights advocacy 

organization commenter stated that, 

with a small modification, the proposed 

mobile housing standards would be 

sufficient to meet the mobile housing 

needs of workers employed in animal 

shearing and custom combining 

occupations even when the housing is 

located on the range. Some commenters 

also expressed concern that it might not 

be clear which housing standards would 

apply in certain situations. 

Upon further consideration, the 

Department has decided to modify 

§ 655.304 to require employers seeking 

workers in the animal shearing and 

custom combining occupations to 

provide housing that complies with the 

mobile housing standards in § 655.304 

regardless of where the housing is 

located, except as provided below. 

Thus, employers seeking workers in the 

covered occupations will generally not 

be permitted to comply with the range 

housing standards (§ 655.235) even 

when the housing is located on the 

range. For the most part, employers 

seeking workers in the animal shearing 

and custom combining occupations will 

be able to provide housing consistent 

with the mobile housing standards. 

To account for the occasional 

instances where employers in the 

covered occupations provide housing 

located on the range in locations where 

compliance with all of the mobile 

housing standards is not feasible, this 

final rule establishes a procedure to 

permit employers to request a variance 

from the mobile housing standards that 

would allow them to instead comply 

with a specific range housing standard 

for the limited time the housing is in 

that particular location on the range. 

There are minor distinctions between 

the mobile housing standards in 

§ 655.304 and the range housing 

standards in § 655.235. Those 

distinctions are only appropriately 

invoked in a small subset of instances 

where the work is so remote that the 

mobile housing standard is not feasible 

for the covered occupations. Similar to 

the procedure in § 655.235(b)(4) and (l), 

employers may request a variance from 

the CO at the time of the application by: 

• Identifying the particular mobile 

housing standard(s) in § 655.304, and 

attesting that compliance with the 

standard(s) is not feasible; 

• Identifying the range location(s) 

where it is unable to meet the particular 

mobile housing standard(s) in § 655.304; 

• Identifying the anticipated dates 

when the mobile unit(s) will be in those 

locations; 

• Identifying the corresponding range 

housing standard(s) in § 655.235, and 

attesting that it will comply with such 

standard(s); and, 

• Attesting to the reason(s) why the 

particular mobile housing standard(s) in 

§ 655.304 cannot be met. 

If the CO approves one or more 

variances to the mobile housing 

standards at § 655.304, the approval will 

specify the locations, dates, and specific 

variances approved. The variance 

procedure in § 655.304(a)(1) therefore 

eliminates any potential confusion 

about which housing standards would 

apply in any given situation. Further, 

this final rule will allow the Department 

to monitor the use of mobile housing, 

while maintaining employer flexibility 

where necessary. 

Accordingly, this final rule also does 

not adopt the NPRM’s proposal at 

§ 655.304(a)(1) (consistent with animal 

shearing TEGL) to apply the range 

housing inspection procedures to 

mobile housing units used on the range. 

Instead, the inspection procedures at 

§ 655.122(d)(6) apply to all mobile units 

used to house workers engaged in 

occupations subject to the procedures in 

§§ 655.300 through 655.304, except 

those covered by the exception at 

§ 655.304(a)(2). Before issuing any 

temporary labor certification for workers 

engaged in custom combining or animal 

shearing work covered by the 

procedures at §§ 655.300 through 

655.304, and who will be housed in 

mobile units, the CO must receive a 

housing certification based on an 

inspection conducted by the SWA or 

that of another local, State, or Federal 

authority acting on behalf of the SWA— 

or, under the exception at 

§ 655.304(a)(2), an authorized 

representative of the Federal or 

provincial government of Canada— 

reflecting the certifying authority’s 

knowledge of the employer’s planned 

use of the housing, confirming that all 

of the employer’s mobile units have 

been inspected, consistent with the 

requirements of § 655.122(d)(6), and 

certified as meeting applicable housing 

standards.118 The Department has made 

conforming revisions to § 655.122(d)(2), 

as discussed above. 

If a mobile unit does not satisfy the 

housing standards at § 655.304(c) 

through (p) as a self-contained unit, the 

employer may satisfy those standards by 

providing supplemental facilities at 

each location on the itinerary to ensure 

that the housing standards at 

§ 655.304(c) through (p) are satisfied 

throughout the work contract period. 

See § 655.304(b). 

Some employer and employer 

association commenters, who generally 

opposed the obligation to provide 

housing at no cost to H–2A workers and 

workers in corresponding employment, 

also opposed specific aspects of the 

mobile housing standards, such as an 

employer’s responsibility for the cost of 

laundering workers’ clothes. The 

Department notes that an employer’s 

obligation to provide housing at no cost 

to the workers extends to all required 

amenities within the housing, regardless 

of the housing standards applicable. For 

example, an employer cannot charge the 

worker for a bed or for a window 

because the housing standards require 

these basic amenities. Similarly, the 

employer cannot charge the worker for 

the laundry facilities provided, because 

housing standards require laundry 

facilities. When the housing provided 

does not have laundry facilities, and the 


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employer meets the obligation to 

provide laundry facilities by providing 

transportation to a laundromat, the 

employer must pay for laundering 

expenses. On the other hand, where an 

employer has provided functional 

laundry facilities but the employee 

chooses to go to a laundromat, the 

employer has complied with its 

obligation and is not responsible for 

laundering expenses. 

A commenter also raised a concern 

regarding the impact that use and 

transportation of heating equipment 

may have on wilderness areas and 

proposed revisions to § 655.304 to note 

compliance with the Wilderness Act is 

required. Because the employer is 

already required to comply with all 

applicable laws, a provision specifying 

that compliance with a particular law is 

not necessary. 

VI. Discussion of Revisions to 29 CFR 

Part 501 

In the NPRM, the Department 

proposed revisions to its regulations at 

29 CFR part 501, which sets forth the 

responsibilities of WHD to enforce the 

legal, contractual, and regulatory 

obligations of employers under the H– 

2A program. The Department proposed 

these amendments concurrent with and 

in order to complement the changes that 

ETA proposed to its certification 

procedures in 20 CFR part 655, subpart 

B. Where the Department has adopted 

changes to 20 CFR part 655, subpart B, 

as discussed in the above section-bysection analysis of that subpart, the 

Department has adopted the relevant 

complementary and conforming 

revisions to this part. 

In addition, since publication of the 

NPRM and through other rulemakings, 

the Department has revised the 

regulations in 29 CFR part 501 

addressing the amounts and methods of 

payment of civil money penalties, and 

the timing and finality of decisions of 

the ARB. This final rule reflects these 

intervening rulemakings, as discussed 

below. 

A. Conforming Changes 

As discussed in the NPRM, the 

Department proposed various revisions 

to 29 CFR part 501 that conformed to 

proposed revisions to 20 CFR part 655, 

subpart B. Where the Department has 

adopted proposed changes to 20 CFR 

part 655, subpart B, as discussed in the 

above section-by-section analysis of that 

subpart, the Department has adopted the 

appropriate complementary and 

conforming revisions to this part. These 

conforming revisions include, among 

others, clarification of the delegated 

authority of, and division of 

responsibilities between, ETA and WHD 

under the H–2A program in § 501.1, and 

the addition or revision of certain 

definitions of terms in § 501.3. Any 

comments received on these proposed 

revisions, and any changes adopted in 

this final rule, are discussed above in 

the section-by-section analysis of 20 

CFR part 655, subpart B. 

B. Section 501.9, Enforcement of Surety 

Bond 

The Department proposed revisions to 

WHD’s surety bond provision at 29 CFR 

501.9 as described fully in the 

discussion of 20 CFR 655.132 above. As 

detailed above, the Department has 

adopted its proposed changes to 20 CFR 

655.132, with certain revisions. Those 

revisions, however, do not necessitate 

changes to proposed 29 CFR 501.9. 

Accordingly, this final rule adopts 29 

CFR 501.9 as proposed in the NPRM, 

without substantive change. 

C. Section 501.20, Debarment and 

Revocation 

The Department proposed revisions to 

WHD’s debarment provisions at 29 CFR 

501.20 to maintain consistency with the 

proposed changes to 20 CFR 655.182(a), 

which would permit the Department to 

debar an agent or employer for 

substantially violating a term or 

condition of the temporary agricultural 

labor certification. The section also has 

been revised to make clear that joint 

employers under 20 CFR 655.131(b) are 

subject to debarment only for 

participation in a debarrable violation. 

The Department has responded to the 

comments received on these proposed 

changes in the above discussion of 20 

CFR 655.182(a) and 655.131(b). 

Accordingly, this final rule adopts 

proposed 29 CFR 501.20 without 

substantive change. 

D. Terminology and Technical Changes 

In addition to proposed revisions to 

conform to the terminology and 

technical changes proposed to 20 CFR 

part 655, subpart B, the Department 

proposed minor changes throughout this 

part to correct typographical errors and 

improve clarity and readability. Such 

changes are nonsubstantive and do not 

change the meaning of the current text. 

For example, the Department proposed 

throughout part 501 to replace the 

phrase ‘‘the regulations in this part’’ 

with the phrase ‘‘this part.’’ The 

Department received no comments on 

these proposed revisions and 

accordingly adopts them without 

change in this final rule. The 

Department has made additional 

technical, nonsubstantive changes 

throughout this part and 20 CFR part 

655, subpart B, for accuracy and clarity. 

For example, the Department has 

replaced the phrase ‘‘hereunder’’ in 

§ 501.5 with a specific reference to the 

relevant authority and made technical 

changes to the cross-references in 

§ 655.135(h). 

E. Intervening Rulemakings 

Since publication of the NPRM, the 

Department has revised the regulations 

in 29 CFR part 501 on three occasions. 

First, on November 7, 2019, the 

Department published a final rule 

revising certain of its regulations 

governing the payment and collection of 

civil money penalties, including those 

under the H–2A program at § 501.22, by 

allowing for the payment of civil money 

penalties through an electronic payment 

alternative, and otherwise amending the 

regulations to ensure uniform payment 

instructions. See Authorizing Electronic 

Payments of Civil Money Penalties, 84 

FR 59928 (Nov. 7, 2019). These 

revisions are reflected in this final rule 

at § 501.22. 

Next, on January 15, 2020, the 

Department published a final rule to 

adjust for inflation the civil money 

penalties assessed or enforced by the 

Department, including the H–2A civil 

money penalties listed in § 501.19, 

pursuant to and as required by the 

Federal Civil Penalties Inflation 

Adjustment Act of 1990, as amended by 

the Federal Civil Penalties Inflation 

Adjustment Act Improvements Act of 

2015 (Inflation Adjustment Act). See 

Department of Labor Federal Civil 

Penalties Inflation Adjustment Act 

Annual Adjustments for 2020, 85 FR 

2293 (Jan. 15, 2020). 

Relatedly, the Department received 

three comments on the NPRM opposing 

what these commenters perceived to be 

discretionary changes in the civil money 

penalty amounts currently reflected in 

§ 501.19(b). As noted above, however, 

the Department issued its annual 

inflation adjustment to civil money 

penalty amounts for 2020, as required 

by the Inflation Adjustment Act, after 

publication of the NPRM. This final rule 

reflects the current, appropriate civil 

money penalty amounts at § 501.19. The 

Department will continue to annually 

adjust these amounts for inflation, as 

required by the Inflation Adjustment 

Act. 

Finally, on May 20, 2020, the 

Department published a final rule to, 

among other changes and together with 

Secretary’s Order 01–2020, establish a 

new discretionary review process and 

make technical changes to Departmental 

regulations governing the timing and 

finality of decisions of the ARB, 

including those under the H–2A 


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119This final rule will have an annualized cost of 

$2.69 million and a total 10-year cost of $22.96 

million at a discount rate of three percent in 2021 

dollars. 

120This final rule will have an annualized cost 

savings of $0.15 million and a total 10-year cost 

savings of $1.32 million at a discount rate of three 

percent in 2021 dollars. 

121This final rule will have an annualized net 

cost of $2.54 million and a total 10-year cost of 

$21.64 million at a discount rate of three percent 

in 2021 dollars. 

program at § 501.45. See Rules 

Concerning Discretionary Review by the 

Secretary, 85 FR 30608. These technical 

revisions are reflected in this final rule 

at § 501.45. 

VII. Administrative Information 

A. Executive Orders 12866 (Regulatory 

Planning and Review) and 13563 

(Improving Regulation and Regulatory 

Review) 

Under E.O. 12866, the OMB’s Office 

of Information and Regulatory Affairs 

(OIRA) determines whether a regulatory 

action is significant and, therefore, 

subject to the requirements of the E.O. 

and review by OMB. Section 3(f) of E.O. 

12866 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 affects in a 

material way 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 

OMB’s OIRA has determined that this 

final rule is a significant regulatory 

action, although it is not an 

economically significant action, under 

E.O. 12866 sec 3(f)(4) and, accordingly, 

OMB has reviewed this final rule. 

Pursuant to the Congressional Review 

Act (5 U.S.C. 801 et seq.), OIRA has 

designated this rule as not a ‘‘major 

rule,’’ as defined by 5 U.S.C. 804(2). 

E.O. 13563 directs agencies to propose 

or adopt a regulation only upon a 

reasoned determination that its benefits 

justify its costs; the regulation is tailored 

to impose the least burden on society, 

consistent with achieving the regulatory 

objectives; and in choosing among 

alternative regulatory approaches, the 

agency has selected those approaches 

that maximize net benefits. E.O. 13563 

recognizes that some benefits are 

difficult to quantify and provides that, 

where appropriate and permitted by 

law, agencies may consider and discuss 

qualitatively values that are difficult or 

impossible to quantify, including 

equity, human dignity, fairness, and 

distributive impacts. 

Public Comments 

One commenter stated they no longer 

understood the rationale behind the 

move to e-filing and did not identify an 

analysis of the costs and benefits 

associated with the proposed changes to 

e-filing in the NPRM. 

The NPRM stated that mandating efiling would reduce costs and burdens 

for most employers (and the 

Department), reduce the frequency of 

delays related to filing applications and 

supporting documentation by mail, 

improve the consistency and quality of 

information collected, and promote 

administrative efficiency and 

accountability. The costs of e-filing were 

determined to be non-quantifiable due 

to a lack of information to determine 

whether the six percent of employers 

who currently choose not to e-file are 

doing so as a matter of preference or 

because they are incapable of doing so 

due to a lack of equipment or ability. 

The cost savings portion of the e-filing 

requirement is quantifiable and is 

presented in the regulatory impact 

analysis below. 

One commenter said that the proposal 

seeks to shift costs from employers to 

H–2A workers by requiring employers 

to reimburse travel costs only from the 

U.S. consulate, rather than from the 

workers’ home communities. 

Under the NPRM, the provision to 

define ‘‘the place from which the 

worker departed’’ as the U.S. embassy or 

consulate for certain H–2A workers was 

intended to provide workers, employers, 

and the Department with a consistent 

point from where costs can be 

calculated. In this final rule there is no 

longer a change to how travel costs are 

reimbursed. Travel costs will continue 

to be reimbursed from the place of 

worker recruitment which may or may 

not be the worker’s home community. 

Consequently, there is no shift in cost 

burdens from employers to H–2A 

workers because the Department has 

decided to retain the current regulatory 

requirement. 

Outline of the Analysis 

Section VII.A.1 describes the need for 

this final rule, and section VII.A.2 

describes the process used to estimate 

the costs and cost savings of the rule 

and the general inputs used, such as 

wages and number of affected entities. 

Section VII.A.3 explains how the 

provisions of this final rule will result 

in quantifiable costs and cost savings 

and presents the calculations the 

Department used to estimate them. In 

addition, section VII.A.3 describes the 

qualitative costs, cost savings, and 

benefits of this final rule. Section 

VII.A.4 summarizes the estimated firstyear and 10-year total and annualized 

costs, cost savings, and net costs of this 

final rule. Finally, section VII.A.5 

describes the regulatory alternatives that 

were considered during the 

development of this final rule. 

Summary of the Analysis 

The Department estimates that this 

final rule will result in costs and cost 

savings. As shown in Exhibit 1, this 

final rule is expected to have an 

annualized quantifiable cost of $2.75 

million and a total 10-year quantifiable 

cost of $19.29 million at a discount rate 

of seven percent.119 This final rule is 

estimated to have annualized 

quantifiable cost savings of $0.16 

million and total 10-year quantifiable 

cost savings of $1.12 million at a 

discount rate of seven percent.120 The 

Department estimates that this final rule 

would result in an annualized net 

quantifiable cost of $2.59 million and a 

total 10-year net cost of $18.17 million, 

both at a discount rate of seven percent 

and expressed in 2021 dollars.121

EXHIBIT 1—ESTIMATED MONETIZED COSTS AND COST SAVINGS OF THIS FINAL RULE

[2021 $millions] 

Costs Cost savings Net costs 122

Undiscounted 10-Year Total ........................................................................................................ $26.51 $1.51 $25.00 

10-Year Total with a Discount Rate of 3% .................................................................................. 22.96 1.32 21.64 

10-Year Total with a Discount Rate of 7% .................................................................................. 19.29 1.12 18.17 

10-Year Average .......................................................................................................................... 2.65 0.15 2.50 


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122Net Costs = [Total Costs]—[Total Cost Savings] 

123The Department does not consider the cost of 

H–2A employers learning how to e-file. Based on 

H–2A certification data from FY 2019, 94.1 percent 

of applications are submitted electronically. Almost 

of all the remaining 5.9 percent of H–2A applicants 

have access to email, so very few applicants will 

need to learn how to e-file. 

124Only three quarters of FY 2021 data were 

available at the time of analysis. To the extent that 

the COVID–19 pandemic impacted H–2A 

applications or workers, the inclusion of FY 2020 

data allows for some impacts to be captured. 

However, in FY 2020 Q1–Q3, there were 223,263 

certified workers, and in FY 2021 Q1–Q3, there 

were 247,969 certified workers, indicating that FY 

2021 is continuing the historical trend of year-overyear increases in workers certified and that the 

pandemic may have minimal impacts on program 

trends. 

EXHIBIT 1—ESTIMATED MONETIZED COSTS AND COST SAVINGS OF THIS FINAL RULE—Continued 

[2021 $millions] 

Costs Cost savings Net costs 122

Annualized at a Discount Rate of 3% ......................................................................................... 2.69 0.15 2.54 

Annualized with at a Discount Rate of 7% .................................................................................. 2.75 0.16 2.59 

The total cost of this final rule is 

associated with rule familiarization and 

recordkeeping requirements for all H– 

2A employers,123 as well as increases in 

the amount of surety bonds required for 

H–2ALCs. The two largest contributors 

to the cost savings of this final rule are 

the electronic submission of 

applications and application signatures, 

including the use of electronic surety 

bonds, and the electronic sharing of job 

orders submitted to the NPC with the 

SWAs. See the costs and cost savings 

subsections of section VII.A.3 (Subjectby-Subject Analysis) below for a 

detailed explanation. 

The Department was unable to 

quantify some cost, cost savings, and 

benefits of this final rule. The 

Department describes them qualitatively 

in section VII.A.3 (Subject-by-Subject 

Analysis). 

1. Need for Regulation 

The Department has determined that 

new rulemaking is necessary to 

modernize the H–2A program. The 

Department is updating its regulations 

to ensure that employers can access 

agricultural labor while maintaining the 

program’s strong protections for the 

workforce. The changes adopted in this 

final rule will streamline the 

Department’s review of H–2A 

applications and enhance WHD’s 

enforcement capabilities, thereby 

reducing workforce instability that can 

hinder the growth and productivity of 

our nation’s farms, while allowing 

aggressive enforcement against program 

fraud and abuse that undermine the 

interests of workers. Among other 

changes to achieve these goals, the 

Department has decided to (1) require 

mandatory e-filing and accept electronic 

signatures; (2) update surety bond 

requirements and clarify recordkeeping 

requirements; and (3) revise the 

debarment language to allow the 

Department to debar agents and 

attorneys, and their successors in 

interest, based on their own substantial 

violations. 

2. Analysis Considerations 

The Department estimated the costs 

and cost savings of this final rule 

relative to the existing baseline (i.e., the 

current practices for complying, at a 

minimum, with the H–2A program as 

currently codified at 20 CFR part 655, 

subpart B, and 29 CFR part 501). This 

existing baseline is consistent with the 

2010 H–2A Final Rule. 

In accordance with the regulatory 

analysis guidance articulated in OMB’s 

Circular A–4 and consistent with the 

Department’s practices in previous 

rulemakings, this regulatory analysis 

focuses on the likely consequences of 

this final rule (i.e., costs and cost 

savings that accrue to entities affected). 

The analysis covers 10 years (from 2022 

through 2031) to ensure it captures 

major costs and cost savings that accrue 

over time. The Department expresses all 

quantifiable impacts in 2021 dollars and 

uses discount rates of three and seven 

percent, pursuant to Circular A–4. 

Exhibit 2 presents the number of 

affected entities that are expected to be 

affected by this final rule. The number 

of affected entities is calculated using 

OFLC certification data from Fiscal Year 

(FY) 2016 through 2020.124 The 

Department provides these estimates 

and uses them throughout this analysis 

to estimate the costs and cost savings of 

this final rule. 

EXHIBIT 2—AVERAGE ANNUAL NUMBER

OF AFFECTED ENTITIES BY TYPE

[FY 2016–2020] 

Entity type Number 

H–2A Applications Processed ................................. 11,527 

Unique H–2A Applicants ...... 8,204 

Certified H–2A Employers .... 7,596 

Certified H–2A Workers ........ 184,323 

a. Growth Rate 

The Department estimated growth 

rates for applications processed and 

applications certified, and workers 

certified based on FY 2012–2020 H–2A 

program data, presented in Exhibit 3. 

Estimation of the growth rates for labor 

contractors is limited to FY 2013–2020 

data. 

EXHIBIT 3—HISTORICAL H–2A PROGRAM DATA

FY Applications 

processed 

Applications 

certified 

Workers 

certified 

Labor 

contractors 

2012 ................................................................................................................. 5,459 5,278 85,248 ........................

2013 ................................................................................................................. 5,973 5,706 98,814 284 

2014 ................................................................................................................. 6,726 6,476 116,689 340 

2015 ................................................................................................................. 7,567 7,194 139,725 388 

2016 ................................................................................................................. 8,684 8,297 165,741 415 

2017 ................................................................................................................. 10,097 9,797 199,924 483 

2018 ................................................................................................................. 11,698 11,319 242,853 566 

2019 ................................................................................................................. 13,095 12,626 258,446 588 

2020 ................................................................................................................. 14,063 13,552 275,430 715 


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125Comparing BLS 2029 projections for combined 

agricultural workers with a 15.8 percent growth rate 

of H–2A workers yields estimated H–2A workers 

that are about 107 percent greater than BLS 2029 

projections. The projected workers for the 

agricultural sector were obtained from BLS’s 

Occupational Projections and Worker 

Characteristics, which may be accessed at https:// 

www.bls.gov/emp/tables/occupational-projectionsand-characteristics.htm. 

126The Department estimated models with 

different lags for autoregressive and moving 

averages, and orders of integration: ARIMA(0,2,0); 

(0,2,1); (0,2,2); (1,2,1); (1,2,2); (2,2,2). For each 

model we used the Akaike Information Criteria 

(AIC) goodness of fit measure. 

127The total unique H–2A applicants in 2016, 

2017, 2018, 2019, and 2020 were 7,446, 7,798. 

8,580, 9,382, and 7,815, respectively. The total 

certified H–2A employers in 2016, 2017, 2018, 

2019, and 2020 were 6,713, 7,187, 7,902, 8,391, and 

7,785, respectively. 128BLS, Occupational Employment and Wage 

Estimates, May 2020: 13–1071 Human Resources 

Specialists, https://www.bls.gov/oes/current/ 

oes131071.htm (last modified Mar. 31, 2021). 129Because the Occupational Employment 

Statistics wage rate is in 2020 dollars, the 

Department inflated it to 2021 dollars using the ECI 

to be consistent with the rest of the analysis, which 

is in 2021 dollars. 

130Office of Personnel Management, Salary Table 

2020–CHI: Incorporating the 1% General Schedule 

Increase and a Locality Payment of 28.59% for the 

Locality Pay Area of Chicago-Naperville, IL–IN–WI 

(Jan. 2021), https://www.opm.gov/policy-dataoversight/pay-leave/salaries-wages/salary-tables/ 

pdf/2021/CHI_h.pdf. 

131Cody Rice, U.S. Environmental Protection 

Agency, Wage Rates for Economic Analyses of the 

Toxics Release Inventory Program (June 10, 2002), 

https://www.regulations.gov/document?D=EPA-HQOPPT-2014-0650-0005. 

132BLS, Employer Costs for Employee 

Compensation, https://www.bls.gov/news.release/ 

ecec.toc.htm (last modified Sept. 16, 2021) (ratio of 

total compensation to wages and salaries for all 

private industry workers). 

133 DOL, DOL-Only Performance Accountability, 

Information, and Reporting System; OMB Control 

No. 1205–0521 (2018), https://www.reginfo.gov/ 

public/do/ PRAViewDocument?ref_nbr=201802– 

1205–003. 

The geometric growth rate for 

certified H–2A workers using the 

program data in Exhibit 3 is calculated 

as 17.2 percent. This growth rate, 

applied to the analysis timeframe of 

2022 to 2031, would result in more H– 

2A certified workers than projected BLS 

workers in the relevant H–2A SOC 

codes.125 Therefore, to estimate realistic 

growth rates for the analysis, the 

Department applied an autoregressive 

integrated moving average (ARIMA) 

model to the FY 2012–2020 H–2A 

program data to forecast workers, 

applications, and labor contractors 

estimate geometric growth rates based 

on the forecasted data. The Department 

ran multiple ARIMA models on each set 

of data and used common goodness of 

fit measures to determine how well each 

ARIMA model fit the data.126 Multiple 

models yielded indistinctive measures 

of goodness of fit. Therefore, each model 

was used to project workers and 

applications through 2031. Then, a 

geometric growth rate was calculated 

using the forecasted data from each 

model and an average was taken across 

each model. 

The growth rate in certified employers 

was estimated by calculating the 

geometric growth rate using data from 

the analysis period (FY 2016–FY 2020). 

The resulting growth rates used in the 

analysis are presented in Exhibit 4. The 

estimated growth rates were applied to 

the estimated costs and cost savings of 

this final rule to forecast participation in 

the H–2A program. 

EXHIBIT 4—ESTIMATED H–2A 

GROWTH RATES

Growth Rate Value 

(percent) 

H–2A applications processed 

growth rate ........................ 3.1 

H–2A applications certified 

growth rate ........................ 4.5 

H–2A workers certified 

growth rate ........................ 5.6 

H–2A certified labor contractor employer growth 

rate .................................... 7.3 

H–2A certified employer 

growth rate ........................ 3.8 

b. Estimated Number of Workers and 

Change in Hours 

The Department presents the 

estimated average number of workers 

and the change in hours required to 

comply with this final rule for each 

activity in section VII.A.3 (Subject-bySubject Analysis). For some activities, 

such as rule familiarization and 

application submission, all applicants 

will experience a change. For other 

activities, this final rule will affect only 

certified H–2A employers or H–2A 

certified labor contractors. These 

numbers are derived from OFLC 

certification data for the years 2016 

through 2020 and represent an average 

of the fiscal years.127 To calculate these 

estimates, the Department estimated the 

average amount of time (in hours) 

needed for each activity to meet the new 

requirements relative to the baseline. 

c. Compensation Rates 

In section VII.A.3 (Subject-by-Subject 

Analysis), the Department presents the 

costs, including labor, associated with 

the implementation of the provisions of 

this final rule. Exhibit 5 presents the 

hourly compensation rates for the 

occupational categories expected to 

experience a change in the number of 

hours necessary to comply with this 

final rule. The Department used the 

mean hourly wage rate for private sector 

human resources specialists 128 129 and 

the wage rate for Federal employees at 

the NPC (Grade 12, Step 5).130 Wage 

rates are adjusted to reflect total 

compensation, which includes nonwage 

factors such as overhead and fringe 

benefits (e.g., health and retirement 

benefits). For all labor groups (i.e., 

private sector, and Federal 

Government), we use an overhead rate 

of 17 percent 131 and a fringe benefits 

rate based on the ratio of average total 

compensation to average wages and 

salaries in June 2021. For the private 

sector employees, we use a fringe 

benefits rate of 42 percent.132 For the 

Federal Government, we use a fringe 

benefits rate of 63 percent.133 We then 

multiply the loaded wage factor by the 

corresponding occupational category 

wage rate to calculate an hourly 

compensation rate. The Department 

used the hourly compensation rates 

presented in Exhibit 5 throughout this 

analysis to estimate the labor costs for 

each provision. 

EXHIBIT 5—COMPENSATION RATES

[2021 Dollars] 

Position Grade level Base hourly 

wage rate Loaded wage factor Overhead costs Hourly compensation rate 

(a) (b) (c) d = a + b + c 

Private Sector Employees 

Human Resources 

(HR) Specialist ....... N/A $34.33 $14.25 ($34.33 × 0.42) $5.84 ($34.33 × 0.17) $54.42 


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134This estimate reflects the nature of this final 

rule. As a rulemaking to amend to parts of an 

existing regulation, rather than to create a new rule, 

the 1-hour estimate assumes a high number of 

readers familiar with the existing regulation. 

135 Differences in the calculation of applications 

may occur due to the rounding of growth rate 

figures. 

EXHIBIT 5—COMPENSATION RATES—Continued 

[2021 Dollars] 

Position Grade level Base hourly 

wage rate Loaded wage factor Overhead costs Hourly compensation rate 

(a) (b) (c) d = a + b + c 

Federal Government Employees 

NPC Staff ................... 12 $46.67 $29.40 ($46.67 × 0.63) $7.93 ($46.67 × 0.17) $84.01 

3. Subject-by-Subject Analysis 

The Department’s analysis below 

covers the estimated costs and cost 

savings of this final rule. The 

Department emphasizes that many of 

the provisions in this final rule are 

existing requirements in the statute, 

regulations, or regulatory guidance. This 

final rule codifies these practices under 

one set of rules; therefore, they are not 

considered ‘‘new’’ burdens resulting 

from this final rule. Accordingly, the 

regulatory analysis focuses on the costs 

and cost savings that can be attributed 

exclusively to the new requirements in 

this final rule. 

a. Costs 

The following sections describe the 

costs of this final rule. 

Quantifiable Costs 

i. Rule Familiarization 

When this final rule takes effect, H– 

2A employers will need to familiarize 

themselves with the new regulations. 

Consequently, this will impose a onetime cost in the first year. 

To estimate the first-year cost of rule 

familiarization, the Department applied 

the growth rate of H–2A applications 

processed (3.1 percent) to the number of 

unique H–2A applications (8,204) to 

determine the annual number H–2A 

applications impacted in the first year. 

The number of H–2A applications 

(8,462) was multiplied by the estimated 

amount of time required to review the 

rule (1 hour).134 135 This number was 

then multiplied by the hourly 

compensation rate of Human Resources 

Specialists ($54.42 per hour). This 

calculation results in a one-time 

undiscounted cost of $460,502 in the 

first year after this final rule takes effect. 

This one-time cost yields a total average 

annual undiscounted cost of $46,050. 

The annualized cost over the 10-year 

period is $53,985 and $65,565 at 

discount rates of three and seven 

percent, respectively. 

ii. Surety Bond Amounts 

An H–2ALC is required to submit 

with its Application for Temporary 

Employment Certification proof of its 

ability to discharge its financial 

obligations under the H–2A program in 

the form of a surety bond. See 20 CFR 

655.132(b)(3); 29 CFR 501.9. Based on 

the Department’s experience 

implementing the bonding requirement 

and its enforcement experience with H– 

2ALCs, the Department is updating its 

regulations. These updates are intended 

to clarify and streamline the existing 

requirement while strengthening the 

Department’s ability to collect on such 

bonds. Further, the Department is 

adjusting the required bond amounts to 

reflect updates to the AEWR and to 

address the increasing number of 

temporary agricultural labor 

certifications that cover a significant 

number of workers under a single 

application and surety bond. 

Currently, the required bond amounts 

range from $5,000 to $75,000, 

depending on the number of H–2A 

workers employed by the H–2ALC 

under the temporary agricultural labor 

certification. For temporary agricultural 

labor certifications covering fewer than 

25 workers, the required bond amount 

is currently $5,000. For temporary 

agricultural labor certifications covering 

25–49 workers, 50–74 workers, 75–99 

workers, and 100 or more workers, the 

required bond amounts are $10,000, 

$20,000, $50,000, and $75,000, 

respectively. Under this final rule, the 

Department will adjust the required 

bond amounts proportionally to the 

degree that a national average AEWR 

exceeds $9.25 using the current bond 

amounts as the base amounts for this 

adjustment. The Department will 

calculate and publish an average AEWR 

when it calculates and publishes AEWR 

in accordance with § 655.120. The 

average AEWR will be calculated as a 

simple average of the AEWR applicable 

to the SOC 45–2092 (Farmworkers and 

Laborers, Crop, Nursery, and 

Greenhouse) and, until the Department 

publishes a different average AEWR, 

bond amounts will be calculated using 

an average AEWR of $14.28. To 

calculate the updated bond amounts, 

the Department will multiply the base 

amounts by the average AEWR and 

divide that number by $9.25. For 

instance, for a temporary agricultural 

labor certification covering 100 workers, 

the required bond amount would be 

calculated by the Department using the 

following formula: 

$75,000 (base amount) × ($14.28 ÷ 

$9.25) = $115,784 (updated bond 

amount). 

When the Department publishes a 

different average AEWR, that amount 

would replace $14.28 in this calculation 

and the calculations that follow. 

The Department also is increasing the 

required bond amounts for temporary 

agricultural labor certifications covering 

150 or more workers. For such 

temporary agricultural labor 

certifications, the bond amount 

applicable to certifications covering 100 

or more workers is used as a starting 

point and is increased for each 

additional set of 50 workers. The 

interval by which the bond amount 

increases will be based on the amount 

of wages earned by 50 workers over a 2- 

week period and, in its initial 

implementation, would be calculated 

using an average AEWR of $14.28 as 

demonstrated: 

$14.28 (Average AEWR) × 80 hours × 50 

workers = $57,120 in additional 

bond for each additional 50 workers 

over 100. 

For a crew of 275 workers, additional 

surety of $171,360 would be required. 

This amount is calculated by 

determining the number of additional 

full sets of 50 workers beyond the first 

100 workers covered by the temporary 

agricultural labor certification and then 

multiplying this number by the amount 

of additional surety required per each 

set of additional 50 workers (275¥100 

= 175; 175 ÷ 50 = 3.5; this is 3 additional 

sets of 50 workers; 3 × $57,120 = 

$171,360). As explained above, this 

additional surety is added to the bond 


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136The Department reviewed premium rates on 

the websites of companies that offer FLC bonds and, 

as noted in the NPRM, found that employer 

premiums generally range from one to four percent 

on the standard bonding market (i.e., contractors 

with fair/average credit or better). 84 FR 36168, 

36205, 36233. The Department assumed contractors 

would have fair/average credit and so used a 

premium of four percent to approximate the rate on 

the high side for premiums on the standard bond 

market. Id. 

amount required for temporary 

agricultural labor certifications of 100 or 

more workers, resulting in a required 

bond amount of $287,144 ($115,784) for 

certifications of 100 or more workers + 

$171,360 in additional surety). 

While this may represent a significant 

increase in the face value of the required 

bond, the Department understands that 

employer premiums for FLC surety 

bonds generally range from one to four 

percent on the standard bonding market 

(i.e., contractors with fair/average credit 

or better).136

For this analysis, the Department 

assumes that the bond premium faced 

by H–2ALCs will be four percent. To 

calculate the costs of the increase in the 

required bond amounts, the Department 

first calculated the average number of 

H–2ALCs in FY 2016 to 2020 and the 

current required bond amounts. Also, 

the Department calculated the average 

number of additional sets of 50 workers 

in FY 2016 to 2020. Next, the 

Department calculated the required 

bond amounts for each category of 

number of workers using the average 

AEWR of $14.28, as well as the bond 

amount for each set of additional 50 

workers per H–2ALC. Exhibit 6 presents 

these calculations. 

EXHIBIT 6—COST INCREASES DUE TO CHANGES IN REQUIRED BOND AMOUNTS

Number of workers 

Existing 

required bond 

amount 

Average 

number of 

H–2ALCs in 

FY 16–20 

Proposed 

required bond 

amount 

Change in 

required bond 

amount 

Cost increase 

(or decrease) 

1–24 ..................................................................................... $5,000 315 $7,718.92 $2,718.92 $108.76

25–49 ................................................................................... 10,000 71 15,437.84 5,437.84 217.51 

50–74 ................................................................................... 20,000 51 30,875.68 10,875.68 435.03 

75–100 ................................................................................. 50,000 32 77,189.19 27,189.19 1,087.57 

More than 100 ...................................................................... 75,000 135 115,783.78 40,783.78 1,631.35 

Each Additional Set of 50 Workers Greater than 100 ......... N/A a 607 57,120.00 57,120.00 2,284.80 

aThis value represents the total number of additional sets of 50 for H–2ALCs with more than 100 workers. 

For H–2ALCs with temporary 

agricultural labor certifications covering 

1 to 24 workers the Department 

calculated the first-year cost by 

multiplying the average number of H– 

2ALCs in FY 2016 to 2020 with 

certifications covering 1 and 24 workers 

(315 H–2ALCs) by the change in the 

required bond amount ($2,718.92) and 

the assumed bond premium (four 

percent). The Department calculated 

this for each additional category of 

number of workers. Additionally, the 

Department calculated the total cost due 

to the required bond amounts for 

additional sets of 50 workers by 

multiplying the average additional sets 

of 50 workers (607 sets) in the FY 2016 

to 2020 by the required bond amount 

($57,120) and the assumed bond 

premium (four percent). To project the 

costs of this final rule these calculations 

were repeated in each year from 2022 

through 2031. 

After calculating annual total costs, 

the geometric growth rate of H–2ALCs 

(7.3 percent) was applied to account for 

anticipated increased H–2A applicants. 

The increased costs for each size 

category were summed to obtain the 

total annual costs resulting from the 

change in bond premiums. This 

calculation yields an average annual 

undiscounted cost of $2.58 million. 

The estimated total cost from the 

required bond amounts over the 10-year 

period is $25.76 million undiscounted, 

or $22.25 million and $18.62 million at 

discount rates of three and seven 

percent, respectively. The annualized 

cost over the 10-year period is $2.61 

million and $2.65 million at discount 

rates of three and seven percent, 

respectively. 

iii. Recordkeeping 

Earnings Records 

This final rule requires an H–2A 

employer to maintain a worker’s actual 

permanent home address, email 

address, and phone number(s), which 

are usually in the worker’s country of 

origin. This information will greatly 

assist the Department in contacting an 

H–2A worker in the worker’s home 

country, should the Department need to 

do so to conduct employee interviews as 

part of an investigation, to secure 

employee testimony during litigation, or 

to distribute back wages. 

To calculate the estimated 

recordkeeping costs associated with 

collecting and maintaining this 

information, the Department first 

multiplied the number of certified H–2A 

employers (7,596 employers) by the 3.8 

percent annual growth rate of certified 

H–2A employers to determine the 

annual impacted population of H–2A 

employers. The impacted number was 

then multiplied by the estimated time 

required to collect and maintain this 

information (2 minutes) to obtain the 

total amount of recordkeeping time 

required. The Department then 

multiplied this estimate by the hourly 

compensation rate for Human Resources 

Specialists ($54.42 per hour). This 

yields an annual cost ranging from 

$14,298 in 2022 to $19,955 in 2031. 

Abandonment of Employment or 

Termination for Cause 

This final rule revises § 655.122(n) to 

require an employer to maintain records 

of notification detailed in the same 

section for not less than 3 years from the 

date of the temporary agricultural labor 

certification. An employer is relieved 

from the requirements relating to return 

transportation and subsistence costs and 

three-fourths guarantee when the 

employer notifies the NPC (and the DHS 

in case of an H–2A worker), in a timely 

manner, if a worker voluntarily 

abandons employment before the end of 

the contract period or is terminated for 

cause. Additionally, the employer is not 

required to contact its former U.S. 

workers, who abandoned employment 

or were terminated for cause, to solicit 

their return to the job. 

To estimate the recordkeeping costs 

associated with maintaining records of 

these notifications, the Department first 

multiplied the number of certified H–2A 

employers (7,596) by the 3.8 percent 

annual growth rate of certified H–2A 

employers to determine the annual 

impacted population of H–2A 

employers. The impacted number was 

then multiplied by the assumed 

percentage of employers per year that 


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will have 1 or more workers abandon 

employment or be terminated for cause 

(70 percent). This amount was then 

multiplied by the estimated time 

required to maintain these records (2 

minutes) to estimate the total amount of 

recordkeeping time required. This total 

time was then multiplied by the hourly 

compensation rate for Human Resources 

Specialists ($54.42 per hour). This 

yields an annual cost ranging from 

$10,009 in 2022 to $13,968 in 2031. 

Total Recordkeeping Costs 

The total cost from the recordkeeping 

requirements over the 10-year period is 

estimated at $288,778 undiscounted, or 

$251,445 and $212,599 at discount rates 

of three and seven percent, respectively. 

The annualized cost of the 10-year 

period is $29,477 and $30,269 at 

discount rates of three and seven 

percent, respectively. 

Non-Quantifiable Costs 

i. Housing 

This final rule implements changes to 

the standards applicable to employers 

who choose to meet their H–2A housing 

obligations by providing rental and/or 

public accommodations. Under this 

final rule, the Department identified 

specific OSHA temporary labor camp 

standards that are applicable to rental or 

public accommodations. Where local 

health and safety standards for rental 

and/or public accommodations exist, 

the local standards apply in their 

entirety. However, if the local standards 

do not address one or more of the issues 

addressed in the OSHA health and 

safety standards listed in the regulation, 

the relevant State standards on those 

issues will apply. If both the local and 

State standards are silent on one or 

more of the issues addressed in the 

OSHA health and safety standards listed 

in the regulation, the relevant OSHA 

health and safety standards will apply. 

If there are no applicable local or State 

standards at all, only the OSHA health 

and safety standards listed in the 

regulation will apply. OSHA temporary 

labor camp standards that are not 

specifically mentioned in 

§ 655.122(d)(1)(ii) will not be applicable 

to rental or public accommodations. 

Generally, under the 2010 H–2A Final 

Rule, only certain rental and/or public 

accommodations are subject to the 

OSHA housing standards. As such, 

employers who are not currently subject 

to the OSHA standards are likely to 

experience costs related to ensuring 

their chosen rental and/or public 

accommodations comply with those 

standards. For example, employers that 

currently require workers to share beds 

will be required to provide each worker 

with a separate bed. To comply with 

this final rule, such employers may be 

required to book additional rooms or 

provide different housing. The 

Department is unable to quantify an 

estimated cost due to a lack of data as 

to the number of employers that would 

be required to change current practices 

under this final rule. The Department 

invited comment on this analysis for 

relevant data or information that would 

allow for a quantitative analysis of 

possible costs in this final rule and 

received none. 

ii. Requirement To File Electronically 

During FY 2019, about six percent of 

employers choose not to file 

electronically. Under this final rule, 

employers will have two options—to 

file electronically or to file a request for 

accommodation because they are unable 

or limited in their ability to use or 

access electronic forms as result of a 

disability or lack of access to e-filing. 

Despite the vast majority of employers 

choosing to currently file electronically, 

the Department has not estimated costs 

for employers’ time and travel to file 

electronically when they otherwise 

would not have. The Department 

believes these costs will be very small. 

The Department also has not 

estimated any costs for accommodation 

requests. The Department expects to 

receive very few, if any, mailed-in 

accommodation requests. In its H–1B 

program, which has mandatory efiling—albeit from a very different set of 

industry—the Department has not 

received any requests for 

accommodation due to a disability. Of 

the handful of internet access requests 

received annually, none were approved, 

as the requestors had public access 

nearby. For those requesting an 

accommodation in H–2A, the 

Department estimates that the cost to 

apply would be de minimis, consisting 

of the time and cost of a letter, printing 

out, and completing the forms. 

b. Cost Savings 

The following sections describe the 

cost savings of this final rule. 

Quantifiable Cost Savings 

i. Electronic Processing and Process 

Streamlining 

The Department is modernizing and 

clarifying the procedures by which an 

employer files a job order and an 

Application for Temporary Employment 

Certification for H–2A workers under 

§§ 655.121 and 655.130 through 

655.132. The NPC will electronically 

share job orders with SWAs, which will 

result in both a material cost and a time 

cost savings for employers. 

To ensure the most efficient 

processing of all applications, the 

Department must receive a complete 

application for review. Based on the 

Department’s experience administering 

the H–2A program under the current 

rule, a common reason for issuing a 

NOD on an employer’s application 

includes failure to complete all required 

fields on a form, failure to submit one 

or more supporting documents required 

by the regulation at the time of filing, or 

both. These incomplete applications 

create unnecessary processing delays for 

both the NPC and employers. In order 

to address this concern, this final rule 

requires an employer to submit the 

Application for Temporary Employment 

Certification and all required supporting 

documentation using an electronic 

method(s) designated by the OFLC 

Administrator, unless the employer 

cannot file electronically due to 

disability or lack of internet access. The 

FLAG system used by the OFLC will not 

permit an employer to submit an 

application until the employer 

completes all required fields on the 

forms and uploads and saves to the 

pending application an electronic copy 

of all required documentation, 

including a copy of the job order 

submitted in accordance with § 655.121. 

The Department estimates that 94 

percent of applications are currently 

filed electronically and that this final 

rule would significantly increase the 

number of employers who submit 

electronic applications. This would 

result in material and time cost savings 

for employers. Electronic processing 

would also result in a time cost savings 

for the NPC. This final rule also 

provides that employers may file only 

one Application for Temporary 

Employment Certification for place(s) of 

employment contained within a single 

AIE covering the same occupation or 

comparable work by an employer for 

each period of employment, which will 

reduce the number of overall 

applications submitted. Finally, this 

final rule permits the use of electronic 

signatures as a valid form of the 

employer’s original signature and, if 

applicable, the original signature of the 

employer’s authorized attorney or agent. 

To estimate the material cost savings 

to employers due to electronic 

processing, the Department assumed 

that this final rule would result in six 

percent of H–2A employers switching to 

electronic processing of applications. 

The Department applied the growth rate 

of H–2A applications (3.1 percent) to 

the number of H–2A applications 

processed (11,527) to determine the 


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annual impacted number of 

applications. The Department then 

multiplied the percentage estimated to 

switch to electronic processing of 

applications (six percent) by the annual 

number of impacted H–2A applications 

to obtain the number of employers who 

would no longer be submitting by mail. 

For each application, a material cost 

was calculated by summing the price of 

a stamp ($0.58), the price of an envelope 

($0.04), and the total cost of paper 

($0.61). The total cost of paper was 

calculated by multiplying the cost of a 

sheet of paper ($0.01) by the number of 

pages in the application (100 pages). 

The per-application costs were then 

multiplied by the number of 

applications who would no longer be 

submitting by mail. This yields average 

annual undiscounted cost savings of 

$993. 

The total material cost savings from 

electronic processing over the 10-year 

period is estimated at $9,933 

undiscounted, or $8,662 and $7,338 at 

discount rates of three and seven 

percent, respectively. The annualized 

cost savings over the 10-year period is 

$1,015 and $1,045 at discount rates of 

three and seven percent, respectively. 

To estimate the time cost savings to 

employers due to electronic processing, 

the Department again estimated the 

number of affected applications by 

multiplying the assumed percentage of 

employers that would switch to 

electronic applications (six percent) by 

the total number of annually impacted 

H–2A applications. The Department 

assumed that the time savings due to 

electronic submission (rather than 

sealing and mailing an envelope) would 

be 5 minutes. The time cost savings 

were calculated by multiplying 5 

minutes (0.083 hours) by the hourly 

compensation rate for Human Resources 

Specialists ($54.42 per hour). This time 

cost savings was then multiplied by the 

estimated number of applications 

expected to switch to electronic 

submission. This yields average annual 

undiscounted cost savings of $3,657. 

The total time cost savings from 

electronic processing over the 10-year 

period is estimated at $36,566 

undiscounted, or $31,886 and $27,011 

at discount rates of three and seven 

percent, respectively. The annualized 

cost savings over the 10-year period is 

$3,738 and $3,846 at discount rates of 

three and seven percent, respectively. 

To estimate the material cost savings 

to employers due to the NPC sharing job 

orders with the SWAs electronically, the 

Department assumed that 100 percent of 

unique H–2A applicants would be 

affected. For each annually impacted H– 

2A application, a material cost was 

calculated by summing the price of a 

stamp ($0.58), the price of an envelope 

($0.04), and the total cost of paper 

($0.61). The total cost of paper was 

calculated by multiplying the cost of a 

sheet of paper ($0.01) by the number of 

pages in the application (100 pages). 

The per-application costs were then 

multiplied by the number of 

applications who would no longer be 

submitting by mail. This yields average 

annual undiscounted cost savings of 

$16,836. 

The total material cost savings over 

the 10-year period is estimated at 

$168,361 undiscounted, or $146,812 

and $124,368 at discount rates of three 

and seven percent, respectively. The 

annualized cost savings over the 10-year 

period is $17,211 and $17,707 at 

discount rates of three and seven 

percent, respectively. 

To estimate the time cost savings to 

employers resulting from the NPC 

electronically sharing job orders with 

the SWAs, the Department again 

assumed that 100 percent of unique H– 

2A applicants would be affected. For 

each annually impacted H–2A 

application, the Department assumed 

that the time savings due to electronic 

submission (rather than sealing and 

mailing an envelope) would be 5 

minutes. The time cost savings were 

calculated by multiplying 5 minutes in 

hours (0.083 hours) by the hourly 

compensation rate for Human Resources 

Specialists ($54.42 per hour). This cost 

savings was then multiplied by the 

estimated number of applications 

switching to electronic submission. This 

yields average annual undiscounted cost 

savings of $61,976. 

The total time cost savings over the 

10-year period is estimated at $619,762 

undiscounted, or $540,438 and 

$457,818 at discount rates of three and 

seven percent, respectively. The 

annualized cost savings over the 10-year 

period is $63,356 and $65,183 at 

discount rates of three and seven 

percent, respectively. 

The Department assumes that the 

DOL staff will save approximately 1 

hour for each application that is now 

submitted electronically. To calculate 

the time cost savings to the Federal 

Government due to electronic 

processing, the Department first 

calculated the number of employers that 

would now submit electronically by 

multiplying the assumed percentage (six 

percent) by the total number of annually 

impacted H–2A applications. This cost 

savings was then multiplied by the perapplication time cost savings, calculated 

by multiplying the time savings (1 hour) 

by the hourly compensation rate for 

DOL staff ($84.01 per hour). This yields 

average annual undiscounted cost 

savings of $68,008. 

The total time cost savings over the 

10-year period is estimated at $680,079 

undiscounted, or $593,034 and 

$502,374 at discount rates of three and 

seven percent, respectively. The 

annualized cost savings over the 10-year 

period is $69,522 and $71,527 at 

discount rates of three and seven 

percent, respectively. 

Non-Quantifiable Cost Savings 

i. Cost Savings From Efficiencies 

Associated With Receiving More 

Complete and Accurate Applications 

The Department is modernizing the 

process by which H–2A employers 

submit job orders to the SWAs and 

applications to the Department through 

e-filing and requiring the designation of 

a valid email address for sending and 

receiving official correspondence during 

application processing, except where 

the employer has limited ability to use 

or access electronic forms as result of a 

disability or lacks access to e-filing. 

The Department believes that 

transitioning to electronic submissions 

would result in additional cost savings 

to employers and to the NPC from the 

cost savings described above. Currently, 

submissions that are incomplete or 

obviously inaccurate upon their receipt 

result in a NOD on the employer’s 

application. As a result, employers who 

submit incomplete applications must 

start the submission process from the 

beginning. This can lead to costly delays 

for employers, as well as costly 

processing time for the NPC. 

The requirement for electronic 

submissions would reduce the number 

of instances where incomplete 

applications are submitted because 

employers have not fully completed the 

form prior to submitting it. E-filing 

permits automatic notification that an 

application is incomplete or obviously 

inaccurate and provides employers with 

an immediate opportunity to correct the 

errors or upload missing 

documentation. Additionally, the 

adoption of electronic submissions 

should reduce the amount of time it 

takes to correct errors because entries 

can simply be deleted, rather than 

requiring the production of new copies 

of the form after an error is detected. 

For the NPC, electronic filing and 

communications will improve the 

quality of information collected from 

employers, reduce administrative costs 

of communicating with employers to 

resolve obvious errors or receive 

complete information, and reduce the 

frequency of delays related to 

application processing. 


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ii. Cost Savings From Efficiencies 

Created by Acceptance of Electronic 

Signatures 

The Department will enable 

employers, agents, and attorneys to use 

electronic methods to sign or certify any 

document required under this subpart 

using a valid electronic signature 

method. The current practice of 

accepting electronic (scanned) copies of 

original signatures on documents has 

generated efficiencies in the application 

process, and the Department believes 

leveraging modern technologies to 

accept electronic signature methods can 

achieve even greater efficiencies and 

result in cost savings to employers and 

the NPC. 

Accepting electronic signature 

methods as a means of complying with 

original signature requirements for the 

H–2A program will reduce the costs for 

employers associated with printing, 

mailing, or delivering original signed 

paper documents or scanned copies of 

original signatures on documents to the 

NPC. Additionally, electronic signature 

methods give employers and their 

authorized attorneys or agents greater 

flexibility to conduct business with the 

Department—at any time and at any 

location with an internet connection— 

rather than needing to be located in a 

physical office. This frees valuable time 

for conducting other business tasks. 

The NPC anticipates additional cost 

savings from use of electronic signature 

methods. The acceptance of documents 

containing electronic signatures will 

facilitate the NPC’s use of a more 

centralized document storage capability 

to access documents more efficiently 

during application processing, saving 

time and expense. 

iii. Cost Savings From Efficiencies 

Created by the Use of Electronic Surety 

Bonds 

The Department also is developing a 

process for accepting electronic surety 

bonds through the FLAG system and is 

requiring the use of a standardized bond 

form. The Department believes that 

these changes will result in a cost 

savings to H–2ALCs and the NPC. 

Currently all H–2ALCs, even the 

majority that submit other components 

of their applications electronically, must 

submit original paper surety bonds 

before the temporary agricultural labor 

certifications can be issued. Accepting 

original electronic surety bonds will 

reduce the costs associated with mailing 

or delivering the original surety bonds 

to the NPC and the costs for NPC to 

transfer these bonds to WHD for 

enforcement purposes. Additionally, 

using a standardized bond form will 

reduce the likelihood of errors and the 

amount of time required for the NPC to 

review the bonds for compliance. 

c. Qualitative Benefits Discussion 

i. Surety Bonds 

The changes to the surety bond 

requirement, including the use of 

electronic surety bonds and a 

standardized bond form, will also result 

in unquantifiable benefits to the H– 

2ALCs in the form of a more 

streamlined application process with 

fewer delays. Accepting electronic 

surety bonds will mean that the NPC 

receives the required original bond with 

the rest of the application, and it will no 

longer be necessary to wait for the bond 

to arrive by mail or other delivery before 

issuing the temporary agricultural labor 

certification. 

Further, these changes and the 

changes to the required bond amounts 

will enhance WHD’s enforcement 

capabilities by making it more certain 

that there will be a sufficient, compliant 

bond available to redress potential 

violations. This will advance the 

Department’s goal of aggressively 

enforcing against program fraud and 

abuse that undermine the interests of 

U.S. workers. 

4. Summary of the Analysis 

Exhibit 8 summarizes the estimated 

total costs and cost savings of this final 

rule over the 10-year analysis period. 

The change in the surety bond amounts 

has the largest effect as a cost. 

EXHIBIT 8—ESTIMATED 10-YEAR MONETIZED COSTS AND COST SAVINGS OF THIS FINAL RULE BY PROVISION

[2021 $Millions] 

Provision Total cost Total cost 

savings 

Surety Bond ............................................................................................................................................................. $25.76 ........................

Record Keeping ....................................................................................................................................................... 0.29 ........................

Rule Familiarization ................................................................................................................................................. 0.46 ........................

Electronic Processing and Process Streamlining Cost ........................................................................................... ........................ $1.51 

Undiscounted 10-Year Total .................................................................................................................................... 26.51 1.51 

10-Year Total with a Discount Rate of 3% .............................................................................................................. 22.96 1.32 

10-Year Total with a Discount Rate of 7% .............................................................................................................. 19.29 1.12 

Exhibit 9 summarizes the estimated 

total costs and cost savings of this final 

rule over the 10-year analysis period. 

The Department estimates the 

annualized costs of this final rule at 

$2.75 million and the annualized cost 

savings at $0.16 million, at a discount 

rate of seven percent. The Department 

estimates that this final rule would 

result in annualized net quantifiable 

costs of $2.59 million and total 10-year 

net costs of $18.17 million, both at a 

discount rate of seven percent and 

expressed in 2021 dollars. The 

Department believes that the qualitative 

benefits outweigh the quantified net 

costs of this rule. 

EXHIBIT 9—ESTIMATED MONETIZED COSTS, COST SAVINGS, AND NET COSTS OF THIS FINAL RULE

[2021 $Millions] 

Costs Costs savings Net costs 

2022 ............................................................................................................................................. $2.32 $0.13 $2.19 

2023 ............................................................................................................................................. 2.00 0.14 1.86 

2024 ............................................................................................................................................. 2.14 0.14 2.00 

2025 ............................................................................................................................................. 2.30 0.14 2.15 

2026 ............................................................................................................................................. 2.46 0.15 2.32 

2027 ............................................................................................................................................. 2.64 0.15 2.49 


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EXHIBIT 9—ESTIMATED MONETIZED COSTS, COST SAVINGS, AND NET COSTS OF THIS FINAL RULE—Continued 

[2021 $Millions] 

Costs Costs savings Net costs 

2028 ............................................................................................................................................. 2.84 0.16 2.68 

2029 ............................................................................................................................................. 3.04 0.16 2.88 

2030 ............................................................................................................................................. 3.26 0.17 3.09 

2031 ............................................................................................................................................. 3.50 0.17 3.33 

Undiscounted 10-Year Total ........................................................................................................ 26.51 1.51 25.00 

10-Year Total with a Discount Rate of 3% .................................................................................. 22.96 1.32 21.64 

10-Year Total with a Discount Rate of 7% .................................................................................. 19.29 1.12 18.17 

10-Year Average .......................................................................................................................... 2.65 0.15 2.50 

Annualized with a Discount Rate of 3% ...................................................................................... 2.69 0.15 2.54 

Annualized with a Discount Rate of 7% ...................................................................................... 2.75 0.16 2.59 

5. Regulatory Alternatives 

The Department considered two 

alternatives to the chosen approach for 

surety bonds. First the Department 

considered, as the first alternative, 

starting with the current (2010) bond 

amounts and then adjusting for wage 

growth as estimated by change in the 

average AEWR and for very large crew 

sizes by requiring additional surety for 

each additional 50 workers sought. This 

is the same approach as this final rule’s 

surety bond structure except this 

alternative would replace the category 

for H–2ALCs requesting fewer than 25 

workers with two categories: one with a 

lower required bond amount for H– 

2ALCs requesting fewer than 10 workers 

and another with the same required 

bond amount as this final rule for H– 

2ALCs requesting 10 to 24 workers. This 

would provide some relief to H–2ALCs 

who use between one and nine workers. 

It would have the same remaining 

categories as in this final rule. The 

Department estimated the cost of this 

alternative using the same method as in 

this final rule. Exhibit 10 summarizes 

the cost increases for this alternative. 

EXHIBIT 10—COST INCREASES DUE TO CHANGES IN REQUIRED BOND AMOUNTS

Number of workers 

Existing 

required bond 

amount 

Average 

number of 

H–2ALCs in 

FY 16–19 

Proposed 

required bond 

amount 

Change in 

required bond 

amount 

Cost increase 

1–9 ....................................................................................... $5,000 196 $3,087.57 ¥$1,912.43 ¥$76.50 

10–24 ................................................................................... 5,000 120 7,718.92 2,718.92 108.76 

25–49 ................................................................................... 10,000 71 15,437.84 5,437.84 217.51 

50–74 ................................................................................... 20,000 51 30,875.68 10,875.68 435.03 

75–100 ................................................................................. 50,000 32 77,189.19 27,189.19 1,087.57 

More than 100 ...................................................................... 75,000 135 115,783.78 40,783.78 1,631.35 

Each Additional Set of 50 Workers Greater than 100 ......... N/A a 607 57,120.00 57,120.00 2,284.80 

The total estimated cost of the first 

alternative over the 10-year period is 

$25.22 million undiscounted, or $21.78 

million and $18.23 million at discount 

rates of three and seven percent, 

respectively. The annualized cost of the 

10-year period is $2.55 million and 

$2.60 million at discount rates of three 

and seven percent, respectively. The 

Department prefers the approach used 

in this final rule because it maintains a 

high proportion of sufficient bonds. 

Under the second regulatory 

alternative the Department considered, 

the Department would base required 

bond amounts on estimated gross 

payroll based on the number of workers, 

applicable wage rates, and length of 

certification; then require a surety bond 

equaling five percent of this value. 

Under this alternative, the bond 

computation would account for more 

factors that potentially impact an 

H–2ALC’s back wage liability and 

would thus be application-specific. 

The Department calculates the cost of 

this second alternative by first 

estimating gross payroll (i.e., number of 

workers × applicable wage rate × 

number of weekly hours × number of 

weeks in season) for each temporary 

agricultural labor certification and then 

taking the applicable percentage—five 

percent. The difference in bond 

amounts required under this alternative, 

then, is for each temporary agricultural 

labor certification the difference 

between the bond an H–2ALC would 

pay under the 2010 H–2A Final Rule 

(between $5,000 and $75,000 based on 

number of workers) and the calculated 

alternative surety bond. Then, the 

assumed bond premium (four percent) 

is applied to calculate the cost for each 

temporary agricultural labor 

certification from FY 2016 to FY 2020 

and the cost across certifications is 

summed for an annual total cost. To 

project the annual cost of this second 

alternative, the growth rate of H–2ALCs 

(7.3 percent) is applied to the average 

annual total cost from FY 2016 to FY 

2020. 

The estimated total cost of the second 

alternative over the 10-year period is 

$6.46 million undiscounted, or $5.58 

million and $4.67 million at discount 

rates of three and seven percent, 

respectively. The annualized cost of the 

10-year period is $654,196 and $664,778 

at discount rates of three and seven 

percent, respectively. The Department 

prefers the chosen surety bond approach 

because it is expected to result in a 

higher proportion of sufficient bonds, 

thus providing greater protection for 

workers, while being easier to 

understand and administer because the 

bond amounts do not need to be 

calculated for every temporary 

agricultural labor certification. 

Exhibit 11 summarizes the estimated 

costs associated with the three 

considered surety bond approaches. 


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137SBA, Table of Small Business Size Standards 

Matched to North American Industry Classification 

System Codes (Aug. 2019), https://www.sba.gov/ 

document/support--table-size-standards. 

138See https://advocacy.sba.gov/resources/theregulatory-flexibility-act for details. 

EXHIBIT 11—ESTIMATED MONETIZED COSTS OF THIS FINAL RULE AND REGULATORY ALTERNATIVES

[2021 $Millions] 

Final rule Regulatory 

alternative 1 

Regulatory 

alternative 2 

Total 10-Year Cost ...................................................................................................................... $25.76 $25.21 $6.46 

Total with 3% Discount ................................................................................................................ 22.25 21.78 5.58 

Total with 7% Discount ................................................................................................................ 18.62 18.22 4.67 

Annualized Cost with 3% Discount ............................................................................................. 2.61 2.55 0.65 

Annualized Cost with 7% Discount ............................................................................................. 2.65 2.59 0.66 

B. Regulatory Flexibility Act, Small 

Business Regulatory Enforcement 

Fairness Act, and Executive Order 

13272 (Proper Consideration of Small 

Entities in Agency Rulemaking) 

The RFA, 5 U.S.C. 601 et seq., as 

amended by the Small Business 

Regulatory Enforcement Fairness Act of 

1996, Public Law 104–121 (Mar. 29, 

1996), hereafter jointly referred to as the 

RFA, requires Federal agencies engaged 

in rulemaking to assess the impact of 

regulations that will have a significant 

economic impact on a substantial 

number of small entities. 

The Department believes that this 

final rule will not have a significant 

economic impact on a substantial 

number of small entities. Based on this 

determination, the Department certifies 

that this final rule does not have a 

significant economic impact on a 

substantial number of small entities. 

Therefore, a final regulatory flexibility 

analysis updating the initial regulatory 

flexibility analysis included in the 

NPRM is not required. The factual basis 

for this certification is set forth below 

and is based on the Department’s 

analysis of each actual individual small 

entity impacted by this final rule. 

1. Description of the Number of Small 

Entities to Which This Final Rule Will 

Apply 

a. Definition of Small Entity 

The RFA defines a ‘‘small entity’’ as 

a (1) small not-for-profit organization, 

(2) small governmental jurisdiction, or 

(3) small business. The Department used 

the entity size standards defined by the 

Small Business Administration (SBA), 

in effect as of August 19, 2019, to 

classify entities as small.137 SBA 

establishes separate standards for 

individual 6-digit North American 

Industry Classification System (NAICS) 

industry codes, and standard cutoffs are 

typically based on either the average 

number of employees, or the average 

annual receipts. For example, small 

businesses are generally defined as 

having fewer than 500, 1,000, or 1,250 

employees in manufacturing industries 

and less than $7.5 million in average 

annual receipts for nonmanufacturing 

industries. However, some exceptions 

do exist, the most notable being that 

depository institutions (including credit 

unions, commercial banks, and 

noncommercial banks) are classified by 

total assets (small defined as less than 

$550 million in assets). Small 

governmental jurisdictions are another 

noteworthy exception. They are defined 

as the governments of cities, counties, 

towns, townships, villages, school 

districts, or special districts with 

populations of less than 50,000 

people.138

b. Number of Small Entities 

The Department collected NAICS 

code, employment, and annual revenue 

data for unique entities in the 

certification data, from the business 

information provider Data Axle, and 

merged those data into the H–2A 

disclosure data for FY 2020 and FY 

2021. This process allowed the 

Department to identify the number and 

type of small entities in the H–2A 

disclosure data as well as their annual 

revenues. 

The Department identified 9,927 

unique employers (excluding labor 

contractors). Of those 9,927 employers, 

the Department was able to obtain data 

matches of revenue and employees for 

2,615 H–2A employers in the FY 2020 

and FY 2021 certification data. Of those 

2,615 employers, the Department 

determined that 2,105 were small (80.5 

percent). These unique small entities 

had an average of 11 employees and 

average annual revenue of 

approximately $3.62 million. Of these 

small unique entities, 2,085 of them had 

revenue data available from Data Axle. 

The Department identified 1,344 

unique employers that are labor 

contractors. Of those 1,344 labor 

contractors, the Department was able to 

obtain data matches of revenue and 

employees for 152 H–2ALCs in the FY 

2020 and FY 2021 certification data. Of 

those 152 labor contractors, the 

Department determined that 137 were 

small (90.1 percent). These unique small 

labor contractors had an average of 15 

employees and average annual revenue 

of approximately $3.81 million. Of these 

small unique labor contractors, 134 of 

them had revenue data available from 

Data Axle. 

The Department’s analysis of the 

impact of this proposed rule on small 

entities is based on the number of small 

unique entities (2,242 small entities 

with revenue data = 2,085 small nonlabor contractor entities and 134 small 

labor contractor entities). The remaining 

unmatched entities are assumed to have 

impacts similar to these matched 

entities. To provide clarity on the 

agricultural industries impacted by this 

regulation, Exhibit 12 shows the number 

of unique non-H–2ALC small entity 

employers with temporary agricultural 

labor certifications in FY 2020 to 2021 

within the top-10 NAICS code at the 6- 

digit. Exhibit 13 shows the number of 

unique H–2ALC small entity employers 

with temporary agricultural labor 

certifications in FY 2020 to 2021 within 

the top-10 NAICS code at the 6-digit. 

EXHIBIT 12—NUMBER OF H–2A SMALL NON-LABOR CONTRACTOR EMPLOYERS BY NAICS CODE

6-Digit NAICS Description Number of 

employers Percent 

111998 ..................... All Other Miscellaneous Crop Farming ............................................................................. 611 29 

444220 ..................... Nursery, Garden Center, and Farm Supply Stores .......................................................... 162 8 


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139 2010 H–2A Final Rule, 75 FR 6884; TEGL No. 

17–06, Change 1, Special Procedures: Labor 

Certification Process for Employers in the Itinerant 

Animal Shearing Industry under the H–2A Program 

(June 14, 2011); TEGL No. 33–10, Special 

Procedures: Labor Certification Process for Itinerant 

Commercial Beekeeping Employers in the H–2A 

Program (June 14, 2011); TEGL No. 16–06, Change 

1, Special Procedures: Labor Certification Process 

for Multi-State Custom Combine Owners/Operators 

under the H–2A Program (June 14, 2011). 

140 $54.42 = 1 hr × $54.42, where $54.42 is the 

fully loaded wage rate for an HR Specialist. 

Recordkeeping requirements include the following: 

$1.80 to collect and maintain records of workers’ 

email address and phone number(s) home and 

$1.80 to maintain records of notification to the NPC 

(and DHS) of employment abandonment or 

termination for cause. 

141For example, an H–2ALC with a temporary 

agricultural labor certification for 48 workers is 

estimated to face a cost of $217.51, the annual 

incremental cost per H–2ALC with 25 to 49 H–2A 

workers. 

EXHIBIT 12—NUMBER OF H–2A SMALL NON-LABOR CONTRACTOR EMPLOYERS BY NAICS CODE—Continued 

6-Digit NAICS Description Number of 

employers Percent 

561730 ..................... Landscaping Services ....................................................................................................... 134 6 

445230 ..................... Fruit and Vegetable Markets ............................................................................................. 127 6 

424480 ..................... Fresh Fruit and Vegetable Merchant Wholesalers ........................................................... 84 4 

111339 ..................... Other Noncitrus Fruit Farming ........................................................................................... 78 4 

112990 ..................... All Other Animal Production .............................................................................................. 57 3 

424930 ..................... Flower, Nursery Stock, and Florists’ Supplies Merchant Wholesalers ............................. 51 2 

424910 ..................... Farm Supplies Merchant Wholesalers .............................................................................. 41 2 

484230 ..................... Specialized Freight (except Used Goods) Trucking, Long-Distance ................................ 39 2 

Other NAICS ............ ............................................................................................................................................ 721 34 

EXHIBIT 13—NUMBER OF H–2A SMALL LABOR CONTRACTOR EMPLOYERS BY NAICS CODE

6-Digit NAICS Description Number of 

employers Percent 

484230 ..................... Specialized Freight (except Used Goods) Trucking, Long-Distance ................................ 11 8 

236115 ..................... New Single-Family Housing Construction (except For-Sale Builders) ............................. 11 8 

111998 ..................... All Other Miscellaneous Crop Farming ............................................................................. 10 7 

115115 ..................... FLCs and Crew Leaders ................................................................................................... 8 6 

561311 ..................... Employment Placement Agencies ..................................................................................... 7 5 

115113 ..................... Crop Harvesting, Primarily by Machine ............................................................................. 7 5 

541110 ..................... Offices of Lawyers ............................................................................................................. 6 4 

445230 ..................... Fruit and Vegetable Markets ............................................................................................. 5 4 

115112 ..................... Soil Preparation, Planting, and Cultivating ........................................................................ 5 4 

115116 ..................... Farm Management Services ............................................................................................. 4 3 

Other NAICS ............ ............................................................................................................................................ 62 46 

2. Projected Impacts to Affected Small 

Entities 

The Department has estimated the 

incremental costs for small businesses 

from the baseline 139 of this final rule. 

We estimated the costs of (a) new surety 

bond amounts required for H–2ALCs 

based on the number of H–2A 

employees; (b) recordkeeping costs 

associated with maintaining records of 

employee’s home address in their 

respective home countries; (c) 

recordkeeping costs incurred by the 

abandonment or dismissal with cause of 

employees; and (d) time to read and 

review this final rule. The cost estimates 

included in this analysis for the 

provisions of this final rule are 

consistent with those presented in the 

E.O. 12866 section. 

The Department estimates that small 

businesses not classified as H–2ALCs, 

2,085 unique employers, would incur a 

one-time cost of $54.42 to familiarize 

themselves with the rule and an annual 

cost of $3.59 associated with 

recordkeeping requirements.140 While 

the Department estimates that small 

businesses would also incur annual cost 

savings associated with the electronic 

processing of applications, the 

Department is unable to quantify these 

costs savings due to data limitations 

concerning the proportion of small 

businesses who currently select to file 

electronically. However, the Department 

conservatively estimates this cost as de 

minimis by excluding them from the 

unquantified cost savings discussed in 

the previous section. In total, the 

Department estimates that small 

businesses not classified as labor 

contractors will incur a total first-year 

cost of $58.01 (= $54.42 + $3.59). The 

Department uses the first-year cost 

estimate because it is the highest cost 

incurred by businesses over the analysis 

timeframe. 

This final rule includes the provision 

pertaining to surety bonds that applies 

to only H–2ALCs, so the Department 

estimates the impact on those entities 

separately. See § 655.132(c). To estimate 

the impact of this final rule on these 

entities, the Department used the SBA 

size standards to classify 151 H–2ALCs 

as small employers. These small entities 

averaged 15 employees, 48 certified 

workers, and annual revenues of 

approximately $3.81 million. 

The Department estimates that the 

average small H–2ALC would incur a 

one-time cost of $54.42 to familiarize 

itself with the rule, annual costs of 

$3.59 associated with recordkeeping 

requirements, and calculated the 

increase in required surety bond 

amounts based on the number of 

certified workers associated with the 

average temporary agricultural labor 

certification for each H–2ALC.141 While 

the Department estimates that small 

businesses would also incur annual cost 

savings associated with the electronic 

processing of applications, the 

Department ignores those cost savings 

for purposes of the RFA analysis. In 

total, the Department estimates that 

each small business classified as an H– 

2ALC will incur a total first-year cost of 

$275.52 (= $54.42 + $3.59 + $217.51). 

The Department determined the 

proportion of each small entity’s total 

revenue that would be affected by the 

costs of this final rule to determine if 

this final rule would have a significant 

and substantial impact on small 

business. The cost impacts included the 


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142See, e.g., NPRM, Increasing the Minimum 

Wage for Federal Contractors, 79 FR 60634 (Oct. 7, 

2014) (establishing a minimum wage for 

contractors); Final Rule, Discrimination on the 

Basis of Sex, 81 FR 39108 (June 15, 2016). 143See, e.g., Final Rule, Medicare and Medicaid 

Programs; Regulatory Provisions to Promote 

Program Efficiency, Transparency, and Burden 

Reduction; Part II, 79 FR 27106 (May 12, 2014) 

(Department of Health and Human Services rule 

stating that under its agency guidelines for 

conducting regulatory flexibility analyses, actions 

that do not negatively affect costs or revenues by 

more than three percent annually are not 

economically significant). 

144The Department had requested OMB’s 

approval of revisions to the information collection 

tools to modernize and streamline the forms and 

electronic filing process. OMB approved the request 

under 1205–0466 on August 22, 2019. 

145As explained in the NPRM, through this 

rulemaking, the Department will revise and 

consolidate the collection of information through 

the Form ETA–232/232A, which is a collection of 

information from SWAs, not employers, that is 

currently authorized under OMB Control Number 

1205–0017, into the agency’s primary H–2A 

information collection requirements under OMB 

Control Number 1205–0466. The SWAs will use the 

new Form ETA–232, Domestic Agricultural InSeason Wage Report, to report to OFLC the results 

of wage surveys in compliance with the revised 

PWD methodology in this final rule, which OFLC 

will use to establish prevailing wage rates for the 

H–2A program. This consolidation and revision 

will align all data collection for the H–2A program 

under a single OMB-approved ICR. 

estimated first-year costs and the wage 

burden cost introduced by this final 

rule. The Department used a total cost 

estimate of 3 percent of revenue as the 

threshold for a significant individual 

impact and set a total of 15 percent of 

small businesses incurring a significant 

impact as the threshold for a substantial 

impact on small business. A threshold 

of three percent of revenues has been 

used in prior rulemakings for the 

definition of significant economic 

impact.142 This threshold is also 

consistent with that sometimes used by 

other agencies.143 Of the 2,085 unique 

small non-labor contractor employers 

with work occurring in 2020–2021 and 

revenue data, 100 percent of employers 

had less than 3 percent of their total 

revenue affected. Of the 134 small labor 

contractors with work occurring in 

2020–2021 and revenue data, 97 percent 

of labor contractors had less than 3 

percent of their total revenue affected. 

Exhibit 14 is a breakdown of small 

employers by the proportion of revenue 

affected by the costs of this final rule. 

EXHIBIT 14—COST IMPACTS AS A PROPORTION OF TOTAL REVENUE FOR SMALL ENTITIES

Proportion of revenue impacted 

Non-labor contractors by NAICS code 

111998 444220 561730 445230 All other Total 

<1% .......................................................... 611 (100.0%) 162 (100.0%) 134 (100.0%) 127 (100.0%) 1051 (100.0%) 2085 (100.0%) 

1%–2% ..................................................... 0 (0.0%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 

2%–3% ..................................................... 0 (0.0%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 

3%–4% ..................................................... 0 (0.0%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 

4%–5% ..................................................... 0 (0.0%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 

>5% .......................................................... 0 (0.0%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 

Total >3% ......................................... 0 (0.0%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 

Labor contractors by NAICS code 

<1% .......................................................... 11 (100.0%) 11 (100.0%) 9 (100.0%) 8 (100.0%) 87 (92.6%) 126 (94.7%) 

1%–2% ..................................................... 0 (0.0%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 2 (2.1%) 2 (1.5%) 

2%–3% ..................................................... 0 (0.0%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 1 (1.1%) 1 (0.8%) 

3%–4% ..................................................... 0 (0.0%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 1 (1.1%) 1 (0.8%) 

4%–5% ..................................................... 0 (0.0%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 

>5% .......................................................... 0 (0.0%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 3 (3.2%) 3 (2.3%) 

Total >3% ......................................... 0 (0.0%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 4 (4.3%) 4 (3.0%) 

C. Paperwork Reduction Act 

In order to meet its statutory 

responsibilities under the INA, the 

Department collects information 

necessary to render determinations on 

requests for temporary agricultural labor 

certification, which allow employers to 

bring foreign labor into the United 

States on a seasonal or other temporary 

basis under the H–2A program. The 

Department uses the collected 

information to determine if employers 

are meeting their statutory and 

regulatory obligations. This information 

is subject to the PRA, 44 U.S.C. 3501 et 

seq. A Federal agency generally cannot 

conduct or sponsor a collection of 

information, and the public is generally 

not required to respond to an 

information collection, unless it is 

approved by OMB under the PRA and 

displays a currently valid OMB Control 

Number. In addition, notwithstanding 

any other provisions of law, no person 

shall generally be subject to penalty for 

failing to comply with a collection of 

information that does not display a 

valid Control Number. See 5 CFR 

1320.5(a) and 1320.6. The Department 

has OMB approval for its H–2A program 

information collection under Control 

Number 1205–0466. 

In accordance with the PRA, the 

information collection requirements that 

must be implemented as a result of this 

regulation must receive approval from 

OMB. Therefore, the Department 

submitted a clearance package in 

connection with the NPRM that 

contained proposed revisions to the 

information collection pending OMB 

approval under 1205–0466.144 In this 

package, the Department proposed 

changes to the forms used to collect 

required information (i.e., Forms ETA– 

9142A and appendices; Form ETA–790/ 

790A and addenda; and Form ETA– 

232 145) to conform to proposed 

revisions to the Department’s H–2A 

regulations and introduced a new surety 

bond form, Form ETA–9142A, 

Appendix B, H–2A Labor Contractor 

Surety Bond, to facilitate satisfaction of 

an existing filing requirement for H– 

2ALC employers. These proposed 

modifications reflected the regulatory 

changes in the NPRM, such as 

consistent use of defined terms, revised 

assurances, elimination of ‘‘no’’ check 

boxes where such a response equates to 

a noncompliant filing, and adding fields 

to confirm, for example, submission of 

the new electronic surety bond form and 

the employer’s participation in optional 

pre-filing recruitment, if applicable. In 

addition, the Department’s package 


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146OMB Control Number 1205–0466 is 

subsequently up for renewal again. The ICR expires 

on August 31, 2022. 

contained proposed revisions to the 

information collection to reflect new 

collections (e.g., notice of intent to 

stagger entry of H–2A workers under the 

option proposed at § 655.130(f)). 

Although the information collection 

requirements in this rulemaking fall 

under OMB Control Number 1205–0537, 

OMB authorized the NPRM Information 

Collection Request (ICR) as OMB 

Control Number 1205–0537, approved 

on October 20, 2019, due to the 

Department’s separate pending ICR 

under OMB Control Number 1205–0466, 

which OMB subsequently approved on 

August 22, 2019.146 The public was 

given 60 days to comment on the 

information collection. 

The Department did not receive 

comments on the ICR itself; however, 

commenters addressed aspects of the 

information collection while discussing 

the proposed regulations. After 

considering public comments submitted 

in response to the NPRM, the 

Department modified the proposed 

regulations, as discussed in the 

preamble above, and the information 

collection in this ICR. The information 

collection changes to implement this 

final rule must be assessed under the 

PRA. For administrative purposes only, 

the Department is submitting this ICR 

under control number 1205–0537, the 

control number OMB assigned to the 

clearance package approved in 

connection with the NPRM. Once all of 

the outstanding actions are complete, 

the Department intends to submit a 

nonmaterial change request to transfer 

the burden from this OMB Control 

Number (1205–0537) to the existing 

OMB control number for the H–2A 

Foreign Labor Certification Program 

(1205–0466) and proceed to discontinue 

the use of this OMB Control Number 

1205–0537. 

In response to comments, the 

Department made additional 

modifications to the forms implemented 

with this final rule to clarify 

requirements, reflect the provisions of 

this final rule (e.g., prevailing wage 

survey methodology), and conform to 

similar collections (e.g., manner of 

collecting name information). In 

addition to editing language on the 

forms, the Department modified some 

data collection fields after considering 

public comments. Many commenters 

addressed the Department’s proposal to 

collect information about an employer’s 

intent to stagger entry of H–2A workers 

through a notice submitted to the NPC, 

which would require an employer to 

submit a narrative notice to the NPC and 

could be difficult to disclose to 

prospective U.S. worker applicants 

during recruitment. The estimated 

burden hours for employers had 

changed from the estimate provided for 

the NPRM, reflecting the Department’s 

decision not to adopt three optional 

information collections proposed in the 

NPRM. First, the Department did not 

adopt the proposal to allow an employer 

the option of staggering the entry of 

some of its H–2A workers under a single 

temporary agricultural labor 

certification. Second, the Department 

did not adopt the proposal to allow an 

employer the option of engaging in prefiling recruitment activities. Third, the 

Department did not adopt the proposal 

to allow an employer to request postcertification changes to specific 

worksites in the AIE where H–2A 

workers are authorized to work. These 

decisions eliminated the related 

notification and document retention 

burden that had been included in the 

estimated burden hours of the NPRM. In 

addition, several comments addressing 

joint employment scenarios indicated 

that a change to the manner in which 

the Department collects information 

about the role of agricultural 

associations in filing H–2A applications 

on behalf of their employer-members 

and, generally, when joint employment 

is involved could increase clarity for 

filers. The Department modified this 

collection on the Form ETA–9142A by 

separating one item in Section A into 

two parts to more clearly collect 

information about the type of employer 

filing (i.e., individual employer or joint 

employers) and, if applicable, the role of 

the agricultural association in the filing. 

Further, many comments addressed the 

Department’s housing inspection and 

compliance requirements, in part, 

expressing concern about the 

complexity of those requirements and 

evidence of compliance with applicable 

standards. In response to these 

comments, the Department revised 

Form ETA–790A and ETA–790A, 

Addendum B, to refocus the fields 

related to housing type and compliance. 

As a result, the forms implemented 

with this final rule align information 

collection requirements with the 

Department’s regulation and continue 

the ongoing efforts to provide greater 

clarity to employers on regulatory 

requirements, standardize and 

streamline information collection to 

reduce employer time and burden 

preparing applications, and promote 

greater efficiency and transparency in 

the review and issuance of labor 

certification decisions under the H–2A 

visa program. Overall, these revisions 

discussed above decrease public burden 

to respond to the information collection 

required under this final rule from that 

proposed in connection with the NPRM 

by 5 minutes. 

This final rule adopts more robust 

information requirements for requests 

for administrative review, as explained 

in the preamble discussion of § 655.171, 

which merit increasing the burden 

estimate for employers who appeal final 

determinations. As a result, this final 

rule increases the public time burden 

related to appeal by 40 minutes; thus, 

the estimated time burden related to 

appeals is now estimated at 1 hour (60 

minutes). In addition to this final rule, 

the Department issued a companion 

2020 H–2A AEWR Final Rule governing 

the methodology for establishing the 

AEWR (85 FR 70445), which appeared 

at paragraphs (b)(1), (2), and (5) of the 

NPRM. The revised methodology 

simplifies the process of determining 

the hourly AEWR applicable to an 

employer’s job opportunity and, 

therefore, reduces the time burden of 

determining the offered wage by 3 

minutes, a burden accounted for in this 

ICR, although it is not currently a 

burden felt by employers due to the 

2020 H–2A AEWR Final Rule injunction 

discussed above. 

The information collection change in 

requirements associated with this final 

rule are summarized as follows: 

Title: H–2A Temporary Agricultural 

Employment Certification Program. 

Agency: DOL–ETA. 

Type of Review: New Information 

Collection Request. 

OMB Control Number: 1205–0537. 

Affected Public: Individuals or 

Households, Private Sector—businesses 

or other for-profits, Government, State, 

Local, and Tribal Governments. 

Form(s): ETA–9142A, H–2A 

Application for Temporary Employment 

Certification; ETA–9142A—Appendix 

A; ETA–9142A—Appendix B, H–2A 

Labor Contractor Surety Bond; ETA– 

9142A—H–2A Approval Final 

Determination: Temporary Agricultural 

Labor Certification; ETA–790/790A, H– 

2A Agricultural Clearance Order; ETA– 

790/790A—Addendum A; ETA–790/ 

790A—Addendum B; ETA–790/790A— 

Addendum C; ETA–232, Domestic 

Agricultural In-Season Wage Report. 

Total Annual Respondents: 11,702. 

Annual Frequency: On Occasion. 

Total Annual Responses: 373,176. 

Estimated Time per Response 

(averages): 

—Forms ETA–9142A, Appendix A, 

Appendix B—3.05 hours per 

response. 


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147E.O. 13132, Federalism, 64 FR 43255 (Aug. 10, 

1999). 

148E.O. 13175, Consultation and Coordination 

with Indian Tribal Governments, 65 FR 67249 (Nov. 

9, 2000). 

—Forms ETA–790/790A—0.70 hours 

per response. 

—Form ETA–232—3.30 hours per 

response. 

Estimated Total Annual Burden 

Hours: 72,803. 

Total Annual Burden Cost for 

Respondents: $0. 

D. Unfunded Mandates Reform Act of 

1995 

The Unfunded Mandates Reform Act 

of 1995 (UMRA) (Pub. L. 104–4, 

codified at 2 U.S.C. 1501 et seq.) is 

intended, among other things, to curb 

the practice of imposing unfunded 

Federal mandates on State, local, and 

tribal governments. UMRA requires 

Federal agencies to assess a regulation’s 

effects on State, local, and tribal 

governments, as well as on the private 

sector, except to the extent the 

regulation incorporates requirements 

specifically set forth in law. Title II of 

the UMRA requires each Federal agency 

to prepare a written statement assessing 

the effects of any regulation that 

includes any Federal mandate in a 

proposed or final agency rule that may 

result in $100 million or more 

expenditure (adjusted annually for 

inflation) in any one year by State, local, 

and tribal governments, in the aggregate, 

or by the private sector. A Federal 

mandate is any provision in a regulation 

that imposes an enforceable duty upon 

State, local, or tribal governments, or 

upon the private sector, except as a 

condition of Federal assistance or a duty 

arising from participation in a voluntary 

Federal program. 

This final rule does not result in 

unfunded mandates for the public or 

private sector because private 

employers’ participation in the program 

is voluntary, and State governments are 

reimbursed for performing activities 

required under the program. The 

requirements of title II of the UMRA, 

therefore, do not apply, and the 

Department has not prepared a 

statement under the UMRA. 

E. Executive Order 13132 (Federalism) 

This final rule would not have 

substantial direct effects on the States, 

on the relationship between the 

National Government and the States, or 

on the distribution of power and 

responsibilities among the various 

levels of government. Therefore, in 

accordance with sec. 6 of E.O. 13132,147

it is determined that this final rule does 

not have sufficient federalism 

implications to warrant the preparation 

of a federalism summary impact 

statement. 

F. Executive Order 13175 (Consultation 

and Coordination With Indian Tribal 

Governments) 

The Department has reviewed this 

final rule in accordance with E.O. 

13175 148 and has determined that it 

does not have tribal implications. This 

final 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 tribal governments. 

List of Subjects 

20 CFR Part 653 

Agriculture, Employment, Equal 

employment opportunity, Grant 

programs—labor, Migrant labor, 

Reporting and recordkeeping 

requirements. 

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. 

29 CFR Part 501 

Administrative practice and 

procedure, Agricultural, Aliens, 

Employment, Housing, Housing 

standards, Immigration, Labor, Migrant 

labor, Penalties, Transportation, Wages. 

For the reasons stated in the 

preamble, the Department of Labor 

amends 20 CFR parts 653 and 655 and 

29 CFR part 501 as follows: 

Title 20—Employees’ Benefits 

PART 653—SERVICES OF THE 

WAGNER-PEYSER ACT EMPLOYMENT 

SERVICE SYSTEM 

■ 1. The authority citation for part 653 

continues to read as follows: 

Authority: Secs. 167, 189, 503, Public Law 

113–128, 128 Stat. 1425 (Jul. 22, 2014); 29 

U.S.C. chapter 4B; 38 U.S.C. part III, chapters 

41 and 42. 

■ 2. Amend § 653.501 by revising the 

first sentence and adding a sentence 

following the first sentence of paragraph 

(c)(2)(i) to read as follows: 

§ 653.501 Requirements for processing 

clearance orders. 

* * * * * 

(c) * * * 

(2) * * * 

(i) The wages offered are not less than 

the applicable prevailing wages, as 

defined in § 655.103(b) of this chapter, 

or the applicable Federal or State 

minimum wage, whichever is higher. 

The working conditions offered are not 

less than the prevailing working 

conditions among similarly employed 

farmworkers in the area of intended 

employment. * * * 

* * * * * 

PART 655—TEMPORARY 

EMPLOYMENT OF FOREIGN 

WORKERS IN THE UNITED STATES 

■ 3. The authority citation for part 655 

continues 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), 8 U.S.C. 1103(a)(6), 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); 29 U.S.C. 49k; Pub. L. 107–296, 116 

Stat. 2135, as amended; Pub. L. 109–423, 120 

Stat. 2900; 8 CFR 214.2(h)(4)(i); 8 CFR 

214.2(h)(6)(iii); and sec. 6, Pub. L. 115–218, 

132 Stat. 1547 (48 U.S.C. 1806). 

Subpart A 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). 

Subpart E issued under 48 U.S.C. 1806. 

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

1288(c) and (d); sec. 323(c), Pub. L. 103–206, 

107 Stat. 2428; and 28 U.S.C. 2461 note, Pub. 

L. 114–74 at section 701. 

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; 8 CFR 214.2(h); and 28 U.S.C. 2461 

note, Pub. L. 114–74 at section 701. 

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). 

■ 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 Purpose and scope of this subpart. 

655.101 Authority of the agencies, offices, 

and divisions in the Department of 

Labor. 

655.102 Transition procedures. 


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655.103 Overview of this subpart and 

definition of terms. 

Pre-Filing Procedures 

655.120 Offered wage rate. 

655.121 Job order filing requirements. 

655.122 Contents of job offers. 

655.123 [Reserved] 

655.124 Withdrawal of a job order. 

Application for Temporary Employment 

Certification Filing Procedures 

655.130 Application filing requirements. 

655.131 Agricultural association and joint 

employer filing requirements. 

655.132 H–2A labor contractor filing 

requirements. 

655.133 Requirements for agents. 

655.134 Emergency situations. 

655.135 Assurances and obligations of H– 

2A employers. 

655.136 Withdrawal of an Application for 

Temporary Employment Certification 

and job order. 

Processing of Applications for Temporary 

Employment Certification 

655.140 Review of applications. 

655.141 Notice of deficiency. 

655.142 Submission of modified 

applications. 

655.143 Notice of acceptance. 

655.144 Electronic job registry. 

655.145 Amendments to Applications for 

Temporary Employment Certification. 

Post-Acceptance Requirements 

655.150 Interstate clearance of job order. 

655.151–655.152 [Reserved] 

655.153 Contact with former U.S. workers. 

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 Requests for determinations based 

on nonavailability of U.S. workers. 

655.167 Document retention requirements 

of H–2A employers. 

Post-Certification 

655.170 Extensions. 

655.171 Appeals. 

655.172 Post-certification withdrawals. 

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. 

Labor Certification Process for Temporary 

Agricultural Employment in Range Sheep 

Herding, Goat Herding, and Production of 

Livestock Occupations 

655.200 Scope and purpose of herding and 

range livestock regulations in this 

section and §§ 655.201 through 655.235. 

655.201 Definition of herding and range 

livestock terms. 

655.205 Herding and range livestock job 

orders. 

655.210 Contents of herding and range 

livestock job orders. 

655.211 Herding and range livestock wage 

rate. 

655.215 Procedures for filing herding and 

range livestock Applications for 

Temporary Employment Certification. 

655.220 Processing herding and range 

livestock Applications for Temporary 

Employment Certification. 

655.225 Post-acceptance requirements for 

herding and range livestock. 

655.230 Range housing. 

655.235 Standards for range housing. 

Labor Certification Process for Temporary 

Agricultural Employment in Animal 

Shearing, Commercial Beekeeping, Custom 

Combining, and Reforestation Occupations 

655.300 Scope and purpose. 

655.301 Definition of terms. 

655.302 Contents of job orders. 

655.303 Procedures for filing Applications 

for Temporary Employment 

Certification. 

655.304 Standards for mobile housing. 

§ 655.100 Purpose and scope of this 

subpart. 

(a) Purpose. (1) A temporary 

agricultural labor certification issued 

under this subpart reflects a 

determination by the Secretary of Labor 

(Secretary), pursuant to 8 U.S.C. 

1188(a), that: 

(i) There are not sufficient able, 

willing, and qualified United States 

(U.S.) workers available to perform the 

agricultural labor or services of a 

temporary or seasonal nature for which 

an employer desires to hire temporary 

foreign workers (H–2A workers); and 

(ii) The employment of the H–2A 

worker(s) will not adversely affect the 

wages and working conditions of 

workers in the United States similarly 

employed. 

(2) This subpart describes the process 

by which the Department of Labor 

(Department or DOL) makes such a 

determination and certifies its 

determination to the Department of 

Homeland Security (DHS). 

(b) Scope. This subpart sets forth the 

procedures governing the labor 

certification process for the temporary 

employment of foreign workers in the 

H–2A nonimmigrant classification, as 

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

It also establishes standards and 

obligations with respect to the terms 

and conditions of the temporary 

agricultural labor certification with 

which H–2A employers must comply, as 

well as the rights and obligations of H– 

2A workers and workers in 

corresponding employment. 

Additionally, this subpart sets forth 

integrity measures for ensuring 

employers’ continued compliance with 

the terms and conditions of the 

temporary agricultural labor 

certification. 

§ 655.101 Authority of the agencies, 

offices, and divisions in the Department of 

Labor. 

(a) Authority and role of the Office of 

Foreign Labor Certification. The 

Secretary has delegated authority 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), to issue 

certifications and carry out other 

statutory responsibilities as required by 

8 U.S.C. 1188. Determinations on an 

Application for Temporary Employment 

Certification are made by the OFLC 

Administrator who, in turn, may 

delegate this responsibility to 

designated staff, e.g., a Certifying Officer 

(CO). 

(b) Authority of the Wage and Hour 

Division. The Secretary has delegated 

authority to the Wage and Hour Division 

(WHD) to conduct certain investigatory 

and enforcement functions with respect 

to terms and conditions of employment 

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

and this subpart (‘‘the H–2A program’’), 

and to carry out other statutory 

responsibilities required by 8 U.S.C. 

1188. The regulations governing WHD’s 

investigatory and enforcement 

functions, including those related to the 

enforcement of temporary agricultural 

labor certifications issued under this 

subpart, are in 29 CFR part 501. 

(c) Concurrent authority. OFLC and 

WHD have concurrent authority to 

impose a debarment remedy pursuant to 

§ 655.182 and 29 CFR 501.20. 

§ 655.102 Transition procedures. 

(a) The National Processing Center 

(NPC) shall continue to process an 

Application for Temporary Employment 

Certification submitted prior to 

November 14, 2022, in accordance with 

20 CFR part 655, subpart B, in effect as 

of November 13, 2022. 

(b) The NPC shall process an 

Application for Temporary Employment 

Certification submitted on or after 

November 14, 2022, and that has a first 

date of need no later than February 12, 

2023, in accordance with 20 CFR part 


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655, subpart B, in effect as of November 

13, 2022. 

(c) The NPC shall process an 

Application for Temporary Employment 

Certification submitted on or after 

November 14, 2022, and that has a first 

date of need later than February 12, 

2023, in accordance with all job order 

and application filing requirements 

under this subpart. 

§ 655.103 Overview of this subpart and 

definition of terms. 

(a) Overview. In order to bring 

nonimmigrant workers to the United 

States 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 conditions of 

workers in the United States similarly 

employed. This subpart describes a 

process by which the DOL makes such 

a determination and certifies its 

determination to the DHS. 

(b) Definitions. For the purposes of 

this subpart: 

Act. The Immigration and Nationality 

Act, as amended (INA), 8 U.S.C. 1101 et 

seq. 

Administrative Law Judge (ALJ). A 

person within the Department’s Office 

of Administrative Law Judges appointed 

pursuant to 5 U.S.C. 3105. 

Administrator. See definitions of 

OFLC Administrator and WHD 

Administrator in this paragraph (b). 

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: 

(i) Is authorized to act on behalf of the 

employer for temporary agricultural 

labor certification purposes; 

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

employer, as defined in this subpart 

with respect to a specific application; 

and 

(iii) Is not under suspension, 

debarment, expulsion, or disbarment 

from practice before any court, the 

Department, or 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. 

Applicant. A U.S. worker who is 

applying for a job opportunity for which 

an employer has filed an Application for 

Temporary Employment Certification 

and job order. 

Application for Temporary 

Employment Certification. The Office of 

Management and Budget (OMB)- 

approved Form ETA–9142A and 

appropriate appendices submitted by an 

employer to secure a temporary 

agricultural labor certification 

determination from DOL. 

Area of intended employment (AIE). 

The geographic area within normal 

commuting distance of the place of 

employment for which temporary 

agricultural labor 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 place of 

employment, or quality of the regional 

transportation network). If a place of 

employment is within an MSA, 

including a multistate MSA, any place 

within the MSA is deemed to be within 

normal commuting distance of the place 

of employment. The borders of MSAs 

are not controlling in the identification 

of the normal commuting area; a place 

of employment outside of an MSA may 

be within normal commuting distance 

of a place of employment 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 United States, or the District of 

Columbia (DC). 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, or the Executive 

Office for Immigration Review or DHS 

under 8 CFR 292.3 or 1003.101, may 

represent an employer under this 

subpart. 

Average adverse effect wage rate 

(average AEWR). The simple average of 

the adverse effect wage rates (AEWR) 

applicable to the SOC 45–2092 

(Farmworkers and Laborers, Crop, 

Nursery, and Greenhouse) and 

published by the OFLC Administrator in 

accordance with § 655.120. An average 

AEWR remains valid until replaced 

with an adjusted average AEWR. 

Board of Alien Labor Certification 

Appeals (BALCA or Board). The 

permanent Board established by part 

656 of this chapter, chaired by the Chief 

Administrative Law Judge (Chief ALJ), 

and consisting of Administrative Law 

Judges (ALJs) appointed pursuant to 5 

U.S.C. 3105 and designated by the Chief 

ALJ to be members of Board of Alien 

Labor Certification Appeals (BALCA or 

Board). 

Certifying Officer (CO). The person 

who makes a determination on an 

Application for Temporary Employment 

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. 

Chief Administrative Law Judge (Chief 

ALJ). The chief official of the 

Department’s Office of Administrative 

Law Judges or the Chief ALJ’s designee. 

Corresponding employment. The 

employment of workers who are not H– 

2A workers by an employer who has an 

approved Application for Temporary 

Employment 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. 

Department of Homeland Security 

(DHS). The Department of Homeland 

Security, as established by 6 U.S.C. 111. 

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: 


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(i) Has an employment 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; or 

(ii) Files an Application for 

Temporary Employment Certification 

other than as an agent; or 

(iii) Is a person on whose behalf an 

Application for Temporary Employment 

Certification is filed. 

Employment and Training 

Administration (ETA). The agency 

within the Department that includes 

OFLC and has been delegated authority 

by the Secretary to fulfill the Secretary’s 

mandate under the INA and DHS’ 

implementing regulations in 8 CFR 

chapter I, subchapter B, for the 

administration and adjudication of an 

Application for Temporary Employment 

Certification and related functions. 

Federal holiday. Legal public holiday 

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

First date of need. The first date the 

employer requires the labor or services 

of H–2A workers as indicated in the 

Application for Temporary Employment 

Certification. 

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 subpart, 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 Petition. The USCIS Form I– 

129, Petition for a Nonimmigrant 

Worker, with H Supplement or 

successor form and/or supplement, and 

accompanying documentation required 

by DHS for employers seeking to 

employ foreign persons as H–2A 

nonimmigrant workers. 

H–2A worker. Any temporary foreign 

worker who is lawfully present in the 

United States 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 United 

States to which U.S. workers can be 

referred. 

Job order. The document containing 

the material terms and conditions of 

employment that is posted by the State 

Workforce Agency (SWA) on its 

interstate and intrastate job clearance 

systems based on the employer’s 

Agricultural Clearance Order (Form 

ETA–790/ETA–790A and all 

appropriate addenda), as submitted to 

the NPC. 

Joint employment. (i) Where two or 

more employers each have sufficient 

definitional indicia of being a joint 

employer of a worker under the 

common law of agency, they are, at all 

times, joint employers of that worker. 

(ii) An agricultural association that 

files an Application for Temporary 

Employment Certification as a joint 

employer is, at all times, a joint 

employer of all the H–2A workers 

sponsored under the Application for 

Temporary Employment Certification 

and all workers in corresponding 

employment. An employer-member of 

an agricultural association that files an 

Application for Temporary Employment 

Certification as a joint employer is a 

joint employer of the H–2A workers 

sponsored under the joint employer 

Application for Temporary Employment 

Certification along with the agricultural 

association during the period that the 

employer-member employs the H–2A 

workers sponsored under the 

Application for Temporary Employment 

Certification. 

(iii) Employers that jointly file a joint 

employer Application for Temporary 

Employment Certification under 

§ 655.131(b) are, at all times, joint 

employers of all the H–2A workers 

sponsored under the Application for 

Temporary Employment Certification 

and all workers in corresponding 

employment. 

Master application. An Application 

for Temporary Employment 

Certification filed by an association of 

agricultural producers as a joint 

employer with its employer-members. A 

master application must cover the same 

occupations or comparable agricultural 

employment; the first date of need for 

all employer-members listed on the 

Application for Temporary Employment 

Certification may be separated by no 

more than 14 calendar days; and may 

cover multiple areas of intended 

employment within a single State but no 

more than two contiguous States. 

Metropolitan Statistical Area (MSA). 

A geographic entity defined by OMB for 

use by Federal statistical agencies in 

collecting, tabulating, and publishing 

Federal statistics. A Metropolitan 

Statistical Area contains a core urban 

area of 50,000 or more population, and 

a Micropolitan Statistical Area contains 

an urban core of at least 10,000 (but 

fewer than 50,000) population. Each 

metropolitan or micropolitan area 

consists of one or more counties and 

includes the counties containing the 

core urban area, as well as any adjacent 

counties that have a high degree of 

social and economic integration (as 

measured by commuting to work) with 

the urban core. 

National Processing Center (NPC). 

The offices 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 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 United States to 

perform work described in 8 U.S.C. 

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

OFLC Administrator. The primary 

official of OFLC, or the OFLC 

Administrator’s designee. 

Period of employment. The time 

during which the employer requires the 

labor or services of H–2A workers as 

indicated by the first and last dates of 

need provided in the Application for 

Temporary Employment Certification. 

Piece rate. A form of wage 

compensation based upon a worker’s 

quantitative output or one unit of work 

or production for the crop or 

agricultural activity. 

Place of employment. A worksite or 

physical location where work under the 

job order actually is performed by the 

H–2A workers and workers in 

corresponding employment. 

Positive recruitment. The active 

participation of an employer or its 

authorized hiring agent, performed 

under the auspices and direction of 

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 


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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: 

(i) Fifty percent or more of employers 

in an area and for an occupation engage 

in the practice or offer the benefit; and 

(ii) 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. A wage rate 

established by the OFLC Administrator 

for a crop activity or agricultural activity 

and, if applicable, a distinct work task 

or tasks performed in that activity and 

geographic area based on a survey 

conducted by a State that meets the 

requirements in § 655.120(c). 

Secretary of Homeland Security. The 

chief official of DHS, or the Secretary of 

Homeland Security’s designee. 

Secretary of Labor (Secretary). The 

chief official of the Department, or the 

Secretary’s designee. 

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. (i) Where an 

employer, agent, or attorney has 

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

or this subpart, and has ceased doing 

business or cannot be located for 

purposes of enforcement, a successor in 

interest to that employer, agent, or 

attorney may be held liable for the 

duties and obligations of the violating 

employer, agent, or attorney 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, agent, or attorney is a 

successor in interest; no one factor is 

dispositive, but all of the circumstances 

will be considered as a whole: 

(A) Substantial continuity of the same 

business operations; 

(B) Use of the same facilities; 

(C) Continuity of the work force; 

(D) Similarity of jobs and working 

conditions; 

(E) Similarity of supervisory 

personnel; 

(F) Whether the former management 

or owner retains a direct or indirect 

interest in the new enterprise; 

(G) Similarity in machinery, 

equipment, and production methods; 

(H) Similarity of products and 

services; and 

(I) The ability of the predecessor to 

provide relief. 

(ii) 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, based on the 

Application for Temporary Employment 

Certification, job order, and all 

supporting documentation, with respect 

to an employer seeking to file an H–2A 

Petition with DHS 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, and this subpart. 

United States. The continental United 

States, Alaska, Hawaii, the 

Commonwealth of Puerto Rico, and the 

territories of Guam, the U.S. Virgin 

Islands, and the Commonwealth of the 

Northern Mariana Islands. 

U.S. Citizenship and Immigration 

Services (USCIS). An operational 

component of DHS. 

U.S. worker. A worker who is: 

(i) A citizen or national of the United 

States; 

(ii) An individual who is lawfully 

admitted for permanent residence in the 

United States, 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 DHS 

to be employed in the United States; or 

(iii) An individual who is not an 

unauthorized alien, as defined in 8 

U.S.C. 1324a(h)(3), with respect to the 

employment in which the worker is 

engaging. 

Wage and Hour Division (WHD). The 

agency within the Department with 

authority to conduct certain 

investigatory and enforcement 

functions, as delegated by the Secretary, 

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

and this subpart. 

Wages. All forms of cash 

remuneration to a worker by an 

employer in payment for labor or 

services. 

WHD Administrator. The primary 

official of WHD, or the WHD 

Administrator’s designee. 

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 

and conditions of the job order and any 

obligations required under 8 U.S.C. 

1188, 29 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. 

1011(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, as amended 

(FLSA), at 29 U.S.C. 203(f); the pressing 

of apples for cider on a farm; or logging 

employment. An occupation included 

in either statutory definition is 

agricultural labor or services, 

notwithstanding the exclusion of that 

occupation from the other statutory 

definition. For informational purposes, 

the statutory provisions are listed in 

paragraphs (c)(1) through (3) of this 

section. 

(1) Agricultural labor. (i) For the 

purpose of paragraph (c) of this section, 

agricultural labor means all service 

performed: 

(A) 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; 

(B) 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; 

(C) In connection with the production 

or harvesting of any commodity defined 

as an agricultural commodity in sec. 

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 


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maintenance of ditches, canals, 

reservoirs, or waterways, not owned or 

operated for profit, used exclusively for 

supplying and storing water for farming 

purposes; 

(D) 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; 

(E) 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)(i)(D) of this section but 

only if such operators produced all of 

the commodity with respect to which 

such service is performed. For purposes 

of this paragraph (c)(1)(i)(E), 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; 

(F) The provisions of paragraphs 

(c)(1)(i)(D) and (E) of this section 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 

(G) 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. 

(ii) As used in this section, the term 

‘‘farm’’ includes stock, dairy, poultry, 

fruit, fur-bearing 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 

12 U.S.C. 1141j(g), 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 29 U.S.C. 

203(f), as amended. 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. Logging 

employment is 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, marking trees or 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) Employment as defined and 

specified in §§ 655.300 through 655.304. 

For the purpose of paragraph (c) of this 

section, agricultural labor or services 

includes animal shearing, commercial 

beekeeping, and custom combining 

activities as defined and specified in 

§§ 655.300 through 655.304. 

(d) Definition of a temporary or 

seasonal nature. For the purposes of 

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. 

Pre-Filing Procedures 

§ 655.120 Offered wage rate. 

(a) Employer obligation. Except for 

occupations covered by §§ 655.200 

through 655.235, to comply with its 

obligation under § 655.122(l), an 

employer must offer, advertise in its 

recruitment, and pay a wage that is at 

least the highest of: 

(1) The AEWR; 

(2) A prevailing wage rate, if the 

OFLC Administrator has approved a 

prevailing wage survey for the 

applicable crop activity or agricultural 

activity and, if applicable, a distinct 

work task or tasks performed in that 

activity, meeting the requirements of 

paragraph (c) of this section; 

(3) The agreed-upon collective 

bargaining wage; 

(4) The Federal minimum wage; or 

(5) The State minimum wage. 

(b) AEWR determinations. 

(1) [Reserved] 

(2) 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. 

(3) If an updated AEWR for the 

occupational classification and 

geographic area is published in the 

Federal Register during the work 

contract, and the updated AEWR is 

higher than the highest of the previous 

AEWR, a prevailing wage for the crop 

activity or agricultural activity and, if 

applicable, a distinct work task or tasks 

performed in that activity and 

geographic area, the agreed-upon 

collective bargaining wage, the Federal 

minimum wage, or the State minimum 

wage, the employer must pay at least the 

updated AEWR upon the effective date 

of the updated AEWR published in the 

Federal Register. 

(4) If an updated AEWR for the 

occupational classification and 

geographic area is published in the 

Federal Register during the work 

contract, and the updated AEWR is 

lower than the rate guaranteed on the 

job order, the employer must continue 

to pay at least the rate guaranteed on the 

job order. 

(5) [Reserved] 

(c) Prevailing wage determinations. 

(1) The OFLC Administrator will 

issue a prevailing wage for a crop 

activity or agricultural activity and, if 

applicable, a distinct work task or tasks 

performed in that activity if all of the 

following requirements are met: 

(i) The SWA submits to the 

Department a wage survey for the crop 

activity or agricultural activity and, if 

applicable, a distinct work task or tasks 

performed in that activity and a Form 

ETA–232 providing the methodology of 

the survey; 

(ii) The survey was independently 

conducted by the State, including any 

State agency, State college, or State 

university; 

(iii) The survey covers work 

performed in a single crop activity or 


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agricultural activity and, if applicable, a 

distinct work task or tasks performed in 

that activity; 

(iv) The surveyor either made a 

reasonable, good faith attempt to contact 

all employers employing workers in the 

crop activity or agricultural activity and 

distinct work task(s), if applicable, and 

geographic area surveyed or contacted a 

randomized sample of such employers, 

except where the estimated universe of 

employers is less than five. Where the 

estimated universe of employers is less 

than five, the surveyor contacted all 

employers in the estimated universe; 

(v) The survey reports the average 

wage of U.S. workers in the crop activity 

or agricultural activity and distinct work 

task(s), if applicable, and geographic 

area using the unit of pay used to 

compensate the largest number of U.S. 

workers whose wages are reported in 

the survey; 

(vi) The survey covers an appropriate 

geographic area based on available 

resources to conduct the survey, the size 

of the agricultural population covered 

by the survey, and any different wage 

structures in the crop activity or 

agricultural activity within the State; 

(vii) Where the estimated universe of 

U.S. workers is at least 30, the survey 

includes the wages of at least 30 U.S. 

workers in the unit of pay used to 

compensate the largest number of U.S. 

workers whose wages are reported in 

the survey. Where the estimated 

universe of U.S. workers is less than 30, 

the survey includes the wages of all 

such U.S. workers; 

(viii) Where the estimated universe of 

employers is at least five, the survey 

includes wages of U.S. workers 

employed by at least five employers in 

the unit of pay used to compensate the 

largest number of U.S. workers whose 

wages are reported in the survey. Where 

the estimated universe of employers is 

less than five, the survey includes wages 

of U.S. workers employed by all such 

employers; and 

(ix) Where the estimated universe of 

employers is at least 4, the wages paid 

by a single employer represent no more 

than 25 percent of the sampled wages in 

the unit of pay used to compensate the 

largest number of U.S. workers whose 

wages are reported in the survey. This 

paragraph (c)(1)(ix) does not apply 

where the estimated universe of 

employers is less than four. 

(2) A prevailing wage issued by the 

OFLC Administrator will remain valid 

for 1 year after the wage is posted on the 

OFLC website or until replaced with an 

adjusted prevailing wage, whichever 

comes first, except that if a prevailing 

wage that was guaranteed on the job 

order expires during the work contract, 

the employer must continue to 

guarantee at least the expired prevailing 

wage rate. 

(3) If a prevailing wage for the 

geographic area and crop activity or 

agricultural activity and distinct work 

task(s), if applicable, is adjusted during 

a work contract, and is higher than the 

highest of the AEWR, a previous 

prevailing wage for the geographic area 

and crop activity or agricultural activity 

or, if applicable, a distinct work task or 

tasks performed in that activity, the 

agreed-upon collective bargaining wage, 

the Federal minimum wage, or the State 

minimum wage, the employer must pay 

at least that higher prevailing wage 

upon the Department’s notice to the 

employer of the new prevailing wage. 

(4) If a prevailing wage for the 

geographic area and crop activity or 

agricultural activity and distinct work 

task(s), if applicable, is adjusted during 

a work contract, and is lower than the 

rate guaranteed on the job order, the 

employer must continue to pay at least 

the rate guaranteed on the job order. 

(d) Appeals. (1) If the employer does 

not include the appropriate offered 

wage rate on the Application for 

Temporary Employment Certification, 

the CO will issue a Notice of Deficiency 

(NOD) requiring the employer to correct 

the wage rate. 

(2) If the employer disagrees with the 

wage rate required by the CO, the 

employer may appeal only after the 

Application for Temporary Employment 

Certification is denied, and the 

employer must follow the procedures in 

§ 655.171. 

§ 655.121 Job order filing requirements. 

(a) What to file. (1) Prior to filing an 

Application for Temporary Employment 

Certification, the employer must submit 

a completed job order, Form ETA–790/ 

790A, including all required addenda, 

to the NPC designated by the OFLC 

Administrator, and must identify it as a 

job order to be placed in connection 

with a future Application for Temporary 

Employment Certification for H–2A 

workers. The employer must include in 

its submission to the NPC a valid 

Federal Employer Identification Number 

(FEIN) as well as a valid place of 

business (physical location) in the 

United States and a means by which it 

may be contacted for employment. 

(2) Where the job order is being 

placed in connection with a future 

master application to be filed by an 

agricultural association as a joint 

employer with its employer-members, 

the agricultural association may submit 

a single job order to be placed in the 

name of the agricultural association on 

behalf of all employers named on the 

job order and the future Application for 

Temporary Employment Certification. 

(3) Where the job order is being 

placed in connection with a future 

application to be jointly filed by two or 

more employers seeking to jointly 

employ a worker(s) (but is not a master 

application), any one of the employers 

may submit a single job order to be 

placed on behalf of all joint employers 

named on the job order and the future 

Application for Temporary Employment 

Certification. 

(4) The job order must satisfy the 

requirements for agricultural clearance 

orders set forth in 20 CFR part 653, 

subpart F, and the requirements set 

forth in § 655.122. 

(b) Timeliness. The employer must 

submit a completed job order to the NPC 

no more than 75 calendar days and no 

fewer than 60 calendar days before the 

employer’s first date of need. 

(c) Location and method of filing. The 

employer must submit a completed job 

order to the NPC using the electronic 

method(s) designated by the OFLC 

Administrator. The NPC will return 

without review any job order submitted 

using a method other than the 

designated electronic method(s), unless 

the employer submits the job order by 

mail as set forth in § 655.130(c)(2) or 

requests a reasonable accommodation as 

set forth in § 655.130(c)(3). 

(d) Original signature. The job order 

must contain an electronic (scanned) 

copy of the original signature of the 

employer or a verifiable electronic 

signature method, as directed by the 

OFLC Administrator. If submitted by 

mail, the Application for Temporary 

Employment Certification must bear the 

original signature of the employer and, 

if applicable, the employer’s authorized 

agent or attorney. 

(e) SWA review. (1) Upon receipt of 

the job order, the NPC will transmit an 

electronic copy of the job order to the 

SWA serving the area of intended 

employment for intrastate clearance. If 

the job opportunity is located in more 

than one State within the same area of 

intended employment, the NPC will 

transmit the job order to any one of the 

SWAs having jurisdiction over the 

place(s) of employment. 

(2) The SWA will review the contents 

of the job order for compliance with the 

requirements set forth in 20 CFR part 

653, subpart F, and this subpart, and 

will work with the employer to address 

any noted deficiencies. The SWA must 

notify the employer in writing of any 

deficiencies in its job order not later 

than 7 calendar days from the date the 

SWA received the job order. The SWA 

notification will state the reason(s) the 

job order fails to meet the applicable 


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requirements, state the modification(s) 

needed for the SWA to accept the job 

order, and offer the employer an 

opportunity to respond to the 

deficiencies within 5 calendar days 

from the date the notification was 

issued by the SWA. Upon receipt of a 

response, the SWA will review the 

response and notify the employer in 

writing of its acceptance or denial of the 

job order within 3 calendar days from 

the date the response was received by 

the SWA. If the employer’s response is 

not received within 12 calendar days 

after the notification was issued, the 

SWA will notify the employer in writing 

that the job order is deemed abandoned, 

and the employer will be required to 

submit a new job order to the NPC 

meeting the requirements of this 

section. Any notice sent by the SWA to 

an employer that requires a response 

must be sent using methods to assure 

next day delivery, including email or 

other electronic methods, with a copy to 

the employer’s representative, as 

applicable. 

(3) If, after providing responses to the 

deficiencies noted by the SWA, the 

employer is not able to resolve the 

deficiencies with the SWA, the 

employer may file an Application for 

Temporary Employment Certification 

pursuant to the emergency filing 

procedures contained in § 655.134, with 

a statement describing the nature of the 

dispute and demonstrating compliance 

with its requirements under this section. 

In the event the SWA does not respond 

within the stated timelines, the 

employer may use the emergency filing 

procedures noted in the preceding 

sentence. The CO will process the 

emergency Application for Temporary 

Employment Certification in a manner 

consistent with the provisions set forth 

in §§ 655.140 through 655.145 and make 

a determination on the Application for 

Temporary Employment Certification in 

accordance with §§ 655.160 through 

655.167. 

(f) Intrastate clearance. Upon its 

acceptance of the job order, the SWA 

must promptly place the job order in 

intrastate clearance and commence 

recruitment of U.S. workers. Where the 

employer’s job order references an area 

of intended employment that falls 

within the jurisdiction of more than one 

SWA, the originating SWA will notify 

the NPC that a copy of the approved job 

order must be forwarded to the other 

SWAs serving the area of intended 

employment. Upon receipt of the SWA 

notification, the NPC will promptly 

transmit an electronic copy of the 

approved job order to the other SWAs 

serving the area of intended 

employment. 

(g) 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 is made) for the job 

opportunity. 

(h) Modifications to the job order. (1) 

Prior to the issuance of a final 

determination on an Application for 

Temporary Employment Certification, 

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. Such modifications must be 

made, or certification will be denied 

pursuant to § 655.164. 

(2) The employer may request a 

modification of the job order, Form 

ETA–790/790A, 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 request a 

modification of the job order on or after 

the date of filing an Application for 

Temporary Employment Certification. 

(3) The employer must provide all 

workers recruited in connection with 

the Application for Temporary 

Employment Certification with a copy of 

the modified job order or work contract 

which reflects the amended terms and 

conditions, on the first day of 

employment, in accordance with 

§ 655.122(q), or as soon as practicable, 

whichever comes first. 

§ 655.122 Contents of job offers. 

(a) Prohibition against preferential 

treatment of H–2A workers. 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 level of 

minimum benefits, wages, and working 

conditions that must be 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 order 

accompanying an Application for 

Temporary Employment Certification 

must include each of the minimum 

benefit, wage, and working condition 

provisions listed in paragraphs (d) 

through (q) 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 the 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 

(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 

addressing those health or safety 

concerns otherwise addressed by the 

DOL OSHA standards at 29 CFR 

1910.142(b)(2) (minimum square 

footage); (b)(3) (beds, cots, or bunks, and 

suitable storage facilities); (b)(9) 

(minimum square footage in a room 

where workers cook, live, and sleep); 

(b)(10) (where the employer chooses to 

meet its meal obligations under 

paragraph (g) of this section by 

furnishing free and convenient cooking 

and kitchen facilities to the workers, the 

provision of stoves, sanitary kitchen 

facilities); (b)(11) (heating, cooking, and 

water heating equipment installed 

properly); (c) (water supply); (d)(1) 

(adequate toilet facilities); (d)(9) 

(adequate toilet paper); (d)(10) (toilets 

kept in sanitary condition); (f) (laundry, 

handwashing, and bathing facilities); (g) 

(lighting); (h)(2) (garbage containers kept 

clean); (h)(3) (garbage containers 

emptied when full, but at least twice a 

week); and (j) (insect and rodent 

control), State standards addressing 


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such concerns will apply. In the absence 

of applicable local or State standards 

addressing such concerns, the relevant 

DOL OSHA standards at 29 CFR 

1910.142(b)(2), (3), (9), (10), and (11), 

(c), (d)(1), (9), and (10), (f), (g), (h)(2) and 

(3), and (j) will apply. Any charges for 

rental housing must be paid directly by 

the employer to the owner or operator 

of the housing. 

(2) Standards for range and mobile 

housing. An employer employing 

workers under §§ 655.200 through 

655.235 must comply with the housing 

requirements in §§ 655.230 and 655.235. 

An employer employing workers under 

§§ 655.300 through 655.304 must 

comply with the housing standards in 

§ 655.304. 

(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 that 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) Compliance with applicable 

standards—(i) Timeliness. The 

determination as to whether housing 

provided to workers under this section 

meets the applicable standards must be 

made not later than 30 calendar days 

before the first date of need identified in 

the Application for Temporary 

Employment Certification. 

(ii) Certification of employer-provided 

housing. The SWA (or another local, 

State, or Federal authority acting on 

behalf of the SWA) with jurisdiction 

over the location of the employerprovided housing must inspect and 

provide to the employer and CO 

documentation certifying that the 

employer-provided housing is sufficient 

to accommodate the number of workers 

requested and meets all applicable 

standards under paragraph (d)(1)(i) of 

this section. 

(iii) Certification of rental and/or 

public accommodations. The employer 

must provide to the CO a written 

statement, signed and dated, that attests 

that the accommodations are compliant 

with the applicable standards under 

paragraph (d)(1)(ii) of this section and 

are sufficient to accommodate the 

number of workers requested. This 

statement must include the number of 

bed(s) and room(s) that the employer 

will secure for the worker(s). If 

applicable local or State rental or public 

accommodation standards under 

paragraph (d)(1)(ii) of this section 

require an inspection, the employer also 

must submit to the CO a copy of the 

inspection report or other official 

documentation from the relevant 

authority. If the applicable standards do 

not require an inspection, the 

employer’s written statement must 

confirm that no inspection is required. 

(iv) 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 provide housing that complies 

with the applicable standards will result 

in either a denial of a pending 

Application for Temporary Employment 

Certification or revocation of the 

temporary agricultural labor 

certification granted 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 

agricultural labor certification, the 

employer must provide the CO with 

proof of workers’ compensation 

insurance coverage meeting the 

requirements of this paragraph (e), 

including the name of the insurance 

carrier, the insurance policy number, 

and proof of insurance for the entire 

period of employment, 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. 

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 the FLSA at 29 U.S.C. 

203(m), including the recordkeeping 

requirements found at 29 CFR 516.27. 

(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 


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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 § 655.173(a). 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) with respect to 

the referrals made after the employer’s 

date of need. 

(3) Transportation between living 

quarters and place of employment. The 

employer must provide transportation 

between housing provided or secured by 

the employer and the employer’s place 

of employment at no cost to the worker. 

(4) Employer-provided transportation. 

All employer-provided transportation 

must comply with all applicable local, 

State, or Federal 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, 29 

CFR 500.104 or 500.105, and 29 CFR 

500.120 through 500.128. The job offer 

must include a description of the modes 

of transportation (e.g., type of vehicle) 

that will be used for inbound, outbound, 

daily, and any other transportation. 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 it 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 

(i)(1) 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 (i)(1), 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 required hourly wage 

rate, 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 its obligation to hire 

U.S. workers who apply or are referred 

after the employer’s date of need 

described in § 655.135(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 United States from which the 

worker came, or, if the worker 

voluntarily abandons employment or is 

terminated for cause, the day of such 

abandonment or termination. 


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(j) Earnings records. (1) An employer 

must keep accurate and adequate 

records with respect to each worker’s 

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 

permanent address and, when available, 

the worker’s permanent email address 

and phone number(s); and the amount 

of and reasons for any and all 

deductions taken from the worker’s 

wages. In the case of H–2A workers, the 

permanent address must be the worker’s 

permanent address in the worker’s 

home country. 

(2) Each employer must keep the 

records required by paragraph (j) of this 

section, 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 

designated representatives as described 

in this paragraph (j)(2). 

(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 

therefore. 

(4) The employer must retain the 

records for not less than 3 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. Except for 

occupations covered by §§ 655.200 

through 655.235, the employer must pay 

the worker at least the AEWR; a 

prevailing wage if the OFLC 

Administrator has approved a prevailing 

wage survey for the applicable crop 

activity or agricultural activity and, if 

applicable, a distinct work task or tasks 

performed in that activity, meeting the 

requirements of § 655.120(c); the agreedupon collective bargaining rate; the 

Federal minimum wage; or the 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 

wage rate, the Federal minimum wage, 

the State minimum wage, or any agreedupon collective bargaining rate, 

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 prevailing piece rate for the 

crop activity or agricultural activity and, 

if applicable, a distinct work task or 

tasks performed in that activity in the 

geographic area if one has been issued 

by the OFLC Administrator; 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 temporary 

agricultural labor certification after 

1977, such standards must be no more 

than those normally required (at the 

time of the first Application for 

Temporary Employment 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 a 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 in a notice published in the 

Federal Register or specified by DHS 

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 worker 

under this section, and that worker is 

not entitled to the three-fourths 

guarantee described in paragraph (i) of 

this section, and, in the case of a U.S. 

worker, the employer will not be 

obligated to contact that worker under 

§ 655.153. Abandonment will be 

deemed to begin after a worker fails to 

report to work at the regularly 

scheduled time for 5 consecutive 

working days without the consent of the 

employer. The employer is required to 

maintain records of such notification to 

the NPC, and DHS in the case of an H– 

2A worker, for not less than 3 years 

from the date of the certification. 

(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 


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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, 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. (1) 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. 

(2) A deduction is not reasonable if it 

includes a profit to the employer or to 

any affiliated person. A deduction that 

is primarily for the benefit or 

convenience of the employer will not be 

recognized as reasonable and therefore 

the cost of such an item may not be 

included in computing wages. The wage 

requirements of § 655.120 will not be 

met where undisclosed or unauthorized 

deductions, rebates, or refunds reduce 

the wage payment made to the 

employee below the minimum amounts 

required under this subpart, or where 

the employee fails to receive such 

amounts free and clear because the 

employee kicks back directly or 

indirectly to the employer or to another 

person for the employer’s benefit the 

whole or part of the wage delivered to 

the employee. The principles applied in 

determining whether deductions are 

reasonable and payments are received 

free and clear, and the permissibility of 

deductions for payments to third 

persons are explained in more detail in 

29 CFR part 531. 

(q) Disclosure of work contract. The 

employer must provide to an H–2A 

worker not later than the time at which 

the worker applies for the visa, or to a 

worker in corresponding employment 

not later than on the day 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. For an H–2A 

worker going from an H–2A employer to 

a subsequent H–2A employer, the copy 

must be provided not later than the time 

an offer of employment is made by the 

subsequent H–2A employer. For an H– 

2A worker that does not require a visa 

for entry, the copy must be provided not 

later than the time of an offer of 

employment. At a minimum, the work 

contract must contain all of the 

provisions required by this section. In 

the absence of a separate, written work 

contract entered into between 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, 29 CFR 

part 501, or this subpart. 

§ 655.123 [Reserved] 

§ 655.124 Withdrawal of a job order. 

(a) The employer may withdraw a job 

order if the employer no longer plans to 

file an Application for Temporary 

Employment Certification. However, the 

employer is still obligated to comply 

with the terms and conditions of 

employment contained in the job order 

with respect to all workers recruited in 

connection with that job order. 

(b) To request withdrawal, the 

employer must submit a request in 

writing to the NPC identifying the job 

order and stating the reason(s) for the 

withdrawal. 

Application for Temporary 

Employment Certification Filing 

Procedures 

§ 655.130 Application filing requirements. 

All 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. This section provides the 

procedures employers must follow 

when filing. 

(a) What to file. An employer that 

desires to apply for temporary 

agricultural labor certification of one or 

more nonimmigrant workers must file a 

completed Application for Temporary 

Employment Certification, all 

supporting documentation and 

information required at the time of filing 

under §§ 655.131 through 655.135, and, 

unless a specific exemption applies, a 

copy of Form ETA–790/790A, submitted 

as set forth in § 655.121(a). The 

Application for Temporary Employment 

Certification must include a valid FEIN 

as well as a valid place of business 

(physical location) in the United States 

and a means by which it may be 

contacted for employment. 

(b) Timeliness. A completed 

Application for Temporary Employment 

Certification must be filed no less than 

45 calendar days before the employer’s 

first date of need. 

(c) Location and method of filing—(1) 

Electronic filing. The employer must file 

the Application for Temporary 

Employment Certification and all 

required supporting documentation 

with the NPC using the electronic 

method(s) designated by the OFLC 

Administrator. The NPC will return 

without review any application 

submitted using a method other than the 

designated electronic method(s), unless 

the employer submits the application in 

accordance with paragraph (c)(2) or (3) 

of this section. 

(2) Filing by mail. Employers that lack 

adequate access to electronic filing may 

file the application by mail. The 

employer must indicate that it is filing 

by mail due to lack of adequate access 

to electronic filing. The OFLC 

Administrator will identify the address 

to which such filing must be mailed by 

public notice(s) and by instructions on 

DOL’s website. 

(3) Reasonable accommodation. 

Employers who are unable or limited in 

their ability to use and/or access the 

electronic Application for Temporary 

Employment Certification, or any other 

form or documentation required under 

this subpart, as a result of a disability 

may request a reasonable 


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accommodation to enable them to 

participate in the H–2A program. An 

employer in need of such an 

accommodation may contact the NPC in 

writing to the address designated in a 

notice published in the Federal Register 

or 202–513–7350 (this is not a toll-free 

number), or for individuals with hearing 

or speech impairments, 1–877–889– 

5627 (this is the TTY toll-free Federal 

Information Relay Service number) for 

assistance in using, accessing, or filing 

any form or documentation required 

under this subpart, including the 

Application for Temporary Employment 

Certification. All requests for an 

accommodation should include the 

employer’s name, a detailed description 

of the accommodation needed, and the 

preferred method of contact. The NPC 

will respond to the request for a 

reasonable accommodation within 10 

business days of the date of receipt. 

(d) Original signature. The 

Application for Temporary Employment 

Certification must contain an electronic 

(scanned) copy of 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) or a verifiable 

electronic signature method, as directed 

by the OFLC Administrator. If submitted 

by mail, the Application for Temporary 

Employment Certification must bear the 

original signature of the employer and, 

if applicable, the employer’s authorized 

attorney or agent. 

(e) Scope of applications. (1) Except 

as otherwise permitted by this subpart, 

all places of employment on an 

Application for Temporary Employment 

Certification must be within a single 

area of intended employment. Where a 

job opportunity involves work at 

multiple places of employment after the 

workday begins, the Application for 

Temporary Employment Certification 

may include places of employment 

outside of a single area of intended 

employment only as is necessary to 

perform the duties specified in the 

Application for Temporary Employment 

Certification, and provided that the 

worker can reasonably return to the 

worker’s residence or the employerprovided housing within the same 

workday. 

(2) An employer may file only one 

Application for Temporary Employment 

Certification covering the same area of 

intended employment, period of 

employment, and occupation or 

comparable work to be performed. 

(f) Information dissemination. 

Information received in the course of 

processing Applications for Temporary 

Employment Certification or in the 

course of conducting program integrity 

measures such as audits may be 

forwarded from OFLC to WHD or any 

other Federal agency, as appropriate, for 

investigative or enforcement purposes. 

§ 655.131 Agricultural association and 

joint employer filing requirements. 

(a) Agricultural association filing 

requirements. If an agricultural 

association files an Application for 

Temporary Employment 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. 

(1) The agricultural association must 

identify in the Application for 

Temporary Employment Certification 

for H–2A workers whether it is filing as 

a sole employer, a joint employer, or an 

agent. The agricultural association must 

retain documentation substantiating the 

employer or agency status of the 

agricultural association and be prepared 

to submit such documentation in 

response to a NOD from the CO prior to 

issuing a Final Determination, or in the 

event of an audit or investigation. 

(2) The agricultural association may 

file a master application on behalf of its 

employer-members. The master 

application is available only when the 

agricultural association is filing as a 

joint employer. An agricultural 

association may submit a master 

application covering the same 

occupation or comparable work 

available with a number of its employermembers in multiple areas of intended 

employment, as long as the first dates of 

need for each employer-member named 

in the Application for Temporary 

Employment Certification are separated 

by no more than 14 calendar days and 

all places of employment are located in 

no more than two contiguous States. 

The agricultural association must 

identify in the Application for 

Temporary Employment Certification by 

name, address, total number of workers 

needed, period of employment, first 

date of need, and the crops and 

agricultural work to be performed, each 

employer-member that will employ H– 

2A workers. 

(3) An agricultural association filing a 

master application as a joint employer 

may sign the Application for Temporary 

Employment Certification on behalf of 

its employer-members. An agricultural 

association filing as an agent may not 

sign on behalf of its employer-members 

but must obtain each employermember’s signature on the Application 

for Temporary Employment 

Certification prior to filing. 

(4) If the application is approved, the 

agricultural association, as appropriate, 

will receive a Final Determination 

certifying the Application for 

Temporary Employment Certification in 

accordance with the procedures 

contained in § 655.162. 

(b) Joint employer filing requirements. 

(1) If an employer files an Application 

for Temporary Employment 

Certification on behalf of one or more 

other employers seeking to jointly 

employ H–2A workers in the same area 

of intended employment, 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: 

(i) The Application for Temporary 

Employment Certification must identify 

the name, address, and the crop(s) and 

agricultural work to be performed for 

each employer seeking to jointly employ 

the H–2A workers; 

(ii) No single joint employer may 

employ an H–2A worker, or any 

combination of H–2A workers, for more 

than a total of 34 hours in any 

workweek; and 

(iii) The Application for Temporary 

Employment Certification must be 

signed and dated by each joint employer 

named in the application, in accordance 

with the procedures contained in 

§ 655.130(e). By signing the Application 

for Temporary Employment 

Certification, each joint employer 

named in the application attests to the 

conditions of employment required of 

an employer participating in the H–2A 

program, and assumes full 

responsibility for the accuracy of the 

representations made in the Application 

for Temporary Employment 

Certification and for compliance with 

all of the assurances and obligations of 

an employer in the H–2A program at all 

times during the period the Application 

for Temporary Employment 

Certification is valid; and 

(2) If the application is approved, the 

joint employer who submits the 

Application for Temporary Employment 

Certification will receive, on behalf of 

the other joint employers, a Final 

Determination certifying the 

Application for Temporary Employment 

Certification in accordance with the 

procedures contained in § 655.162. 

§ 655.132 H–2A labor contractor filing 

requirements. 

An H–2A labor contractor (H–2ALC) 

must meet all of the requirements of the 

definition of employer in § 655.103(b) 

and comply with all the assurances, 

guarantees, and other requirements 

contained in this part, including 


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§ 655.135, and in part 653, subpart F, of 

this chapter. The H–2ALC must include 

in or with its Application for Temporary 

Employment Certification at the time of 

filing the following: 

(a) 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. 

(b) 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. 

(c) Proof of its ability to discharge 

financial obligations under the H–2A 

program by including with the 

Application for Temporary Employment 

Certification an original surety bond 

meeting the following requirements. 

(1) Requirements for the bond. 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. Consistent 

with the enforcement procedure set 

forth at 29 CFR 501.9(b), the bond must 

obligate the surety to pay any sums to 

the WHD Administrator for wages and 

benefits, including any assessment of 

interest, owed to an H–2A worker or to 

a worker engaged 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 29 CFR part 

501 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 remain in full force and effect for 

all liabilities incurred during the period 

of the labor certification, including any 

extension thereof. The bond may not be 

cancelled absent a finding by the WHD 

Administrator that the labor 

certification has been revoked. 

(2) Amount of the bond. Unless a 

higher amount is sought by the WHD 

Administrator pursuant to 29 CFR 

501.9(a), the required bond amount is 

the base amount adjusted to reflect the 

average AEWR, as defined in § 655.103, 

and further adjusted if the labor 

certification will be used for the 

employment of 150 or more workers. 

(i) The base amounts are $5,000 for a 

labor certification for which an H–2ALC 

employs fewer than 25 workers; $10,000 

for a labor certification for which an H– 

2ALC employs 25 to 49 workers; 

$20,000 for a labor certification for 

which an H–2ALC employs 50 to 74 

workers; $50,000 for a labor certification 

for which an H–2ALC employs 75 to 99 

workers; and $75,000 for a labor 

certification for which an H–2ALC 

employs 100 or more workers. 

(ii) The bond amount is calculated by 

multiplying the base amount by the 

average AEWR in effect at the time of 

bond submission, as provided in 

paragraph (c)(3) of this section, and 

dividing by $9.25. Thus, the required 

bond amounts will vary based on 

changes in the average AEWR. 

(iii) For a labor certification for which 

an H–2ALC employs 150 or more 

workers, the bond amount applicable to 

the certification of 100 or more workers 

is further adjusted for each additional 

50 workers as follows: the bond amount 

is increased by a value which represents 

2 weeks of wages for 50 workers, 

calculated using the average AEWR (i.e., 

80 hours × 50 workers × Average 

AEWR); this increase is applied to the 

bond amount for each additional group 

of 50 workers. 

(iv) The required bond amounts shall 

be calculated and published in the 

Federal Register after the OFLC 

Administrator has calculated the 

average AEWR or any adjustment 

thereto. 

(3) Form of the bond and method of 

filing. The bond shall consist of an 

executed Form ETA–9142A—Appendix 

B, and must contain the name, address, 

phone number, and contact person for 

the surety, and valid documentation of 

power of attorney. The bond must be 

filed using the method directed by the 

OFLC Administrator at the time of 

filing: 

(i) Electronic surety bonds. When the 

OFLC Administrator directs the use of 

electronic surety bonds, this will be the 

required method of filing bonds for all 

applications subject to mandatory 

electronic filing. Consistent with the 

application filing requirements of 

§ 655.130(c) and (d), the bond must be 

completed, signed by the employer and 

the surety using a verifiable electronic 

signature method, and submitted 

electronically with the Application for 

Temporary Employment Certification 

and supporting materials unless the 

employer is permitted to file by mail or 

a different accommodation under 

§ 655.130(c)(2) or (3). 

(ii) Electronic submission of copy. 

Until such time as the OFLC 

Administrator directs the use of 

electronic surety bonds, employers may 

submit an electronic (scanned) copy of 

the surety bond with the application, 

provided that the original bond is 

received within 30 days of the date that 

the labor certification is issued. 

(iii) Mailing original bond with 

application. For applications not subject 

to mandatory electronic filing due under 

§ 655.130(c)(2) or (3), employers may 

submit the original bond as part of its 

mailed, paper application package, or 

consistent with the accommodation 

provided. 

(d) Copies of the fully-executed work 

contracts with each fixed-site 

agricultural business identified under 

paragraph (a) of this section. 

(e) Where the fixed-site agricultural 

business will provide housing or 

transportation to the workers, proof that: 

(1) 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 

(2) All transportation between all 

places of employment and the workers’ 

living quarters that is provided by the 

fixed-site agricultural business complies 

with all applicable local, State, or 

Federal 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 500.104 or 500.105 and 500.120 

through 500.128, except where workers’ 

compensation is used to cover such 

transportation as described in 

§ 655.122(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 foreign agricultural workers 

during the prior year’s agricultural 

season or for any employer that has 

other good and substantial cause, 

provided 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 submit to the 


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NPC: all documentation required at the 

time of filing by § 655.130(a), except 

evidence of a job order submitted 

pursuant to § 655.121; a completed job 

order on the Form ETA–790/790A and 

all required addenda; 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 year’s 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 that has necessitated the waiver 

request. Good and substantial cause may 

include, but is not limited to, the 

substantial loss of U.S. workers due to 

Acts of God or similar unforeseeable 

man-made catastrophic events (e.g., a 

hazardous materials emergency or 

government-controlled flooding), 

unforeseeable changes in market 

conditions, pandemic health issues, or 

similar conditions that are wholly 

outside of the employer’s control. 

(c) Processing of emergency 

applications. (1) Upon receipt of a 

complete emergency situation(s) waiver 

request, the CO promptly will transmit 

a copy of the job order to the SWA 

serving the area of intended 

employment. The SWA will review the 

contents of the job order for compliance 

with the requirements set forth in 20 

CFR part 653, subpart F, and § 655.122. 

If the SWA determines that the job order 

does not comply with the applicable 

criteria, the SWA must inform the CO of 

the noted deficiencies within 5 calendar 

days of the date the job order is received 

by the SWA. 

(2) The CO will process emergency 

Applications for Temporary 

Employment Certification in a manner 

consistent with the provisions set forth 

in §§ 655.140 through 655.145 and make 

a determination on the Application for 

Temporary Employment Certification in 

accordance with §§ 655.160 through 

655.167. The CO may notify the 

employer, in accordance with the 

procedures contained in § 655.141, that 

the application cannot be accepted 

because, pursuant to paragraph (a) of 

this section, the request for emergency 

filing was not justified and/or 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 Employment 

Certification in accordance with 

§ 655.161. Such notification will so 

inform the employer of the opportunity 

to submit a modified Application for 

Temporary Employment Certification 

and/or job order in accordance with the 

procedures contained in § 655.142. 

§ 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 period set forth in 

paragraph (d) of this section must 

continue to be, open to any qualified 

U.S. worker regardless of race, color, 

national origin, age, sex, religion, 

handicap, or citizenship status. 

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 place(s) 

of employment for which the employer 

is requesting a temporary agricultural 

labor certification does not currently 

have employees on strike or being 

locked out in the course of a labor 

dispute. 

(c) Recruitment requirements—(1) 

General 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 is made) for 

the job opportunity until the end of the 

period as specified in paragraph (d) of 

this section and must independently 

conduct the positive recruitment 

activities, as specified in § 655.154, 

until the date on which the H–2A 

workers depart for the place of 

employment. Unless the SWA is 

informed in writing of a different date, 

the date that is the third day preceding 

the employer’s first date of need will be 

determined to be the date the H–2A 

workers departed for the employer’s 

place of employment. 

(2) Interviewing U.S. workers. 

Employers that wish to require 

interviews must conduct those 

interviews by phone or provide a 

procedure for the interviews to be 

conducted in the location where the 

U.S. worker is being recruited so that 

the worker incurs little or no cost due 

to the interview. Employers cannot 

provide potential H–2A workers with 

more favorable treatment than U.S. 

workers with respect to the requirement 

for, and conduct of, interviews. 

(3) Qualified and available U.S. 

workers. The employer must consider 

all U.S. applicants for the job 

opportunity until the end of the 

recruitment period, as set forth in 

§ 655.135(d). The employer must accept 

and hire all applicants who are qualified 

and who will be available for the job 

opportunity. U.S. applicants can be 

rejected only for lawful, job-related 

reasons, and those not rejected on this 

basis will be hired. 

(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 paragraph (d) 

will not apply to any employer who 

certifies to 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 29 

U.S.C. 203(u); 

(2) Is not an employer-member of an 

association that has petitioned for 

certification under this subpart for its 

employer-members; and 

(3) Has not otherwise associated with 

other employers who are petitioning for 

temporary foreign workers under this 

subpart. 

(e) Compliance 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. In compliance with such 

laws, including the William Wilberforce 

Trafficking Victims Protection 

Reauthorization Act of 2008, Pub. L. 

110–457, 18 U.S.C. 1592(a), the 

employer may not hold or confiscate 

workers’ passports, visas, or other 

immigration documents. 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 workweek. 


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(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 first date of need, or if the 

employer has laid off such workers, it 

has offered the job opportunity that is 

the subject of the Application for 

Temporary Employment Certification to 

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

U.S. worker(s) refused the job 

opportunity, was rejected for the job 

opportunity for lawful, job-related 

reasons, or was hired. A layoff for 

lawful, job-related reasons such as lack 

of work or the end of the growing season 

is permissible if all H–2A workers are 

laid off before any U.S. worker in 

corresponding employment. 

(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 

Department regulation in this chapter or 

29 CFR part 501 promulgated under 8 

U.S.C. 1188; 

(2) Instituted or caused to be 

instituted any proceeding under or 

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

or any Department regulation in this 

chapter or 29 CFR part 501 promulgated 

under 8 U.S.C. 1188; 

(3) Testified or is about to testify in 

any proceeding under or related to 8 

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

Department regulation in this chapter or 

29 CFR part 501 promulgated under 8 

U.S.C. 1188; 

(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 Department 

regulation in this chapter or 29 CFR part 

501 promulgated under 8 U.S.C. 1188; 

or 

(5) Exercised or asserted on behalf of 

themself or others any right or 

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

this subpart or any Department 

regulation in this chapter or 29 CFR part 

501 promulgated under 8 U.S.C. 1188. 

(i) Notify workers of duty to leave 

United States. (1) The employer must 

inform H–2A workers of the 

requirement that they leave the United 

States at the end of the period certified 

by the Department or separation from 

the employer, whichever is earlier, as 

required under paragraph (i)(2) of this 

section, unless the H–2A worker is 

being sponsored by another subsequent 

H–2A employer. 

(2) As explained further in the DHS 

regulations, a temporary agricultural 

labor certification limits the validity 

period of an H–2A Petition. See 8 CFR 

214.2(h)(5)(vii). A foreign worker may 

not remain beyond their authorized 

period of stay, as determined by DHS, 

nor beyond separation from 

employment prior to completion of the 

H–2A contract, absent an extension or 

change of such worker’s status under 

the 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 attorney fees, 

application fees, or recruitment costs. 

For purposes of this paragraph (j), 

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. The provision in this paragraph (j) 

does not prohibit employers or their 

agents from receiving reimbursement for 

costs that are the responsibility and 

primarily for the benefit of the worker, 

such as government-required passport 

fees. 

(k) Contracts with third parties to 

comply with prohibitions. The employer 

must contractually prohibit in writing 

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. The contract 

must include the following statement: 

‘‘Under this agreement, [name of foreign 

labor contractor or recruiter] and any 

agent or employee of [name of foreign 

labor contractor or recruiter] are 

prohibited from seeking or receiving 

payments from any prospective 

employee of [employer name] at any 

time, including before or after the 

worker obtains employment. Payments 

include but are not limited to any direct 

or indirect fees paid by such employees 

for recruitment, job placement, 

processing, maintenance, attorney fees, 

agent fees, application fees, or any fees 

related to obtaining H–2A labor 

certification.’’ This documentation is to 

be made 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, any 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. 

§ 655.136 Withdrawal of an Application for 

Temporary Employment Certification and 

job order. 

(a) The employer may withdraw an 

Application for Temporary Employment 

Certification and the related job order at 

any time before the CO makes a 

determination under § 655.160. 

However, the employer is still obligated 

to comply with the terms and 

conditions of employment contained in 

the Application for Temporary 

Employment Certification and job order 

with respect to all workers recruited in 

connection with that application and 

job order. 

(b) To request withdrawal, the 

employer must submit a request in 

writing to the NPC identifying the 

Application for Temporary Employment 

Certification and job order and stating 

the reason(s) for the withdrawal. 

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, and make a 

decision to issue a NOD under 

§ 655.141, a Notice of Acceptance 

(NOA) under § 655.143, or a Final 

Determination under § 655.160. 

(b) Mailing and postmark 

requirements. Any notice or request sent 

by the CO(s) to an employer requiring a 

response will be sent electronically or 

via traditional methods to assure next 

day delivery using the address, 

including electronic mail address, 

provided on the Application for 

Temporary Employment Certification. 

The employer’s response to such a 

notice or request must be filed 

electronically or via traditional methods 

to assure next day delivery. The 

employer’s response must 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 deficiency. 

(a) Notification timeline. If the CO 

determines the Application for 


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Temporary Employment Certification or 

job order is incomplete, contains errors 

or inaccuracies, or does 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) the Application 

for Temporary Employment 

Certification or job order fails to meet 

the criteria for acceptance; 

(2) Offer the employer an opportunity 

to submit a modified Application for 

Temporary Employment Certification or 

job order within 5 business days from 

date of receipt stating the modification 

that is needed for the CO to issue the 

NOA; 

(3) State that the CO’s determination 

on whether to grant or deny the 

Application for Temporary Employment 

Certification will be made not later than 

30 calendar days before the first date of 

need, provided that the employer 

submits the requested modification to 

the Application for Temporary 

Employment Certification or job order 

within 5 business days and in a manner 

specified by the CO; and 

(4) State that if the employer does not 

comply with the requirements of 

§ 655.142, the CO will deny the 

Application for Temporary Employment 

Certification. 

§ 655.142 Submission of modified 

applications. 

(a) Submission requirements and 

certification delays. If in response to a 

NOD the employer chooses to submit a 

modified Application for Temporary 

Employment Certification or job order, 

the CO’s Final Determination will be 

postponed by 1 calendar day for each 

day that passes beyond the 5 businessday period allowed under § 655.141(b) 

to submit a modified Application for 

Temporary Employment Certification or 

job order, up to a maximum of 5 

calendar days. The CO may issue one or 

more additional NODs before issuing a 

Final Determination. The Application 

for Temporary Employment 

Certification will be deemed abandoned 

if the employer does not submit a 

modified Application for Temporary 

Employment Certification or job order 

within 12 calendar days after the NOD 

was issued. 

(b) Provisions for denial of modified 

Application for Temporary Employment 

Certification. If the modified 

Application for Temporary Employment 

Certification or job order does not cure 

the deficiencies cited in the NOD(s) or 

otherwise fails to satisfy the criteria 

required for certification, the CO will 

deny the Application for Temporary 

Employment 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 Employment 

Certification are the same as for a nonmodified Application for Temporary 

Employment 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. 

§ 655.143 Notice of acceptance. 

(a) Notification timeline. When the 

CO determines the Application for 

Temporary Employment Certification 

and job order 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 the notice 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 each SWA receiving a copy of the 

job order to commence recruitment of 

U.S. workers as specified in § 655.150; 

(2) Direct the employer to engage in 

positive recruitment of U.S. workers 

under §§ 655.153 and 655.154 and to 

submit a report of its positive 

recruitment efforts meeting the 

requirements of § 655.156. If the OFLC 

Administrator’s annual determination of 

labor supply States under § 655.154 

requires the employer to engage in a 

specific additional positive recruitment 

activity in a labor supply State, the NOA 

will describe the precise nature of the 

additional positive recruitment required 

and will specify the documentation or 

other supporting evidence that must be 

maintained by the employer as proof 

that positive recruitment requirements 

were met; 

(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 and will 

terminate on the date specified in 

§ 655.158; 

(4) State any other documentation or 

assurances needed for the Application 

for Temporary Employment 

Certification to meet the requirements 

for certification under this subpart; 

(5) State that the CO will make a 

determination either to grant or deny 

the Application for Temporary 

Employment Certification not later than 

30 calendar days before the first date of 

need, except as provided for under 

§ 655.142 for modified Applications for 

Temporary Employment Certification or 

when the Application for Temporary 

Employment Certification does not meet 

the requirements for certification but is 

expected to before the first date of need; 

and 

(6) Where appropriate to the job 

opportunity and area of intended 

employment, direct the SWA to provide 

written notice of the job opportunity to 

organizations that provide employment 

and training services to workers likely 

to apply for the job and/or to place 

written notice of the job opportunity in 

other physical locations where such 

workers are likely to gather. 

§ 655.144 Electronic job registry. 

(a) Location of and placement in the 

electronic job registry. Upon acceptance 

of the Application for Temporary 

Employment Certification under 

§ 655.143, 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 

§ 655.142. 

(b) Length of posting on electronic job 

registry. Unless otherwise provided, the 

Department will keep the job order 

posted on the electronic job registry in 

active status until the end of the 

recruitment period, as set forth in 

§ 655.135(d). 

§ 655.145 Amendments to Applications for 

Temporary Employment Certification. 

(a) Increases in number of workers. 

The Application for Temporary 

Employment 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 

Employment 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 

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. All requests for increasing the 


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number of workers must be made in 

writing. 

(b) Minor changes to the period of 

employment. The Application for 

Temporary Employment Certification 

may be amended to make minor changes 

in the total period of employment. 

Changes will not be effective until 

submitted in writing and approved by 

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 first date of need and is 

made after workers have departed for 

the employer’s place of employment, 

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 place of 

employment 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) CO approves for interstate 

clearance. The CO will promptly 

transmit a copy of the approved job 

order for interstate clearance, at 

minimum, to all States listed in the job 

order as anticipated place(s) of 

employment and all other States 

designated by the OFLC Administrator 

as States of traditional or expected labor 

supply for the anticipated place(s) of 

employment under § 655.154(d). 

(b) Duration of posting. Each of the 

SWAs to which the CO transmits the job 

order 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 

qualified U.S. worker who applies (or 

on whose behalf an application is made) 

for the job opportunity. 

§§ 655.151–655.152 [Reserved] 

§ 655.153 Contact with former U.S. 

workers. 

The employer must contact, by mail 

or other effective means, U.S. workers 

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 under 

§ 655.150 and before the date specified 

in § 655.158. Documentation sufficient 

to prove contact must be maintained in 

the event of an audit or investigation. 

An employer has no obligation to 

contact U.S. workers it terminated for 

cause or who abandoned employment at 

any time during the previous year if the 

employer provided timely notice to the 

NPC of the termination or abandonment 

in the manner described in § 655.122(n). 

§ 655.154 Additional positive recruitment. 

(a) Where to conduct additional 

positive recruitment. In addition to the 

CO’s posting of the job opportunity on 

an electronic job registry in accordance 

with § 655.144, the employer must 

conduct positive recruitment as 

required by the OFLC Administrator’s 

determination of traditional or expected 

labor supply States, which is published 

annually in accordance with paragraph 

(d) of this section. 

(b) Additional requirements should be 

comparable to non-H–2A employers in 

the area. The location(s) and method(s) 

of the positive recruitment required of 

the 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, taking into consideration 

the kind and degree of recruitment 

efforts which the employer may make to 

obtain foreign workers. 

(c) Nature of the additional positive 

recruitment. The OFLC Administrator’s 

labor supply State determination will 

identify areas of labor supply within a 

State, and the NOA issued under 

§ 655.143 will describe the precise 

nature of the additional positive 

recruitment required of the employer, if 

any. The employer will not be required 

to conduct positive recruitment in more 

than three States for each area of 

intended employment listed on the 

employer’s Application for Temporary 

Employment Certification and job order. 

(d) Determination of labor supply 

States. (1) The OFLC Administrator will 

make an annual determination with 

respect to each State whether there are 

other traditional or expected labor 

supply States and, within a traditional 

or expected labor supply State, areas in 

which there are a significant number of 

qualified U.S. workers who, if recruited, 

would be willing to make themselves 

available for work in that State. The 

OFLC Administrator will publish the 

determination annually on OFLC’s 

website. 

(2) The determination will become 

effective on the date of publication on 

OFLC’s website for employers who have 

not commenced positive recruitment 

under this subpart and will remain valid 

until the OFLC Administrator publishes 

a new determination. 

(3) The determination as to whether 

any State is a source of traditional or 

expected labor supply to another State 

will be based primarily upon 

information provided by the SWAs to 

the OFLC Administrator within 120 

calendar days preceding the 

determination. 

§ 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 they are 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 NOA set forth in § 655.143 and 

contain the following information: 

(1) Identify the name of each 

recruitment source and date(s) of 

advertisement; 

(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. workers 

were contacted, with a description by 

what means they were contacted and 

the date(s) of such contact, or state there 

are no former U.S. workers to contact; 

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 update 

the recruitment report until the end of 

the recruitment period, as set forth in 

§ 655.135(d). The updated report must 

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

the Department. The Department may 

share recruitment report information 

with any other Federal agency, as set 

forth in § 655.130(f). 

§ 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 place of employment 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) of this section, that the 

employer’s complaint is valid and 

justified, the CO will immediately 

suspend the applicable 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 

through 655.154 will terminate on the 

date H–2A workers depart for the 

employer’s place of employment. Unless 

the SWA is informed in writing of a 

different date, the date that is the third 

day preceding the employer’s first date 

of need will be determined to be the 

date the H–2A workers departed for the 

employer’s place of employment. 

Labor Certification Determinations 

§ 655.160 Determinations. 

Except as otherwise noted in this 

section, the CO will make a 

determination either to grant or deny 

the Application for Temporary 

Employment Certification not later than 

30 calendar days before the first date of 

need identified in the Application for 

Temporary Employment Certification. 

An Application for Temporary 

Employment Certification that is 

modified under § 655.142 or that 

otherwise does not meet the 

requirements for certification in this 

subpart 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 

complied with the applicable 

requirements of parts 653 and 654 of 

this chapter, and all requirements of this 

subpart, which are necessary to grant 

the labor certification. 

(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 is made) directly to the 

employer, whom the employer has not 

rejected for a lawful, job-related reason. 

§ 655.162 Approved certification. 

If temporary agricultural labor 

certification is granted, the CO will send 

a Final Determination notice and a copy 

of the certified Application for 

Temporary Employment Certification 

and job order to the employer and a 

copy, if applicable, to the employer’s 

agent or attorney using an electronic 

method(s) designated by the OFLC 

Administrator. For employers permitted 

to file by mail as set forth in 

§ 655.130(c), the CO will send the Final 

Determination notice and a copy of the 

certified Application for Temporary 

Employment Certification and job order 

by means normally assuring next day 

delivery. The CO will send the certified 

Application for Temporary Employment 

Certification and job order, including 

any approved modifications, directly to 

USCIS using an electronic method(s) 

designated by the OFLC Administrator. 

§ 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 agricultural 

associations, which may not be assessed 

a fee in addition to the fees assessed to 

the employer-members of the 

agricultural 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 Employment 

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 calendar 

days after the date of the certification. 

Non-payment or untimely payment may 

be considered a substantial violation 

subject to the procedures in § 655.182. 

§ 655.164 Denied certification. 

If temporary agricultural labor 

certification is denied, the CO will send 

a Final Determination notice to the 

employer and a copy, if appropriate, to 

the employer’s agent or attorney using 

an electronic method(s) designated by 

the OFLC Administrator. For employers 

permitted to file by mail as set forth in 

§ 655.130(c), the CO will send the Final 

Determination notice by means 

normally assuring next day delivery. 

The Final Determination notice will: 

(a) State the reason(s) certification is 

denied, citing the relevant regulatory 

standards; 

(b) Offer the employer an opportunity 

to request an expedited administrative 

review or a de novo administrative 

hearing before an ALJ of the denial 

under § 655.171; and 

(c) State that if the employer does not 

request an expedited administrative 

judicial review or a de novo hearing 

before an ALJ in accordance with 

§ 655.171, the denial is final, and the 

Department will not accept any appeal 

on that Application for Temporary 

Employment Certification. 

§ 655.165 Partial certification. 

The CO may issue a partial 

certification, reducing either the period 

of employment 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 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 labor 


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or services. If a partial labor certification 

is issued, the CO will send the Final 

Determination notice approving partial 

certification using the procedures at 

§ 655.162. The Final Determination 

notice will: 

(a) State the reason(s) the period of 

employment and/or the number of H– 

2A workers requested has been reduced, 

citing the relevant regulatory standards; 

(b) Offer the employer an opportunity 

to request an expedited administrative 

review or a de novo administrative 

hearing before an ALJ of the partial 

certification under § 655.171; and 

(c) State that if the employer does not 

request an expedited administrative 

judicial review or a de novo hearing 

before an ALJ in accordance with 

§ 655.171, the partial certification is 

final, and the Department will not 

accept any appeal on that Application 

for Temporary Employment 

Certification. 

§ 655.166 Requests for determinations 

based on nonavailability of U.S. workers. 

(a) Standards for requests. If a 

temporary agricultural labor 

certification has been partially granted 

or denied based on the CO’s 

determination that able, willing, 

available, eligible, and qualified U.S. 

workers are available, and, on or after 30 

calendar days before the first date of 

need, some or all of those U.S. workers 

are, in fact, no longer able, willing, 

eligible, qualified, or available, the 

employer may request a new temporary 

agricultural labor certification 

determination from the CO. Prior to 

making a new determination, the CO 

will promptly ascertain (which may be 

through the SWA or other sources of 

information on U.S. worker availability) 

whether specific able, willing, eligible 

and qualified replacement U.S. workers 

are available or can be reasonably 

expected to be present at the employer’s 

establishment within 72 hours from the 

date the employer’s request was 

received. The CO will expeditiously, but 

in no case later than 72 hours after the 

time a complete request (including the 

signed statement included in paragraph 

(b) of this section) is received, make a 

determination on the request under 

paragraph (c) of this section. An 

employer may appeal a denial of such 

a determination in accordance with the 

procedures contained in § 655.171. 

(b) Unavailability of U.S. workers. The 

employer’s request for a new 

determination must be made directly to 

the CO in writing using an electronic 

method(s) designated by the OFLC 

Administrator, unless the employer 

requests to file the request by mail as set 

forth in § 655.130(c). If the employer 

requests the new determination by 

asserting solely that U.S. workers have 

become unavailable, the employer must 

submit to the CO a signed statement 

confirming such assertion. If such 

signed statement is not received by the 

CO within 72 hours of the CO’s receipt 

of the request for a new determination, 

the CO will deny the request. 

(c) Notification of determination. If 

the CO determines that U.S. workers 

have become unavailable and cannot 

identify sufficient available U.S. 

workers who are able, willing, eligible, 

and qualified or who are likely to 

become available, the CO will grant the 

employer’s request for a new 

determination on the Application for 

Temporary Employment Certification in 

accordance with the procedures 

contained in § 655.162 or § 655.165. 

However, this does not preclude an 

employer from submitting subsequent 

requests for new determinations, if 

warranted, based on subsequent facts 

concerning purported nonavailability of 

U.S. workers or referred workers not 

being eligible workers or not able, 

willing, or qualified because of lawful, 

job-related reasons. 

§ 655.167 Document retention 

requirements of H–2A employers. 

(a) Entities required to retain 

documents. All employers must retain 

documents and records demonstrating 

compliance with this subpart. 

(b) Period of required retention. 

Records and documents must be 

retained for a period of 3 years from the 

date of certification of the Application 

for Temporary Employment 

Certification or from the date of 

determination if the Application for 

Temporary Employment Certification is 

denied or withdrawn. 

(c) Documents and records to be 

retained by all employers. All employers 

must retain: 

(1) Proof of recruitment efforts, 

including: 

(i) Job order placement as specified in 

§ 655.121; 

(ii) Contact with former U.S. workers 

as specified in § 655.153; and 

(iii) 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). 

(7) If applicable, records of notice to 

the NPC and DHS of the abandonment 

of employment or termination for cause 

of a worker as set forth in § 655.122(n). 

(d) Additional retention requirement 

for agricultural associations filing an 

Application for Temporary Employment 

Certification. In addition to the 

documents specified in paragraph (c) of 

this section, 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 last 

longer than 1 year, except in 

extraordinary circumstances. The 

employer may appeal a denial of a 

request for an extension by following 

the procedures in § 655.171. 

(c) Disclosure. The employer must 

provide to the workers a copy of any 

approved extension in accordance with 

§ 655.122(q), as soon as practicable. 

§ 655.171 Appeals. 

(a) Request for review. Where 

authorized in this subpart, an employer 

seeking review of a decision of the CO 

must request an administrative review 


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or de novo hearing before an ALJ of that 

decision to exhaust its administrative 

remedies. In such cases, the request for 

review: 

(1) Except as provided in 

§ 655.181(b)(3), must be received by the 

Chief ALJ, and the CO who issued the 

decision, within 10 business days from 

the date of the CO’s decision; 

(2) Must clearly identify the particular 

decision for which review is sought; 

(3) Must include a copy of the CO’s 

decision; 

(4) Must clearly state whether the 

employer is seeking administrative 

review or a de novo hearing. If the 

request does not clearly state the 

employer is seeking a de novo hearing, 

then the employer waives its right to a 

hearing, and the case will proceed as a 

request for administrative review; 

(5) Must set forth the particular 

grounds for the request, including the 

specific factual issues the requesting 

party alleges needs to be examined in 

connection with the CO’s decision in 

question; 

(6) May contain any legal argument 

that the employer believes will rebut the 

basis of the CO’s action, including any 

briefing the employer wishes to submit 

where the request is for administrative 

review; 

(7) May contain only such evidence as 

was actually before the CO at the time 

of the CO’s decision, where the request 

is for administrative review; and 

(8) May contain new evidence for the 

ALJ’s consideration, where the request 

is for a de novo hearing, provided that 

the new evidence is introduced at the 

hearing. 

(b) Administrative file. After the 

receipt of the request for review, the CO 

will send a copy of the OFLC 

administrative file to the Chief ALJ, the 

employer, the employer’s attorney or 

agent (if applicable), and the Associate 

Solicitor for Employment and Training 

Legal Services, Office of the Solicitor, 

U.S. DOL (counsel), as soon as 

practicable by means normally assuring 

next-day delivery. 

(c) Assignment. The Chief ALJ will 

immediately assign an ALJ to consider 

the particular case, which may be a 

single member or a three-member panel 

of the BALCA. 

(d) Administrative review—(1) 

Briefing schedule. If the employer 

wishes to submit a brief on appeal, it 

must do so as part of its request for 

review. Within 7 business days of 

receipt of the OFLC administrative file, 

the counsel for the CO may submit a 

brief in support of the CO’s decision 

and, if applicable, in response to the 

employer’s brief. 

(2) Standard of review. The ALJ must 

uphold the CO’s decision unless shown 

by the employer to be arbitrary, 

capricious, an abuse of discretion, or 

otherwise not in accordance with the 

law. 

(3) Scope of review. The ALJ will 

consider the documents in the OFLC 

administrative file that were before the 

CO at the time of the CO’s decision and 

any written submissions from the 

parties or amici curiae that do not 

contain new evidence. The ALJ may not 

consider evidence not before the CO at 

the time of the CO’s decision, even if 

such evidence is in the administrative 

file. After due consideration, the ALJ 

will affirm, reverse, or modify the CO’s 

decision, or remand to the CO for 

further action, except in cases over 

which the Secretary has assumed 

jurisdiction pursuant to 29 CFR 18.95. 

(4) Decision. The decision of the ALJ 

must specify the reasons for the action 

taken and must be immediately 

provided to the employer, the 

employer’s attorney or agent (if 

applicable), the CO, and counsel for the 

CO within 7 business days of the 

submission of the CO’s brief or 10 

business days after receipt of the OFLC 

administrative file, whichever is later, 

using means normally assuring next-day 

delivery. 

(e) 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 14 business 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 during the hearing as 

appropriate; 

(iii) The ALJ may authorize discovery 

and the filing of pre-hearing motions, 

and so limit them to the types and 

quantities which in the ALJ’s discretion 

will contribute to a fair hearing without 

unduly burdening the parties; 

(iv) The ALJ’s decision must be 

rendered within 10 calendar days after 

the hearing; and 

(v) If the employer waives the right to 

a hearing, such as by asking for a 

decision on the record, or if the ALJ 

determines there are no disputed 

material facts to warrant a hearing, then 

the standard and scope of review for 

administrative review applies. 

(2) Standard and scope of review. The 

ALJ will review the evidence presented 

during the hearing and the CO’s 

decision de novo. The ALJ may 

determine that there are no issues of 

material fact, or only some issues of 

material fact, for which there is a 

genuine dispute, and may subsequently 

limit the hearing to only issues of 

material fact for which there is a 

genuine dispute. If new evidence is 

submitted with a request for a de novo 

hearing, and the ALJ subsequently 

determines that a hearing is warranted, 

the new evidence provided with the 

request must be introduced at the 

hearing to be considered by the ALJ. 

After a de novo hearing, the ALJ must 

affirm, reverse, or modify the CO’s 

decision, or remand to the CO for 

further action, except in cases over 

which the Secretary has assumed 

jurisdiction pursuant to 29 CFR 18.95. 

(3) Decision. The decision of the ALJ 

must specify the reasons for the action 

taken and must be immediately 

provided to the employer, the 

employer’s attorney or agent (if 

applicable), the CO, and counsel for the 

CO by means normally assuring nextday delivery. 

§ 655.172 Post-certification withdrawals. 

(a) The employer may withdraw an 

Application for Temporary Employment 

Certification and the related job order 

after the CO grants certification under 

§ 655.160. However, the employer is 

still obligated to comply with the terms 

and conditions of employment 

contained in the Application for 

Temporary Employment Certification 

and job order with respect to all workers 

recruited in connection with that 

application and job order. 

(b) To request withdrawal, the 

employer must submit a request in 

writing to the NPC identifying the 

certification and stating the reason(s) for 

the withdrawal. 

§ 655.173 Setting meal charges; petition 

for higher meal charges. 

(a) Meal charges. An employer may 

charge workers up to $14.00 per day for 

providing them with three meals. 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 

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 the FLSA 


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at 29 U.S.C. 203(m), including the 

recordkeeping requirements found at 29 

CFR 516.27. 

(b) Petitions for higher meal charges. 

The employer may file a petition with 

the CO to request approval to charge 

more than the applicable amount set 

under paragraph (a) of this section. 

(1) Filing a higher meal charge 

request. To request approval to charge 

more than the applicable amount set 

under paragraph (a) of this section, the 

employer must submit the 

documentation required by either 

paragraph (b)(1)(i) or (ii) of this section. 

A higher meal charge request will be 

denied, in whole or in part, if the 

employer’s documentation does not 

justify the higher meal charge requested. 

(i) Meals prepared directly by the 

employer. Documentation submitted 

must include only 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 in the 

employer’s charge to workers for 

providing prepared meals: 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 for a period of 3 years. 

(ii) Meals provided through a third 

party. Documentation submitted must 

identify each third party that the 

employer will engage to prepare meals, 

describe how the employer will fulfill 

its obligation to provide three meals per 

day to workers through its agreement 

with the third party, and document the 

third party’s charge(s) to the employer 

for the meals to be provided. Neither the 

third party’s charge(s) to the employer 

nor the employer’s meal charge to 

workers may include a profit, kick back, 

or other direct or indirect benefit to the 

employer, a person affiliated with the 

employer, or to another person for the 

employer’s benefit. Receipts and other 

cost records documenting payments 

made to the third party that prepared 

the meals and meal charge deductions 

from employee pay must be retained for 

the period provided in § 655.167(b) and 

must be available for inspection by the 

CO and WHD during an investigation. 

(2) Effective date and scope of validity 

of a higher meal charge approval. The 

employer may begin charging the higher 

rate upon receipt of approval from the 

CO, unless the CO sets a later effective 

date in the decision, and after disclosing 

to workers any change in the meal 

charge or deduction. A favorable 

decision from the CO is valid only for 

the meal provision arrangement 

documented under paragraph (b)(1) of 

this section and the approved higher 

meal charge amount. If the approved 

meal provision arrangement changes, 

the employer may charge no more than 

the maximum permitted under 

paragraph (a) of this section until a new 

petition for a higher meal charge based 

on the new arrangement is approved. 

(3) 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 CO may conduct audits of 

applications for which certifications 

have been granted. 

(a) Discretion. The CO has the sole 

discretion to choose the certified 

applications selected for audit. 

(b) Audit letter. Where an application 

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) Specify the documentation that 

must be submitted by the employer; 

(2) Specify a date, no more than 30 

calendar days from the date the audit 

letter is issued, by which the required 

documentation must be sent to the CO; 

and 

(3) Advise that failure to fully 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. If 

circumstances warrant, the CO can issue 

one or more requests for supplemental 

information. 

(d) Potential referrals. In addition to 

measures in this subpart, the CO may 

decide to provide the audit findings and 

underlying documentation to DHS, 

WHD, or other appropriate enforcement 

agencies. The CO may 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, Immigrant and 

Employee Rights Section. 

§ 655.181 Revocation. 

(a) Basis for DOL revocation. The 

OFLC Administrator may revoke a 

temporary agricultural labor 

certification approved under this 

subpart, if the OFLC Administrator 

finds: 

(1) The issuance of the temporary 

agricultural labor certification was not 

justified due to fraud or 

misrepresentation in the application 

process; 

(2) The employer substantially 

violated a material term or condition of 

the approved temporary agricultural 

labor certification, as defined in 

§ 655.182; 

(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 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 OFLC 

Administrator makes a determination to 

revoke an employer’s temporary 

agricultural labor certification, the 

OFLC Administrator 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 as 

provided in this paragraph (b)(1) and in 

paragraph (b)(3) of this section. If the 

employer does not file rebuttal evidence 

or an appeal within 14 calendar days of 

the date of the Notice of Revocation, the 

Notice is the final agency action 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 


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Notice is issued. If rebuttal evidence is 

timely filed by the employer, the OFLC 

Administrator will inform the employer 

of the OFLC Administrator’s final 

determination on the revocation within 

14 calendar days of receiving the 

rebuttal evidence. If the OFLC 

Administrator determines that the 

certification should be revoked, the 

OFLC Administrator will inform the 

employer of its right to appeal as 

provided in this paragraph (b)(2) and in 

paragraph (b)(3) of this section. If the 

employer does not appeal the OFLC 

Administrator’s final determination 

within 10 calendar days, it will become 

the final agency action. 

(3) Appeal. An employer may appeal 

a Notice of Revocation, or a final 

determination of the OFLC 

Administrator after the review of 

rebuttal evidence, according to the 

appeal procedures of § 655.171. In such 

cases, the appeal must be received by 

the Chief ALJ, and the OFLC 

Administrator, within the time periods 

established in paragraphs (b)(1) and (2) 

of this section. 

(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 OFLC Administrator will 

send a copy of the final agency action 

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, 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 and subsistence 

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, agent, 

or attorney. The OFLC Administrator 

may debar an employer, agent, or 

attorney, or any successor in interest to 

that employer, agent, or attorney, from 

participating in any action under 8 

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

501 subject to the time limits set forth 

in paragraph (c) of this section, if the 

OFLC Administrator finds that the 

employer, agent, or attorney 

substantially violated a material term or 

condition of the temporary agricultural 

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) Effect on future applications. No 

application for H–2A workers may be 

filed by a debarred employer, or by any 

successor in interest to a debarred 

employer, or by an employer 

represented by a debarred agent or 

attorney, or by any successor in interest 

to any debarred agent or attorney, 

subject to the term limits set forth in 

paragraph (c) of this section. If such an 

application is filed, it will be denied 

without review. 

(c) Statute of limitations and period of 

debarment. (1) The OFLC Administrator 

must issue any Notice of Debarment not 

later than 2 years after the occurrence of 

the violation. 

(2) No employer, agent, or attorney 

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; 

(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) or (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 certification fee in a timely 

manner; 

(3) The H–2ALC’s failure to submit an 

original surety bond meeting the 

requirements of § 655.132(c) within 30 

days of the date the temporary 

agricultural labor certification was 

issued or failure to submit additional 

surety within 30 days of a finding under 

20 CFR 501.9(a) that the face value of 

the bond is insufficient; 

(4) Fraud involving the Application 

for Temporary Employment 

Certification; or 

(5) A material misrepresentation of 

fact during the application process. 

(e) Determining whether a violation is 

substantial. In determining whether a 

violation is so substantial as to merit 

debarment, the factors the OFLC 

Administrator 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; and 

(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 OFLC 

Administrator makes a determination to 

debar an employer, agent, or attorney, 

the OFLC Administrator will send the 

party 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 it will 

inform the party subject to the Notice of 

its right to submit rebuttal evidence or 

to request a debarment hearing. If the 


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party does not file rebuttal evidence or 

request a hearing within 30 calendar 

days of the date of the Notice of 

Debarment, the Notice will be the final 

agency action and the debarment will 

take effect at the end of the 30-day 

period. 

(2) Rebuttal. The party who received 

the Notice of Debarment may choose to 

submit evidence to rebut the grounds 

stated in the Notice within 30 calendar 

days of the date the Notice is issued. If 

rebuttal evidence is timely filed, the 

OFLC Administrator will issue a final 

determination on the debarment within 

30 calendar days of receiving the 

rebuttal evidence. If the OFLC 

Administrator determines that the party 

should be debarred, the OFLC 

Administrator will inform the party of 

its right to request a debarment hearing 

according to the procedures of 

paragraph (f)(3) of this section. The 

party must request a hearing within 30 

calendar days after the date of the OFLC 

Administrator’s final determination, or 

the OFLC Administrator’s determination 

will be the final agency action and the 

debarment will take effect at the end of 

the 30-calendar-day period. 

(3) Hearing. The recipient of a Notice 

of Debarment may request a debarment 

hearing within 30 calendar days of the 

date of a Notice of Debarment or the 

date of a final determination of the 

OFLC Administrator after review of 

rebuttal evidence submitted pursuant to 

paragraph (f)(2) of this section. To 

obtain a debarment hearing, the 

debarred party must, within 30 calendar 

days of the date of the Notice or the 

final determination, 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 

OFLC Administrator. The debarment 

will take effect 30 calendar days from 

the date the Notice of Debarment or 

final determination is issued, unless a 

request for review is properly filed 

within 30 calendar days from the 

issuance of the Notice of Debarment or 

final determination. The timely filing of 

a request for a hearing stays the 

debarment pending the outcome of the 

hearing. Within 10 calendar 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 

considered to be a complaint to which 

an answer is required. 

(4) Decision. After the hearing, the 

ALJ must affirm, reverse, or modify the 

OFLC Administrator’s determination. 

The ALJ will prepare the decision 

within 60 calendar days after 

completion of the hearing and closing of 

the record. The ALJ’s decision will be 

provided immediately to the parties to 

the debarment hearing by means 

normally assuring next day delivery. 

The ALJ’s decision is the final agency 

action, unless either party, within 30 

calendar days of the ALJ’s decision, 

seeks review of the decision with the 

Administrative Review Board (ARB). 

(5) Review by the ARB. (i) Any party 

wishing review of the decision of an ALJ 

must, within 30 calendar 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 

calendar 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 calendar 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. 

(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. 

(6) ARB decision. The ARB’s decision 

must be issued within 90 calendar days 

from the notice granting the petition and 

served upon all parties and the ALJ. If 

the ARB fails to issue a decision within 

90 calendar days from the notice 

granting the petition, the ALJ’s decision 

will be the final agency decision. 

(g) Concurrent debarment jurisdiction. 

OFLC and WHD have concurrent 

jurisdiction to impose a debarment 

remedy under this section or under 29 

CFR 501.20. When considering 

debarment, OFLC and WHD may inform 

one another and may coordinate their 

activities. A specific violation for which 

debarment is imposed will be cited in 

a single debarment proceeding. Copies 

of final debarment decisions will be 

forwarded to DHS promptly. 

(h) Debarment of associations, 

employer-members of associations, and 

joint employers. If the OFLC 

Administrator determines that an 

individual employer-member of an 

agricultural association, or a joint 

employer under § 655.131(b), has 

committed a substantial violation, the 

debarment determination will apply 

only to that employer-member unless 

the OFLC Administrator determines that 

the agricultural association or another 

agricultural association member or joint 

employer under § 655.131(b), 

participated in the violation, in which 

case the debarment will be invoked 

against the agricultural association or 

other complicit agricultural association 

member(s) or joint employer(s) under 

§ 655.131(b), as well. 

(i) Debarment involving agricultural 

associations acting as joint employers. If 

the OFLC Administrator determines that 

an agricultural association acting as a 

joint employer with its employermembers has committed a substantial 

violation, the debarment determination 

will apply only to the agricultural 

association, and will not be applied to 

any individual employer-member of the 

agricultural association. However, if the 

OFLC Administrator determines that the 

employer-member participated in, had 

knowledge of, or had reason to know of 

the violation, the debarment may be 

invoked against the complicit 

agricultural association member as well. 

An agricultural association debarred 

from the H–2A temporary labor 

certification program will not be 

permitted to continue to file as a joint 

employer with its employer-members 

during the period of the debarment. 

(j) Debarment involving agricultural 

associations acting as sole employers. If 

the OFLC Administrator determines that 

an agricultural association acting as a 

sole employer has committed a 

substantial violation, the debarment 

determination will apply only to the 

agricultural association and any 

successor in interest to the debarred 

agricultural 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 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 


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and after the temporary agricultural 

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 a written temporary 

agricultural labor 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 

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 Employment 

Certification, the CO may refer the 

matter to DHS and the Department’s 

Office of the Inspector General for 

investigation. 

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

determines that there was fraud or 

willful misrepresentation involving an 

Application for Temporary Employment 

Certification and certification has been 

granted, a finding under this paragraph 

(b) 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 work contracts 

must be referred by the SWA to WHD 

for appropriate handling and resolution, 

as described in 29 CFR part 501. As part 

of this process, 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, Immigrant and Employee 

Rights Section, in addition to any 

activity, investigation, and/or 

enforcement action taken by ETA or a 

SWA. Likewise, if the Immigrant and 

Employee Rights Section becomes aware 

of a violation of the regulations in this 

subpart, it may provide such 

information to the appropriate SWA and 

the CO. 

Labor Certification Process for 

Temporary Agricultural Employment in 

Range Sheep Herding, Goat Herding, 

and Production of Livestock 

Occupations 

§ 655.200 Scope and purpose of herding 

and range livestock regulations in this 

section and §§ 655.201 through 655.235. 

(a) Purpose. The purpose of this 

section and §§ 655.201 through 655.235 

is to establish certain procedures for 

employers who apply to the Department 

to obtain labor certifications to hire 

temporary agricultural foreign workers 

to perform herding or production of 

livestock on the range, as defined in 

§ 655.201. Unless otherwise specified in 

this section and §§ 655.201 through 

655.235, employers whose job 

opportunities meet the qualifying 

criteria under this section and 

§§ 655.201 through 655.235 must fully 

comply with all of the requirements of 

§§ 655.100 through 655.185; part 653, 

subparts B and F, of this chapter; and 

part 654 of this chapter. 

(b) Jobs subject to this section and 

§§ 655.201 through 655.235. The 

procedures in this section and 

§§ 655.201 through 655.235 apply to job 

opportunities with the following unique 

characteristics: 

(1) The work activities involve the 

herding or production of livestock 

(which includes work that is closely and 

directly related to herding and/or the 

production of livestock), as defined 

under § 655.201; 

(2) The work is performed on the 

range for the majority (meaning more 

than 50 percent) of the workdays in the 

work contract period. Any additional 

work performed at a place other than 

the range must constitute the 

production of livestock (which includes 

work that is closely and directly related 

to herding and/or the production of 

livestock); and 

(3) The work activities generally 

require the workers to be on call 24 

hours per day, 7 days a week. 

§ 655.201 Definition of herding and range 

livestock terms. 

The following are terms that are not 

defined in §§ 655.100 through 655.185 

and are specific to applications for labor 

certifications involving the herding or 

production of livestock on the range. 

Herding. Activities associated with 

the caring, controlling, feeding, 

gathering, moving, tending, and sorting 

of livestock on the range. 

Livestock. An animal species or 

species group such as sheep, cattle, 

goats, horses, or other domestic hooved 

animals. In the context of §§ 655.200 

through 655.235, livestock refers to 

those species raised on the range. 


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Production of livestock. The care or 

husbandry of livestock throughout one 

or more seasons during the year, 

including guarding and protecting 

livestock from predatory animals and 

poisonous plants; feeding, fattening, and 

watering livestock; examining livestock 

to detect diseases, illnesses, or other 

injuries; administering medical care to 

sick or injured livestock; applying 

vaccinations and spraying insecticides 

on the range; and assisting with the 

breeding, birthing, raising, weaning, 

castration, branding, and general care of 

livestock. This term also includes duties 

performed off the range that are closely 

and directly related to herding and/or 

the production of livestock. The 

following are non-exclusive examples of 

ranch work that is closely and directly 

related: repairing fences used to contain 

the herd; assembling lambing jugs; 

cleaning out lambing jugs; feeding and 

caring for the dogs that the workers use 

on the range to assist with herding or 

guarding the flock; feeding and caring 

for the horses that the workers use on 

the range to help with herding or to 

move the sheep camps and supplies; 

and loading animals into livestock 

trucks for movement to the range or to 

market. The following are examples of 

ranch work that is not closely and 

directly related: working at feedlots; 

planting, irrigating and harvesting 

crops; operating or repairing heavy 

equipment; constructing wells or dams; 

digging irrigation ditches; applying 

weed control; cutting trees or chopping 

wood; constructing or repairing the 

bunkhouse or other ranch buildings; 

and delivering supplies from the ranch 

to the herders on the range. 

Range. The range is any area located 

away from the ranch headquarters used 

by the employer. The following factors 

are indicative of the range: it involves 

land that is uncultivated; it involves 

wide expanses of land, such as 

thousands of acres; it is located in a 

remote, isolated area; and typically 

range housing is required so that the 

herder can be in constant attendance to 

the herd. No one factor is controlling, 

and the totality of the circumstances is 

considered in determining what should 

be considered range. The range does not 

include feedlots, corrals, or any area 

where the stock involved would be near 

ranch headquarters. Ranch 

headquarters, which is a place where 

the business of the ranch occurs and is 

often where the owner resides, is 

limited and does not embrace large 

acreage; it only includes the 

ranchhouse, barns, sheds, pen, 

bunkhouse, cookhouse, and other 

buildings in the vicinity. The range also 

does not include any area where a 

herder is not required to be available 

constantly to attend to the livestock and 

to perform tasks, including but not 

limited to, ensuring the livestock do not 

stray, protecting them from predators, 

and monitoring their health. 

Range housing. Range housing is 

housing located on the range that meets 

the standards articulated under 

§ 655.235. 

§ 655.205 Herding and range livestock job 

orders. 

An employer whose job opportunity 

has been determined to qualify for the 

procedures in §§ 655.200 through 

655.235 is not required to comply with 

the job order filing timeframe 

requirements in § 655.121(a) and (b) or 

the job order review process in 

§ 655.121(e) and (f). Rather, the 

employer must submit the job order 

along with a completed Application for 

Temporary Employment Certification, 

as required in § 655.215, to the 

designated NPC for the NPC’s review. 

§ 655.210 Contents of herding and range 

livestock job orders. 

(a) Content of job offers. Unless 

otherwise specified in §§ 655.200 

through 655.235, the employer must 

satisfy the requirements for job orders 

established under § 655.121 and for the 

content of job offers established under 

part 653, subpart F, of this chapter and 

§ 655.122. 

(b) Job qualifications and 

requirements. The job offer must 

include a statement that the workers are 

on call for up to 24 hours per day, 7 

days per week and that the workers 

spend the majority (meaning more than 

50 percent) of the workdays during the 

contract period in the herding or 

production of livestock on the range. 

Duties may include activities performed 

off the range only if such duties 

constitute the production of livestock 

(which includes work that is closely and 

directly related to herding and/or the 

production of livestock). All such duties 

must be specifically disclosed on the job 

order. The job offer may also specify 

that applicants must possess up to 6 

months of experience in similar 

occupations involving the herding or 

production of livestock on the range and 

require reference(s) for the employer to 

verify applicant experience. An 

employer may specify other appropriate 

job qualifications and requirements for 

its job opportunity. 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 

engaged in herding or the production of 

livestock on the range. Any such 

requirements must be applied equally to 

both U.S. and foreign workers. Each job 

qualification and requirement listed in 

the job offer must be bona fide, and the 

CO may require the employer to submit 

documentation to substantiate the 

appropriateness of any other job 

qualifications and requirements 

specified in the job offer. 

(c) Range housing. The employer 

must specify in the job order that range 

housing will be provided. The range 

housing must meet the requirements set 

forth in § 655.235. 

(d) Employer-provided items. (1) The 

employer must provide to the worker, 

without charge or deposit charge, all 

tools, supplies, and equipment required 

by law, by the employer, or by the 

nature of the work to perform the duties 

assigned in the job offer safely and 

effectively. The employer must specify 

in the job order which items it will 

provide to the worker. 

(2) Because of the unique nature of 

the herding or production of livestock 

on the range, this equipment must 

include effective means of 

communicating with persons capable of 

responding to the worker’s needs in case 

of an emergency including, but not 

limited to, satellite phones, cell phones, 

wireless devices, radio transmitters, or 

other types of electronic communication 

systems. The employer must specify in 

the job order: 

(i) The type(s) of electronic 

communication device(s) and that such 

device(s) will be provided without 

charge or deposit charge to the worker 

during the entire period of employment; 

and 

(ii) If there are periods of time when 

the workers are stationed in locations 

where electronic communication 

devices may not operate effectively, the 

employer must specify in the job order, 

the means and frequency with which 

the employer plans to make contact 

with the workers to monitor the 

worker’s well-being. This contact must 

include either arrangements for the 

workers to be located, on a regular basis, 

in geographic areas where the electronic 

communication devices operate 

effectively, or arrangements for regular, 

pre-scheduled, in-person visits between 

the workers and the employer, which 

may include visits between the workers 

and other persons designated by the 

employer to resupply the workers’ 

camp. 

(e) Meals. The employer must specify 

in the job offer and provide to the 

worker, without charge or deposit 

charge: 

(1) Either three sufficient meals a day, 

or free and convenient cooking facilities 

and adequate provision of food to 


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enable the worker to prepare their own 

meals. To be sufficient or adequate, the 

meals or food provided must include a 

daily source of protein, vitamins, and 

minerals; and 

(2) Adequate potable water, or water 

that can be easily rendered potable and 

the means to do so. Standards governing 

the provision of water to range workers 

are also addressed in § 655.235(e). 

(f) Hours and earnings statements. (1) 

The employer must keep accurate and 

adequate records with respect to the 

worker’s earnings and furnish to the 

worker on or before each payday a 

statement of earnings. The employer is 

exempt from recording the hours 

actually worked each day, the time the 

worker begins and ends each workday, 

as well as the nature and amount of 

work performed, but all other regulatory 

requirements in § 655.122(j) and (k) 

apply. 

(2) The employer must keep daily 

records indicating whether the site of 

the employee’s work was on the range 

or off the range. If the employer prorates 

a worker’s wage pursuant to paragraph 

(g)(2) of this section because of the 

worker’s voluntary absence for personal 

reasons, it must also keep a record of the 

reason for the worker’s absence. 

(g) Rates of pay. The employer must 

pay the worker at least the monthly 

AEWR, as specified in § 655.211, the 

agreed-upon collective bargaining wage, 

or the applicable minimum wage 

imposed by Federal or State law or 

judicial action, in effect at the time work 

is performed, whichever is highest, for 

every month of the job order period or 

portion thereof. 

(1) The offered wage shall not be 

based on commissions, bonuses, or 

other incentives, unless the employer 

guarantees a wage that equals or exceeds 

the monthly AEWR, the agreed-upon 

collective bargaining wage, or the 

applicable minimum wage imposed by 

Federal or State law or judicial action, 

or any agreed-upon collective 

bargaining rate, whichever is highest, 

and must be paid to each worker free 

and clear without any unauthorized 

deductions. 

(2) The employer may prorate the 

wage for the initial and final pay 

periods of the job order period if its pay 

period does not match the beginning or 

ending dates of the job order. The 

employer also may prorate the wage if 

a worker is voluntarily unavailable to 

work for personal reasons. 

(h) 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. 

Employers must pay wages when due. 

§ 655.211 Herding and range livestock 

wage rate. 

(a) Compliance with rates of pay. (1) 

To comply with its obligation under 

§ 655.210(g), an employer must offer, 

advertise in its recruitment, and pay 

each worker employed under §§ 655.200 

through 655.235 a wage that is at least 

the highest of the monthly AEWR 

established under this section, the 

agreed-upon collective bargaining wage, 

or the applicable minimum wage 

imposed by Federal or State law or 

judicial action. 

(2) If the monthly AEWR established 

under this section is adjusted during a 

work contract, and is higher than both 

the agreed-upon collective bargaining 

wage and the applicable minimum wage 

imposed by Federal or State law or 

judicial action in effect at the time the 

work is performed, the employer must 

pay at least that adjusted monthly 

AEWR upon the effective date of the 

updated monthly AEWR published by 

the Department in the Federal Register. 

(b) Publication of the monthly AEWR. 

The OFLC Administrator will publish, 

at least once in each calendar year, on 

a date to be determined by the OFLC 

Administrator, an update to the monthly 

AEWR as a document in the Federal 

Register. 

(c) Monthly AEWR rate. (1) The 

monthly AEWR shall be $7.25 

multiplied by 48 hours, and then 

multiplied by 4.333 weeks per month; 

and 

(2) Beginning for calendar year 2017, 

the monthly AEWR shall be adjusted 

annually based on the Employment Cost 

Index (ECI) for wages and salaries 

published by the Bureau of Labor 

Statistics (BLS) for the preceding 

October-October period. 

(d) Transition rates. (1) For the period 

from November 16, 2015, through 

calendar year 2016, the Department 

shall set the monthly AEWR at 80 

percent of the result of the formula in 

paragraph (c) of this section. 

(2) For calendar year 2017, the 

Department shall set the monthly AEWR 

at 90 percent of the result of the formula 

in paragraph (c) of this section. 

(3) For calendar year 2018 and 

beyond, the Department shall set the 

monthly AEWR at 100 percent of the 

result of the formula in paragraph (c) of 

this section. 

§ 655.215 Procedures for filing herding 

and range livestock Applications for 

Temporary Employment Certification. 

(a) Compliance with §§ 655.130 

through 655.132. Unless otherwise 

specified in §§ 655.200 through 655.235, 

the employer must satisfy the 

requirements for filing an Application 

for Temporary Employment 

Certification with the NPC designated 

by the OFLC Administrator as required 

under §§ 655.130 through 655.132. 

(b) What to file. An employer must 

file a completed Application for 

Temporary Employment Certification 

and job order. 

(1) The Application for Temporary 

Employment Certification and job order 

may cover multiple areas of intended 

employment in one or more contiguous 

States. 

(2) An agricultural association filing 

as a joint employer may submit a single 

job order and master Application for 

Temporary Employment Certification on 

behalf of its employer-members located 

in more than two contiguous States with 

different first dates of need. Unless 

modifications to a sheep or goat herding 

or production of livestock job order are 

required by the CO or requested by the 

employer, pursuant to § 655.121(h), the 

agricultural association is not required 

to re-submit the job order during the 

calendar year with its Application for 

Temporary Employment Certification. 

§ 655.220 Processing herding and range 

livestock Applications for Temporary 

Employment Certification. 

(a) NPC review. Unless otherwise 

specified in §§ 655.200 through 655.235, 

the CO will review and process the 

Application for Temporary Employment 

Certification and job order in 

accordance with the requirements 

outlined in §§ 655.140 through 655.145, 

and will work with the employer to 

address any deficiencies in the job order 

in a manner consistent with §§ 655.140 

through 655.141. 

(b) Notice of acceptance. Once the job 

order is determined to meet all 

regulatory requirements, the NPC will 

issue a NOA consistent with 

§ 655.143(b), provide notice to the 

employer authorizing conditional access 

to the interstate clearance system, and 

transmit an electronic copy of the 

approved job order to each SWA with 

jurisdiction over the anticipated place(s) 

of employment. The CO will direct the 

SWA to place the job order promptly in 

clearance and commence recruitment of 

U.S. workers. Where an agricultural 

association files as a joint employer and 

submits a single job order on behalf of 

its employer-members, the CO will 

transmit a copy of the job order to the 

SWA having jurisdiction over the 

location of the agricultural association, 

those SWAs having jurisdiction over 

other States where the work will take 

place, and to the SWAs in all States 

designated under § 655.154(d), directing 

each SWA to place the job order in 


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intrastate clearance and commence 

recruitment of U.S. workers. 

(c) Electronic job registry. Under 

§ 655.144(b), where a single job order is 

approved for an agricultural association 

filing as a joint employer on behalf of 

its employer-members with different 

first dates of need, the Department will 

keep the job order posted on the OFLC 

electronic job registry until the end of 

the recruitment period, as set forth in 

§ 655.135(d), has elapsed for all 

employer-members identified on the job 

order. 

§ 655.225 Post-acceptance requirements 

for herding and range livestock. 

(a) Unless otherwise specified in this 

section, the requirements for recruiting 

U.S. workers by the employer and SWA 

must be satisfied, as specified in 

§§ 655.150 through 655.158. 

(b) Pursuant to § 655.150(b), where a 

single job order is approved for an 

agricultural association filing as a joint 

employer on behalf of its employermembers with different first dates of 

need, each of the SWAs to which the job 

order was transmitted by the CO or the 

SWA having jurisdiction over the 

location of the agricultural association 

must keep the job order on its active file 

the end of the recruitment period, as set 

forth in § 655.135(d), has elapsed for all 

employer-members identified on the job 

order, and must refer to the agricultural 

association each qualified U.S. worker 

who applies (or on whose behalf an 

application is made) for the job 

opportunity. 

(c) Any eligible U.S. worker who 

applies (or on whose behalf an 

application is made) for the job 

opportunity and is hired will be placed 

at the location nearest to them absent a 

request for a different location by the 

U.S. worker. Employers must make 

reasonable efforts to accommodate such 

placement requests by the U.S. worker. 

(d) An agricultural association that 

fulfills the recruitment requirements for 

its employer-members is required to 

maintain a written recruitment report 

containing the information required by 

§ 655.156 for each individual employermember identified in the application or 

job order, including any approved 

modifications. 

§ 655.230 Range housing. 

(a) Housing for work performed on the 

range must meet the minimum 

standards contained in §§ 655.235 and 

655.122(d)(2). 

(b) The SWA with jurisdiction over 

the location of the range housing must 

inspect and certify that such housing 

used on the range is sufficient to 

accommodate the number of certified 

workers and meets all applicable 

standards contained in § 655.235. The 

SWA must conduct a housing 

inspection no less frequently than once 

every three calendar years after the 

initial inspection and provide 

documentation to the employer 

certifying the housing for a period 

lasting no more than 36 months. If the 

SWA determines that an employer’s 

housing cannot be inspected within a 3- 

year timeframe or, when it is inspected, 

the housing does not meet all the 

applicable standards in § 655.235, the 

CO may deny the H–2A application in 

full or in part or require additional 

inspections, to be carried out by the 

SWA, in order to satisfy the regulatory 

requirement. 

(c)(1) The employer may self-certify 

its compliance with the standards 

contained in § 655.235 only when the 

employer has received a certification 

from the SWA for the range housing it 

seeks to use within the past 36 months. 

(2) To self-certify the range housing, 

the employer must submit a copy of the 

valid SWA housing certification and a 

written statement, signed and dated by 

the employer, to the SWA and the CO 

assuring that the housing is available, 

sufficient to accommodate the number 

of workers being requested for 

temporary agricultural labor 

certification, and meets all the 

applicable standards for range housing 

contained in § 655.235. 

(d) The use of range housing at a 

location other than the range, where 

fixed-site employer-provided housing 

would otherwise be required, is 

permissible only when the worker 

occupying the housing is performing 

work that constitutes the production of 

livestock (which includes work that is 

closely and directly related to herding 

and/or the production of livestock). In 

such a situation, workers must be 

granted access to facilities, including 

but not limited to toilets and showers 

with hot and cold water under pressure, 

as well as cooking and cleaning 

facilities, that would satisfy the 

requirements contained in 

§ 655.122(d)(1)(i). When such work does 

not constitute the production of 

livestock, workers must be housed in 

housing that meets all the requirements 

of § 655.122(d). 

§ 655.235 Standards for range housing. 

An employer employing workers 

under this section and §§ 655.200 

through 655.230 may use a mobile unit, 

camper, or other similar mobile housing 

vehicle, tents, and remotely located 

stationary structures along herding 

trails, which meet the following 

standards: 

(a) Housing site. Range housing sites 

must be well drained and free from 

depressions where water may stagnate. 

(b) Water supply. (1) An adequate and 

convenient supply of water that meets 

the standards of the State or local health 

authority must be provided. 

(2) The employer must provide each 

worker at least 4.5 gallons of potable 

water, per day, for drinking and 

cooking, delivered on a regular basis, so 

that the workers will have at least this 

amount available for their use until this 

supply is next replenished. Employers 

must also provide an additional amount 

of water sufficient to meet the laundry 

and bathing needs of each worker. This 

additional water may be non-potable, 

and an employer may require a worker 

to rely on natural sources of water for 

laundry and bathing needs if these 

sources are available and contain water 

that is clean and safe for these purposes. 

If an employer relies on alternate water 

sources to meet any of the workers’ 

needs, it must take precautionary 

measures to protect the worker’s health 

where these sources are also used to 

water the herd, dogs, or horses, to 

prevent contamination of the sources if 

they collect runoff from areas where 

these animals excrete. 

(3) The water provided for use by the 

workers may not be used to water dogs, 

horses, or the herd. 

(4) In situations where workers are 

located in areas that are not accessible 

by motorized vehicle, an employer may 

request a variance from the requirement 

that it deliver potable water to workers, 

provided the following conditions are 

satisfied: 

(i) It seeks the variance at the time it 

submits its Application for Temporary 

Employment Certification; 

(ii) It attests that it has identified 

natural sources of water that are potable 

or may be easily rendered potable in the 

area in which the housing will be 

located, and that these sources will 

remain available during the period the 

worker is at that location; 

(iii) It attests that it shall provide each 

worker an effective means to test 

whether the water is potable and, if not 

potable, the means to easily render it 

potable; and 

(iv) The CO approves the variance. 

(5) Individual drinking cups must be 

provided. 

(6) Containers appropriate for storing 

and using potable water must be 

provided and, in locations subject to 

freezing temperatures, containers must 

be small enough to allow storage in the 

housing unit to prevent freezing. 

(c) Excreta and liquid waste disposal. 

(1) Facilities, including shovels, must be 

provided and maintained for effective 


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disposal of excreta and liquid waste in 

accordance with the requirements of the 

State health authority or involved 

Federal agency; and 

(2) If pits are used for disposal by 

burying of excreta and liquid waste, 

they must be kept fly-tight when not 

filled in completely after each use. The 

maintenance of disposal pits must be in 

accordance with State and local health 

and sanitation requirements. 

(d) Housing structure. (1) Housing 

must be structurally sound, in good 

repair, in a sanitary condition and must 

provide shelter against the elements to 

occupants; 

(2) Housing, other than tents, must 

have flooring constructed of rigid 

materials easy to clean and so located as 

to prevent ground and surface water 

from entering; 

(3) Each housing unit must have at 

least one window that can be opened or 

skylight opening directly to the 

outdoors; and 

(4) Tents appropriate to weather 

conditions may be used only where the 

terrain and/or land use regulations do 

not permit the use of other more 

substantial housing. 

(e) Heating. (1) Where the climate in 

which the housing will be used is such 

that the safety and health of a worker 

requires heated living quarters, all such 

quarters must have properly installed 

operable heating equipment that 

supplies adequate heat. Where the 

climate in which the housing will be 

used is mild and the low temperature 

for any day in which the housing will 

be used is not reasonably expected to 

drop below 50 degrees Fahrenheit, no 

separate heating equipment is required 

as long as proper protective clothing 

and bedding are made available, free of 

charge or deposit charge, to the workers. 

(2) Any stoves or other sources of heat 

using combustible fuel must be installed 

and vented in such a manner as to 

prevent fire hazards and a dangerous 

concentration of gases. If a solid or 

liquid fuel stove is used in a room with 

wooden or other combustible flooring, 

there must be a concrete slab, insulated 

metal sheet, or other fireproof material 

on the floor under each stove, extending 

at least 18 inches beyond the perimeter 

of the base of the stove. 

(3) Any wall or ceiling within 18 

inches of a solid or liquid fuel stove or 

stove pipe must be made of fireproof 

material. A vented metal collar must be 

installed around a stovepipe or vent 

passing through a wall, ceiling, floor, or 

roof. 

(4) When a heating system has 

automatic controls, the controls must be 

of the type that cuts off the fuel supply 

when the flame fails or is interrupted or 

whenever a predetermined safe 

temperature or pressure is exceeded. 

(5) A heater may be used in a tent if 

the heater is approved by a testing 

service and if the tent is fireproof. 

(f) Lighting. (1) In areas where it is not 

feasible to provide electrical service to 

range housing units, including tents, 

lanterns must be provided (kerosene 

wick lights meet the definition of 

lantern); and 

(2) Lanterns, where used, must be 

provided in a minimum ratio of one per 

occupant of each unit, including tents. 

(g) Bathing, laundry, and hand 

washing. Bathing, laundry, and hand 

washing facilities must be provided 

when it is not feasible to provide hot 

and cold water under pressure. 

(h) Food storage. When mechanical 

refrigeration of food is not feasible, the 

worker must be provided with another 

means of keeping food fresh and 

preventing spoilage, such as a butane or 

propane gas refrigerator. Other proven 

methods of safeguarding fresh foods, 

such as dehydrating or salting, are 

acceptable. 

(i) Cooking and eating facilities. (1) 

When workers or their families are 

permitted or required to cook in their 

individual unit, a space must be 

provided with adequate lighting and 

ventilation; and 

(2) Wall surfaces next to all food 

preparation and cooking areas must be 

of nonabsorbent, easy to clean material. 

Wall surfaces next to cooking areas must 

be made of fire-resistant material. 

(j) Garbage and other refuse. (1) 

Durable, fly-tight, clean containers must 

be provided to each housing unit, 

including tents, for storing garbage and 

other refuse; and 

(2) Provision must be made for 

collecting or burying refuse, which 

includes garbage, at least twice a week 

or more often if necessary, except where 

the terrain in which the housing is 

located cannot be accessed by motor 

vehicle and the refuse cannot be buried, 

in which case the employer must 

provide appropriate receptacles for 

storing the refuse and for removing the 

trash when the employer next transports 

supplies to the location. 

(k) Insect and rodent control. 

Appropriate materials, including sprays, 

and sealed containers for storing food, 

must be provided to aid housing 

occupants in combating insects, rodents, 

and other vermin. 

(l) Sleeping facilities. A separate 

comfortable and clean bed, cot, or bunk, 

with a clean mattress, must be provided 

for each person, except in a family 

arrangement, unless a variance is 

requested from and granted by the CO. 

When filing an application for 

certification and only where it is 

demonstrated to the CO that it is 

impractical to provide a comfortable 

and clean bed, cot, or bunk, with a clean 

mattress, for each range worker, the 

employer may request a variance from 

this requirement to allow for a second 

worker to join the range operation. Such 

a variance must be used infrequently, 

and the period of the variance will be 

temporary (i.e., the variance shall be for 

no more than 3 consecutive days). 

Should the CO grant the variance, the 

employer must supply a sleeping bag or 

bed roll for the second occupant free of 

charge or deposit charge. 

(m) Fire, safety, and first aid. (1) All 

units in which people sleep or eat must 

be constructed and maintained 

according to applicable State or local 

fire and safety law. 

(2) No flammable or volatile liquid or 

materials may be stored in or next to 

rooms used for living purposes, except 

for those needed for current household 

use. 

(3) Housing units for range use must 

have a second means of escape through 

which the worker can exit the unit 

without difficulty. 

(4) Tents are not required to have a 

second means of escape, except when 

large tents with walls of rigid material 

are used. 

(5) Adequate, accessible fire 

extinguishers in good working condition 

and first aid kits must be provided in 

the range housing. 

Labor Certification Process for 

Temporary Agricultural Employment in 

Animal Shearing, Commercial 

Beekeeping, Custom Combining, and 

Reforestation Occupations 

§ 655.300 Scope and purpose. 

(a) Purpose. The purpose of this 

section and §§ 655.301 through 655.304 

is to establish certain procedures for 

employers who apply to the DOL to 

obtain labor certifications to hire 

temporary agricultural foreign workers 

to perform animal shearing, commercial 

beekeeping, and custom combining, as 

defined in this subpart. Unless 

otherwise specified in this section and 

§§ 655.301 through 655.304, employers 

whose job opportunities meet the 

qualifying criteria under this section 

and §§ 655.301 through 655.304 must 

fully comply with all of the 

requirements of §§ 655.100 through 

655.185; part 653, subparts B and F, of 

this chapter; and part 654 of this 

chapter. 

(b) Jobs subject to this section and 

§§ 655.301 through 655.304. The 

procedures in this section and 

§§ 655.301 through 655.304 apply to job 


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opportunities for animal shearing, 

commercial beekeeping, and custom 

combining, as defined under § 655.301, 

where workers are required to perform 

agricultural work on a scheduled 

itinerary covering multiple areas of 

intended employment. 

§ 655.301 Definition of terms. 

The following terms are specific to 

applications for labor certifications 

involving animal shearing, commercial 

beekeeping, and custom combining. 

Animal shearing. Activities associated 

with the shearing and crutching of 

sheep, goats, or other animals producing 

wool or fleece, including gathering, 

moving, and sorting animals into 

shearing yards, stations, or pens; placing 

animals into position, whether loose, 

tied, or otherwise immobilized, prior to 

shearing; selecting and using suitable 

handheld or power-driven equipment 

and tools for shearing; shearing animals 

with care according to industry 

standards; marking, sewing, or 

disinfecting any nicks and cuts on 

animals due to shearing; cleaning and 

washing animals after shearing is 

complete; gathering, storing, loading, 

and delivering wool or fleece to storage 

yards, trailers or other containers; and 

maintaining, oiling, sharpening, and 

repairing equipment and other tools 

used for shearing. Transporting 

equipment and other tools used for 

shearing qualifies as an activity 

associated with animal shearing for the 

purposes of this definition only where 

such activities are performed by workers 

who are employed by the same 

employer as the animal shearing crew 

and who travel and work with the 

animal shearing crew. Wool or fleece 

grading, which involves examining, 

sorting, and placing unprocessed wool 

or fleece into containers according to 

government or industry standards, 

qualifies as activity associated with 

animal shearing for the purposes of this 

definition only where such activity is 

performed by workers who are 

employed by the same employer as the 

animal shearing crew and who travel 

and work with the animal shearing 

crew. 

Commercial beekeeping. Activities 

associated with the care or husbandry of 

bee colonies for producing and 

collecting honey, wax, pollen, and other 

products for commercial sale or 

providing pollination services to 

agricultural producers, including 

assembling, maintaining, and repairing 

hives, frames, or boxes; inspecting and 

monitoring colonies to detect diseases, 

illnesses, or other health problems; 

feeding and medicating bees to maintain 

the health of the colonies; installing, 

raising, and moving queen bees; 

splitting or dividing colonies, when 

necessary, and replacing combs; 

preparing, loading, transporting, and 

unloading colonies and equipment; 

forcing bees from hives, inserting 

honeycomb of bees into hives, or 

inducing swarming of bees into hives of 

prepared honeycomb frames; 

uncapping, extracting, refining, 

harvesting, and packaging honey, 

beeswax, or other products for 

commercial sale; cultivating bees to 

produce bee colonies and queen bees for 

sale; and maintaining and repairing 

equipment and other tools used to work 

with bee colonies. 

Custom combining. Activities for 

agricultural producers consisting of: 

operating self-propelled combine 

equipment (i.e., equipment that reaps or 

harvests, threshes, and swath or 

winnow the crop); performing manual 

or mechanical adjustments to combine 

equipment, including cutters, blowers 

and conveyers; performing safety checks 

on self-propelled combine equipment; 

and maintaining and repairing 

equipment and other tools for 

performing swathing or combining 

work; and, where performed by workers 

employed by the same employer as the 

custom combining crew and who work 

and travel with the custom combining 

crew: transporting harvested crops to 

elevators, silos, or other storage areas, 

and transporting combine equipment 

and other tools used for custom 

combining work from one field to 

another. Neither the planting and 

cultivation of crops and related 

activities, nor component parts of 

custom combining not performed by the 

harvesting entity (e.g., grain cleaning), 

are considered custom combining for 

the purposes of this definition. 

§ 655.302 Contents of job orders. 

(a) Content of job offers. Unless 

otherwise specified in §§ 655.300 

through 655.304, the employer must 

satisfy the requirements for job orders 

established under § 655.121 and for the 

content of job offers established under 

part 653, subpart F, of this chapter and 

§ 655.122. 

(b) Job qualifications and 

requirements. (1) For job opportunities 

involving animal shearing, the job offer 

may specify that applicants must 

possess up to 6 months of experience in 

similar occupations and require 

reference(s) for the employer to verify 

applicant experience. The job offer may 

also specify that applicants must 

possess experience with an industry 

shearing method or pattern, must be 

willing to join the employer at the time 

the job opportunity is available and at 

the place the employer is located, and 

must be available to complete the 

scheduled itinerary under the job order. 

U.S. applicants whose experience is 

based on a similar or related industry 

shearing method or pattern must be 

afforded a break-in period of no less 

than 5 working days to adapt to the 

employer’s preferred shearing method 

or pattern. 

(2) For job opportunities involving 

commercial beekeeping, the job offer 

may specify that applicants must 

possess up to 3 months of experience in 

similar occupations and require 

reference(s) for the employer to verify 

applicant experience. The job offer may 

also specify that applicants must not 

have bee, pollen, or honey-related 

allergies, must possess a valid 

commercial U.S. driver’s license or be 

able to obtain such license not later than 

30 days after the first workday after the 

arrival of the worker at the place of 

employment, must be willing to join the 

employer at the time and place the 

employer is located, and must be 

available to complete the scheduled 

itinerary under the job order. 

(3) For job opportunities involving 

custom combining, the job offer may 

specify that applicants must possess up 

to 6 months of experience in similar 

occupations and require reference(s) for 

the employer to verify applicant 

experience. The job offer may also 

specify that applicants must be willing 

to join the employer at the time and 

place the employer is located and must 

be available to complete the scheduled 

itinerary under the job order. 

(4) An employer may specify other 

appropriate job qualifications and 

requirements for its job opportunity, 

subject to § 655.122(a) and (b). 

(c) Employer-provided 

communication devices. For job 

opportunities involving animal shearing 

and custom combining, the employer 

must provide to at least one worker per 

crew, without charge or deposit charge, 

effective means of communicating with 

persons capable of responding to the 

workers’ needs in case of an emergency, 

including, but not limited to, satellite 

phones, cell phones, wireless devices, 

radio transmitters, or other types of 

electronic communication systems. The 

employer must specify in the job order 

the type(s) of electronic communication 

device(s) and that such devices will be 

provided without charge or deposit 

charge to at least one worker per crew 

during the entire period of employment. 

(d) Housing. For job opportunities 

involving animal shearing and custom 

combining, the employer must specify 

in the job order that housing will be 

provided as set forth in § 655.304. 


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§ 655.303 Procedures for filing 

Applications for Temporary Employment 

Certification. 

(a) Compliance with §§ 655.130 

through 655.132. Unless otherwise 

specified in §§ 655.300 through 655.304, 

the employer must satisfy the 

requirements for filing an Application 

for Temporary Employment 

Certification with the NPC designated 

by the OFLC Administrator as required 

under §§ 655.130 through 655.132. 

(b) What to file. An employer must 

file a completed Application for 

Temporary Employment Certification. 

The employer must identify each place 

of employment with as much 

geographic specificity as possible, 

including the names of each farm or 

ranch, their physical locations, and the 

estimated period of employment at each 

place of employment where work will 

be performed under the job order. 

(c) Scope of applications. The 

Application for Temporary Employment 

Certification and job order may cover 

multiple areas of intended employment 

in one or more contiguous States. An 

Application for Temporary Employment 

Certification and job order for 

opportunities involving commercial 

beekeeping may include one 

noncontiguous State at the beginning 

and end of the period of employment for 

the overwintering of bee colonies. 

(d) Agricultural association filings. An 

agricultural association filing as a joint 

employer may submit a single job order 

and master Application for Temporary 

Employment Certification on behalf of 

its employer-members located in more 

than two contiguous States. An 

agricultural association filing as a joint 

employer may file an Application for 

Temporary Employment Certification 

and job order for opportunities 

involving commercial beekeeping 

including one noncontiguous State at 

the beginning and end of the period of 

employment for the overwintering of 

bee colonies. 

§ 655.304 Standards for mobile housing. 

(a) Use of mobile housing. An 

employer employing workers engaged in 

animal shearing or custom combining 

under this section and §§ 655.301 

through 655.303 may use a mobile unit, 

camper, or other similar mobile housing 

unit that complies with all of the 

following standards, except as provided 

in paragraph (a)(1) or (2) of this section: 

(1) In situations where the mobile 

housing unit will be located on the 

range (as defined in § 655.201) to enable 

work to be performed on the range, and 

where providing housing that meets 

each of the standards for mobile housing 

in this section is not feasible, an 

employer may request a variance from 

the particular mobile housing 

standard(s) with which compliance is 

not feasible. The CO will specify the 

locations, dates, and specific variances, 

if approved. The following conditions 

must be satisfied for an employer to 

obtain a variance: 

(i) The employer seeks the variance at 

the time it submits its Application for 

Temporary Employment Certification; 

(ii) The employer identifies the 

particular mobile housing standard(s), 

and attests that compliance with the 

standard(s) is not feasible; 

(iii) The employer identifies the 

location(s) in which the particular 

mobile housing standard(s) cannot be 

met; 

(iv) The employer identifies the 

anticipated dates that the mobile 

housing unit will be in those location(s); 

(v) The employer identifies the 

corresponding range housing 

standard(s) in § 655.235 that will be met 

instead, and attests that it will comply 

with such standard(s); 

(vi) The employer attests to the reason 

why the particular mobile housing(s) 

standard cannot be met; and, 

(vii) The CO approves the variance. 

(2) A Canadian employer performing 

custom combining operations in the 

United States whose mobile housing 

unit is located in Canada when not in 

use must have the housing unit 

inspected and approved by an 

authorized representative of the Federal 

or provincial government of Canada, in 

accordance with inspection procedures 

and applicable standards for such 

housing under Canadian law or 

regulation. 

(b) Compliance with mobile housing 

standards. The employer may comply 

with the standards for mobile housing 

in this section in one of two ways: 

(1) The employer may provide a 

mobile housing unit that complies with 

all applicable standards; or 

(2) The employer may provide a 

mobile housing unit and supplemental 

facilities (e.g., located at a fixed housing 

site) if workers are afforded access to all 

facilities contained in these standards. 

(c) Housing site. (1) Mobile housing 

sites must be well drained and free from 

depressions where water may stagnate. 

They shall be located where the 

disposal of sewage is provided in a 

manner that neither creates, nor is likely 

to create, a nuisance or a hazard to 

health. 

(2) Mobile housing sites shall not be 

in proximity to conditions that create or 

are likely to create offensive odors, flies, 

noise, traffic, or any similar hazards. 

(3) Mobile housing sites shall be free 

from debris, noxious plants (e.g., poison 

ivy, etc.), and uncontrolled weeds or 

brush. 

(d) Drinking water supply. (1) An 

adequate and convenient supply of 

potable water that meets the standards 

of the local or State health authority 

must be provided. 

(2) Individual drinking cups must be 

provided. 

(3) A cold water tap shall be available 

within a reasonable distance of each 

individual living unit when water is not 

provided in the unit. 

(4) Adequate drainage facilities shall 

be provided for overflow and spillage. 

(e) Excreta and liquid waste disposal. 

(1) Toilet facilities, such as portable 

toilets, recreational vehicle (RV) or 

trailer toilets, privies, or flush toilets, 

must be provided and maintained for 

effective disposal of excreta and liquid 

waste in accordance with the 

requirements of the applicable local, 

State, or Federal health authority, 

whichever is most stringent. 

(2) Where mobile housing units 

contain RV or trailer toilets, such 

facilities must be connected to sewage 

hookups whenever feasible (i.e., in 

campgrounds or RV parks). 

(3) If wastewater tanks are used, the 

employer must make provisions to 

regularly empty the wastewater tanks. 

(4) If pits are used for disposal by 

burying of excreta and liquid waste, 

they shall be kept fly-tight when not 

filled in completely after each use. The 

maintenance of disposal pits must be in 

accordance with local and State health 

and sanitation requirements. 

(f) Housing structure. (1) Housing 

must be structurally sound, in good 

repair, in a sanitary condition, and must 

provide shelter against the elements to 

occupants. 

(2) Housing must have flooring 

constructed of rigid materials easy to 

clean and so located as to prevent 

ground and surface water from entering. 

(3) Each housing unit must have at 

least one window or a skylight that can 

be opened directly to the outdoors. 

(g) Heating. (1) Where the climate in 

which the housing will be used is such 

that the safety and health of a worker 

requires heated living quarters, all such 

quarters must have properly installed 

operable heating equipment that 

supplies adequate heat. Where the 

climate in which the housing will be 

used is mild and the low temperature 

for any day in which the housing will 

be used is not reasonably expected to 

drop below 50 degrees Fahrenheit, no 

separate heating equipment is required 

as long as proper protective clothing 

and bedding are made available, free of 

charge or deposit charge, to the workers. 


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(2) Any stoves or other sources of heat 

using combustible fuel must be installed 

and vented in such a manner as to 

prevent fire hazards and a dangerous 

concentration of gases. If a solid or 

liquid fuel stove is used in a room with 

wooden or other combustible flooring, 

there must be a concrete slab, insulated 

metal sheet, or other fireproof material 

on the floor under each stove, extending 

at least 18 inches beyond the perimeter 

of the base of the stove. 

(3) Any wall or ceiling within 18 

inches of a solid or liquid fuel stove or 

stove pipe must be made of fireproof 

material. A vented metal collar must be 

installed around a stovepipe or vent 

passing through a wall, ceiling, floor, or 

roof. 

(4) When a heating system has 

automatic controls, the controls must be 

of the type that cuts off the fuel supply 

when the flame fails or is interrupted or 

whenever a predetermined safe 

temperature or pressure is exceeded. 

(h) Electricity and lighting. (1) Barring 

unusual circumstances that prevent 

access, electrical service or generators 

must be provided. 

(2) In areas where it is not feasible to 

provide electrical service to mobile 

housing units, lanterns must be 

provided (e.g., battery operated lights). 

(3) Lanterns, where used, must be 

provided in a minimum ratio of one per 

occupant of each unit. 

(i) Bathing, laundry, and hand 

washing. (1) Bathing facilities, supplied 

with hot and cold water under pressure, 

shall be provided to all occupants no 

less frequently than once per day. 

(2) Laundry facilities, supplied with 

hot and cold water under pressure, shall 

be provided to all occupants no less 

frequently than once per week. 

(3) Alternative bathing and laundry 

facilities must be available to occupants 

at all times when water under pressure 

is unavailable. 

(4) Hand washing facilities must be 

available to all occupants at all times. 

(j) Food storage. (1) Provisions for 

mechanical refrigeration of food at a 

temperature of not more than 45 degrees 

Fahrenheit must be provided. 

(2) When mechanical refrigeration of 

food is not feasible, the employer must 

provide another means of keeping food 

fresh and preventing spoilage (e.g., a 

butane or propane gas refrigerator). 

(k) Cooking and eating facilities. (1) 

When workers or their families are 

permitted or required to cook in their 

individual unit, a space must be 

provided with adequate lighting and 

ventilation, and stoves or hotplates. 

(2) Wall surfaces next to all food 

preparation and cooking areas must be 

of nonabsorbent, easy to clean material. 

Wall surfaces next to cooking areas must 

be made of fire-resistant material. 

(l) Garbage and other refuse. (1) 

Durable, fly-tight, clean containers must 

be provided to each housing unit, for 

storing garbage and other refuse. 

(2) Provision must be made for 

collecting refuse, which includes 

garbage, at least twice a week or more 

often if necessary for proper disposal in 

accordance with applicable local, State, 

or Federal law, whichever is most 

stringent. 

(m) Insect and rodent control. 

Appropriate materials, including sprays, 

and sealed containers for storing food, 

must be provided to aid housing 

occupants in combating insects, rodents, 

and other vermin. 

(n) Sleeping facilities. (1) A separate 

comfortable and clean bed, cot, or bunk, 

with a clean mattress, must be provided 

for each person, except in a family 

arrangement. 

(2) Clean and sanitary bedding must 

be provided for each person. 

(3) No more than two deck bunks are 

permissible. 

(o) Fire, safety, and first aid. (1) All 

units in which people sleep or eat must 

be constructed and maintained 

according to applicable local or State 

fire and safety law. 

(2) No flammable or volatile liquid or 

materials may be stored in or next to 

rooms used for living purposes, except 

for those needed for current household 

use. 

(3) Mobile housing units must have a 

second means of escape through which 

the worker can exit the unit without 

difficulty. 

(4) Adequate, accessible fire 

extinguishers in good working condition 

and first aid kits must be provided in 

the mobile housing. 

(p) Maximum occupancy. The number 

of occupants housed in each mobile 

housing unit must not surpass the 

occupancy limitations set forth in the 

manufacturer specifications for the unit. 

■ 5. Revise 29 CFR part 501 to read as 

follows: 

Title 29—Labor 

PART 501—ENFORCEMENT OF 

CONTRACTUAL OBLIGATIONS FOR 

TEMPORARY 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 the 

Secretary. 

501.7 Cooperation with Federal officials. 

501.8 Accuracy of information, statements, 

and data. 

501.9 Enforcement of 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 collection. 

Subpart C—Administrative Proceedings 

501.30 Applicability of procedures and 

rules in this subpart. 

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. 

501.44 Additional information, if required. 

501.45 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; 28 U.S.C. 2461 note; and 

sec. 701, Pub. L. 114–74, 129 Stat. 584. 

Subpart A—General Provisions 

§ 501.0 Introduction. 

The regulations in this part 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 


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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 the regulations in this part 

or 20 CFR part 655, subpart B. 

§ 501.1 Purpose and scope. 

(a) Statutory standards. The standard 

in 8 U.S.C. 1188 provides that: 

(1) An H–2A Petition to import 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 

for and received a temporary 

agricultural labor certification from the 

Secretary of Labor (Secretary). The 

temporary agricultural labor 

certification establishes 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 H–2A Petition; 

and 

(ii) The employment of the H–2A 

worker in such labor or services will not 

adversely affect the wages and working 

conditions of workers in the United 

States 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 the 

regulations in this part, including 

imposing appropriate penalties, and 

seeking injunctive relief and specific 

performance of contractual obligations. 

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

(b) Authority and role of the Office of 

Foreign Labor Certification. The 

Secretary has delegated authority 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), to issue 

certifications and carry out other 

statutory responsibilities as required by 

8 U.S.C. 1188. Determinations on an 

Application for Temporary Employment 

Certification are made by the OFLC 

Administrator who, in turn, may 

delegate this responsibility to 

designated staff, e.g., a Certifying Officer 

(CO). 

(c) Authority of the Wage and Hour 

Division. The Secretary has delegated 

authority to the Wage and Hour Division 

(WHD) to conduct certain investigatory 

and enforcement functions with respect 

to terms and conditions of employment 

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

subpart B, and this part (‘‘the H–2A 

program’’), and to carry out other 

statutory responsibilities required by 8 

U.S.C. 1188. 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 

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

subpart B, or this part. Included within 

the enforcement responsibility of WHD 

are such matters as the payment of 

required wages, transportation, meals, 

and housing provided during the 

employment. 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) Concurrent authority. OFLC and 

WHD have concurrent authority to 

impose a debarment remedy pursuant to 

20 CFR 655.182 and § 501.20. 

(e) Effect of regulations. The 

enforcement functions carried out by 

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

655, subpart B, and this part 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 processed under 20 CFR 

655.102(c). 

§ 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 

worker will be immediately forwarded 

to the appropriate WHD office for 

appropriate action under the regulations 

in this part. 

(b) Information received in the course 

of processing applications, program 

integrity measures, or enforcement 

actions may be shared between OFLC 

and WHD or, where applicable to 

employer enforcement under the H–2A 

program, other Departments or agencies 

as appropriate, including the 

Department of State (DOS) and DHS. 

(c) A specific violation for which 

debarment is imposed will be cited in 

a single debarment proceeding. OFLC 

and WHD may coordinate their 

activities to achieve this result. Copies 

of final debarment decisions will be 

forwarded to DHS promptly. 

§ 501.3 Definitions. 

(a) Definitions of terms used in this 

part. The following defined terms apply 

to this part: 

Act. The Immigration and Nationality 

Act, as amended (INA), 8 U.S.C. 1101 et 

seq. 

Administrative Law Judge (ALJ). A 

person within the Department of Labor’s 

(Department or DOL) Office of 

Administrative Law Judges (OALJ) 

appointed pursuant to 5 U.S.C. 3105. 

Administrator. See definitions of 

OFLC Administrator and WHD 

Administrator in this paragraph (a). 

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: 

(i) Is authorized to act on behalf of the 

employer for temporary agricultural 

labor certification purposes; 

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

employer, as defined in this part with 

respect to a specific application; and 

(iii) 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. 

Applicant. A U.S. worker who is 

applying for a job opportunity for which 

an employer has filed an Application for 

Temporary Employment Certification 

and job order. 


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Application for Temporary 

Employment Certification. The Office of 

Management and Budget (OMB)- 

approved Form ETA–9142A and 

appropriate appendices submitted by an 

employer to secure a temporary 

agricultural labor certification 

determination from DOL. 

Area of intended employment (AIE). 

The geographic area within normal 

commuting distance of the place of 

employment for which the temporary 

agricultural labor 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 place of 

employment, or quality of the regional 

transportation network). If a place of 

employment is within a Metropolitan 

Statistical Area (MSA), including a 

multi-State MSA, any place within the 

MSA is deemed to be within normal 

commuting distance of the place of 

employment. The borders of MSAs are 

not controlling in the identification of 

the normal commuting area; a place of 

employment outside of an MSA may be 

within normal commuting distance of a 

place of employment 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 United States, or the District of 

Columbia (DC). Such a person is also 

permitted to act as an agent under this 

part. 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 part. 

Certifying Officer (CO). The person 

who makes a determination on an 

Application for Temporary Employment 

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 determination required 

under 20 CFR part 655, subpart B. 

Chief Administrative Law Judge (Chief 

ALJ). The chief official of the 

Department’s OALJ or the Chief ALJ’s 

designee. 

Corresponding employment. The 

employment of workers who are not H– 

2A workers by an employer who has an 

approved Application for Temporary 

Employment 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. 

Department of Homeland Security 

(DHS). The Department of Homeland 

Security, as established by 6 U.S.C. 111. 

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: 

(i) Has an employment 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; or 

(ii) Files an Application for 

Temporary Employment Certification 

other than as an agent; or 

(iii) Is a person on whose behalf an 

Application of Temporary Employment 

Certification is filed. 

Employment and Training 

Administration (ETA). The agency 

within the Department that includes 

OFLC and has been delegated authority 

by the Secretary to fulfill the Secretary’s 

mandate under the INA and DHS’ 

implementing regulations in 8 CFR 

chapter I, subchapter B, from the 

administration and adjudication of an 

Application for Temporary Employment 

Certification and related functions. 

Federal holiday. Legal public holiday 

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

First date of need. The first date the 

employer requires the labor or services 

of H–2A workers as indicated in the 

Application for Temporary Employment 

Certification. 

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 Petition. The USCIS Form I– 

129, Petition for a Nonimmigrant 

Worker, with H Supplement or 

successor form or supplement, and 

accompanying documentation required 

by DHS for employers seeking to 

employ foreign persons as H–2A 

nonimmigrant workers. 

H–2A worker. Any temporary foreign 

worker who is lawfully present in the 

United States 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 United 

States to which U.S. workers can be 

referred. 

Job order. The document containing 

the material terms and conditions of 

employment that is posted by the SWA 

on its interstate and intrastate job 

clearance systems based on the 

employer’s Agricultural Clearance 

Order (Form ETA–790/ETA–790A and 

all appropriate addenda), as submitted 

to the National Processing Center. 

Joint employment. (i) Where two or 

more employers each have sufficient 

definitional indicia of being a joint 

employer of a worker under the 

common law of agency, they are, at all 

times, joint employers of that worker. 

(ii) An agricultural association that 

files an Application for Temporary 

Employment Certification as a joint 

employer is, at all times, a joint 

employer of all the H–2A workers 

sponsored under the Application for 

Temporary Employment Certification 

and all workers in corresponding 

employment. An employer-member of 


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an agricultural association that files an 

Application for Temporary Employment 

Certification as a joint employer is a 

joint employer of the H–2A workers 

sponsored under the joint employer 

Application for Temporary Employment 

Certification along with the agricultural 

association during the period that the 

employer-member employs the H–2A 

workers sponsored under the 

Application for Temporary Employment 

Certification. 

(iii) Employers that jointly file a joint 

employer Application for Temporary 

Employment Certification under 20 CFR 

655.131(b) are, at all times, joint 

employers of all H–2A workers 

sponsored under the Application for 

Temporary Employment Certification 

and all workers in corresponding 

employment. 

Metropolitan Statistical Area (MSA). 

A geographic entity defined by OMB for 

use by Federal statistical agencies in 

collecting, tabulating, and publishing 

Federal statistics. A Metropolitan 

Statistical Area contains a core urban 

area of 50,000 or more population, and 

a Micropolitan Statistical Area contains 

an urban core of at least 10,000 (but 

fewer than 50,000) population. Each 

metropolitan or micropolitan area 

consists of one or more counties and 

includes the counties containing the 

core urban area, as well as any adjacent 

counties that have a high degree of 

social and economic integration (as 

measured by commuting to work) with 

the urban core. 

National Processing Center (NPC). 

The offices 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 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 United States to 

perform work described in 8 U.S.C. 

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

OFLC Administrator. The primary 

official of OFLC, or the OFLC 

Administrator’s designee. 

Period of employment. The time 

during which the employer requires the 

labor or services of H–2A workers as 

indicated by the first and last dates of 

need provided in the Application for 

Temporary Employment Certification. 

Piece rate. A form of wage 

compensation based upon a worker’s 

quantitative output or one unit of work 

or production for the crop or 

agricultural activity. 

Place of employment. A worksite or 

physical location where work under the 

job order actually is performed by the 

H–2A workers and workers in 

corresponding employment. 

Secretary of Labor (Secretary). The 

chief official of the Department, or the 

Secretary’s designee. 

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. (i) Where an 

employer, agent, or attorney has 

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

subpart B, or this part, and has ceased 

doing business or cannot be located for 

purposes of enforcement, a successor in 

interest to that employer, agent, or 

attorney may be held liable for the 

duties and obligations of the violating 

employer, agent, or attorney 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, agent, or attorney is a 

successor in interest; no one factor is 

dispositive, but all of the circumstances 

will be considered as a whole: 

(A) Substantial continuity of the same 

business operations; 

(B) Use of the same facilities; 

(C) Continuity of the work force; 

(D) Similarity of jobs and working 

conditions; 

(E) Similarity of supervisory 

personnel; 

(F) Whether the former management 

or owner retains a direct or indirect 

interest in the new enterprise; 

(G) Similarity in machinery, 

equipment, and production methods; 

(H) Similarity of products and 

services; and 

(I) The ability of the predecessor to 

provide relief. 

(ii) 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, based on the 

Application for Temporary Employment 

Certification, job order, and all 

supporting documentation, with respect 

to an employer seeking to file an H–2A 

Petition with DHS 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, and 20 CFR part 655, subpart 

B. 

United States. The continental United 

States, Alaska, Hawaii, the 

Commonwealth of Puerto Rico, and the 

territories of Guam, the U.S. Virgin 

Islands, and the Commonwealth of the 

Northern Mariana Islands. 

U.S. Citizenship and Immigration 

Services (USCIS). An operational 

component of DHS. 

U.S. worker. A worker who is: 

(i) A citizen or national of the United 

States; 

(ii) An individual who is lawfully 

admitted for permanent residence in the 

United States, 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 DHS 

to be employed in the United States; or 

(iii) An individual who is not an 

unauthorized alien, as defined in 8 

U.S.C. 1324a(h)(3), with respect to the 

employment in which the worker is 

engaging. 

Wage and Hour Division (WHD). The 

agency within the Department with 

authority to conduct certain 

investigatory and enforcement 

functions, as delegated by the Secretary, 

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

subpart B, and this part. 

Wages. All forms of cash 

remuneration to a worker by an 

employer in payment for labor or 

services. 

WHD Administrator. The primary 

official of the WHD, or the WHD 

Administrator’s designee. 

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 

and conditions 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, as amended 

(FLSA), at 29 U.S.C. 203(f); the pressing 

of apples for cider on a farm; or logging 

employment. An occupation included 


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in either statutory definition is 

agricultural labor or services, 

notwithstanding the exclusion of that 

occupation from the other statutory 

definition. For informational purposes, 

the statutory provisions are listed in 

paragraphs (b)(1) through (3) of this 

section. 

(1) Agricultural labor. (i) For the 

purpose of paragraph (b) of this section, 

agricultural labor means all service 

performed: 

(A) 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; 

(B) 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; 

(C) In connection with the production 

or harvesting of any commodity defined 

as an agricultural commodity in sec. 

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; 

(D) 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; 

(E) 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)(i)(D) of this section but 

only if such operators produced all of 

the commodity with respect to which 

such service is performed. For purposes 

of this paragraph (b)(1)(i)(E), 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; 

(F) The provisions of paragraphs 

(b)(1)(i)(D) and (E) of this section 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 

(G) 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. 

(ii) As used in this section, the term 

‘‘farm’’ includes stock, dairy, poultry, 

fruit, fur-bearing 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 

12 U.S.C. 1141j(g), 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 29 U.S.C. 

203(f), as amended. 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. Logging 

employment is 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, marking trees or 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) Employment as defined and 

specified in 20 CFR 655.300 through 

655.304. For the purpose of paragraph 

(b) of this section, agricultural labor or 

services includes animal shearing, 

commercial beekeeping, and custom 

combining activities as defined and 

specified in 20 CFR 655.300 through 

655.304. 

(c) Definition of a temporary or 

seasonal nature. For the purposes of 

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. 

§ 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 this part; 

(2) Instituted or caused to be 

instituted any proceedings related to 8 

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

or this part; 

(3) Testified or is about to testify in 

any proceeding under or related to 8 

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

or this part; 

(4) Consulted with an employee of a 

legal assistance program or an attorney 

on matters related to 8 U.S.C. 1188, 20 

CFR part 655, subpart B, or this part; or 

(5) Exercised or asserted on behalf of 

themself or others any right or 

protection afforded by 8 U.S.C. 1188, 20 

CFR part 655, subpart B, or this part. 

(b) Allegations of discrimination 

against any person under paragraph (a) 

of this section will be investigated by 

WHD. Where WHD has determined 

through investigation that such 

allegations have been substantiated, 

appropriate remedies may be sought. 

WHD may assess civil money penalties, 

seek injunctive relief, and/or seek 

additional remedies necessary to make 

the worker whole as a result of the 

discrimination, as appropriate, initiate 

debarment proceedings, and 

recommend to OFLC revocation of any 


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such violator’s current temporary 

agricultural labor certification. 

Complaints alleging discrimination 

against workers or immigrants based on 

citizenship or immigration status may 

also be forwarded by WHD to the 

Department of Justice, Civil Rights 

Division, Immigrant and Employee 

Rights Section. 

§ 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 this 

part. Any agreement by a worker 

purporting to waive or modify any 

rights given to said person under 8 

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

or this part shall be void as contrary to 

public policy except as follows: 

(a) Waivers or modifications of rights 

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

CFR part 655, subpart B, or this part in 

favor of the Secretary shall be valid for 

purposes of enforcement; and 

(b) Agreements in settlement of 

private litigation are permitted. 

§ 501.6 Investigation authority of the 

Secretary. 

(a) General. The Secretary, through 

WHD, may investigate to determine 

compliance with obligations under 8 

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

or this part, 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. 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 this part 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 this part during the 

performance of such duties. 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, WHD will report the matter 

to OFLC, and may recommend to OFLC 

that the person’s existing temporary 

agricultural 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 114. 

§ 501.8 Accuracy of information, 

statements, and data. 

Information, statements, and data 

submitted in compliance with 8 U.S.C. 

1188 or this part 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 United States, 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 Enforcement of surety bond. 

Every H–2A labor contractor (H– 

2ALC) must obtain a surety bond 

demonstrating its ability to discharge 

financial obligations as set forth in 20 

CFR 655.132(c). 

(a) Notwithstanding the required bond 

amounts set forth in 20 CFR 655.132(c), 

the WHD Administrator may require 

that an H–2ALC obtain a bond with a 

higher face value amount after notice 

and opportunity for hearing when it is 

shown based on objective criteria that 

the amount of the bond is insufficient to 

meet potential liabilities. 

(b) Upon a final decision reached 

pursuant to the administrative 

proceedings of subpart C of this part, 

including any timely appeal, or 

resulting from an enforcement action 

brought directly in a District Court of 

the United States finding a violation or 

violations of 20 CFR part 655, subpart 

B, or this part, the WHD Administrator 

may make a written demand on the 

surety for payment of any wages and 

benefits, including the assessment of 

interest, owed to an H–2A worker, a 

worker engaged in corresponding 

employment, or a U.S. worker 

improperly rejected or improperly laid 

off or displaced. The WHD 

Administrator shall have 3 years from 

the expiration of the labor certification, 

including any extension thereof, to 

make such written demand for payment 

on the surety. This 3-year period for 

making a demand on the surety is tolled 

by commencement of any enforcement 

action of the WHD Administrator 

pursuant to § 501.6, § 501.15, or § 501.16 

or the commencement of any 

enforcement action in a District Court of 

the United States. 

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 this part, as provided 

in this part for enforcement by 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 this part 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 this 

part; 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, or 

improperly laid off or displaced; or 

debarment for up to 3 years. 

(2) The remedies referenced in 

paragraph (a)(1) of this section will be 

sought either directly from the 

employer, agent, or attorney, 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 


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

655, subpart B, and § 501.9. 

(b) Petition any appropriate District 

Court of the United States 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 this part, 

by any person. 

(c) Petition any appropriate District 

Court of the United States 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 20 CFR part 

655, subpart B, and § 501.1(b). WHD has 

primary responsibility to make all 

determinations regarding the 

enforcement functions as described in 

§ 501.1(c). 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 this part. 

OFLC and WHD have concurrent 

jurisdiction to impose a debarment 

remedy pursuant to 20 CFR 655.182 and 

§ 501.20. 

§ 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 this 

part. 

§ 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 this 

part. 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 this part 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 the WHD Administrator 

may consider 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 this part; 

(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 this part; 

(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; and 

(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). 

(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 this part will not 

exceed $1,898 per violation, with the 

following exceptions: 

(1) A civil money penalty for each 

willful violation of the work contract or 

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

part 655, subpart B, or this part, or for 

each act of discrimination prohibited by 

§ 501.4 shall not exceed $6,386; 

(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 this part, that proximately causes the 

death or serious injury of any worker 

shall not exceed $63,232 per worker; 

and 

(3) 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 this part, that 

proximately causes the death or serious 

injury of any worker, shall not exceed 

$126,463 per worker. 

(4) For purposes of paragraphs (c)(2) 

and (3) 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. 

(d) A civil money penalty for failure 

to cooperate with a WHD investigation 

shall not exceed $6,386 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 Employment 

Certification for H–2A workers in the 

area of intended employment either 

within 60 calendar days preceding the 

first 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 $18,970 per violation per 

worker. 

(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 this part, shall not 

exceed $18,970 per violation per 

worker. 

§ 501.20 Debarment and revocation. 

(a) Debarment of an employer, agent, 

or attorney. The WHD Administrator 

may debar an employer, agent, or 

attorney, or any successor in interest to 

that employer, agent, or attorney from 

participating in any action under 8 

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

or this part, subject to the time limits set 

forth in paragraph (c) of this section, if 

the WHD Administrator finds that the 

employer, agent, or attorney 

substantially violated a material term or 

condition of the temporary agricultural 

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) Effect on future applications. No 

application for H–2A workers may be 

filed by a debarred employer, or any 

successor in interest to a debarred 

employer, or by an employer 

represented by a debarred agent or 

attorney, or by any successor in interest 

to any debarred agent or attorney, 

subject to the time limits set forth in 

paragraph (c) of this section. If such an 

application is filed, it will be denied 

without review. 

(c) Statute of limitations and period of 

debarment. (1) The WHD Administrator 

must issue any Notice of Debarment not 

later than 2 years after the occurrence of 

the violation. 

(2) No employer, agent, or attorney, or 

their successors in interest, may be 

debarred under this part 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 


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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 this part; 

(vi) Impeding an investigation of an 

employer under 8 U.S.C. 1188 or this 

part, or an audit under 20 CFR part 655, 

subpart B; 

(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 20 CFR 655.135(j) or (k); 

(ix) A violation of any of the 

provisions listed in § 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) 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 timeframe under which 

such rights must be exercised and must 

comply with § 501.32. The debarment 

will take effect 30 calendar days from 

the date the Notice of Debarment is 

issued, unless a request for review is 

properly filed within 30 calendar 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 of associations, 

employer-members of associations, and 

joint employers. If, after investigation, 

the WHD Administrator determines that 

an individual employer-member of an 

agricultural association, or a joint 

employer under 20 CFR 655.131(b), has 

committed a substantial violation, the 

debarment determination will apply 

only to that employer-member unless 

the WHD Administrator determines that 

the agricultural association or another 

agricultural association member or joint 

employer under 20 CFR 655.131(b), 

participated in the violation, in which 

case the debarment will be invoked 

against the agricultural association or 

other complicit agricultural association 

member(s) or joint employer under 20 

CFR 655.131(b) as well. 

(g) Debarment involving agricultural 

associations acting as sole employers. If, 

after investigation, the WHD 

Administrator determines that an 

agricultural association acting as a sole 

employer has committed a substantial 

violation, the debarment determination 

will apply only to the agricultural 

association and any successor in interest 

to the debarred agricultural association. 

(h) Debarment involving agricultural 

associations acting as joint employers. 

If, after investigation, the WHD 

Administrator determines that an 

agricultural association acting as a joint 

employer with its employer-members 

has committed a substantial violation, 

the debarment determination will apply 

only to the agricultural association, and 

will not be applied to any individual 

employer-member of the agricultural 

association. However, if the WHD 

Administrator determines that the 

employer-member participated in, had 

knowledge of, or had reason to know of 

the violation, the debarment may be 

invoked against the complicit 

agricultural association member as well. 

An agricultural association debarred 

from the H–2A temporary labor 

certification program will not be 

permitted to continue to file as a joint 

employer with its employer-members 

during the period of the debarment. 

(i) Revocation. WHD may recommend 

to the OFLC Administrator the 

revocation of a temporary agricultural 

labor certification if WHD finds that the 

employer: 

(1) Substantially violated a material 

term or condition of the approved 

temporary agricultural 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 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. 

§ 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, agent, or 

attorney 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 is 

assessed in a final order by the WHD 

Administrator, by an ALJ, or by the 

Administrative Review Board (ARB), the 

amount of the penalty must be received 

by the WHD Administrator within 30 

days of the date of the final order. The 

person assessed such penalty shall remit 

the amount thereof, as finally 

determined, to the Secretary. Payment 

shall be made by certified check or 

money order made payable and 

delivered or mailed according to the 

instructions provided by the 

Department; through the electronic pay 

portal located at www.pay.gov or any 

successor system; or by any additional 

payment method deemed acceptable by 

the Department. 

Subpart C—Administrative 

Proceedings 

§ 501.30 Applicability of procedures and 

rules in this subpart. 

The procedures and rules contained 

in this subpart prescribe the 

administrative process that will be 

applied with respect to a determination 

to assess civil money penalties, debar, 

or 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 this 


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part, 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 a 

District Court of the United States 

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, 

debar, increase a surety bond, or 

proceed administratively to enforce 

contractual obligations, or obligations 

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

subpart B, or this part, 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 this 

part; the amount of any civil money 

penalty assessment; whether debarment 

is sought and if so its 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 calendar days after the 

date of 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 

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 

this part, 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 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 that is immaterial, irrelevant, 

or unduly repetitive. 

§ 501.35 Commencement of proceeding. 

Each administrative proceeding 

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

regulations in this part 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 the 

regulations in this part 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 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 the authorized representative 

of such person, to the Chief ALJ, for a 

determination in an administrative 

proceeding as provided in this subpart. 

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 29 CFR 

part 18 or this part. 

(b) A copy of the Order of Reference, 

together with a copy of this part, 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 calendar 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 in 

this subpart shall be served on the 

attorneys for DOL. One copy shall be 

served on the Associate Solicitor, 

Division of Fair Labor Standards, Office 

of the Solicitor, U.S. Department of 

Labor, 200 Constitution Avenue NW, 

Washington, DC 20210, and one copy on 


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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 defer 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 therefor, the ALJ, within 

30 calendar 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 will prepare, within 60 

calendar 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. 

(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, WHD, or any other 

party wishing review, including judicial 

review, of the decision of an ALJ must, 

within 30 calendar 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. 

If the ARB does not issue a notice 

accepting a petition for review of the 

decision within 30 calendar days after 

receipt of a timely filing of the petition, 

or within 30 calendar days of the date 

of the decision if no petition has been 

received, the decision of the ALJ will 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. 

§ 501.43 Responsibility of the Office of 

Administrative Law Judges. 

Upon receipt of the ARB’s notice to 

accept the petition, the OALJ will 

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 will notify each party of: 

(a) The issue or issues raised; 

(b) The form in which submissions 

must be made (e.g., briefs or oral 

argument); and 

(c) The time within which such 

presentation must be submitted. 

§ 501.45 Decision of the Administrative 

Review Board. 

The ARB’s decision shall be issued 

within 90 days from the notice granting 

the petition and served upon all parties 

and the ALJ. 

Record 

§ 501.46 Retention of official record. 

The official record of every completed 

administrative hearing provided by the 

regulations in this part 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 District Court of the 

United States, 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 District Court 

of the United States, a full, true, and 

correct copy of the entire record, 

including the transcript of proceedings. 

Martin J. Walsh, 

Secretary of Labor. 

[FR Doc. 2022–20506 Filed 10–6–22; 8:45 am] 

BILLING CODE 4510–FP–P 


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