Friday, 

February 12, 2010 

Part II 

Department of Labor 

Employment and Training Administration 

20 CFR Part 655 

Wage and Hour Division 

29 CFR Part 501 

Temporary Agricultural Employment of 

H–2A Aliens in the United States; Final 

Rule 


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6884 Federal Register / Vol. 75, No. 29 / Friday, February 12, 2010 / Rules and Regulations 

1For ease of reference, all subsequent sections of 

the INA will be referred to by their corresponding 

section in the United States Code (U.S.C.). 

DEPARTMENT OF LABOR 

Employment and Training 

Administration 

20 CFR Part 655 

Wage and Hour Division 

29 CFR Part 501 

RIN 1205–AB55 

Temporary Agricultural Employment of 

H–2A Aliens in the United States 

AGENCY: Employment and Training 

Administration, and Wage and Hour 

Division, Labor. 

ACTION: Final rule. 

SUMMARY: The Department of Labor (the 

Department or DOL) is amending its 

regulations governing the certification of 

temporary employment of 

nonimmigrant workers in temporary or 

seasonal agricultural employment and 

the enforcement of the contractual 

obligations applicable to employers of 

such nonimmigrant workers. The 

Department is also amending the 

regulations at 29 CFR part 501 to 

provide for enhanced enforcement 

under the H–2A program requirements 

so that workers are appropriately 

protected when employers fail to meet 

their obligations under the H–2A 

program. 

DATES: This Final Rule is effective 

March 15, 2010. 

FOR FURTHER INFORMATION CONTACT: For 

further information on 20 CFR part 655, 

contact William L. Carlson, Ph.D., 

Administrator, Office of Foreign Labor 

Certification, Employment and Training 

Administration, U.S. Department of 

Labor, 200 Constitution Avenue, NW., 

Room C–4312, Washington, DC 20210; 

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

toll-free number). Individuals with 

hearing or speech impairments may 

access the telephone number above via 

TTY by calling the toll-free Federal 

Information Relay Service at 1–800– 

877–8339. 

For further information on 29 CFR 

part 501 contact James Kessler, Farm 

Labor Branch Chief, Wage and Hour 

Division, U.S. Department of Labor, 200 

Constitution Avenue, NW., Room S– 

3510, Washington, DC 20210; 

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

toll-free number). Individuals with 

hearing or speech impairments may 

access the telephone number above via 

TTY by calling the toll-free Federal 

Information Relay Service at 1–800– 

877–8339. 

SUPPLEMENTARY INFORMATION: 

I. Revisions to 20 CFR Part 655 Subpart 

B 

A. Statutory and Regulatory Background 

The H–2A nonimmigrant worker visa 

program enables United States (U.S.) 

agricultural employers to employ 

foreign workers on a temporary basis to 

perform agricultural labor or services. 

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

Immigration and Nationality Act (INA 

or the Act), 8 U.S.C. 

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

1184(c)(1) and 1188.1 The INA 

authorizes the Secretary of the 

Department of Homeland Security 

(DHS) to permit employers to import 

foreign workers to perform temporary 

agricultural labor or services of a 

temporary or seasonal nature if the 

Secretary of the U.S. DOL (Secretary) 

certifies that: 

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

who are able, willing, and qualified, and who 

will be available at the time and place 

needed to perform the labor or services 

involved in the petition; and 

(B) The employment of the alien in such 

labor or services will not adversely affect the 

wages and working conditions of workers in 

the United States similarly employed. 

8 U.S.C. 1188(a)(1). The Secretary has 

delegated these responsibilities, through 

the Assistant Secretary, Employment 

and Training Administration (ETA), to 

ETA’s Office of Foreign Labor 

Certification (OFLC). The Secretary has 

delegated responsibility for enforcement 

of the worker protections to the 

Administrator of the Wage and Hour 

Division (WHD). The Department’s H– 

2A regulations remained largely 

unchanged from the 1987 Rule until 

2008. In 2008, the Department 

significantly revised these regulations at 

73 FR 77110, Dec. 18, 2008 (the 2008 

Final Rule). Over the past several 

months, the Department undertook a 

review of the policy decisions reflected 

in the 2008 Final Rule, specifically 

reviewing the worker protections 

afforded under that rule. This review 

resulted in a Notice of Proposed 

Rulemaking (NPRM) published in 

September 2009, 74 FR 45906, Sep. 4, 

2009. 

B. Overview of Comments Received 

The Department received almost 

7,000 comments on the proposed rule. 

We have determined that 349 of these 

comments were completely unique, 13 

were considered duplicates, and 6,577 

were considered a form letter or based 

on a form letter. 

Commenters represented a broad 

range of constituencies for the H–2A 

program, including individual farmers, 

farm workers, farm associations, farm 

worker advocate groups, agents, law 

firms, farm labor bureaus, State 

Workforce Agencies (SWAs), State 

Government Officials, U.S. Congress 

Members and Committees, and various 

interested members of the public. The 

Department received comments both in 

support of and in opposition to the 

proposed regulation, which are 

discussed in greater detail below. These 

comments raised a variety of concerns, 

some general and some pertaining to 

specific provisions or specific 

proposals. After reviewing the 

comments thoughtfully and 

systematically, the Department has 

modified several provisions and 

retained others as originally proposed in 

the NPRM. In addition, there were 

several commenters that requested that 

due to the timing of the regulation 

falling during harvest time for many 

farmers and based on the complexity of 

the issues addressed, the Department 

should provide additional time to 

comment on the proposed rule. In 

response to these comments, the 

Department provided an additional 15 

days for comments on the proposed 

rule. 

The Department received many 

comments that were deemed to be 

beyond the scope of the proposed rule. 

Some of these issues included pending 

legislation, the H–2B temporary 

nonagricultural worker program, 

comprehensive immigration reform, and 

specific issues related to the control of 

our nation’s borders. These are issues 

that cannot be resolved or implemented 

through this regulatory process or are 

not within the purview of the 

Department. Additionally, comments 

submitted in a manner inconsistent with 

the specific directions of the NPRM or 

submitted after the comment period 

closed were not considered. 

The Department received many 

comments challenging the Department’s 

decision to engage in new rulemaking 

for the H–2A program. The Department 

has inherent authority to change its 

regulations in accordance with the 

Administrative Procedure Act (APA). In 

this Final Rule we provide an 

appropriate justification for all of the 

changes that we are making to the H– 

2A program. 

The Department received requests by 

several commenters that the proposed 

rule be published in Spanish since the 

workers who use the program 

predominantly speak and write Spanish 

as their first language. The APA at 5 

U.S.C. 552(a)(1) requires agencies to 


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publish regulations in the Federal 

Register. The Department initiated 

conversations with the Office of the 

Federal Register on the subject of 

publishing regulations in a language 

other than English. However, the Office 

of the Federal Register informed the 

Department that based on its limited 

resources and personnel it is unable to 

publish any documents in a language 

other than English. 

C. 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 the Final Rule that are 

capable of operating 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 the Final Rule continue to 

operate, if at all possible in tandem with 

the reverted provisions. 

II. Discussion of Comments Received 

The Department has addressed those 

areas in which it received comments. 

With regard to specific provisions on 

which the Department did not receive 

comments, it has retained the provisions 

as proposed, except where clarifying 

edits have been made, which have been 

explained below. 

A. Section 655.103 Overview of This 

Subpart and Definition of Terms 

1. Section 655.103(a) Overview 

The overview section in the proposed 

rule was shortened from the 2008 Final 

Rule to avoid any possibility that it may 

contain mandates not contained in the 

sections following it. The Department 

received no comments on this change 

and is leaving the section unchanged in 

the Final Rule. 

2. Section 655.103(b) Definitions 

For the purposes of this section, the 

Department has included a discussion 

of those definitions that received 

comments. Any definitions that did not 

receive comments have been retained as 

proposed without further changes, 

unless otherwise noted. 

a. Agricultural Association 

The NPRM proposed a slight change 

to the definition of agricultural 

association. The 2008 Final Rule 

seemed to imply that an agricultural 

association could be both an agent of its 

employer members and an employer at 

the same time. The NPRM clarified that 

an agricultural association could either 

be an agent or an employer (whether a 

sole employer or joint with its members) 

but not both. The Department received 

no comments on this change; therefore, 

the Final Rule reflects the language 

proposed in the NPRM without any 

modification. 

b. Area of Intended Employment 

The NPRM made no significant 

changes from the 2008 Final Rule in the 

definition of area of intended 

employment. The only changes were in 

the elimination of the redundancies and 

the use of etc. in the listing of examples 

of the factual circumstances that could 

constitute a normal commuting distance 

or commuting area. One commenter 

suggested that the Department add a 

definite number of miles, such as 75 

miles, within which all work locations 

must be located. The commenter 

suggested that because of the size of the 

area of intended employment coupled 

with the length of the certification 

period, U.S. workers who only want to 

do one kind of agricultural job may be 

dissuaded from applying. Another 

commenter suggested narrowing the 

area of intended employment because 

commuting distances within an area of 

intended employment could be upwards 

of 90 miles and it would be 

unreasonable for the Department to 

expect U.S. workers to commute such a 

distance every day without being 

provided housing. 

The Department understands the 

concerns of both commenters; however, 

their concerns are misplaced. The term 

area of intended employment is used in 

conjunction with recruitment, which 

should cast a net as wide as possible to 

inform all potential U.S. workers of an 

upcoming contract in their area. U.S. 

workers are entitled to the same housing 

as the H–2A workers if they are not 

reasonably able to return to their 

residence within the same day as 

discussed under § 655.122(d)(1). 

As for the commenter’s concern that 

a worker who only wanted to do one 

type of agricultural activity would be 

precluded from applying, changing the 

definition of an area of intended 

employment would not alleviate such a 

situation. The term is used primarily for 

recruitment purposes to ensure that the 

designated SWAs receive the job order 

so that U.S. workers have the 

opportunity to apply for the job. 

Therefore, the Final Rule adopts the 

definition as proposed in the NPRM, 

with the exception of a minor editorial 

change. 

c. Corresponding Employment 

In the definition of corresponding 

employment, the Department proposed 

that all workers employed by H–2A 

employers doing work performed by H– 

2A workers be considered engaged in 

corresponding employment. The 

proposal returns to the requirements of 

the 1987 Rule, with one difference 

which is explained below. The Final 

Rule adopts the language of the NPRM 

as proposed. 

The change from the 1987 Rule is the 

addition of the phrase or in any 

agricultural work performed by the H– 

2A workers. This language was added to 

address the adverse impact on U.S. 

workers when an H–2A employer 

engages H–2A workers in agricultural 

work outside the scope of work found 

in the approved job order, including 

work impermissibly performed outside 

the area of intended employment. 

Domestic workers should not be 

disadvantaged when an employer 

violates the terms and conditions of the 

H–2A job order. This does not require 

that every worker on a farm be paid the 

H–2A required wage. It does, however, 

require that workers employed by an H– 

2A employer who perform the same 

agricultural work as the employer’s H– 

2A workers be paid at least the H–2A 

required wage for that work. 

A number of commenters opposed the 

proposal to return to the prior definition 

of corresponding employment because 

they agreed with the rationale offered 

for the change in the 2008 Final Rule 

(which limited the protections to newly 

hired workers). These commenters 

stated that we provided no basis for a 

return to the prior definition, offered no 

evidence to support the proposed 

definition, and did not account for the 

increased costs. A labor contractor 

opposed the definition because it would 

require the payment of the Adverse 

Effect Wage Rate (AEWR) to non-H–2A 

workers who performed incidental work 

that was also performed by H–2A 

workers. 

A worker advocate favored the 

proposal because it would ensure that 

U.S. workers would not be adversely 

affected by H–2A workers. Another 

advocacy organization supported the 

proposal because it would not penalize 

local workers and would contribute to a 

stable workforce. 

The effect of the proposed definition 

which would require U.S. workers to be 

paid the same wages and conditions that 

H–2A workers receive when performing 

the same work is not new. Hearings 

were held in 1962 to address the impact 

on the wages and working conditions of 

domestic workers due to the use of 

temporary foreign workers to perform 

agricultural work. The 1980 Senate 

Judiciary Report on Temporary Worker 

Programs discussing the 1962 hearings 


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stated that U.S. employers were 

required to offer domestic workers 

wages equal to foreign workers as a 

prerequisite for labor certification. See 

Congressional Research Service: ‘‘Report 

to the Senate Committee on the 

Judiciary: Temporary Worker Programs: 

Background and Issues, 53 (1980).’’ For 

many years, the H–2 program has 

required employers to pay wage rates to 

domestic workers as determined by 

DOL. See 32 FR 4571, Mar. 28, 1967. 

The preamble to the 1979 H–2 

rulemaking provided that employers 

must offer and provide U.S. workers at 

least the same level of wages, benefits, 

and working conditions offered or 

provided to foreign workers. See 43 FR 

10308, Mar. 10, 1979. The 1987 Rule 

continued the application of this 

principle and introduced the term 

corresponding employment, stating that 

those regulations were applicable to the 

employment of other workers hired by 

employers of H–2A workers in the 

occupations and for the period of time 

set forth in the job order approved by 

ETA as a condition for granting the H– 

2A certification. The regulations made 

specific reference to workers in 

corresponding employment hired by H– 

2A employers as well as to any other 

worker employed in corresponding 

employment. See 52 FR 20527–20528, 

and 20531, Jun. 1, 1987. 

Courts have consistently upheld the 

Department’s interpretation that the 

wages and benefits offered or provided 

to the H–2A workers must also be 

provided to domestic workers. See 

Farmer v. Employment Security 

Comm’n of N.C., 4 F.3d 1274, 1276, n.2, 

3 (4th Cir. 1993) (H–2A employers must 

make certain benefits available to all 

temporary agricultural laborers); see 

also Williams v. Usery, 531 F.2d 305, 

306 (5th Cir. 1976) (the Secretary’s 

authority is limited to making an 

economic determination of what rate 

must be paid all workers to neutralize 

any adverse effect resulting from the 

influx of temporary foreign workers), 

and NAACP, Jefferson County v. 

Donovan, 566 F.Supp. 1202, 1205 

(D.D.C. 1983) (the AEWR is the rate at 

which DOL requires growers to pay all 

of their farm workers before the 

Department will allow them to import 

alien labor; the purpose of requiring 

payment of the AEWR is to prevent 

importation of nonimmigrant laborers 

from having an adverse effect on the 

prevailing wage rate). 

The 2008 Final Rule stripped these 

protections from longtime employees of 

H–2A employers, applying H–2A 

protections only to newly-hired workers 

and the H–2A workers themselves. The 

preamble to the 2008 Final Rule 

reasoned that longtime U.S. workers 

paid below the AEWR were no worse off 

for the hiring of H–2A workers at the 

higher AEWR and therefore were not 

adversely affected by the hiring of H–2A 

workers. On further review, this 

explanation fails to account for the role 

of the AEWR in protecting against 

possible wage depression from the 

introduction of foreign workers. Further, 

as one commenter observed, since 

newly-hired employees are entitled to 

the AEWR, a longtime employee may 

quit his current employment and reapply for the same job with the same 

employer to obtain the new higher 

AEWR. This anomaly puts too high a 

premium on longtime employees 

knowing the AEWR, understanding 

their rights under the regulations, and 

having the security, rare in low-wage 

agricultural employment, to quit a job 

with the expectation of being 

immediately rehired. Under this Final 

Rule, longtime U.S. workers will be 

entitled to the wage rates paid to H–2A 

employees without having to quit their 

jobs and be rehired. 

One commenter noted that the 

proposal ignores market-based 

principles. Another asserted that 

supervisors who occasionally did jobs 

performed by H–2A workers would 

have to be paid the AEWR. As explained 

above, the AEWR is intended to 

supplement wage rates that have been 

depressed by the presence of H–2A and 

other foreign workers. In that sense it is 

not reflective of market forces. 

Supervisors presumably would be paid 

more than the AEWR and the Final Rule 

does not require that their wages be 

reduced. To the extent that is not the 

case, the requirement to pay them the 

AEWR would only apply for the period 

of time they perform work done by H– 

2A workers. 

One commenter requested that the 

definition of corresponding employment 

be expanded to include joint 

employment, and another requested that 

U.S. workers of fixed-site employers be 

included in the definition when their 

employer contracts with an H–2A Labor 

Contractor (H–2ALC) to provide H–2A 

workers. We do not believe it is 

necessary to include joint employment 

in the definition of corresponding 

employment, as the regulatory 

definition of joint employment makes 

clear that each employer in a joint 

employment relationship bears all of the 

obligations of an employer. 

Accordingly, U.S. workers employed by 

a joint employer of H–2A workers 

would be in corresponding 

employment, if performing the same 

work. However, the INA limits the 

Secretary’s enforcement authority to 

employers (or joint employers) of H–2A 

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

d. H–2A Labor Contractors (H–2ALCs) 

The definition of an H–2ALC in the 

Final Rule remains unchanged from the 

NPRM. One commenter questioned 

whether the Department should grant 

certification to labor contractors to 

participate in the program, noting that, 

for growers, the H–2A program is a 

means to obtain the labor needed to 

meet their end, the production of a farm 

commodity, whereas for the labor 

contractor, the H–2A workers 

themselves are the desired end. Some 

commenters objected to the inclusion of 

the activities of recruitment and 

employment in the definition of an H– 

2ALC, asserting that these activities are 

only applicable to domestic migrant and 

seasonal workers already covered by the 

Migrant and Seasonal Agricultural 

Worker Protection Act (MSPA). Because 

the Department’s enforcement 

experience shows agricultural labor 

contractors have lower compliance rates 

than fixed-site agricultural employers, 

additional obligations are required for 

them. This requires a definition that 

distinguishes each type of employer. 

The fact that some H–2ALCs engage in 

activities covered by other statutes (such 

as MSPA) does not mean that the 

Department should ignore those 

activities when they relate to H–2A 

workers. 

A representative of the sheep shearing 

industry objected to the potential 

classification of sheep shearing 

contractors as H–2ALCs. The argument 

presented by this commenter is that 

Congress specifically exempted 

employers in this industry from farm 

labor contractor (FLC) licensing 

requirements under MSPA; therefore, 

they should be exempt from being 

considered H–2ALCs. 

The definition of an H–2ALC broadly 

encompasses employers who seek to 

participate in the H–2A program, but do 

not fit the definition of a fixed-site 

employer. The shearing contractor does 

not have a fixed site where the 

agricultural activities are performed; 

therefore, it cannot be a fixed-site 

employer and by default is an H–2ALC. 

The fact that shearing contractors are 

exempt from MSPA licensing 

requirements does not affect their status 

as H–2ALCs. 

In addition, this commenter 

mistakenly believes that the name and 

location of each ranch where the 

shearing will take place must be in the 

advertisement. This was a requirement 

in the 2008 Final Rule, but was 

eliminated in the NPRM. The NPRM 

proposed to require that advertisements 


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contain the geographic area of intended 

employment with enough specificity to 

apprise applicants of any travel 

requirements and where applicants will 

likely have to reside to perform the 

labor or services. Therefore, the 

Department does not believe this to be 

a significant burden warranting a 

special definition of employer for the 

shearing industry. 

This commenter also asserted that 

sheep shearing contractors will have to 

file separate applications for each area 

of intended employment and in some 

cases may have to file two different 

applications for one area of intended 

employment, if the contractor must 

return to the same area of intended 

employment after moving to a different 

area of intended employment. This 

commenter points out that under the 

1987 Rule and the 2008 Final Rule there 

were special procedures for shearing 

contractors that provided for itinerary 

work and required only one application. 

The NPRM did not remove the special 

procedures at § 655.102. In addition, the 

‘‘Special Procedures for Employers in 

the Itinerant Animal Shearing Industry 

Under the H–2A Program’’ found in 

Training and Employment Guidance 

Letter No. 17–06 are still in effect and 

would permit a sheep shearing 

employer to file an itinerary-based 

application. Therefore, the Department 

is not persuaded that this is a valid 

reason to exempt shearing contractors 

from the definition of an H–2ALC. 

e. Job Opportunity 

One commenter opined that the new 

definition of job opportunity offered by 

the NPRM was not as specific as the 

1987 Rule because it does not include 

the words job opening. The commenter 

contended that a definition of job 

opportunity without a reference to a job 

opening is invalid. The Department 

disagrees. There is no meaningful 

distinction between the two concepts 

and adding the phrase job opening 

would be redundant. 

f. Job Order 

The definition of job order has been 

modified in this Final Rule to add the 

word material for consistency with the 

definitions of job offer and work 

contract. 

g. Master Application 

The NPRM proposed to include a 

definition of master application. 

Although we did not receive comments 

directly addressing the definition, based 

on comments received on the treatment 

of master applications in § 655.131(b), 

we are clarifying several aspects 

including that a master application may 

cover multiple areas of intended 

employment within a single State but no 

more than two contiguous States. These 

clarifications are discussed in more 

detail in the preamble for that section. 

h. Positive Recruitment 

The 2008 Final Rule definition 

included the concept of interviewing 

qualified and eligible individuals. The 

NPRM added the language that positive 

recruitment is performed under the 

auspices and direction of the OFLC. The 

Department received no comments on 

the definition of this term; therefore, the 

definition is unchanged in the Final 

Rule. 

i. Prevailing Practice 

The 2008 Final Rule defined the term 

prevailing whereas the NPRM defined 

the term prevailing practice. We have 

returned to the formulation used in the 

1987 Rule which defines prevailing 

practice. This definition applies to 

certain terms of employment, e.g., 

family housing, which must be offered 

by employers if they reflect prevailing 

practice, i.e., are offered by a majority of 

the employers employing a majority of 

the workers in the area. Since the term 

prevailing wage is otherwise defined, 

there is no need for a definition of the 

term prevailing. 

j. Prevailing Wage 

The NPRM defined prevailing wage as 

the wage established under 20 CFR 

653.501(d)(4). The Department received 

no comments on this change. Therefore, 

the Final Rule adopts the language of 

the NPRM without change. 

k. Successor in Interest 

The NPRM proposed no substantive 

changes to the definition of successor in 

interest; however, it added one factor to 

the circumstances that may be 

considered in determining whether an 

employer is a successor in interest. The 

change clarified that whether the former 

management or persons with an 

ownership interest in the prior firm 

retain a management interest in the 

successor firm may be considered in the 

successor determination. One 

commenter opposed the proposed 

clarification, but did not provide a 

reason for its opposition. The definition 

is adopted as proposed. 

l. United States 

The NPRM included in the definition 

of United States language regarding the 

transition program effective date of the 

application of Federal immigration law 

to the Commonwealth of the Northern 

Mariana Islands (CNMI). That transition 

program effective date having passed, 

we have accordingly deleted that 

language as CNMI now is included 

automatically in the definition of United 

States under U.S. immigration law. 

m. United States Worker 

The NPRM included a definition of 

U.S. workers that referenced, as did the 

2008 Final Rule, the INA. Although no 

comments were received on this 

definition we have edited the definition 

for clarity. 

3. Section 655.103(c) Definition of 

Agricultural Labor or Services 

The NPRM proposed to modify the 

definition of agricultural labor or 

services in several ways. It proposed to 

retain all three of the statutory 

definitions set forth in the INA, which 

include agricultural labor as defined in 

sec. 3121(g) of the Internal Revenue 

Code of 1986 (IRC), agriculture as 

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

Standards Act (FLSA), and the pressing 

of apples for cider on a farm, 8 U.S.C. 

1188(a)(15)(H)(ii)(a). The NPRM 

proposed to remove three provisions 

from the definition. The first expressly 

provided that an activity is agriculture, 

even though it meets only one of the 

statutory definitions. The second 

allowed H–2A employees to engage in 

certain activities that are not included 

in the statutory definitions, provided 

that H–2B workers were not performing 

the same work in the same place. The 

third allowed H–2A workers to perform 

work that was not listed on the 

Application for Temporary Employment 

Certification (Application), so long as it 

was less than 20 percent of the work 

and incidental to the agricultural work 

performed. The Final Rule retains the 

first provision that had been proposed 

for removal but removes the latter two 

provisions. The NPRM also had 

proposed to retain logging employment 

in the definition and to add 

reforestation and pine straw activities. 

The Final Rule retains logging, but does 

not add reforestation and pine straw 

activities. 

The IRC and FLSA definitions include 

work performed by a farmer or on a farm 

cultivating, raising, or harvesting crops 

and raising livestock and other animals 

and bees, including the operation and 

maintenance of the farm. The IRC 

definition also includes the packing and 

processing of agricultural and 

horticultural commodities so long as 

more than half of the commodities are 

produced by the farmer performing the 

packing and processing. 

The FLSA definition has been 

interpreted to have a primary meaning 

(e.g., production, cultivation, growing 

and harvesting of any agricultural or 


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horticultural commodities) as well as a 

broader secondary meaning that 

includes any practices 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, 

and delivery to carriers for 

transportation to market. 

In 2008, changes to FLSA regulations 

at 29 CFR part 780 and 29 CFR part 788 

addressing Christmas tree production 

were published simultaneously with the 

H–2A regulations. These changes to 

FLSA regulations did not change the 

applicability of H–2A to Christmas tree 

production. The H–2A definition of 

agricultural labor or services includes 

the IRC definition of this term. The IRC 

recognizes as agricultural labor those 

services performed in the employ of any 

person in connection with the planting, 

raising, cultivating, and harvesting of 

Christmas trees when such services are 

performed on a farm. Therefore, such 

activities come within the scope of H– 

2A. 

a. An Occupation Included in Either 

Statutory Definition 

The NPRM proposed the removal of a 

clarifying sentence stating that an 

occupation included in either the IRC or 

the FLSA definition is considered 

agricultural labor or services even 

though the occupation does not appear 

in both definitions. This means that if 

the work is within the scope of either 

the IRC or the FLSA definition of 

agriculture, then the work is within the 

scope of the H–2A program. Although 

the Department believed that this 

principle was clear and the provision 

superfluous, several commenters found 

it useful. The Final Rule reinstates the 

deleted sentence, with slight editorial 

modifications. 

b. Removal of Handling, Packing, 

Processing, and Other Non-Agricultural 

Activities Where the Farmer Processed 

Less Than 50 Percent of the Commodity 

The NPRM also proposed the removal 

of the definition of agricultural labor 

and services that had been added in the 

2008 Final Rule that permitted 

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 while in the employ of the 

operator of a farm where no H–2B 

workers are employed to perform the 

same work at the same establishment. 

This provision allowed activities 

defined as nonagricultural work under 

the FLSA and the IRC to be performed 

by H–2A workers, so long as no H–2B 

workers were employed at the same 

worksite doing the same work. The 

Final Rule adopts the proposed 

deletion, returning to the definition 

used in the 1987 Rule. 

A few commenters sought the 

Department’s rationale for the removal 

of this language. One commenter 

expressed disappointment regarding the 

proposed removal, asserting that it was 

a major change that would impact 

packing houses that might not be able to 

obtain workers through the H–2B 

program due to the annual cap on that 

program. This commenter further 

asserted that since such H–2B workers 

often worked alongside H–2A workers 

and their jobs are clearly in the stream 

of agriculture, the language should be 

re-inserted. 

The 2008 Final Rule’s definition was 

problematic because it allowed a farmer 

to employ both H–2A workers and H– 

2B workers to perform identical work, 

so long as the H–2A workers and the H– 

2B workers were employed in different 

locations. Congress clearly intended to 

create two separate programs: H–2A for 

agricultural work and H–2B for other, 

nonagricultural work. Compare 8 U.S.C. 

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

1101(a)(15)(H)(ii)(b). A regulation that 

allows H–2A workers and H–2B workers 

to perform the same activity is 

inconsistent with this Congressional 

intent. Furthermore, Congress has 

already addressed the proper 

classification of packing and processing 

work by including the IRC definition, 

which specifies that these activities are 

considered agricultural labor only if 

more than 50 percent of the commodity 

on which the work is being performed 

has been produced by the farmer. In 

other words, work in a packing shed on 

a farm, packing apples or peaches which 

are grown on the same farm, falls within 

the definition and thus within the H–2A 

program. However, if more than 50 

percent of the apples or peaches being 

packed come from other farms, the work 

is no longer considered agriculture. 

The Department believes that this 

statutory limitation is meaningful, and 

that Congress intended it to apply to 

different types of work. As a result, the 

Department has determined that it is 

appropriate to return to the definition of 

agriculture as set forth in the 1987 Rule 

and has deleted this provision. 

c. Removal of Minor and Incidental 

Activities 

Further, the NPRM proposed the 

removal of the phrase other work 

typically performed on a farm that is not 

specifically listed on the Application 

and is minor (i.e., less than 20 percent 

of the total time worked) and incidental 

to the agricultural labor or services for 

which the H–2A worker was sought. 

Several commenters objected to this 

change, asserting that the removal of 

this language would unfairly limit their 

flexibility in assigning H–2A workers to 

different kinds of work, and/or to work 

which was not listed on the job order. 

Commenters also expressed fears that 

the removal of the 20 percent tolerance 

for work that is not listed on the 

Application would subject employers to 

debarment if H–2A workers perform 

work that is outside the scope of the job 

order for even a small fraction of their 

time. 

The comments appear to reflect a 

misunderstanding of the 2008 Final 

Rule’s use of the terms minor and 

incidental. For example, commenters 

complained that they would no longer 

be able to assign H–2A workers to such 

nonagricultural work as directing traffic 

at retail outlets (as opposed to roadside 

stands selling agricultural goods 

produced on the farm), and unloading 

truckloads of purchased merchandise 

(as opposed to farm products) to be 

offered for sale to retail customers. 

These activities are not incidental to the 

agricultural activities performed by 

H–2A workers, and they do not appear 

to relate to agriculture in any way. In 

light of these comments, it appears that 

the language added to the definition of 

agriculture led to confusion rather than 

clarification. 

On further review, the Department 

believes that the proposed return to the 

1987 Rule definition still provides 

farmers adequate flexibility in the use of 

H–2A workers, while respecting 

congressional intent that the work be 

agricultural in nature. These workers 

can, for example: Work at a farmer’s 

roadside retail stand; handle, package or 

sell agricultural or horticultural goods 

produced on the farm; or perform 

maintenance work on farm buildings 

and machinery. These activities are 

performed by a farmer or on a farm and 

are incidental to farming operations, 

and therefore meet the FLSA definition 

of agriculture. In addition, the IRC 

definition of agricultural labor or 

services encompasses a broad range of 

activities, such as the management of 

wildlife on a farm, the ginning of cotton, 

or the handling, planting, drying, 

packing, packaging, processing, 

freezing, grading, storing, or delivering 

to storage or to market, of any 

agricultural or horticultural commodity, 

as long as more than 50 percent of the 

goods were produced by the farmeremployer. These definitions provide 

considerable latitude to the employer as 

to the type of work for which H–2A 


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workers may be used. They have been 

used for decades and are well 

understood. 

Further, the INA is clear that in order 

for the Secretary to certify a petition, an 

applicant must demonstrate that there 

are not sufficient workers to perform the 

labor or services involved in the 

petition. It is incongruous to claim that 

such a broad degree of flexibility is 

needed to encompass work that has not 

yet been identified, while representing 

in the Application for H–2A workers 

that there are not enough U.S. workers 

available to perform such work. To 

approve an Application that would 

allow a worker to perform a substantial 

amount of work that was not included 

in the Application would not be in 

keeping with the plain statutory 

language requiring the Department to 

find that there are not enough workers 

available to perform the work for which 

H–2A workers are being sought. The 

2008 Final Rule’s 20 percent tolerance 

allowed H–2A workers to work a full 

day a week, every week for the entire 

job order, in work other than that listed 

on the Application. This broad language 

effectively allowed an employer to 

apply for 10 workers although the 

employer had only identified work for 

which eight workers were needed. This 

permitted an employer with a 

substantial number of H–2A workers to 

routinely assign them unadvertised 

work that would have been sufficient to 

support the hiring of additional U.S. 

workers. Such a tolerance is not minor 

and is inconsistent with the statutory 

standard. Therefore, the Final Rule 

deletes this provision from the 

definition. 

Finally, several commenters 

expressed concerns that removing the 

reference to incidental work from the 

definition of agricultural labor or 

services, coupled with proposed 

changes in the provisions addressing 

revocation and debarment, might lead to 

an employer being debarred for having 

assigned a worker outside the scope of 

the job order for even a small fraction 

of time. However, the Department does 

not intend to debar an employer whose 

H–2A workers perform an insubstantial 

amount of agricultural work not listed 

in the Application. In exercising our 

enforcement discretion when an 

employer has worked an H–2A worker 

outside the scope of the activities listed 

on the job order due to unplanned and 

uncontrollable events (such as a freeze 

that prevents planting or heavy rains 

that prevent harvesting), the Department 

will consider the employer’s 

explanation, so long as the activities are 

within the scope of H–2A agriculture, 

have been occasional or sporadic, and 

the time spent in total is not substantial. 

Moreover, the debarment regulations 

require that the violation be substantial, 

and that a number of factors must be 

considered in making that 

determination, including: An 

employer’s previous history of 

violations; the number of workers 

affected; the gravity of the violation; the 

employer’s explanation, if any; its good 

faith; and its commitment to future 

compliance. Under these criteria, the 

good faith assignment of a worker to 

work not listed in the Application for a 

small amount of time would not result 

in debarment. The Final Rule deletes 

the provision providing a blanket 20 

percent tolerance for work outside the 

scope of the Application, as proposed. 

d. Definition of Agricultural Labor or 

Services—Inclusion of Reforestation and 

Pine Straw Activities 

The Department proposed that the 

definition of agricultural labor or 

services include reforestation activities, 

defined as predominately manual 

forestry work including but not limited 

to tree planting, brush clearing, and precommercial tree thinning. It also 

proposed to include pine straw 

activities, defined as certain activities 

predominately performed using hand 

tools, including but not limited to 

raking, gathering, baling, and loading of 

pine straw, a product of pine trees that 

are managed using agricultural or 

horticultural/silvicultural techniques. 

Currently, employers engaged in these 

activities may use the H–2B program. 

Reforestation, a sub-industry of forestry, 

is commonly performed by migrant 

crews who are overseen by labor 

contractors and share the same 

characteristics as traditional agricultural 

crews. The same reasoning was used in 

proposing to include pine straw 

activities within the scope of the H–2A 

program. Overwhelmingly, the 

comments were opposed to adding 

reforestation activities and pine straw 

activities to the H–2A program. We are 

convinced by these comments and 

therefore the Final Rule does not 

include reforestation and pine straw 

activities. 

A number of employer commenters 

claimed that the way in which contracts 

are awarded to reforestation companies 

would preclude applicants from being 

able to file H–2A applications in 

realistic timeframes and would make it 

difficult to comply with H–2A 

provisions; they asserted that such 

contracts are often for short duration, 

making it particularly difficult to 

provide documentation that housing, 

typically hotels or motels, had been 

secured far in advance. Some of the 

commenters projected their increased 

costs and predicted the costs could put 

them out of business or preclude them 

from using the program to employ an 

authorized workforce. 

Employee advocates indicated they 

were concerned about moving such 

workers into the H–2A program, since 

such a change would mean these 

workers would lose the protections 

afforded to them by the MSPA, 

particularly the right to a Federal cause 

of action to enforce these rights, replete 

with statutory liquidated damages for 

violations. Commenters indicated that 

the loss of protections under MSPA 

outweighed whatever additional 

benefits or protections inclusion in the 

H–2A program would offer. Several 

commenters suggested that the better 

course of action would be for the 

Department to provide additional 

protections to these workers through 

changes in the regulations that govern 

the H–2B program. 

Only a few commenters supported the 

proposed change. One stated that the 

activities were agricultural and thus it 

was unreasonable for forestry 

contractors to have all the regulatory 

responsibilities of agricultural 

employers but be denied access to 

agricultural labor under the H–2A visa 

program. Others supported the change 

based on the reasons the Department 

had used in making the proposal. A 

State agency supported the proposal but 

cautioned there would be increased 

efforts and costs for their agency to carry 

out additional housing inspections and 

prevailing wage and practices surveys. 

We received only one comment that 

specifically addressed the proposed 

inclusion of pine straw activities, and it 

supported the inclusion based on a 

circuit court decision that found that 

these activities fell within the definition 

of agriculture under MSPA. We note 

that the court in this decision did not 

rely on the definitions of agriculture 

used in either the FLSA or the IRC, 

which are the statutory definitions 

included in the H–2A program. See 

Morante-Navarro v. T & Y Pine Straw, 

Inc., 350 F.3d 1163 (11th Cir. 2003). 

Taking into account the lack of 

support from all sides to the proposed 

inclusion of reforestation activities and 

pine straw activities in the H–2A 

program, the Department has decided 

not to include these activities in the 

definition of agricultural labor or 

services in the Final Rule. We will 

consider whether it is appropriate to 

propose additional protections for these 

workers in any future revision of the H– 

2B program. 


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e. Definition of Agricultural Labor or 

Services—Logging 

The NPRM proposed to keep logging 

in the H–2A program; however, the 

definition section of the NPRM 

proposed a more detailed definition of 

logging employment. The justification 

for this decision to include logging in 

the definition was contained in the 

preamble to the 2008 Final Rule. 

The Department received some 

comments on the inclusion of logging in 

general and the definition in particular. 

One commenter indicated no opposition 

to the inclusion of logging in the 

definition of agricultural labor or 

services but noted that the Department 

offered no justification for inclusion of 

logging in the NPRM. Another 

commenter stated that the rationale for 

including logging in the definition is 

inconsistent with prior regulations and 

principles of statutory interpretation. 

This commenter asserted that the 

statutory language of 8 U.S.C. 

1101(a)(15)(H)(ii)(b) clearly 

encompasses all temporary service or 

labor other than agricultural labor or 

services, and argued that the 

Department arbitrarily used the phrase 

agricultural labor or services (defined by 

several statutory provisions) as 

authority to expand the scope of the H– 

2A program to cover virtually all work 

with renewable natural resources. The 

commenter argued that the division of 8 

U.S.C. 1101(a)(15)(H)(ii) into (a) and (b) 

(devolving into the H–2A and H–2B 

programs) was not intended to grant the 

Department unlimited discretion to 

make legislative changes, as proposed in 

§ 655.103(b). 

The same commenter asserted that the 

inclusion of logging in the definition as 

in 2008 would constitute a substantial 

change from past practice that does not 

protect U.S. workers. This commenter 

also contended that moving these 

workers from a visa program with caps 

to one without statutory caps would not 

assist in protecting them from 

exploitation by labor contractors. 

Instead the commenter proposed that 

the more stringent labor protections 

applicable to H–2ALCs be incorporated 

into the H–2B regulations for all 

temporary foreign workers not working 

at fixed locations. 

The Department disagrees with this 

commenter. Congress clearly gave the 

Secretary authority to define 

agricultural labor and services through 

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

As stated previously, the Department’s 

rationale was discussed in detail in the 

2008 Final Rule. Proposed changes to 

the H–2B regulations are not a part of 

this rulemaking. 

A reforestation contractor noted that 

logging was included under the H–2A 

program due to misconceptions about 

the industry, namely that the companies 

are mainly labor contractors who hire 

and move migrant crews. This 

commenter indicated that several 

logging employers would be interested 

in using temporary, seasonal foreign 

workers to fill labor shortfalls if the 

program allowed for working conditions 

and benefits that are common to 

prevailing logging employer practices. 

The commenter did not specify the 

prevailing logging practices being 

referenced; however, we believe that 

inclusion of logging activities in the 

H–2A program appropriately balances 

the interests of logging employers and 

workers. 

A State agency indicated that the 

Department’s definition of logging 

operations is consistent with the 

definition used by the Occupational 

Safety and Health Administration 

(OSHA) and commended the 

Department. However, the commenter 

was concerned that the definition of 

logging employment might encompass 

certain positions such as logging 

supervisors, mechanics, mechanics’ 

helpers, and operations engineers (who 

cut and maintain roads for access). The 

commenter stated that these positions 

do not meet the standards for H–2A 

agricultural employment and do not 

constitute employment on an 

agricultural employer’s farmstead. This 

commenter requested that the 

Department clarify that these positions 

are not included in the H–2A program. 

The NPRM definition identifies the 

types of logging activities for which 

labor certification may be granted. We 

did not intend to change the scope of 

logging activities adopted by the 2008 

Final Rule and therefore employees who 

were previously granted logging status 

may continue to be certified under the 

definition now contained in the H–2A 

program. The Final Rule retains the 

language from the NPRM. 

4. Section 655.103(d) Temporary or 

Seasonal Nature 

a. General Comments Regarding 

Temporary or Seasonal Nature 

The NPRM proposed to adopt the 

definition of temporary or seasonal 

nature currently used by DHS in its H– 

2A regulations. The Department 

received more than a dozen comments 

on this proposed change in the 

definition. All of them opposed the 

change. Many found that there was no 

rational basis for the change and stated 

that the preamble explanation was 

insufficient. Many said that the existing 

definition had worked effectively for 

more than 20 years and should be 

retained. Of those who explained why, 

the primary reason stated was that the 

DHS definition is meant to apply to the 

worker, not the employer, and DOL is 

tasked with determining the needs of 

the employer rather than the worker; 

therefore, the DHS definition used in 

the NPRM is inappropriate. Many of the 

commenters pointed out that the 

existing definition is well-established 

and is the subject of many years of 

precedential court decisions. These 

commenters asserted that departing 

from this well-established definition 

would be highly disruptive to the 

program. 

Other commenters believe that the 

definition of temporary or seasonal 

nature in the NPRM is too vague and 

requires further delineation if it is to be 

kept. Specifically, these commenters 

point out that adding short to annual 

growing cycle limits the timeframe, and 

the requirement for labor levels far 

above those necessary for ongoing 

operations during that short timeframe 

could exclude small farmers who might 

only need one or two additional 

employees during the peak of their 

season. 

The Department has decided to retain 

the language of the NPRM which was 

not intended to create any substantive 

change in how the Department 

administers the program. If additional 

clarification is needed in the future, we 

will provide such clarification through 

the use of guidance memoranda, 

bulletins, special procedures (as 

applicable) and other guidance 

documentation. 

b. Treatment of the Dairy Industry 

Under the Definition of Temporary or 

Seasonal Nature 

The Department received numerous 

comments requesting the inclusion of 

the dairy industry in the definition of 

agricultural labor or services. 

All of these commenters expressed a 

critical need for foreign labor in the 

dairy industry. Several commenters 

referenced an internal survey of a 

national organization of milk producers 

that indicated that an estimated 62 

percent of milk production on these 

farms was attributed to immigrant labor. 

One commenter asserted that domestic 

workers do not want to fill the available 

jobs in the dairy industry. Another 

commenter stated that a shortage of 

domestic labor is particularly acute in 

this industry, in which employers 

experience year-round employment 

needs and must invest significant 

resources into employee recruitment 

and retention. 


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2The notion that a single point wage would be 

observed for a market in equilibrium is a 

simplification. In the abstract, an equilibrium wage 

is the wage at which the quantity of labor supplied 

by workers matches the quantity of labor demanded 

by employers. In practical reality a range of 

individual wage contract amounts may be observed 

reflecting individual labor productivity differences, 

relative bargaining strengths of contracting parties, 

timing of employment contracts, imperfect 

knowledge of market conditions by one or both 

parties, location factors and a myriad of other 

influences, but this array of individual wage 

contract values yields a particular average as a 

measure of the distribution’s central tendency, and 

this average is conveniently referenced as the 

equilibrium wage. 

3 Including, given enough time, the possibility of 

substitution of capital for labor. 

Most of these commenters sought the 

inclusion of dairy under H–2A special 

procedures, likening the dairy industry 

to sheepherders (and also loggers and 

cider pressers) whose need is not 

temporary, but who enjoy the benefits of 

the program. One commenter argued 

that the industry should be included on 

an expanded temporary basis of 1 year 

at a time. This commenter referred to 

isolated, anecdotal evidence from before 

the passage of the Immigration Reform 

and Control Act of 1986 (IRCA) where 

the Department permitted successive 1- 

year certifications for an employer that 

demonstrated a particular need. 

The determination of whether a 

particular dairy activity is eligible for an 

H–2A certification rests on a finding 

that the duration of the activity and the 

need for that activity is temporary or 

seasonal. The majority of activities 

encompassed by the dairy industry, and 

milk production in particular, are yearround activities and therefore cannot be 

classified as temporary. The Department 

has no legal authority, nor is there 

legislative precedent, that would allow 

for the inclusion of the entire dairy 

industry in the H–2A program. 

Sheepherders, which many of the 

commenters cited as an example of an 

exception to the definition of temporary, 

owe their inclusion in the program to a 

statutory provision dating back to the 

1950s. That legislative inclusion was 

implicitly ratified in IRCA. No such 

legislative inclusion of the dairy 

industry as a whole has yet to be 

provided by Congress. 

Prefiling Procedures 

5. Section 655.120 Offered Wage Rate 

In response to comments, the Final 

Rule adds the agreed-upon collectively 

bargained wage to the list of required 

wage rates. The rationale for this change 

is explained below, after the discussion 

of the AEWR. 

a. The Department’s Execution of the 

Offered Wage Rate 

(i) The Provision of an AEWR in the H– 

2A Program 

The Department has decided to retain 

the concept of an AEWR as part of the 

H–2A program and that the basis for 

computing the H–2A AEWR shall be the 

annual average of combined crop and 

livestock workers’ wages applicable for 

each state as reported by the U.S. 

Department of Agriculture’s (USDA) 

Farm Labor Survey (FLS) reports. This 

section discusses the Department’s 

rationale for retaining the AEWR and 

then discusses the Department’s 

rationale for changing the methodology 

used to calculate the AEWR. 

(ii) The Need for an AEWR 

The admission of temporary foreign 

workers under the H–2A program is 

predicated on a certification by the 

Secretary that 

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)(B)). 

Accordingly, under § 655.120(a) of this 

Final Rule, an employer must offer, 

advertise in its recruitment, and pay a 

wage that is the highest of the AEWR, 

the prevailing hourly wage or piece rate, 

the collectively bargained wage rate, or 

the Federal or State minimum wage, 

except where a special procedure is 

approved. 

This requirement reflects a 

longstanding concern that there is a 

potential for the entry of foreign workers 

to depress the wages and working 

conditions of domestic agricultural 

workers. The AEWR is the minimum 

wage rate that agricultural employers 

seeking nonimmigrant foreign workers 

must offer to and pay their U.S. and 

foreign workers if the prevailing wage 

rate, the collectively bargained wage 

rate, and any Federal or State minimum 

wage rates are below the AEWR. The 

AEWR is designed to prevent the 

potential wage-depressive impact of 

foreign workers on the domestic 

agricultural workforce. The AEWR is a 

wage floor, and its existence does not 

prevent the worker from seeking, or the 

employer from paying, a higher wage. 

From the outset of the Federal 

Government’s involvement in the 

admission of temporary foreign 

agricultural workers, the Government 

has sought to protect similarly 

employed U.S. workers from the 

potential adverse effect such 

employment would have on their wages. 

Since 1953, the Department has 

computed and published AEWRs for the 

temporary employment of 

nonimmigrant foreign workers for 

agricultural employment under various 

admission programs. See H.N. Dellon, 

‘‘Foreign Agricultural Workers and the 

Prevention of Adverse Effect’’, 17 Labor 

Law Journal 739 (1966) for a detailed 

history of the early decades of 

publication of AEWRs by the 

Department. Mr. Dellon’s article notes 

that, as far back as 1953, employers 

seeking to employ foreign nationals to 

work in various crop activities (in that 

case, under the Bracero Program) were 

required to pay not less than a wage 

established by DOL. AEWRs began to be 

set periodically on a statewide basis, 

first for a subset of States based on 

applications for temporary foreign 

workers and subsequently for all States 

(except Alaska). 

As time passed, the establishment of 

AEWRs became more formalized, and 

AEWRs were computed and set for the 

H–2 program as well, after public notice 

and comment. See, e.g., 29 FR 19101– 

19102, Dec. 30, 1964; 32 FR 4569, 4571, 

Mar. 28, 1967; and 35 FR 12394–12395, 

Aug. 4, 1970. 

Economic theory provides the initial 

justification for the use of an AEWR. 

Economic theory holds that, other 

things being constant, any increase in 

the supply of labor available in a labor 

market segment would result in a 

decrease in the equilibrium wage. This 

theory-based observation of the effect of 

increased labor supply is the basis for 

the concern that currently employed, or 

incumbent, farm workers would be 

adversely affected by lowered wages as 

a result of an influx of temporary foreign 

farm workers. 

Similarly, economic theory holds that, 

under conditions of an emerging labor 

shortage, the previously observed wage 

(prevailing local wage) may not reflect 

the equilibrium wage.2 Instead, 

adjustments would occur over time 3

and the observed wage would increase 

by an amount sufficient to attract more 

workers until supply and demand were 

met in equilibrium. Absent an increase 

of workers under the H–2A program, 

wages would rise above the currently 

observed wage in order to dispel the 

labor shortage until sufficient additional 

domestic labor was attracted into the 

market from neighboring geographic 

areas or other occupations. By 

computing an AEWR to approximate the 

equilibrium wage that would result 

absent an influx of temporary foreign 

workers, the AEWR serves to put 

incumbent farm workers in the position 

they would have been in but for the H– 

2A program. In this sense, the AEWR 

avoids adverse effects on currently 

employed workers by preventing wages 

from stagnating at the local prevailing 


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6892 Federal Register / Vol. 75, No. 29 / Friday, February 12, 2010 / Rules and Regulations 

4See Bayer, Patrick, Ross, Stephen, and Topa, 

Giorgio, ‘‘Place of Work and Place of Residence: 

Informal Hiring Networks and Labor Market 

Outcomes.’’ National Bureau of Economic Research 

Working Paper No. 11019, 2005 for a review of 

research regarding the impact of differences in 

access to labor market information and social 

networks in shaping the different wage and 

employment outcomes of different groups of 

workers. See Ozga, S.A., ‘‘Imperfect Markets 

Through Lack of Information.’’ Quarterly Journal of 

Economics, February 1960, 74(1), pp. 29–52, for a 

theoretical discussion of the effects of imperfect 

information flows on labor market dynamics. See 

Holzer, Harry J., ‘‘Informal Job Search and Black 

Youth Unemployment.’’ American Economic 

Review, June 1987, 77(3), pp. 446–452 for a 

discussion of how minorities, and especially youth, 

are disadvantaged by the relative inefficiency of 

their informal job search and labor market 

information networks. 

5Based on analysis of 2005–2009 data from the 

Current Population Survey (CPS), Annual Social 

and Economic Conditions Supplement. The 

analysis of CPS data was restricted to U.S. citizens 

because non-citizens in the sample could not be 

identified as legally documented residents or not. 

6Under the 2008 Final Rule, which also retained 

the concept of an AEWR, the methodology used to 

calculate the AEWR was such that the AEWR was 

essentially the same as the prevailing wage. 

wage rate when they would have 

otherwise risen to a higher equilibrium 

level over time. 

In practical application, there are a 

number of obstacles and limitations that 

hinder the market adjustment process to 

an equilibrium wage as indicated by the 

theoretical labor market analysis. 

Foremost of these is the limitation 

imposed by inefficiency in the 

transmission of information about labor 

market conditions (job openings, revised 

wage offers, conditions of employment, 

etc.) across both physical and social 

distances. Information transmission 

inefficiencies affect all labor markets. 

Most jobs in the U.S. are filled through 

informal information and referral 

processes. It has been estimated that 

fewer than 20 percent of job openings 

are listed on public labor exchange 

information systems or advertised in 

public media.4

Farm workers are especially likely to 

be disadvantaged in terms of access to 

information about new or changing 

labor market conditions or job 

opportunities. The physical distances 

and relative social isolation typical of 

many rural environments slows the 

transmission of information by word-ofmouth. Even though seasonal migrant 

workers may move great distances from 

one crop area to another over the course 

of the planting, tending and harvesting 

seasons, their knowledge is often 

limited to a familiar circuit of 

employment opportunities, and they 

often lack rapid access to information 

that would enable them to alter routine 

migration patterns to take advantage of 

new opportunities. The low educational 

attainment of farm workers is a major 

barrier to efficient access and rapid 

response to changing labor market 

conditions. Over 45 percent of U.S. 

citizens who are employed as hired farm 

workers do not have a high school 

diploma, and 21 percent of U.S. citizens 

employed as hired farm labor have less 

than a 10th grade education.5 These 

farm workers with low educational 

attainment, numbering over 246,000 

U.S. citizens, and many more if 

permanent resident non-citizens are 

included, often have limited reading 

ability and limited access to newspapers 

and other media in which job 

opportunities and wage offers might be 

advertised. They are also 

disproportionately poor, and their 

economic status may limit their 

physical access to public labor market 

information and assistance resources. 

The resulting limitations in the flow 

of labor market information hinder the 

rapid adjustment of wages to a market 

equilibrium level. This situation can 

lead to localized short-run critical 

shortages of farm labor and result in 

spikes in farm labor wages that are 

much greater in magnitude than would 

be the case if information flowed more 

readily and markets adjusted more 

rapidly to a final equilibrium. Wide 

fluctuations in local wages may create a 

hardship for farmers who need to plan 

financially for expected labor costs. 

Unexpectedly large increases in labor 

costs may reduce profits. Shortages of 

labor at critical times may cause 

tangible waste if crops cannot be 

harvested at the appropriate time. It was 

in part to alleviate such difficulties 

facing farmers, as well as to discourage 

the unauthorized employment of 

workers, that Congress enacted 

legislation to facilitate the temporary 

importation of foreign labor to meet 

short-term gaps in the domestic supply 

of labor in critical locales. However, 

Congress also recognized the need to 

protect the wages and access to jobs of 

citizens and other permanent residents 

employed in the farm labor sector, and 

Congress placed with the Secretary the 

responsibility to ensure that the process 

of importation of foreign labor to aid 

farmers did not cause damage to the 

economic condition of domestic farm 

workers. 

The apparent existence of a shortage 

of domestic workers, at least 

temporarily, is the basis on which 

employers apply to import temporary 

foreign H–2A workers. The requirement 

that employers first attempt to recruit 

domestic labor by listing job openings 

and wage offers with SWAs which are 

part of the public labor exchange system 

and to advertise openings in appropriate 

media is an essential part of the process 

of protecting domestic workers. 

However, as a result of the known 

limitations faced by farm workers in 

obtaining information from these 

sources, there may not be enough time 

for additional domestic workers to enter 

the local farm labor market. In such 

cases, because there is a long history of 

temporary migrant work in the U.S. and 

because the potential supply of foreign 

low-wage agricultural workers is great, 

the importation of foreign workers 

might more expediently address the 

labor shortage. However, because such 

an influx of labor would imply that the 

wages of incumbent domestic workers 

would not adjust upward, the use of an 

AEWR circumvents this adverse affect 

on incumbent workers. 

(iii) The Use of the Prevailing Wage 

Does Not Provide Sufficient Protection 

A farm association commented that 

there is no valid economic justification 

for a separate AEWR standard in 

addition to the prevailing and statutory 

minimum wage. Another comment 

suggested that the concept of an AEWR 

is an outdated notion. They stated that 

the AEWR was created at a time when 

there was no Federal minimum wage for 

agricultural employees. The purpose of 

the AEWR, therefore, was to create a 

floor on the prevailing wage rate. 

Subsequently, the Government has 

established a Federal minimum wage for 

agricultural employees. The commenter 

asserted that once the agricultural 

minimum wage was established, the 

AEWR was retained simply as a matter 

of economic theory. The commenter 

further contended that keeping an 

AEWR that is higher than the prevailing 

wage actually has an adverse effect on 

employment of U.S. workers because it 

precludes access to jobs that would 

otherwise be available if there were a 

competitive wage. The commenter 

stated that he has moved to less laborintensive farm practices as a direct 

result of the higher than market wage 

rate he has to pay based on the AEWR. 

The commenter concluded that there 

is no current reason to have an AEWR. 

The commenter proposed that the 

Department refrain from further efforts 

to determine which of several flawed 

surveys are appropriate for the AEWR. 

Instead the Department should 

eliminate the AEWR and use the 

prevailing wage as the baseline for the 

H–2A program. 

An AEWR distinct from a prevailing 

wage concept 6 is most relevant in cases 

in which the local prevailing wage is 


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7Evidence suggests that the AEWR would be the 

highest of the computed wage alternatives, and 

therefore binding on employers, in the vast majority 

of cases. In Fiscal Year (FY) 2009, the AEWR was 

not applicable in only 10 percent of the cases 

certified under the Rule before the 2008 Final Rule. 

lower than the wage considered over a 

larger geographic area (within which 

movement of domestic labor is feasible) 

or over a broader occupation/crop/ 

activity definition (within which 

reasonably ready transfer of skills is 

feasible). In such cases, the introduction 

of foreign workers paid at the local 

prevailing wage fails to account for the 

fact that the labor shortage would have 

otherwise resulted in higher local 

wages. The use of the observed local 

prevailing wage would adversely affect 

domestic workers by filling job 

vacancies with foreign workers before 

wages were allowed to adjust upward to 

alleviate the labor shortage in the 

imperfectly functioning labor market 

information system. 

Thus, to more fully protect domestic 

workers from the adverse effects of 

temporary foreign workers, it is 

appropriate to compute wages based on 

a broader geographic area or broader 

occupation definition than the more 

specific prevailing wage computation 

when the local prevailing wage is below 

the average found in the broader market 

area. In this case, application of the 

AEWR is an attempt to approximate the 

equilibrium wage that would have 

resulted but for the introduction of 

foreign workers. The AEWR is, in 

essence, a prevailing wage concept 

defined over a broader geographic or 

occupational field, recognizing the 

relevant parameters over which wages 

could have adjusted to an equilibrium 

level in the absence of additional 

temporary workers under the H–2A 

program. 

In cases in which the AEWR is not 

higher than the prevailing wage, 

minimum wage, or collectively 

bargained wage, incumbent domestic 

workers would be disadvantaged by the 

use of the AEWR instead of the higher 

alternative.7 In these cases, the local 

shortage of labor exists despite a wage 

rate prevailing at a local level (or a 

mandated minimum wage or a 

collectively bargained wage) that is 

generally higher than wage average over 

a broader area, suggesting that wages 

have not fully adjusted to an 

equilibrium level. Therefore, in these 

cases, the AEWR is not binding on 

employers because use of a higher 

alternative wage would afford greater 

protection to incumbent workers. The 

difference between the local prevailing 

wage (which would be paid to 

temporary foreign workers) and the 

lower wage in the broader geographic or 

occupational definition area 

(represented by the AEWR) provides an 

incentive for domestic resident workers 

to shift their labor supply into the 

affected market and to benefit from 

additional employment opportunities 

and potentially higher wages than are 

available to them elsewhere. Because 

employers would otherwise be 

compelled to pay the minimum wage 

(by law), the collectively bargained 

wage (by contract) or the prevailing 

wage (by market forces), the Final Rule 

only codifies what the employers would 

otherwise do. The requirement that 

imported foreign temporary workers be 

paid no less than the highest of the 

AEWR, the local prevailing wage, the 

collectively bargained wage, or the 

applicable legal minimum wage ensures 

that domestic workers receive the 

greatest potential protection from 

adverse effects on their wages and 

working conditions, including the 

adverse effect of being denied access to 

the opportunity to earn a higher 

equilibrium wage that would have 

resulted as the market (perhaps slowly) 

adjusted in the absence of the guest 

workers. 

(iv) Evidence of Current Wage 

Depression Is Not Needed 

Citing various sources of evidence, 

some comments have suggested that the 

use of an AEWR is not justified because 

there is no evidence of wage depression 

in agriculture. One farm organization 

noted that, in the proposed rule, the 

Department justified the use of an 

AEWR despite the fact that the 

Department readily acknowledges that 

evidence is not conclusive on the 

existence of past adverse effect. 

Similarly, another association of 

agricultural employers asserted that 

there is no longer a rationale for an 

AEWR because wages in the agricultural 

industry have increased over time. 

First and foremost, regardless of any 

past adverse effect that the use of lowskilled foreign labor may or may not 

have had on the wages paid to 

authorized agricultural workers, the 

Department considers the forwardlooking need to protect U.S. workers 

whose low skills make them particularly 

vulnerable to even relatively mild—and 

thus very difficult to capture 

empirically—wage stagnation or 

deflation that has the potential to result 

from the hiring of immigrant labor. The 

lack of evidence of wage depression at 

present is not evidence that an AEWR 

is unnecessary; rather, it may be 

evidence that the imposition of the 

AEWR heretofore has been successful in 

shielding domestic farm workers from 

the potentially wage depressing effects 

of overly large numbers of temporary 

foreign workers. The fact, discussed 

below, that the localized wage adopted 

as the AEWR in the 2008 Final Rule has 

led to significant decreases in farm 

worker wage in many cases suggests that 

an AEWR linked to a wider geographic 

area and a wider spectrum of 

occupations has provided the protection 

it was intended to provide. 

Furthermore, the Department 

recognizes that the empirical evidence 

is inconclusive about the past impact of 

immigration on wages and believes that 

the provision of an AEWR in the face of 

such uncertainty will serve to ensure 

that wages and working conditions are 

not adversely affected. The 2008 Final 

Rule reviewed evidence on the 

depressive effects of immigration on 

wages and explicitly reiterated the 

conclusion stated in the 1989 Rule that 

evidence of wage depression in the 

agricultural sector was inconclusive. 73 

FR 77168, Dec. 18, 2008. In the 1989 

Rule, the Department noted that some 

studies had identified wage depression 

in specific agricultural labor markets, 

but labeled that evidence anecdotal. The 

Department further noted that even this 

anecdotal evidence of wage depression 

was highly localized and concentrated 

in specific areas and crop activities. 54 

FR 28043, Jul. 5, 1989. 

According to the 2008 Final Rule 

preamble, evidence developed during 

the 20 years after the 1989 Rule did not 

provide additional clarity on the issue 

of wage depression. The 2008 Final Rule 

cited experts who continued to claim 

that unauthorized workers cause wage 

depression (e.g., Michael J. Wishnie, 

‘‘Prohibiting the Employment of 

Unauthorized Immigrants: The 

Experiment Fails’’, 2007 U. Chic. Leg. 

For. 193, 215 (2007) (asserting that 

unauthorized workers certainly 

contributed to the depression of wages 

and working conditions for U.S. 

workers). However, the rule also cited 

experts who suggested that the evidence 

was mixed. Thus, the 2008 Final Rule, 

after considering the comments received 

on the subject of wage depression, and 

after reviewing relevant literature in an 

attempt to identify empirical support for 

the assertions made in those comments, 

reaffirmed the Department’s conclusion 

in the 1989 rulemaking that evidence of 

wage depression in the agricultural 

sector is inconclusive. Furthermore, the 

2008 Final Rule also stated that: there is 

no conclusive evidence one way or the 

other regarding the existence of wage 

depression in localized agricultural 

labor markets. 73 FR 77168–77169, Dec. 

18, 2008. 


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8The ability of unauthorized workers to move 

readily between agricultural jobs and jobs in other 

industries such as construction may account for the 

lack of evidence of wage depression. In contrast, 

workers admitted under the H–2A program are 

restricted to working only in the agricultural sector, 

and therefore the wage-depressive effects of the 

influx of such workers are concentrated. 

Additional research not previously 

considered suggests that any adverse 

wage effects would be more likely to 

affect lower-skill workers. See Pia M. 

Orrenius, Michael Nicholson, 

‘‘Immigrants in the U.S. Economy: A 

Host-Country Perspective,’’ Journal of 

Business Strategies, vol. 26, 2009, which 

concludes that those who suffer the 

most severe negative wage impacts are 

prior immigrants, who are the most 

substitutable for new immigrants. See 

also Vernon M. Briggs Jr., ‘‘Illegal 

Immigration: The Impact on Wages and 

Employment of Black Workers,’’ U.S. 

Civil Rights Commission, April 4, 2008, 

Washington, DC, which suggests that 

low skilled workers, many of whom are 

black, have been more dramatically 

affected by immigration over time. 

Most contemporary research on the 

economic impacts of immigration deals 

with the effects of permanent 

immigration (whether authorized or not) 

on wages of incumbent workers across 

the economy generally, and not 

specifically in agriculture. To some 

extent it is not surprising that the results 

are unclear, because the effects of 

increased labor supply in particular 

labor markets from immigration are at 

least partially (and perhaps more than) 

offset in general economic equilibrium 

terms by the increase in aggregate 

demand from the formation of new 

households. The specific labor market 

impacts of permanent immigrants are 

also attenuated by the fact that 

immigrants are not limited by law to 

particular industries, occupations or 

places of residence. They may adapt to 

current economic conditions and seek 

opportunities in relatively fast growing 

economic areas where their potentially 

negative impact on wages is subsumed 

under a strong upward trend. 

For several reasons, temporary 

authorized importation of foreign farm 

labor may differ from permanent 

immigration in its impact on labor 

markets. The guest workers are by 

definition admitted for only a temporary 

time, and their shelter and sometimes 

food are provided by the employer. 

They do not bring family; they do not 

set up permanent households; most of 

their earnings return to their home 

countries so that they add relatively 

little to the domestic economy; and their 

labor is not transferable to other 

industries where wages and jobs may be 

growing faster. The Department is 

concerned that the potential adverse 

impact on domestic workers of large 

numbers of authorized temporary 

foreign workers admitted under the H– 

2A program may be greater than the 

negative impact (if any) of similar 

numbers of permanent immigrants who 

contribute positively to aggregate 

economic demand through household 

formation and whose impact on 

agricultural wages may be reduced by 

their potential mobility to move into 

other industries. 

Thus, in light of the uncertainty about 

the wage effects of immigration and the 

likelihood that any impact would be felt 

more severely by low-skill workers, the 

Department believes that the risk of 

wage depression must be recognized 

and therefore that there is a rational 

basis for the use of an AEWR. 

The Department also recognizes the 

potential for the presence of 

unauthorized workers to exert a 

stagnating influence on agricultural 

wages. Evidence from the National 

Agricultural Workers Survey (NAWS) 

suggests that about 60 percent of hired 

farm workers may not have legal 

authorization to work. This large 

presence of unauthorized workers in the 

agricultural workforce heightens the 

concern about stagnating agricultural 

wages for authorized workers.8

(v) The AEWR Is Unique to the H–2A 

Program 

One commenter focused on an 

apparent inconsistency between the H– 

2A program and other temporary worker 

programs, none of which requires an 

AEWR in addition to a prevailing wage, 

suggesting that, because there is no 

provision for an AEWR in other guest 

worker programs, there is no 

justification for providing for an AEWR 

in the H–2A program. 

For other programs, the Department 

currently applies the assumption that 

U.S. workers in the same occupation 

will be adequately protected from 

having their wages adversely affected by 

the hiring of foreign workers so long as 

the workers are paid prevailing wage 

rates. Congress itself has applied this 

assumption by statute with respect to 

admitting foreign workers under the 

H–1B program. 8 U.S.C. 1182(n)(1)(A), 

1182(p). 

However, the Department established 

special adverse effect wage rates for the 

H–2A program. The very existence of a 

separate program for temporary guest 

workers in agriculture demonstrates that 

the agricultural industry is unique and 

that temporary foreign agricultural 

workers, and domestic resident 

agricultural workers in general, may be 

quite different than workers in other 

industries subject to the H–1B and H– 

2B programs. Workers in agricultural 

labor or services often perform work in 

remote locations for short periods of 

time and therefore may have little or no 

access to community or government 

resources, decreasing their ability to 

obtain information about alternative 

employment opportunities that could 

enable them to bargain more effectively. 

In addition, the concentration of foreign 

temporary workers in a single industry 

sector amplifies the impact of the 

employment of guest workers on 

domestic workers. Therefore, the 

Department believes that the fact that an 

AEWR is not used in other programs is 

not indicative of its appropriateness for 

the H–2A program. 

There is ample evidence that 

agricultural workers are a particularly 

vulnerable population. They are often 

hired on a seasonal basis and are 

required to move from place to place. In 

part as a consequence of their low 

educational attainment, low skills, low 

rates of unionization and high rates of 

unemployment, agricultural workers 

have limited ability to negotiate wages 

and working conditions with farm 

operators or agricultural services 

employers. The Department believes 

that the limited bargaining power of 

agricultural workers exacerbates the 

problem of stagnating prevailing wages 

and slow adjustment to higher 

equilibrium wages in the face of labor 

shortages, justifying the use of an AEWR 

separate and distinct from local 

prevailing wages. 

The vulnerable condition of U.S. 

agricultural workers is described in a 

report by the USDA’s Economic 

Research Service (ERS), available at 

http://www.ers.usda.gov/Briefing/ 

LaborAndEducation/FarmLabor.htm. 

The report found that in 2006 the 

average annual unemployment rate for 

hired farm workers (8.5 percent) was 

nearly twice the unemployment rate for 

U.S. workers across all occupations (4.5 

percent). High unemployment is in part 

attributable to the seasonality of farm 

work. Total employment levels for hired 

farm workers vary significantly 

depending on the time of year. As an 

example of seasonal employment 

fluctuations, the ERS report pointed to 

National Agricultural Statistics Service 

(NASS) data in 2006 which indicated 

that 1,195,000 hired farm workers were 

employed in mid-July, compared with 

only 796,000 in mid-January. 

The ERS report also noted the 

concentration of hired farm workers in 

the Southwest. According to data from 

the Current Population Survey (CPS), 

roughly 40 percent of all hired farm 


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9As mentioned previously, in cases in which the 

AEWR is not the highest of the prevailing wage, 

Federal or State minimum wage or collectively 

bargained wage, use of the AEWR would be a 

disadvantage to incumbent workers, and the highest 

wage rate among the listed choices is a closer 

approximation of the position the workers would 

have been in, absent the H–2A program. 

10To the extent workers receive incentive pay, 

the average wage rate would exceed the workers’ 

actual wage rate. Because the ratio of gross pay to 

hours worked may be greater than a workers’ actual 

wage rate, some statistics agencies refer to the ratio 

as average hourly earnings, and not as hourly wages 

or wage rate. 

workers live in the Southwest, and 20 

percent live in each of the South and 

Midwest regions. Almost half of all 

hired farm workers live in just five 

States: California, Texas, North 

Carolina, Washington, and Oregon. The 

geographic concentration of farm 

workers suggests that exclusive reliance 

on the traditional notion of the 

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

that occupation in area of intended 

employment) is inappropriate to the 

unique circumstances of the H–2A 

program. Moreover, many of the other 

temporary foreign labor programs 

administered by the Department are 

subject to statutory visa caps. 

Historically, those programs have never 

involved the influx of large numbers of 

foreign workers into a particular labor 

market because the influx of workers is 

spread throughout several industries. In 

these other programs, it is realistic to 

conclude that payment of a prevailing 

wage to the foreign workers will have no 

adverse effect on U.S. workers. This 

assumption is not valid in the H–2A 

context. The program is uncapped and 

experience indicates that it can involve 

large numbers of foreign workers 

entering a specific labor market. Under 

these circumstances, there is a 

heightened risk that the employment of 

foreign workers may produce wage 

stagnation in the local labor market. 

Access to an unlimited number of 

foreign workers in a particular labor 

market at the current prevailing wage 

would inevitably keep the prevailing 

wage lower than it would have been had 

it adjusted to an equilibrium wage to 

dispel the shortage through normal 

market processes involving domestic 

labor supply flows in response to 

equilibrium wage changes. The most 

effective way to remedy this adverse 

effect on domestic agricultural workers 

is to impose a wage floor that 

approximates the equilibrium wage that 

would have resulted, and the most 

effective way to approximate such a 

wage is to consider a broader geographic 

area than the local area considered for 

prevailing wages.9

One commenter suggested that the 

current 66,000 visa cap on the H–2B 

program would be sufficient to flood 

any particular labor market anyway, 

assuming all the positions in that labor 

market were certified by the DOL. 

Rather than arguing against the use of an 

AEWR to prevent localized wage 

depression, this comment simply 

suggests that localized wage depression 

is theoretically possible under a 

prevailing wage concept as provided for 

under the H–2B program. The 

Department has not found that entry of 

workers using H–2B visas has adversely 

affected local labor markets, because in 

fact, these workers are employed in a 

wide variety of industry sectors, 

including landscaping, hospitality, 

construction, reforestation, and retail 

trade. Nevertheless, the Department has 

noted the concentration of agricultural 

workers in localized areas and therefore 

the greater likelihood of adverse effects 

on local agricultural labor markets. 

Thus, the Department recognizes the 

usefulness of an AEWR in the context of 

the H–2A program. 

The Department continues to consider 

valid the justification cited in the 1989 

Rule, stating that even though the 

evidence is not conclusive on the 

existence of past adverse effect, DOL 

still believes that its statutory 

responsibility to U.S. workers will be 

discharged best by the adoption of an 

AEWR in order to protect against the 

possibility that the anticipated 

expansion of the H–2A program will 

itself create wage depression or 

stagnation. See 54 FR 28037, July 5, 

1989. 

The Department continues to believe 

that the use of an AEWR is necessary in 

order to effectuate its statutory mandate 

of protecting domestic agricultural 

workers from the possibility of adverse 

effects on their wages or working 

conditions. In drawing this conclusion, 

the Department follows the approach in 

the 2008 Final Rule. The Department is 

firmly committed to the principle that 

the wage rates required by the H–2A 

program should ensure that the wages of 

U.S. workers will not be adversely 

affected by the hiring of H–2A workers, 

and therefore declines to jettison the 

AEWR concept. 73 FR 77110, Dec. 18, 

2008. 

b. Determining the AEWR 

The Department has chosen to 

calculate the AEWR for each State 

within a given region as the annual 

average combined hourly wage for field 

and livestock workers derived from the 

USDA’s NASS quarterly FLS. Hourly 

wage rates are calculated based on 

employers’ reports of total wages paid 

and total hours worked for all hired 

workers during the survey reference 

week each quarter. 

The FLS is conducted each year in 

January, April, July and October, and 

results are published the following 

month. Annual average estimates for the 

number of all hired workers, hours 

worked by hired workers and wage rates 

are included in the October FLS report, 

which is published in November. 

Information about the methodology of 

the FLS is publicly available at: http:// 

usda.mannlib.cornell.edu/usda/current/ 

FarmLabo/FarmLabo-11–20–2009.pdf. 

The FLS defines work as work done 

on a farm or ranch in connection with 

the production of agricultural products, 

including nursery and greenhouse 

products and animal specialties such as 

fur farms or apiaries. It also includes 

work done off the farm to handle farmrelated business, such as trips to buy 

feed or deliver products to local 

markets. 

The FLS defines hired workers as 

anyone, other than workers supplied by 

a services contractor, who was paid for 

at least 1 hour of agricultural work on 

a farm or a ranch. Worker type is 

determined by what the employee was 

primarily hired to do, not necessarily 

what work was done during the survey 

week. The survey seeks data on four 

types of hired workers: Field workers, 

livestock workers, supervisors (hired 

managers, range foremen, and crew 

leaders) and other workers engaged in 

agricultural work not included in the 

other three categories. 

The FLS report is based on farmers’ 

gross wages paid to workers grouped 

into two broad categories: Field workers 

and livestock workers. Wage rates are 

not calculated and published for 

supervisors or other workers, but are for 

field workers, livestock workers, field 

and livestock workers combined, and 

total hired workers. Field workers 

include employees engaged in planting, 

tending and harvesting crops, including 

operation of farm machinery on crop 

farms. Livestock workers include 

employees tending livestock, milking 

cows or caring for poultry, including 

operation of farm machinery on 

livestock or poultry operations.10

The FLS also collects data on the 

number of workers and wages of 

workers performing agricultural services 

on farms (i.e., workers supplied by 

services contractors) in California and 

Florida. California and Florida account 

for the preponderance of agricultural 

service contract labor provided to farms. 

The target population for the 

establishment portion of the FLS is all 

farms that sell, or would normally sell, 

at least $1,000 worth of agricultural 


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products during the year. The target 

population for the agricultural services 

survey covering California and Florida 

is all operations that provide 

agricultural services to farmers. 

The USDA survey is designed to 

produce statistically reliable estimates 

of overall hired labor use and costs for 

California, Florida and Hawaii, and 

provide data for other States except 

Alaska under 15 multistate groupings. 

For California, Florida and Hawaii, the 

AEWR each year will be set as the 

annual average of the previous calendar 

year’s four quarterly FLS hourly wage 

estimates for field and livestock workers 

(combined) in each of these States. For 

the other States the AEWR will be set as 

the annual average of the previous 

calendar year’s four quarterly FLS 

hourly wage estimates for field and 

livestock workers (combined) of the FLS 

multistate crop region to which the 

State belongs. Every State in the same 

region will be assigned the same AEWR 

amount. The State groupings are as 

follows. 

Northeast I ..... Connecticut, Maine, Massachusetts, New Hampshire, 

New York, Rhode Island 

and Vermont. 

Northeast II .... Delaware, Maryland, New 

Jersey and Pennsylvania. 

Appalachian I Virginia and North Carolina. 

Appalachian II Kentucky, Tennessee and 

West Virginia. 

Southeast ....... Alabama, Georgia and South 

Carolina. 

Delta ............... Arkansas, Louisiana and 

Mississippi. 

Cornbelt I ....... Illinois, Indiana and Ohio. 

Cornbelt II ...... Iowa and Missouri. 

Lake ............... Michigan, Minnesota and 

Wisconsin. 

Northern 

Plains.

Kansas, Nebraska, North 

Dakota and South Dakota. 

Southern 

Plains.

Oklahoma and Texas. 

Mountain I ...... Idaho, Montana and Wyoming. 

Mountain II ..... Colorado, Utah and Nevada. 

Mountain III .... Arizona and New Mexico. 

Pacific ............ Oregon and Washington. 

The selection of the Bureau of Labor 

Statistics (BLS) Occupational 

Employment Survey (OES) in the 2008 

Final Rule was based on an 

underestimation of its inadequacies. 

The OES agricultural wage data has a 

number of significant shortcomings with 

respect to its accuracy as a measure of 

the wages of hired farm labor suitable to 

be used as the AEWR. Perhaps its most 

substantial shortcoming in this context 

is that the OES data do not include 

wages paid by farm employers. Data is 

not gathered directly from farmers but 

from non-farm establishments whose 

operations support farm production, 

rather than engage in farm production. 

Therefore, the OES results for the farm 

workers and laborers, crop, nursery and 

greenhouse occupation category reflects 

only the subset of farm workers and 

laborers employed by agricultural 

support services employers—companies 

that provide agricultural labor supply to 

farmers on a contract basis. The survey 

does not include data on farm workers 

who are directly hired by farm operators 

and represent the majority of hired farm 

labor. According to the latest OES data, 

the covered agricultural establishments 

represent employment of 451,770 hired 

agricultural workers of all types—about 

one-third of the 1.2 million total number 

of all hired farm workers of all types 

identified by the USDA FLS. Given that 

the employees of non-farm 

establishments constitute a minority of 

the overall agricultural labor force, the 

Department has concluded that these 

data are therefore not representative of 

the farm labor supply and do not 

provide an appropriately representative 

sample for the labor engaged by H–2A 

employers. 

The adoption of the BLS OES 

methodology in the 2008 Final Rule was 

intended to simplify the wage 

determination process for the H–2A 

program while maintaining adverse 

effect wage protection similar to that 

previously provided by the FLS. It was 

never the Department’s intention to 

produce a substantial and across-theboard reduction in the level of wage 

protection provided by the AEWR. The 

2008 Final Rule explicitly stated that 

the decision to adopt the OES method 

for computing the AEWR does not 

reflect any belief on the part of the 

Department that all AEWRs are 

currently artificially high and that they 

therefore should all be lowered. 

Nonetheless, average wage levels 

certified under the H–2A program have 

declined by over 10 percent nationwide: 

On a State-by-State basis, only seven 

States did not experience a decline (See 

Table 1; Data based on the full set of H– 

2A application records received in fiscal 

years (FY) 2008 and 2009). 

Several commenters representing 

employers and grower associations 

questioned the conclusion expressed in 

the NPRM that the change in the AEWR 

computation method had negatively 

impacted wage floors set under the H– 

2A program and asked for more specific 

data. Accordingly, the Department has 

analyzed the records for FY 2008 and 

FY 2009 H–2A certifications. The FY 

2008 certifications included records for 

5,392 applications that were fully or 

partially approved in the last full year 

of AEWR computation under the 

procedure specified in the 1989 Rule 

(relying on the NASS averages for crop 

and livestock workers). The FY 2009 

certifications included 4,857 

applications that were fully or partially 

approved, of which about 40 percent 

were received before the January 2009 

effective date of the 2008 Final Rule and 

were processed under the 1989 

computation method. The fact that in 

FY 2009 some applications were 

certified under different methods 

provides a very useful basis for 

comparison of the relative impact of the 

computation method change from the 

FLS data source to the OES data source. 

The analysis focused on the 

applications for hourly paid farm and 

livestock workers for which the AEWR 

is most likely to be the wage floor 

determinant. The analysis excluded 906 

applications in FY 2008 and 610 

applications in FY 2009 that were 

applications for custom combine and 

other specialized equipment operators 

or cattle or sheep range workers paid on 

a monthly or weekly basis (the wages for 

these jobs are determined 

predominantly by local, crop or 

livestock specific prevailing wage 

surveys). The excluded applications had 

de minimis effect on the comparative 

averages for FY 2008 and FY 2009 wage 

comparisons shown below since the 

excluded observations included 

approximately equal numbers of 

applications involving relatively highpaid custom combine operators and 

relatively low-paid sheepherders. Table 

1 shows the National and State average 

wage certifications for FY 2008, for the 

applications certified under the 1989 

Rule in FY 2009 and for the applications 

certified under the 2008 Final Rule in 

FY 2009. 

The average wage amounts are the 

average of the certified minimum wages 

of the approved applications weighted 

by the number of workers approved for 

each application. The average wages 

reflect the combined effects of the 

AEWR, the applicable local prevailing 

wage and the applicable legal Federal or 

State minimum wage, whichever was 

highest for each application. In some 

cases the AEWR was the determining 

parameter for the wage certified and in 

other cases a local prevailing wage or a 

legal minimum wage was the 

determining parameter. The change in 

the method of calculating the AEWR is 

reflected in the changes in the share of 

applications in which the applicable 

prevailing wage or legal minimum wage 

was higher than the applicable AEWR 

and in the average certified wages for 

applications processed before and after 

the change. 

The change to the OES method of 

computing the AEWR resulted in the 


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average certified wage for H–2A workers 

decreasing nationwide to $8.02 per 

hour, an 11.2 percent decrease 

compared to the $9.04 per hour average 

for FY 2009 applications that were 

received before January 19, 2009 and 

processed under the prior rules, and a 

10.8 percent decrease compared to the 

$9.00 per hour average wage rate for FY 

2008 applications, for all of which the 

wage determination was made under the 

prior rule. The only States that did not 

see a fall in the average H–2A wage 

amount following the implementation of 

the 2008 Final Rule were Alaska, 

Delaware, Hawaii, Minnesota, Montana, 

North Dakota, and South Dakota. These 

States accounted for 1,252 H–2A 

workers, less than 2.4 percent of the 

52,420 total number of H–2A workers 

certified under the 2008 Final Rule in 

FY 2009. It is noteworthy that the 

decline in average wage certification 

amounts would have been greater were 

it not for the significant increase 

following the implementation of the 

OES AEWR computation method in the 

proportion of applications in which the 

wage floor determination reflects a legal 

minimum wage or a local prevailing 

wage greater than the applicable AEWR 

level. In FY 2009, for applications 

processed under the 2008 Final Rule 

(i.e., applications received after January 

19, 2009), 60 percent of the applications 

were approved at a wage higher than the 

applicable AEWR because the 

applicable prevailing or legal minimum 

wage was higher. This is in contrast to 

only 10 percent in which the AEWR was 

not applicable among applications 

processed in FY 2009 under the prior 

rule. 

TABLE 1—STATE AND NATIONAL AVERAGE CERTIFIED H–2A WAGE RATES FY 2008 AND FY 2009 

State FY 08 average 

wage level 

Pre Jan. 19, 

2009 wage 

level 

Post Jan. 19, 

2009 wage 

level 

08–09 Change 

(FY 2008 vs 

post Jan. 19) 

chg 

09 Change 

(pre Jan 19 vs 

post Jan. 19) 

AK ........................................................................................ $8.00 $8.00 $8.25 $0.25 $0.25 

AL ......................................................................................... 8.52 8.53 7.39 ¥1.12 ¥1.13 

AR ........................................................................................ 8.25 8.44 7.42 ¥0.83 ¥1.03 

AZ ......................................................................................... 8.55 8.73 8.09 ¥0.46 ¥0.64 

CA ........................................................................................ 9.44 9.29 8.65 ¥0.80 ¥0.64 

CO ........................................................................................ 8.93 9.45 8.15 ¥0.78 ¥1.30 

CT ........................................................................................ 9.63 9.60 9.22 ¥0.40 ¥0.38 

DE ........................................................................................ 12.67 9.70 13.78 1.11 4.08 

FL ......................................................................................... 8.62 8.82 7.45 ¥1.17 ¥1.37 

GA ........................................................................................ 8.52 8.53 7.31 ¥1.22 ¥1.23 

HI .......................................................................................... 10.83 10.86 10.90 0.08 0.04 

IA .......................................................................................... 10.42 10.39 7.46 ¥2.96 ¥2.93 

ID .......................................................................................... 8.76 8.77 7.95 ¥0.81 ¥0.83 

IL .......................................................................................... 10.09 9.90 7.76 ¥2.33 ¥2.14 

IN .......................................................................................... 9.90 9.90 8.53 ¥1.37 ¥1.37 

KS ........................................................................................ 9.64 9.85 9.78 0.14 ¥0.07 

KY ........................................................................................ 8.87 9.13 7.38 ¥1.49 ¥1.75 

LA ......................................................................................... 8.19 8.47 8.14 ¥0.05 ¥0.33 

MA ........................................................................................ 9.66 9.63 8.30 ¥1.36 ¥1.33 

MD ........................................................................................ 9.42 9.70 9.07 ¥0.34 ¥0.63 

ME ........................................................................................ 9.68 9.70 9.48 ¥0.20 ¥0.22 

MI ......................................................................................... 9.90 10.02 8.24 ¥1.66 ¥1.78 

MN ........................................................................................ 9.85 10.03 10.03 0.18 0.00 

MO ....................................................................................... 10.14 10.44 9.56 ¥0.58 ¥0.89 

MS ........................................................................................ 8.16 8.45 7.51 ¥0.64 ¥0.94 

MT ........................................................................................ 8.78 8.75 9.29 0.51 0.54 

NC ........................................................................................ 8.91 8.88 7.40 ¥1.51 ¥1.48 

ND ........................................................................................ 9.66 10.89 11.61 1.96 0.73 

NE ........................................................................................ 9.66 9.90 9.54 ¥0.11 ¥0.36 

NH ........................................................................................ 9.67 9.70 8.39 ¥1.28 ¥1.31 

NJ ......................................................................................... 9.34 9.76 8.48 ¥0.86 ¥1.28 

NM ........................................................................................ 8.59 9.00 8.74 0.15 ¥0.26 

NV ........................................................................................ 9.28 9.42 8.98 ¥0.30 ¥0.44 

NY ........................................................................................ 9.64 9.72 9.13 ¥0.51 ¥0.59 

OH ........................................................................................ 9.92 9.96 9.26 ¥0.66 ¥0.70 

OK ........................................................................................ 9.06 9.13 8.94 ¥0.12 ¥0.19 

OR ........................................................................................ 9.93 ........................ 9.89 ¥0.04 ........................

PA ........................................................................................ 9.49 9.70 8.72 ¥0.77 ¥0.98 

RI .......................................................................................... 9.63 10.00 ........................ ........................ ........................

SC ........................................................................................ 8.51 8.53 7.26 ¥1.25 ¥1.27 

SD ........................................................................................ 9.68 9.94 10.11 0.43 0.17 

TN ........................................................................................ 8.89 9.10 7.44 ¥1.45 ¥1.65 

TX ......................................................................................... 8.83 9.03 8.75 ¥0.08 ¥0.28 

UT ........................................................................................ 9.04 9.45 8.85 ¥0.19 ¥0.60 

VA ........................................................................................ 8.95 8.87 7.55 ¥1.41 ¥1.32 

VT ......................................................................................... 9.66 ........................ 9.62 ¥0.04 ........................

WA ....................................................................................... 9.93 9.94 8.74 ¥1.19 ¥1.20 

WI ......................................................................................... 9.78 10.04 8.44 ¥1.34 ¥1.60 

WV ....................................................................................... 8.65 9.13 7.39 ¥1.26 ¥1.74 

WY ....................................................................................... 8.73 9.01 8.45 ¥0.28 ¥0.56 

Nationwide ........................................................................... 9.00 9.04 8.02 ¥0.98 ¥1.01 

Note: Empty cells indicate no applications. 


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Because of the proportionate size of 

the decrease and the widespread extent 

of the decreases, the Department has 

concluded that the continued use of the 

OES method to calculate the H–2A 

AEWR entails a significant risk that U.S. 

workers may in the future experience 

wage depression as a result of 

unchecked expansion of the demand for 

foreign workers. 

Some employers and employer 

association commenters suggested that 

the AEWR computed on the basis of 

OES data is a better reflection of actual 

agricultural labor market conditions 

than the average wage based on the FLS. 

This view is incorrect and reflects a 

misunderstanding of the role of the 

AEWR. As already noted, the AEWR is 

most relevant in cases in which the 

local prevailing wage is lower than the 

wage considered over a larger 

geographic area or over a broader 

definition of occupation, crop, and/or 

activity. In this regard, the OES data are 

inadequate. The OES data does not 

include any survey observations of 

wages paid to workers who are 

employed directly by farm operators. It 

only includes data from employers who 

operate farm support operations, 

including contract suppliers of 

temporary farm labor. Workers in 

agricultural crop and livestock 

occupations who are employed by 

support services establishments account 

for about one-third of total hired 

agricultural crop and livestock 

employment. The predominant majority 

are directly hired by farmers. 

In the 2008 Final Rule, the 

Department recognized this deficiency 

in the OES data, but assumed that 

earnings in the support services sector 

reported in the OES data would be 

equivalent to, and a reasonable proxy 

for, wages paid by farm employers. 

Subsequent analysis of empirical data 

by the Department has shown that this 

assumption was seriously flawed. The 

agricultural occupations of workers 

employed in the agricultural support 

services sector (the only sector directly 

represented in the OES survey results) 

differ significantly from the vast 

majority of the agricultural occupations 

performed by workers who are 

employed directly by farm 

establishments. These differences range 

across characteristics that significantly 

affect potential productivity and 

earnings. Based on data from the 

Annual Social and Economic 

Supplement (also known as the March 

supplement) of the U.S. Census 

Bureau’s CPS describing annual 

earnings, weeks worked, and weekly 

hours worked for persons with any work 

experience during calendar years 2004 

through 2008, hired agricultural laborers 

employed by agriculture support 

services establishments were comprised 

of 59 percent non-citizens and 41 

percent U.S. citizens. In contrast, just 37 

percent of similar workers directly 

employed by farm establishments were 

non-citizens and 63 percent were U.S. 

citizens. While the legal status of noncitizen workers in the sample is 

unknown, it has been generally 

observed across a wide range of 

industries and occupations that noncitizens tend to earn lower wages than 

do U.S. citizens. For example, the CPS 

data we analyzed showed that across all 

occupations and industries, mean 

hourly earnings of non-citizens in the 

2004–2008 period were 28 percent less 

than mean hourly earnings of citizens. 

Educational attainment is also an 

important determinant of earnings. 

Hired agricultural workers tend to have 

lower-than-average educational 

attainment compared to the general 

workforce, but the differences between 

hired agricultural workers employed by 

agriculture service sector establishments 

compared to those employed directly by 

farm establishments are striking and 

reflect in part the higher share of noncitizens found in the agriculture service 

establishment compared to the farm 

establishments. For agriculture service 

establishments, 60 percent of workers 

had completed no more than the 9th 

grade, compared to 41 percent of hired 

agriculture workers employed directly 

by farm establishments. Over 26 percent 

of workers employed directly by farm 

establishments had a high school 

diploma, compared to 19 percent of 

those employed by agriculture service 

establishments, and 15 percent of hired 

farm laborers employed directly by farm 

establishments had some postsecondary education, compared to only 

6 percent for employees of agriculture 

support service establishments. These 

differences in characteristics of hired 

agricultural workers employed by 

agricultural support service 

establishments (the only category of 

agriculture establishments reflected in 

the OES wage data) compared to 

workers employed directly by farm 

establishments helps to explain the 

large differences in wages between the 

two sectors. On average over the 2004– 

2008 period, persons who were 

employed directly by farm 

establishments earned on average 

$10.87 per hour (median $8.33 per 

hour), compared to a mean of $9.32 per 

hour (median $7.15 per hour) for those 

employed by support service 

establishments. Whether in terms of 

mean or median, workers employed in 

the support services sector earned 14 

percent less. All data are in real 2009 

dollar equivalent terms. 

The Department’s error in the 2008 

Final Rule of assuming that the OES 

data for workers employed by 

agricultural support services 

establishments would be a reasonable 

proxy for wages paid by farm 

establishments was compounded by a 

second erroneous assumption. In the 

2008 Final Rule, the Department added 

the option for applicants for H–2A 

workers to specify a skill level for the 

job opportunity. These skill levels 

correspond to points on the percentile 

distributions of wages below and above 

the OES median for each occupation. 

The Department assumed that 

employers would seek a variety of skill 

levels in occupations for which workers 

were sought—some higher and some 

lower than the occupational median, but 

that the overall result would likely be 

balanced and average to the median. 

The FY 2009 implementation 

experience revealed a significantly 

different outcome: 73 percent of 

applicants for H–2A workers specified 

the lowest available skill level— 

corresponding to the wage earned by the 

lowest paid 16 percent of observations 

in the OES data. Only 8 percent of 

applicants specified a skill level that 

translated into a wage above the OES 

median. This bias toward low skill job 

specifications compounded the 

downward wage bias created by the 

omission of farm establishment 

observations from the OES data. Both 

the shift to the OES data source and the 

use of skill levels contributed to the 

downward bias in the AEWR-based 

wage determinations for the 

applications in which the wage 

determination was made using the rule 

for applications received on or after 

January 17, 2009. 

The FLS is the only annually 

available data source that actually uses 

information sourced directly from 

farmers. This is a strong advantage of 

the FLS as the AEWR data source 

compared to all other alternatives. The 

OES data do not include observations of 

wages paid by farm establishments. 

Other potential data sources that do 

include earnings information for hired 

farm workers employed by farming 

establishments include the annual CPS 

work experience supplement (the 

Annual Social and Economic 

Conditions (ASEC) supplement), the 

CPS monthly (outgoing rotation) earner 

study supplement and the Census 

Bureau’s American Community Survey 

(ACS). However, the CPS data (both the 

ASEC supplement and the monthly 

earner supplement) contain too few 


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observations for disaggregation of 

estimates to State or significant 

multistate regions; the analysis of CPS 

work experience data for this 

rulemaking entailed pooling of 5 years 

of data to obtain sufficient observations. 

The sample of the CPS is designed to 

reliably produce total annual labor force 

characteristics on a State-by-State basis. 

State (and, to a greater extent, substate) 

sub-samples of the CPS generally cannot 

support reliable estimation on a 

monthly basis for the relatively small 

category of agricultural employment. 

Because of a concern about the 

statistical significance for tabulations 

covering less than a full calendar year, 

the BLS does not regard CPS statewide 

tabulations covering less than a full 

calendar year as fit for publication and 

cannot account for seasonal fluctuations 

in the sub-national monthly CPS 

tabulations. Furthermore, the ACS data 

entail an unacceptable time lag of over 

a year and do not readily allow for 

calculation of hourly earnings. On 

balance, the USDA FLS is the best 

source available. 

Many comments by farm 

organizations, individual farmers, and 

elected officials expressed concerns that 

wages vary across the U.S. by 

geographic location, by specific 

agricultural occupation, and by level of 

skill. Therefore, these commenters 

argued that an AEWR that does not take 

into account these variables will 

adversely affect U.S. workers. 

Accordingly, a farm association 

proposed that DOL continue using the 

BLS data to determine the AEWR 

because it gives a more accurate picture 

of market-based wages actually being 

paid for agricultural jobs being 

performed at various skill levels. 

The Department does not agree with 

the assertion that the OES data provide 

a more accurate picture of market-based 

wages. In addition to the fact that the 

FLS and not the OES includes data 

about what farm establishments actually 

pay for hired labor (as discussed 

previously), the commenters’ focus on 

localized labor market conditions 

overlooks the important role of the 

FLS’s broader geographic and 

occupational coverage in protecting 

domestic workers from wage depression 

or stagnation resulting from an influx of 

foreign workers into the context of 

small, isolated geographic areas or niche 

crop markets. The FLS sample is 

distributed across the entire country, 

with the geographic detail covering 15 

multistate regions and 3 stand-alone 

States. This broader geographic scope 

makes the FLS more consistent with 

both the nature of agricultural 

employment and the statutory intent of 

the H–2A program. Because of the 

seasonal nature of agricultural work, 

much of the labor force continues to 

follow a migratory pattern of 

employment that often encompasses 

large regions of the country. Congress 

recognized this unique characteristic of 

the agricultural labor market with its 

statutory requirement that employers 

recruit for labor in multistate regions as 

part of their labor market before 

receiving a labor certification for 

employing H–2A workers. 

A related consideration is the 

potential inefficiency of labor market 

information transmission systems. By 

providing a prevailing wage defined 

over a broader geographic area and over 

a broader occupational span (all field 

and livestock workers, rather than a 

narrow crop or job description), use of 

the FLS provides a check on the 

expansion of foreign labor importation 

to prevent undermining job 

opportunities and wages for domestic 

farm workers. Using the FLS average 

wage derived from data across a 

relatively broad geographic and 

occupational span reflects the view that 

farm labor is mobile across relatively 

wide areas and farm laborers’ skills are 

adaptable across a relatively wide range 

of crop or livestock activities and 

occupations. The use of the FLS wage 

average as an AEWR appropriately 

limits the importation of foreign labor to 

cases where the value of the labor need 

is more than marginal; the relatively 

higher willingness to pay signaled by 

farmers who do import foreign workers 

temporarily under these circumstances 

(because domestic labor was not 

immediately forthcoming) may serve to 

mobilize domestic farm labor in 

neighboring counties and States to enter 

the subject labor market over the longer 

term and obviate the need to rely on 

importation of foreign labor on an 

ongoing basis. In this way, the AEWR 

based on the FLS data source balances 

the needs of both farmers and domestic 

farm workers. The 2008 Final Rule did 

not sufficiently account for these labor 

market attributes and the Department 

believes that, by returning to an AEWR 

based on the FLS’ regionally-based 

methodology, that inconsistency will be 

remedied. 

The employer and employer 

association commenters that argued that 

precise tailoring of H–2A wages to local 

labor market conditions is critical to 

preventing an adverse effect on wages of 

U.S. workers may not fully understand 

the dynamics of farm worker labor 

markets and labor market information 

flows described above. Furthermore, 

those who argue that it is essential that 

the AEWR have as great a degree of 

geographic refinement as possible, 

reflecting market conditions for each 

locality across the country, miss the 

essential point that the importation of 

foreign labor should not serve as an 

obstacle to normal market adjustment 

processes and labor mobility in the 

broader regional market perspective. We 

have carefully considered the arguments 

of some commenters that the 

aggregation of a widely diverse national 

agricultural landscape into just 15 

regions (and 3 stand-alone States) 

results in extremely broad 

generalizations that fail to account for 

specific market conditions at the local 

level. After due consideration, we 

conclude that a broadly-based AEWR 

protects the long-term well-being of 

domestic workers in terms of wages and 

access to job opportunities and it also 

benefits farmers in the long-run by 

preserving market adjustment processes 

that encourage efficient allocation of 

resources, innovation, and adaptation to 

changing competitive circumstances. 

DOL consistently has set statewide 

AEWRs rather than substate or cropspecific AEWRs because of the absence 

of data from which to measure wage 

depression at the local level. To the 

extent that wage depression does exist 

on a concentrated local basis, the 

USDA’s aggregation of wage data at 

broad regional levels immunizes the 

survey from the effects of any localized 

wage depression that might exist. 

Many employer and association 

commenters expressed concern that an 

appropriate AEWR that reflects market 

realities and labor costs should include 

wage data relating to the specific 

occupation and level of skill or 

experience required for a position. 

Several farm organizations and 

individual farmers expressed concerns 

that the FLS produces an artificially 

high wage rate, in part because it 

includes many occupations which are 

not related to the jobs H–2A workers are 

hired to perform. Commenters also 

argued that the Department’s reliance on 

USDA FLS data does not provide 

refined data by skill level or experience, 

occupations, or geographic locales of 

workers typically sought by agricultural 

employers in the H–2A program. 

Commenters also pointed out that the 

USDA FLS population includes not only 

the lower-skilled crop field workers 

typically sought by agricultural 

employers who turn to the H–2A 

program for labor, but also inspectors, 

animal breeding technicians, and 

trained animal handlers—all 

occupations that provide a poor basis 

for determining H–2A wages because 

they are rarely, if ever, filled by H–2A 

workers. In response to these comments, 


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11According to the Employment Projection 

Program at BLS, for crop, nursery, and greenhouse 

farm workers and laborers, the most significant 

source of post-secondary education or training is 

short-term on-the-job training. See http:// 

www.bls.gov/opub/mlr/2007/11/art5full.pdf. 

we examined the records of FY 2008 

and FY 2009 H–2A applications and 

found numerous examples of requests 

for foreign workers to fill jobs as 

inspectors, animal breeding technicians 

(inseminators), and other specialized 

occupations. For example, the FY 2009 

applications included requests for 12 

equine trainers and breeding specialists, 

38 agricultural product inspectors and 

graders, 5 non-equine animal trainers, 

43 operating engineers, 312 beekeepers, 

25 artificial inseminators, 23 logging 

crane operators, 18 farm equipment 

mechanics and 14 reptile specialists. 

Therefore, this objection to the use of 

FLS data is unfounded. 

The OES occupational detail is a 

unique feature of the survey. One State 

agriculture department noted that this 

approach allows local farmers and 

ranchers to reimburse immigrant 

workers with fair, market-based wages 

specific to the location of employment. 

It is also in part the reason that the 

survey is used in other foreign worker 

programs administered by the 

Department, including the H–1B and H– 

2B programs. 

The Department believes that the BLS 

OES wage survey suffers from higher 

error rates than the USDA FLS, and is 

a less reliable source of data about farm 

workers’ wage rates. One study of OES 

data found that employment in some of 

the metro and non-metro areas is very 

small, increasing relative standards 

errors. For example, for the occupation 

of farm workers and laborers, crop, 

nursery, and greenhouse employment 

numbers may be very small for some 

States—see Kentucky (200) or West 

Virginia (190) as compared to California 

(146,220). As expected, the subsequent 

relative standard errors for States with 

few observations is relatively high— 

meaning that the reliability of the wage 

statistics is relatively low, which result 

in data that are not precisely measured. 

For example, the 90 percent confidence 

interval for the $8.28 hourly mean wage 

for California is from $8.20 to $8.36 as 

compared to the 90 percent confidence 

interval for the $11.52 hourly mean 

wage for Montana which is from $10.24 

to $12.80. Furthermore, a SWA noted 

that the OES survey program used in the 

2008 Final Rule is a complex, confusing 

system resulting in multiple H–2A wage 

rates for various geographical areas 

within a State. 

Several farmers pointed out that 

another unique feature of OES is that it 

offers the ability to establish four wage 

level benchmarks commonly associated 

with the concepts of experience, skill, 

responsibility, and difficulty variations 

within each occupation. The four skill 

levels for each occupation afford the 

employer and the Department the 

opportunity to more closely associate 

the level of skill required for the job 

opportunity to the relevant OES job 

category and, in turn, the appropriate 

AEWR. 

The Department has carefully 

considered these comments and does 

not find the notion of meaningful skill 

differences among most agricultural 

workers to be generally credible. The 

perception expressed by some 

commenters that the OES data actually 

differentiates workers by skill is simply 

false. The OES wage levels are not 

determined by surveying the actual skill 

level of workers, but rather by applying 

an arithmetic formula. These are 

arbitrary percent cut-offs of the 

distribution of earnings within the 

occupations. Therefore, the associated 

occupational skill levels are not well 

defined, and H–2A wage differences do 

not accurately reflect meaningful 

differences in skills or job complexity. 

Moreover, the Department finds that 

the notion of meaningful skill 

differences among agricultural workers 

is unfounded. Most of the occupations 

and activities relevant to the H–2A 

program involve skills that are readily 

learned in a very short time on the job,11

skills peak quickly, rather than 

increasing with long-term experience, 

and skills related to one crop or activity 

are readily transferred to other crops or 

activities. 

The preamble to the 2008 Final Rule 

states that the Department is statutorily 

obligated to use the four-tier wage 

system. Although the relevant statute is 

not clear on its face, the Department has 

now concluded that this statement is an 

incorrect reading of the statute. The 

legislation establishing the four-tier 

system was part of the Consolidated 

Appropriations Act 2005, Pub. L. 108– 

447 and is contained in a section titled 

the L–1 Visa and H–1B Visa Reform Act. 

The specific part of that Act describing 

the four-tier system, sec. 423, is titled 

H–1B Prevailing Wage Level. In 

addition, the legislation specifically 

identifies the visa categories to which it 

applies and H–2A visas are not included 

in the list. While the Department had 

the discretion to use the four-tier system 

in the H–2A program if the facts 

supported that outcome, it is simply 

wrong to state that the Department is 

statutorily required to use it. Moreover, 

for the reasons stated above, the 

Department has concluded that the OES 

four-tier wage system is inappropriate 

for use in the H–2A program. 

(i) Survey Frequency and Data 

Availability 

The FLS and publication schedule 

provide timely data for purposes of 

calculating the relevant State AEWRs. 

Specifically, the FLS is routinely 

available and published within 1 month 

of the survey date. The quarterly 

gathering of data ensures that the annual 

averages are more accurately reflective 

of the fluctuations of farm labor 

patterns, which are by definition 

seasonal and thus more subject to 

fluctuation than other occupations. The 

scope and frequency of the survey 

means that all crops and activities now 

covered by the H–2A program will be 

included in the survey data and that 

peak work periods also will be covered. 

This is in contrast to the OES data, 

which are published 1 year after 

collection of the most recent data panel. 

Furthermore, OES data are only 

collected in May and November, which 

are not times of peak work for many 

crops and activities covered by H–2A. 

(ii) Accuracy of Data 

The Department also weighed 

concerns over the accuracy of AEWRs 

based on the USDA FLS because the 

FLS is not based on reported hourly 

wage rates. Instead, the USDA’s FLS 

asks employers to report total gross 

wages and total hours worked for all 

hired workers for the two reference 

weeks of the survey. Based on this 

information, the survey constructs 

annual average earnings for the broad 

general categories of field workers and 

livestock workers as the ratio of gross 

wages to hours worked. The hourly 

AEWR thus is not based on reported 

hourly wages, but rather on the basis of 

the numerator (total gross wages for the 

combined occupations) and 

denominator (total hours for the 

combined occupations) derived from the 

information supplied by employers. 

The USDA FLS asks employers about 

their workers’ total earnings and total 

hours worked to derive average hourly 

rates. In OES, establishments report the 

number of workers in a certain 

occupation earning within each of 12 

wage intervals. To calculate the mean 

hourly wage of each occupation, total 

weighted hourly wages are summed 

across all wage intervals and divided by 

the occupation’s weighted survey 

employment. Furthermore, the mean 

hourly wage rate for all workers in any 

given wage interval is not computed 

using grouped data collected by the OES 

survey. Rather, the mean wage for each 

interval is based on occupational wage 


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data collected by the BLS Office of 

Compensation and Working Conditions 

for the National Compensation Survey 

(NCS). Although smaller than the OES 

in terms of sample size, the NCS 

program, unlike OES, collects 

individual wage data. However, 

agriculture establishments are excluded 

from the scope of the NCS. Farm worker 

data is derived from workers employed 

through companies listing themselves as 

nonagricultural establishments. 

Therefore, the Department believes that 

the FLS is superior to the OES for 

purposes of computing the H–2A 

AEWR. 

(iii) The Department’s Decision To 

Return to the NASS FLS Methodology 

Even if one accepted the argument 

that the geography, occupational, and 

other attributes of data available from 

the OES are desirable features, the 

Department finds that none of these 

individually or together would offset the 

disadvantage that the OES does not 

gather data directly from farmers but 

from non-farm establishments whose 

operations support farmer production, 

rather than engage in farm production. 

For example, the OES results for the 

farm workers and laborers, crop, nursery 

and greenhouse occupation category 

reflects only the subset of farm workers 

and laborers employed by agricultural 

support services employers—companies 

who provide agricultural labor supply to 

farmers on a contract basis. The survey 

does not include data on the majority of 

farm workers who are directly hired by 

farm operators. Because the data 

demonstrate that workers employed by 

support services establishments are less 

educated and less likely to be U.S. 

citizens than employees of farm 

establishments, and therefore typically 

have substantially lower wage rates, the 

OES survey is not an appropriate data 

source for ensuring that the importation 

of guest workers does not adversely 

affect U.S. workers. 

For this and all of the other reasons 

discussed, the Department will return to 

its 1987 Rule methodology for the 

formulation of the AEWR. The 

Department will annually publish for 

each State within a given geographical 

region the AEWR based on the average 

combined hourly wage for field and 

livestock workers for the four quarters of 

the prior calendar year from the USDA’s 

NASS FLS. 

c. Collective Bargaining Wage 

The Department did not propose 

adding the term collective bargaining 

wage in the provision regarding the 

required wage to be offered. Several 

commenters, however, suggested that 

the Department address the use of 

collective bargaining wages in required 

wages. Some commenters suggested that 

the collective bargaining wage rate be 

cited as the first wage to be imposed, 

looking to the highest of the AEWR, 

prevailing, or minimum wages only in 

the absence of a collective bargaining 

wage rate, in order to recognize that 

wages paid under collective bargaining 

agreements between a union and an 

employer do not adversely affect the 

wages of workers similarly employed. 

Others suggested the Department 

recognize wages set by collective 

bargaining agreements as prevailing, in 

the alternative or as an exception to the 

AEWR. 

After consideration, the Department 

has decided to amend the provision to 

add the term an agreed-upon collective 

bargaining wage to the required wage 

rate options for employers. This 

amendment requires employers to use a 

collective bargaining wage if it is the 

highest wage, thus avoiding the 

potential payment of a collective 

bargaining wage that is less than the 

other wages. At the same time, it 

acknowledges the role of the 

collectively bargained wage as a 

potential legitimate wage. 

d. Increase in Prevailing Wage During 

the Contract Period 

In the NPRM, the Department 

proposed that 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 employer must pay 

that higher wage upon notification by 

the Department. We are retaining this 

requirement with modifications based 

on (a) above. 

The Department received several 

comments in favor of this proposal. One 

commenter expressed support for the 

proposed increase but suggested the 

Department further amend the 

requirement to include within the list of 

applicable wages the hourly wage or 

piece rate paid to the employer’s nonH–2A workers in the current or 

immediately preceding season for 

comparable employment. The 

Department declines to adopt this 

recommended change as not necessary 

to fulfill the statutory requirement to 

ensure that U.S. workers are not 

adversely affected. 

Some commenters opposed the 

proposed adjustment, contending in one 

case that the proposal is contrary to 

current practice in other temporary 

programs, and that the Department 

provided inadequate justification for the 

change. These commenters also 

indicated that the application in midseason of any increase would be 

detrimental to employers who have 

already budgeted for the season based 

on wages in effect at the time of 

recruitment. 

Employers participating in the H–2A 

program have historically 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. The wage 

adjustment under this provision is 

intended to ensure that the workers in 

the program are consistently receiving at 

least the highest of the applicable 

wages. As explained above, the wage 

adjustment also ensures that the wages 

reflect the wage in the area of intended 

employment in those relatively rare 

cases when that wage exceeds the 

AEWR. Accordingly, this adjustment, as 

stated in the Final Rule, will only affect 

a limited number of employers whose 

OFLC-approved offered wage rate falls 

below the permissible floor once the 

new wage rates are issued. 

The Department recognizes that these 

wage adjustments may alter employer 

budgets for the season. However, the 

change is intended to ensure workers 

are paid throughout the life of their 

contracts at an appropriate wage. 

Therefore, employers are encouraged to 

include into their contingency planning 

certain flexibility to account for any 

possible wage adjustments. 

6. Section 655.121 Job Orders 

a. Area of Intended Employment 

(i). Submission of the Job Order to the 

SWA 

The Department proposed to continue 

the longstanding practice of requiring 

employers to submit job orders to the 

SWA serving the area of intended 

employment for intrastate clearance in 

order to test the local labor market and 

determine the availability of U.S. 

workers before filing an Application. 

The Department further proposed that if 

the job opportunity is located in more 

than one State within the same area of 

intended employment, the employer 

may submit a job order to any one of the 

SWAs having jurisdiction over the 

anticipated worksites to place the job 

order. The Final Rule also requires that 

the SWA must forward the job order to 

the companion SWAs to have it placed 

in all locations simultaneously. 

The Department received several 

comments on this proposal. A farm 

worker advocacy association 

commented that the filing of the job 

order alone and the elimination of the 

contemporaneous filing of the 

Application inappropriately reduces the 

oversight by the OFLC during the early 


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stages of the H–2A process. This 

commenter was concerned about the 

sufficiency of OFLC oversight during 

the pre-certification period when OFLC 

staff previously used this period to 

address serious deficiencies in the 

Application that affected material terms 

of employment and recruitment, 

including job terms and conditions as 

publicized to both U.S. and foreign 

workers. 

Several commenters supported the 

Department’s proposed regulation. One 

noted that it would reintroduce muchneeded checks and balances into the 

process. Others indicated that the 

submission of the job order and 

initiation of recruitment prior to 

certification would increase the 

potential for hiring local workers. They 

also suggested that recruitment of U.S. 

workers may satisfy the need for 

agricultural labor and eliminate the 

need for a labor certification. As noted 

in the NPRM, the INA requires 

employers to engage in recruitment 

through the 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. 

Accordingly, the Final Rule retains the 

language of the NPRM. 

(ii). Submission 75–60 Days Prior to 

Date of Need 

The Department proposed to retain 

the 2008 Final Rule requirement that the 

employer submit the job order to the 

SWA no more than 75 calendar days 

and no fewer than 60 calendar days 

before the date of need. The Department 

received several comments about this 

proposal. The Department received two 

comments from State agencies 

supporting the longer recruitment 

timeframe, one noting that the 

timeframe will permit the SWA to 

review the proposed terms and 

conditions, assure that the wages offered 

meet the required wage, and commence 

required recruitment by placing the job 

order into intrastate clearance. 

Most commenters, however, opposed 

the 75 to 60 day recruitment period. 

Many of them advocated a return to the 

45-day posting of the job order, 

reasoning that it provides a more 

appropriate timeframe for employers to 

assess the local job market as well as to 

anticipate labor demands of the coming 

crop. Other commenters explained that 

growers, particularly small and midsized growers, must account for a 

variety of factors in order to decide what 

crops to plant and the amount of 

acreage, and that they do not make those 

decisions 75 to 60 days in advance. 

These commenters also expressed the 

concern that very few local agricultural 

workers commit to a job 75 to 60 days 

in advance and many of those who do 

commit often do not report for work on 

the date of need. One of these 

commenters expressed concern that the 

longer recruitment period would 

penalize employers because early hires 

may no longer be available at the time 

the work begins, leaving the employer 

with a labor shortage. 

A few commenters echoed the same 

concerns and argued for a shorter 

timeframe. These commenters criticized 

the Department’s rationale for extending 

the recruitment period. The same 

commenters referenced the 

Department’s statements in the NPRM 

indicating that the use of the H–2A 

program since the implementation of 

the 2008 Final Rule has decreased, 

arguing that there should be less need 

for a longer timeframe due to fewer 

demands on the Department’s resources. 

Many commenters advocated for the 

return to the 45-day timeframe because 

the shorter recruitment period would be 

counterbalanced by the 50 percent rule 

that tends to provide longer exposure to 

H–2A job opportunities for U.S. 

workers. One commenter argued that 

the longer recruitment period was more 

acceptable when it was combined with 

a shorter 30-day referral period. Another 

commenter, a State farm bureau, also 

opposed the proposal, noting that the 15 

to 30 days’ increase in pre-employment 

recruiting was initially implemented by 

the Department in exchange for the 

elimination of the 50 percent rule and 

reduction in the referral period to 30 

days after the start date. 

One commenter noted that the 

Department presented no evidence 

indicating that referrals made further 

from the date of need are more 

numerous than those closer to the date 

of need. Another referred to 

Congressional testimony from a former 

association executive asserting that in 

his experience recruiting closer to the 

date of need produces more applicants 

and that prospective job applicants in 

these industries do not look for work 

120 or even 45 days in advance. 

A law firm representing growers 

urged the Department to allow growers 

to file their proposed job orders on the 

shortest, most administratively feasible 

timeframe. It also noted that the 

Department’s policies should be 

designed to allow flexibility and 

entrepreneurial expansion and 

development of agricultural production 

and work opportunities, and not restrict 

the growth of job opportunities or 

agricultural products. 

Some commenters cited the statement 

in the NPRM that the Department 

approves most applications by the 27th 

to 29th day before the date of need as 

evidence that the current system of 

filing on the 45th day before the date of 

need and certifying by the 30th day 

before the date of need is working and 

need not be changed. The Department is 

bound by the statute to make a final 

determination on each temporary 

agricultural labor certification by the 

30th day before the date of need. The 

fact that the Department is generally 

able to meet the statutory deadline does 

not mean that the Department is able to 

certify based on a robust record of the 

employer’s recruitment efforts. As 

discussed above, the extension of the 

recruitment period will enable the 

Department to make its certification 

with better information on recruitment. 

Based on its long program experience, 

the Department believes that beginning 

recruitment 45 days before the date of 

need is insufficient because it provides 

the Department with only 15 days to 

assess the availability of U.S. workers in 

the relevant job market and to permit 

them sufficient time to seek and be 

hired for these jobs. (In fact, since it 

must first accept the Application and 

authorize recruitment, the Department 

has traditionally had only about a week 

to review recruitment efforts.) The 

Department has determined that the 75 

to 60 day timeframe most adequately 

balances the Department’s statutory 

duty to ensure that U.S. workers have 

access to meaningful employment 

opportunities (and are not adversely 

affected by the employment of foreign 

workers), with the agricultural 

employers’ legitimate need to meet labor 

demands. In response to the 

commenter’s argument that 

unpredictable factors often affect an 

employer’s labor needs, the Department 

notes that its Final Rule retains a 

provision that permits an employer to 

amend its Application prior to 

certification to increase the number of 

workers needed. Giving growers the 

ability to request additional workers is 

intended to provide flexibility and 

account for the contingencies affecting 

agricultural production. Furthermore, 

the Department recognizes that some 

local job applicants who accept an offer 

of employment in agriculture, as in all 

other industries, on occasion fail to 

report for work as agreed. Employers in 

those circumstances must temporarily 

re-distribute the workload while seeking 

to hire a replacement. We reemphasize 

that while the Final Rule permits the 

submission of the job order as much as 

75 days before the start date, employers 

are only required to submit their job 

orders 60 days prior to the start date. 

The Department believes that this 


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timeframe enhances the ability of 

domestic workers to access these 

employment opportunities. 

As discussed throughout this Final 

Rule, the Department’s primary concern 

with respect to its statutory mandate is 

restoring necessary protections to U.S. 

and foreign workers while maintaining 

a fair and reliable process for addressing 

legitimate employer needs. As adopted, 

the 75 to 60 day timeframe is necessary 

to ensure the orderly and timely 

administration of the program and 

provides the necessary flexibility for the 

Department, the SWAs and employers 

to meet the program’s statutory 

requirements and objectives. The 

demand on Departmental resources, 

although relevant, is not a decisive 

factor in implementing a workable 

timeframe. 

The Department has determined that 

in addition to providing U.S. workers 

with longer exposure to H–2A job 

opportunities through the reinstatement 

of the 50 percent rule, the longer prefiling timeframe will ensure that the job 

order meets all applicable programmatic 

requirements. The Department has 

determined that both a longer 

recruitment period and a longer referral 

period are necessary to meet the 

statutory and policy objectives of the H– 

2A program. While there had been some 

discussion about balancing the 

initiation of recruitment with the 

termination of the employer’s obligation 

to hire domestic applicants, the two 

issues are unrelated and deal with 

different aspects of recruitment. The 

need to start the recruitment process 

slightly earlier will also assist the 

Department to more effectively meet our 

obligation to make a certification 

decision 30 days before the start date. 

This is unrelated to the need to ensure 

the continued availability of these 

positions to U.S. workers through postcertification hiring requirements. We 

have discussed above why recruitment 

needs to start at least 60 days before the 

start date. We discuss later in this 

preamble why the Department has 

determined that the post-certification 

hiring is best met through the 50 percent 

rule. 

Having considered the issues raised 

by commenters, the Department has 

decided to keep the provision in the 

Final Rule. Therefore, the Department 

has determined that the 75 to 60 day 

timeframe provides adequate time to 

resolve any pre-filing issues in a way 

that will not negatively impact the 

employer’s ability to timely meet its 

labor needs. 

b. SWA Review 

In the NPRM the Department 

proposed that SWAs review the 

contents of the job order and address 

any noted deficiencies. As noted above, 

it also provided for the involvement of 

the Certifying Officer (CO) to resolve 

any issues regarding the placement of 

job orders in the intrastate clearance 

system. The Department received a 

number of comments addressing this 

provision. Many of the commenters 

expressed concern over the broad 

discretion granted to the SWAs to 

determine the sufficiency of the job 

order, and the lack of CO involvement 

to resolve outstanding issues prior to the 

filing of the Application. These 

commenters proposed to limit the SWA 

review to a specified timeframe. 

A few expressed support for the 

retention by the OFLC of ultimate 

decision-making authority regarding the 

sufficiency of job orders but expressed 

concern over what they deemed an 

inordinate level of decision-making 

authority in the hands of the SWAs. 

These commenters were primarily 

concerned with the resulting lack of 

uniformity in adjudication and 

enforcement due to differences between 

the SWAs in rule interpretation and the 

likelihood that disparate adjudications 

will result in confusion for both 

employers and workers. 

One commenter stated that having 

multiple points of acceptance will cause 

confusion and disruption in program 

use for large and small growers because 

States may differ from one another in 

their interpretations of the statutory and 

regulatory requirements and some are 

not even consistent internally. In 

addition, the commenter was concerned 

about the potential for inconsistency 

between what the SWA accepts at the 

pre-filing stage and the later 

determination by the CO regarding the 

sufficiency of the job order. 

Another commenter indicated support 

for the reduced role of the SWAs in the 

H–2A labor certification process under 

the 2008 Final Rule. This commenter 

contended that most of the delay in 

processing of H–2A visas has been 

caused by SWA staff, who it asserted 

have been slow to perform their duties 

under the program. This commenter 

proposed that the Department limit the 

role of the SWAs to the inspection of 

worker housing and workplace 

conditions after approval. 

A large growers’ association expressed 

dissatisfaction with the process for 

placing job orders with the SWA. It 

asserted that since the filing of the 

Application is predicated on the 

acceptance by the SWA, the Department 

failed to provide a meaningful relief 

mechanism for employers to address 

issues with the SWAs imposing 

unwarranted requirements. 

The Department expressed above its 

belief that SWAs remain, as they have 

always been, the arbiters of the 

acceptability of job orders. The 

Department also recognizes the need for 

employers to have an acceptable and 

timely process by which orders are fully 

evaluated and issues addressed with 

each SWA. Therefore, the Department 

has decided to amend its procedures for 

SWA acceptance of the H–2A job order 

to allow for a timely process of the 

acceptance or rejection of job orders. 

Under the INA, the Department has 

the ultimate responsibility for all labor 

certification determinations. The Final 

Rule does not abrogate that authority. 

However, the Department has 

determined that the involvement of the 

SWAs at the outset of mandatory 

recruitment will benefit the process 

because, as discussed above, SWAs have 

unique expertise in assisting employers 

in preparing job orders and making 

initial determinations regarding their 

sufficiency. In addition, SWAs are 

experienced in providing services to 

farm workers and helping them navigate 

the employment process. In order to 

balance our obligations under the INA 

with involvement of the SWAs in the 

process, the Final Rule creates a process 

so that disagreements between the 

employer and the SWA about the 

contents of the job order can be 

expeditiously resolved. This provision 

also ensures uniformity of 

determinations and places the ultimate 

decision regarding the sufficiency of a 

job order with the CO. 

The Department’s Final Rule therefore 

adopts a process in which the SWA 

must either accept or reject the job 

order. After considering comments 

advocating that the Final Rule include 

a timeline, the Department has 

determined that 7 calendar days, rather 

than the 5 days proposed by some 

commenters, provides the SWA with 

adequate time to make a determination 

on even the most substantial job orders. 

In the event the SWA and the employer 

cannot reach a mutually agreeable 

solution regarding the job order in the 

timeframe outlined in the revised 

regulation, the SWA must reject the job 

order by written notice specifying the 

reasons for rejection, i.e. the 

deficiencies in the job order, to the 

employer, and the employer must 

respond. The Final Rule adds the 

requirement that once the employer 

responds to the SWA notification of 

deficiencies, the SWA must respond to 

the employer’s response within 3 


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calendar days. If the job order 

deficiencies still remain unresolved, the 

Department’s regulations permit the 

employer to use the emergency filing 

procedures to file its Application (and 

the job order) directly with the National 

Processing Center (NPC); such 

circumstances will constitute the good 

cause contemplated by that provision. 

The CO will then follow the procedures 

for accepting or rejecting the job order 

as outlined in this revised provision. 

The Department’s regulations provide 

for the involvement of the CO in 

instances where issues with the job 

order are not resolved between the 

employer and the SWA. As explained 

above, the Department’s Final Rule 

adopts a timeframe under which the 

SWA must either accept or reject the job 

order within 7 calendar days and 

respond within 3 calendar days where 

the employer responds to the 

notification of deficiencies. If the 

deficiencies remain unresolved, the 

Final Rule provides for the filing of 

Applications on an emergency basis 

where the employer and the SWA 

cannot reach a timely resolution 

regarding the placement of the job order. 

The Department does not anticipate 

significant discrepancies between SWA 

determinations in various States. In our 

experience, differences in SWA 

processing of job orders are often 

attributable to the differences in 

experience with the local industries and 

labor markets, and the resulting 

distinctions in treatment are legitimate 

outgrowths of those differences. The 

Department is relying 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. SWAs process job orders as 

part of their essential functions and 

have processed H–2 and H–2A job 

orders since the inception of the 

program. Employers are encouraged to 

work with the SWAs early in the 

process, including on crafting the 

requirements of job orders, to ensure 

that their job orders meet all 

requirements, and are timely accepted 

for intrastate clearance. In addition, the 

Department anticipates that CO 

determinations about job orders will in 

most instances agree with those of the 

SWA. The Department will provide 

training and on-going guidance for the 

SWAs and program users, in order to 

foster a clear understanding of program 

and other regulatory requirements and 

ensure uniformity in determinations. 

c. Intrastate Clearance 

The Department proposed to continue 

the requirement of having the employer 

whose job opportunity is in more than 

one State file with only one SWA 

serving the area of intended 

employment. 

A commenter suggested that each 

work site be evaluated to determine 

whether there is more than one area of 

intended employment for a particular 

job opportunity. This commenter 

proposed a change to require that the 

employer simultaneously submit a job 

order to each SWA serving an area of 

intended employment where the job 

opportunity is located in more than one 

State. 

An individual commenter proposed 

that the SWA placing the job order in 

intrastate clearance share the listing 

with other SWAs in States bordering the 

State containing the area of intended 

employment. This commenter argued 

that State lines should not stand in the 

way of recruitment of local residents 

where the area of commuting distance 

encompasses more than one State. This 

commenter further argued that 

permitting the forwarding of job orders 

to neighboring States would save the 

employer the costs of applying for an H– 

2A labor certification if the employer is 

able to fill the job openings with local 

workers. 

The Department agrees with the intent 

of these comments and has modified the 

rule to require the SWA to forward the 

job order to the other SWAs having 

jurisdiction over the area of intended 

employment. However, we believe the 

requirement for filing with multiple 

States would be confusing to employers 

and place an undue burden on them. 

Since SWAs have existing mechanisms 

to accomplish this task, this is a more 

appropriate activity for the SWA, rather 

than the employer, to undertake. 

d. Duration of Job Order Posting 

The Department is clarifying that 

Form ETA–790, the Agricultural and 

Food Processing Clearance Order, is to 

be used for the submission of the job 

order to the SWA. The Department 

received one comment opposing 

duplication in filing and processing 

arguing that the most substantive and 

voluminous portion of an application is 

the Form ETA–790. The Form ETA–790 

must be used by all employers seeking 

to recruit agricultural labor in the U.S., 

pursuant to the Wagner-Peyser 

regulations at 20 CFR 653.401. Those 

regulations were not part of this 

rulemaking so this comment was not 

considered. 

e. Modifications to the Job Order 

The Department proposed a process 

for the modification of job orders. 

Several commenters expressed concern 

regarding the proposed provision 

permitting the CO to direct modification 

of a job order after SWA acceptance and 

before the issuance of a labor 

certification. Some of the commenters 

argued that there should be finality in 

the process, including one point of 

acceptance for a job order. Some 

commenters further argued that since 

the employer is held to the terms and 

conditions offered in the job order, the 

SWA and the CO should be bound by 

the acceptance of those terms and 

conditions. A couple of commenters 

expressed concern that corrections to 

the job order after SWA acceptance and 

placement in intrastate clearance may 

result in different groups of potential 

workers being recruited under differing 

terms, and noted that workers recruited 

under a particular job order need to be 

able to rely on the terms and conditions 

offered. One of these commenters 

proposed that the Department limit all 

modifications after acceptance to 

significant emergency situations such as 

Acts of God. Another commenter 

opposed the provision permitting the 

CO to direct an employer to modify the 

job order after a finding that the 

previously accepted terms and 

conditions fail to fully comply with 

program requirements. This commenter 

indicated that this provision violates 8 

U.S.C. 1188(c)(2), which requires DOL 

to state any deficiencies that it finds in 

a labor certification application within 7 

days. 

The INA requires the Department to 

note any deficiencies in the employer’s 

Application within 7 days from receipt. 

We do not interpret the provision 

requiring the Department to accept or 

reject an Application within 7 days to 

limit the Department from requiring 

modifications after acceptance. The INA 

cannot mean that the SWA’s acceptance 

of the Application forces the CO to 

overlook any apparent violations. To 

interpret the statute in that way would 

require the Department to either accept 

Applications which contain apparent 

violations or to reject the Applications 

without giving the employer the 

opportunity to correct the apparent 

violation of program requirements. With 

respect to concerns about worker 

reliance on a job order that subsequently 

has been modified, employers will now 

be required to notify all workers 

recruited pursuant to that job order of 

any material change in the terms and 

conditions of employment, particularly 

to the extent that the terms of the job 


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order constitute part of the work 

contract as described in § 655.122(q). 

Another commenter argued that the 

Final Rule needs to address changes by 

employers when changes are necessary 

because of unforeseen business 

necessities that arise during the time 

between the beginning of the 

recruitment period and certification. 

The Final Rule retains a provision 

from the NPRM permitting the employer 

to request modification of a job order 

before filing the Application. As 

discussed above, many commenters 

noted that at this point, 45 days from 

the date of need, most employers would 

have a better idea regarding their plans 

for the season, including their labor 

needs. Therefore, the Department’s 

Final Rule retains the limitation on 

employer modification of job orders. 

f. Elimination of Requirement That 

SWAs Must Verify Employment 

Eligibility (Form I–9, E-Verify) 

As explained in the NPRM, the 

Department proposed to eliminate the 

requirement that SWAs must complete 

the employment eligibility verification 

process (Form I–9 or Form I–9 plus EVerify) for all workers referred to the 

employer by the SWA under a job order. 

The Final Rule follows the NPRM and 

no longer requires SWAs to verify 

employment eligibility. This approach 

is logical and consistent with 

employers’ discretion and duties 

concerning all new hires—including the 

checking of references, qualifications, 

etc. Nothing in the INA or these 

regulations precludes the States from 

performing employment verification 

voluntarily or pursuant to State law, nor 

do they prevent the employer from 

relying on verification performed by the 

SWA so long as it meets certain 

verification standards as set out in 

applicable DHS regulations. 

In their traditional role, the SWAs are 

only required to refer candidates whose 

qualifications match the terms and 

conditions of the job order to an 

employer’s job opportunity. Requiring 

one small subset of applicants who 

apply for H–2A positions to be subject 

to employment eligibility verification 

raises the possibility of disparate 

impact. 

A SWA referral does not in itself 

constitute an offer of employment 

because the referred individual may be 

rejected for lawful, employment-related 

reasons. In addition, the Department 

believes that SWA resources are most 

effectively directed to the core functions 

of the public workforce system, such as 

clearing job orders. For all the reasons 

discussed above, the Department has 

retained the language from the NPRM 

and eliminated the requirement that 

SWAs verify employment eligibility of 

potential employees referred in 

connection with an H–2A job order. 

The Department received comments 

both for and against the elimination of 

employment eligibility verification by 

the SWAs. Several commenters 

expressed support for the Department’s 

decision to return to the previous 

practice of permitting the SWAs to 

determine for themselves the method by 

which they would ensure workers were 

eligible for referral. 

Several commenters offered strong 

support for the Department’s proposal to 

remove the requirement that the SWA 

verify the employment eligibility of job 

seekers before referral. Most of these 

commenters explained that placing the 

burden of verification on the SWAs in 

the 2008 Final Rule was inappropriate 

and that it required States to impose a 

greater barrier for people seeking H–2A 

job openings than on others, resulting in 

disparate treatment of protected classes. 

One SWA further indicated that people 

not authorized to work in the U.S. are 

unlikely to seek work through 

government-run One-Stop Career 

Centers. Another SWA noted that the 

Department simply lacks statutory 

authority to require SWAs to conduct 

employment eligibility verification 

because 8 U.S.C. 1324a permits, but 

does not require, SWAs to complete I– 

9 forms with regard to individuals they 

refer to jobs. One of these SWAs also 

noted that it will continue to refer 

eligible job seekers using its current 

right-to-work verification process, 

codified in its State law. Another SWA 

voiced support for the elimination of the 

requirement and pointed out that States 

are not funded to provide I–9 

verification. Another commenter 

indicated that freeing the SWAs of 

verification responsibilities was a 

positive development given that the 

proposed regulations call for greater 

SWA involvement in recruitment. 

A few employer organizations 

objected to the elimination of the 

verification requirement on the grounds 

that employers are required to hire 

referred workers and that the SWAs 

should not refer workers who are not 

eligible to be employed. 

Other commenters discussed what 

they characterized as an impermissible 

shifting of the financial and 

administrative burden of employment 

verification back to employers who are 

already facing difficult times and rising 

production costs. One commenter, a 

farm bureau, noted that the resource 

issue for SWAs is no different than the 

resource issues that family farmers 

regularly face but who verify 

employment eligibility nonetheless. 

Another farm bureau described the 

proposal of reverting to employer 

verification as contrary to the 

Administration’s commitment to 

eliminating illegal immigration. 

Other commenters opposed the 

change in the requirement, noting that 

the elimination of the requirement 

would burden the employers whose 

Applications were only partially 

certified based on the number of 

referred local workers who later turn out 

to be ineligible for employment. 

Another commenter contended that, in 

the absence of SWA verification, the 

Department should not count the SWA 

referrals against the number of workers 

requested by an employer on an 

Application. 

Other commenters accused the 

Department of compromising its 

obligation to protect the jobs of 

domestic workers by eliminating the 

employment eligibility verification 

requirement. One of these commenters 

further asserted that the Department 

should take responsibility for the 

referral activities of its State partners 

and that the elimination of the 

employment eligibility verification 

signifies that the Department condones 

the employment of illegal aliens, which 

contributes to low wages, inadequate 

housing and a shortage of viable job 

opportunities for U.S. workers. Another 

commenter noted that the elimination of 

the verification requirement undercuts 

the role of the SWA to determine the 

availability of U.S. workers for 

employment before the filing of an 

Application. This commenter asserted 

that the SWA’s inability to determine 

the work authorization of workers 

recruited and referred under the job 

order fails to meet the SWA’s legal 

obligation to determine that sufficient 

able, willing, and qualified U.S. workers 

are available. 

Several commenters expressed 

concerns that without SWA verification, 

at least 75 percent of referred workers 

will later prove ineligible for 

employment, with one commenter 

citing examples from its experience. 

Most of these commenters further 

argued that the referral of ineligible 

workers will place a burden on 

employers either to continue to employ 

ineligible workers and run the risk of 

employer sanctions, or dismiss these 

workers and find replacement workers 

in time. 

Several commenters opposed the 

change in the requirement, pointing to 

the 2008 Final Rule’s interpretation that 

8 U.S.C. 1324a and DHS regulations at 

8 CFR 274a.2 and 274a.6 require the 

SWA to verify employment eligibility 


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before referring applicants to the 

employer. Another commenter 

challenged the Department’s distinction 

between a referral and an offer of 

employment, asserting that the 

distinction is meaningless since the 

employer has no option to refuse to hire 

the worker referred by the SWA if that 

person is willing, able, and qualified for 

employment. Another commenter 

argued that the SWA is statutorily 

required to verify employment 

eligibility of referrals because 8 U.S.C. 

1188(c)(3) lists as one condition for 

certification a requirement that the 

employer does not actually have or has 

not been provided with referrals of 

qualified, eligible individuals, and 8 

U.S.C. 1188(i) defines an eligible 

individual as being one who with 

respect to employment, is not an 

unauthorized alien, as defined in 8 

U.S.C. 1324a(h)(3). This commenter 

further argued that the Department or 

the SWA must determine if applicants 

from the pool of local workers are 

authorized to work in the U.S. because, 

without this determination, DOL cannot 

deny any application for labor 

certification on the basis of there being 

qualified, eligible individuals. 

Another commenter challenged the 

Department’s rationale regarding the 

disparate impact of employment 

verification on workers, referring to the 

2008 Final Rule rationale that the 

requirement to verify employment 

eligibility does not violate constitutional 

prohibitions against disparate impact. 

As explained further below, the 

Department believes that this position 

in its 2008 Final Rule was erroneous, 

and that disparate impact can result 

from the segregation of H–2A referrals to 

comply with the verification 

requirement. 

After thorough consideration of these 

comments, the Department has 

concluded that it will retain the 

language of the NPRM. The Department 

believes that its mandate to protect job 

opportunities for U.S. workers and 

ensure that they are not adversely 

affected by the employment of foreign 

workers will be best served by a 

requirement that reflects the intent of 

Congress that the employer, and not the 

SWA, is responsible for the ultimate 

verification that its labor force is 

comprised of workers legally present 

and authorized to work in the U.S. 

Employers are the group that is charged 

with this function under the statutory 

verification process and have been since 

the imposition of employment 

verification. The previous rule did not 

in any way relieve employers of 

ensuring the employment eligibility of 

their workforce. Similarly, removing the 

employment eligibility verification 

requirement from SWAs also does not 

relieve employers of that duty. 

The statute makes the plain statement 

that the employer may not hire an 

unauthorized worker. 8 U.S.C. 

1324a(a)(1). The same statute enables 

employers to rely upon a referral by a 

State agency with the proper 

employment verification 

documentation, but imposes no burden 

on States to actually do so, in contrast 

to the burden it affirmatively imposes 

on employers. 8 U.S.C. 1324a(a)(5). 

The SWAs must administer a number 

of programs and functions, including 

those related to foreign labor 

certification. Certain SWA job service 

functions are funded by formula under 

the Wagner-Peyser Act and the 

Workforce Investment Act. Other 

funding is received directly from the 

OFLC for services the SWAs provide in 

connection with the Department’s labor 

certification programs. The Department 

has decided that imposing the 

additional requirement of employment 

eligibility verification of H–2A referrals 

denies the SWA the flexibility to decide 

how best to allocate its resources. 

Additionally, the Department 

continues to believe that requiring the 

SWAs to conduct employment 

verification of applicants for H–2A job 

opportunities prior to referral creates 

the potential for complaints of disparate 

impact. By requiring this verification of 

referrals only in job orders in which 

employers are seeking nonimmigrant 

workers, some referrals to job orders 

that are identical with the sole 

exception of the H–2A component are 

treated differently. The Department’s 

concern that this could in turn lead to 

differential treatment of H–2A job 

orders generally and of referrals to those 

job orders specifically, provides further 

cause for concern about continuing the 

obligation on SWAs. 

The suggestion by the commenters 

that this return to the pre-2008 

requirements is unduly burdensome 

ignores the statutory requirement, with 

which they have presumably always 

comported, to undertake verification. 

The return to employer verification 

returns H–2A employers to the same 

position as virtually all employers, 

including non-H–2A agricultural 

employers. Thus, H–2A employers are 

subjected to no greater burden than any 

other employers, with respect to 

employment verification. 

Traditionally employers are not 

required to hire each person referred by 

the SWA, because they may reject 

potential hires for any lawful, jobrelated reason. Furthermore, each 

employer has an obligation to terminate 

any worker who upon acceptance of the 

job offer proves ineligible to work in the 

U.S.; such grounds are, moreover, a 

legitimate basis for rejecting the worker 

for purposes of the recruitment report. 

The Department declines to accept the 

commenters’ interpretation of the 

SWAs’ obligations with respect to the 

verification of SWA referrals. Because 

SWAs do not perform any activities that 

would classify them as subject to 8 

U.S.C. 1324a(a)(1)(B), the INA does not 

require SWAs to engage in employment 

eligibility verification. In addition, 8 

U.S.C. 1188(3)(A) does not identify the 

referring entity that would provide 

employers with eligible individuals 

within the meaning of 8 U.S.C. 1188(i). 

The role of the SWA in the referral of 

U.S. workers under the H–2A program 

is solely governed by the Department’s 

regulations, as 8 U.S.C. 1188 does not 

define the methodology for the 

recruitment of U.S. workers, nor does it 

include any references to the SWAs or 

other State actors. Section 655.155 of 

this Final Rule directs the SWA to refer 

to employers only those applicants who 

have been apprised of all material terms 

and conditions of employment and have 

agreed that they are able, willing, 

qualified, and available by agreeing to 

be referred to the job opportunity. This 

provision makes it clear that the SWA 

is only required to perform its 

traditional job service functions 

uniformly across all classes of 

applicants and employers. 

7. Section 655.122 Contents of Job 

Offers 

The job offer sets out the terms and 

conditions of employment contained 

within the job order. The employer can 

give this information to the workers by 

providing a copy of the job order or a 

separate work contract. A written job 

offer is critical to inform potential 

workers of the material terms and 

conditions of employment and to 

demonstrate compliance with all of the 

obligations of the H–2A program. For 

H–2A program purposes, the job offer 

must contain, at a minimum, all of the 

worker protections that apply to both 

domestic and foreign workers pursuant 

to these regulations. The Department 

considers the job offer essential for 

providing the workers sufficient 

information to make informed 

employment decisions. The work 

contract, or where there is no written 

work contract, the job order, which is 

the document representing the material 

terms and conditions of the job offer, 

must be provided with its pertinent 

terms in a language the worker 

understands. 


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The Department proposed to retain 

much of the 2008 Final Rule 

requirements on job offers with some 

minor clarifications. The Department’s 

responses to comments are discussed in 

more detail below. 

a. Prohibition Against Preferential 

Treatment 

The NPRM proposed to return to the 

language in the 1987 Rule about the 

requirement for the minimum wages 

and working conditions that must be 

offered to foreign and U.S. workers. 

One commenter proposed that the 

Department permit employers to require 

experience for U.S. workers applying for 

H–2A job openings, to increase the 

chance that the worker will complete 

the contract after being reimbursed for 

transportation and any other allowable 

costs incurred in the course of 

recruitment. This commenter justified 

the proposed revision by stating that no 

similar mechanism is necessary to keep 

the H–2A workers tied to the contract as 

their very status depends on their 

continued performance under the work 

contract. 

Another commenter noted its 

experience with employers who prefer 

an H–2A workforce and therefore 

subject U.S. workers to conditions 

intended to displace them, such as 

coercion, in-person interviews, and 

production standards that they do not 

impose on their foreign workers. This 

commenter indicated that strong 

protections are needed to protect 

agricultural job opportunities for the 

domestic workforce, including 

regulations that prevent different 

standards from being applied to foreign 

and domestic applicants. Furthermore, 

this commenter urged the Department 

not to allow an experience requirement 

proposed by other commenters unless 

the same requirement applies to foreign 

workers. Another commenter noted that 

many employers pay higher wages and 

provide better benefits to year-round or 

long-term employees but that those 

benefits should not result in the 

preferential treatment of U.S. workers. 

Another commenter, an H–2A agent, 

asserted that this proposed provision 

may have the opposite of the intended 

effect, particularly with respect to 

wages, due to a requirement to offer H– 

2A workers the same minimum level of 

benefits, wages, and working conditions 

being offered to U.S. workers. 

While the regulatory text did not 

prohibit employers from paying U.S. 

workers more than H–2A workers, 

inartful preamble language caused 

confusion as to whether U.S. workers 

can be provided benefits and/or wages 

exceeding those offered and provided to 

H–2A workers. The requirement is that 

the employer’s job offer to U.S. workers 

be no less than what the employer is 

offering, intends to offer, or will provide 

to the employer’s H–2A workers. 

Further, the contents of any job offer 

under H–2A must contain—at a 

minimum—the wages and working 

conditions found in this Final Rule. If 

a job offer to H–2A workers offers or 

provides a wage or benefit greater than 

what is required, then the same must be 

offered and provided to U.S. workers. 

Similarly, if the job offer imposes a 

restriction or obligation (e.g., a 

productivity standard or experience 

requirement), then that restriction or 

obligation is applicable to all workers— 

both U.S. and H–2A—and no additional 

or further restriction can be placed on 

only U.S. workers. (Any such restriction 

or obligation must be stated in the job 

offer for it to be applicable to any 

worker, whether U.S. or H–2A.) This 

does not, however, preclude an 

employer from providing additional 

wages and benefits to U.S. workers that 

are not being provided to H–2A 

workers. There is no intention, for 

example, to require an employer to 

lower the wages of a long-term or yearround U.S. employee to an H–2Arequired wage simply because such U.S. 

worker is engaged in corresponding 

employment. Additionally, these 

regulations are not intended to require 

an employer to raise the wage rate of all 

H–2A workers—and then by extension, 

all other workers in corresponding 

employment—if a long-term U.S. worker 

being paid a higher wage is engaged in 

corresponding employment. The 

Department, therefore, retains the 

proposal with clarifying edits. 

b. Job Qualifications and Requirements 

The Department proposed in the 

NPRM to retain the same requirements 

with respect to the job qualifications 

and requirements as in the 2008 Final 

Rule. In addition, the Department made 

explicit that the CO or the SWA has the 

discretion to require that the employer 

submit documentation to justify the 

qualifications specified in the job order. 

Having considered the comments 

received in response to this proposal, 

the Department has decided to retain 

the provision, as proposed. 

The Department received several 

comments in response to this provision. 

One commenter, a farm worker 

advocacy association, referred to reports 

of persistent violations by employers 

who recruit foreign workers under 

qualifications and job requirements that 

are inconsistent with the Application 

and job order. This organization 

proposed a revision to require 

qualifications and requirements 

comparable with the employer’s non-H– 

2A workers in the current or 

immediately preceding season for 

similar employment. 

Several commenters opposed the 

requirement that the SWA or the CO 

may require the employer to provide 

documentation justifying job 

qualifications or requirements. One 

asserted that the qualifications or 

requirements of a job opening are within 

the purview of the employer’s business 

purposes and that neither the CO nor 

the SWA have an understanding 

regarding what is or is not a reasonable 

qualification. Another commenter 

indicated that the job requirements and 

qualifications or other factors making a 

particular Application unique must be 

acceptable if they are justified by 

business necessity. According to this 

commenter, nothing in the INA requires 

an employer to perform any job in the 

same manner as another employer in 

order to obtain a labor certification. 

Another employer opposed the 

imposition of the requirement, arguing 

that the provision is vague and 

unjustified and that it contains no 

guidance on what types of 

documentation the SWA or the CO 

would find sufficient, nor does it 

provide for an appeal process for the 

employer. Further, the commenter 

argued, the Department is giving no 

assurance that the requirement would 

be applied in a consistent or objective 

manner. 

The Department appreciates the 

proposal to require qualifications from 

previous seasons but after careful 

consideration has determined that it 

would be difficult to enforce this 

requirement on both employers who did 

and those who did not participate in the 

program during a prior season. 

Additionally, this requirement would 

unduly intrude on the employer’s 

discretion to make business decisions, 

while not enhancing worker protections. 

With respect to comments opposing 

the documentation requirement, 8 

U.S.C. 1188(c)(3) provides that in 

determining questions of whether a 

specific qualification is appropriate in a 

job offer, the Secretary shall apply the 

normal and accepted qualifications 

required by non-H–2A employers in the 

same or comparable occupations and 

crops. For decades, the Department’s 

regulations have applied this principle 

to both job requirements and job 

qualifications. The Final Rule continues 

that approach. 


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c. Minimum Benefits, Wages, Working 

Conditions 

The NPRM proposed this section as 

an introduction to the section on the 

contents of the job offer. The 

Department received comments 

expressing support for these provisions 

that strengthen labor protections for 

temporary foreign agricultural workers, 

such as wages, housing, and employerprovided transportation. 

The regulatory text has been edited to 

correct an inadvertent error in 

paragraph designations and to make a 

minor editorial clarification. 

d. Housing 

Because the employer’s obligation to 

provide housing is intertwined with the 

requirement for housing inspections, 

issues related to the employer’s 

obligation to provide housing are 

addressed in this section. Under the 

NPRM, an employer seeking to use the 

H–2A program would be required to 

submit a job order to the SWA in the 

area of intended employment for 

intrastate clearance. Concurrent with 

the filing of the job order, the employer 

must request a housing inspection and, 

consistent with the Wagner-Peyser Act 

regulations, the housing inspection 

must be completed before issuance of 

the H–2A certification. This proposal 

marked a change from the 2008 Final 

Rule which allowed the NPC, under 

certain circumstances, to make a 

certification determination on an 

Application 30 days before the 

employer’s date of need, even if the 

housing referenced in the Application 

had not yet been physically inspected 

by the SWA 

In addition, the NPRM proposed to 

clarify that the employer’s obligation to 

provide housing extends both to H–2A 

workers and to workers in 

corresponding employment who are not 

reasonably able to return to their 

residence within the same day. The 

Department proposed minor 

modification to the provision on 

certified housing that becomes 

unavailable. While most of the 2008 

Final Rule provision remains, the 

Department proposed that the SWA be 

required to promptly notify the 

employer of its obligation to correct 

deficiencies if the substituted housing is 

or becomes out of compliance with 

applicable safety and health standards 

after inspection. The Department also 

sought to clarify available remedies for 

housing safety and health violations to 

include denial of a pending Application 

or revocation of a future Application. 

No changes were proposed to the 2008 

Final Rule provisions concerning 

housing safety and health standards, 

rental or public accommodations, open 

range housing, deposit charges, charges 

for public housing, and provision of 

family housing. After full consideration 

of the comments, the Department is 

adopting all the housing-related 

provisions as set out in the proposed 

rule, with minor editorial modifications. 

The Department received a number of 

comments on this proposal from 

employers, grower associations, SWAs 

and worker advocates. One employer 

association commented that the return 

to the 1987 Rule housing inspection 

rules would cause delays in 

certifications, and as evidence of this 

statement provided certification 

statistics from 2008 for its members. 

This commenter asserted that between 

December 15, 2007 and April 20, 2008, 

89 certifications were issued for its 

members, of which 40 certifications 

were issued and received within 4 days 

of due date (40 percent); 37 were 

received between the 5th day and the 

10th day (37 percent); another eight 

were received between the 11th and 

15th days (8 percent); and the rest were 

received between the 16th and 24th 

days (13 percent). According to this 

commenter, the certifications issued in 

2008 under the 1987 Rule were on 

average late by 8.27 days. This 

commenter also took issue with the 

Department’s assumptions for the time 

associated with processing and receipt 

of petition approval from United States 

Citizenship and Immigration Services 

(USCIS), the worker obtaining a visa 

from the Consulate, and transportation 

from Mexico to the area of intended 

employment. It concluded that the 

proposed change to the timing of the 

housing inspections would have a very 

significant impact on the association’s 

members. Another employer association 

similarly stated that its members had 

seen improvements in processing times 

as a result of the 2008 Final Rule and 

predicted certification delays as a result 

of this provision. The association also 

criticized the Department for ignoring 

its own detailed rationale in the 

preamble of the 2008 Final Rule 

explaining why it was inappropriate to 

delay certification determinations 

because of the SWA’s delay in 

completing housing inspections. 

Other employers noted that the 

proposed change would result in less 

time to make necessary repairs and 

improvements to housing, which in one 

grower’s view would ultimately work to 

the detriment of the workers housed 

there. Other employers commented that 

requiring that the housing inspection be 

completed before worker occupancy 

creates unnecessary financial burdens 

by essentially requiring employers to 

ensure housing is available prior to the 

actual need. An agricultural employer 

and H–2A program user stated that 

inspecting occupied housing can be 

very difficult for the inspector and has 

the potential to add huge liabilities for 

employers; it asked whether the WHD 

intends to train SWA staff on 

differentiating between compliance 

issues connected with occupied housing 

and those connected with unoccupied 

housing. This commenter further 

suggested that employers be given a 

specific and reasonable time period to 

correct violations found in inspections 

of occupied housing, and that penalties 

only be assessed if the employer fails to 

correct the violations. Similarly, an 

association commented that SWAs are 

not allowed to inspect occupied 

housing, which creates difficulties if the 

employer is seeking to augment his or 

her existing workforce or another 

grower is utilizing the housing during 

the H–2A employer’s off-season. This 

commenter also remarked that the 

Department does not mandate preoccupancy inspections of farm worker 

housing outside of the H–2A program 

and suggested that this is an indication 

that temporary housing is not a priority 

for the Department except in the H–2A 

program. 

Several commenters representing 

employers and employer interests 

offered that the cost and availability of 

housing is one of the most serious 

impediments to the use and expansion 

of the H–2A program, and many 

suggested implementation of a system 

where employers could provide workers 

a housing voucher instead of the 

employer directly providing housing. 

These commenters also noted that the 

H–2A program is the only employmentbased immigrant or nonimmigrant 

worker program that requires the 

employer to provide free housing to its 

workforce and suggested that imposing 

the housing requirement only on 

agricultural employers is unwarranted. 

One employer association stated that 

until Congress eliminates this 

requirement on employers, the 

Department should limit the practice 

and not expand employers’ 

responsibility to serve as unpaid 

landlords to their workforce. 

In contrast to comments from 

employers and employer associations, 

comments received from SWAs and 

employee advocates were generally 

supportive of the proposed change. 

State agencies commenting in favor of 

the provision represented States in 

which a significant number of H–2A 

workers are employed and/or States 

where agriculture contributes 


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substantially to the State’s economy. 

One SWA agreed with the proposed 

change on the basis that it would protect 

growers by helping them fulfill their 

housing obligations and ensure 

protections for workers. Another SWA 

commented that requiring housing 

inspections to be completed prior to H– 

2A certification will confirm that 

adequate housing is being provided to 

the temporary foreign workers. Another 

State agency found the provision 

consistent with its goal of assuring safe 

and healthy living for migrant farm 

workers and stated that one way they 

accomplish this is through their housing 

inspection program, stating that 

eliminating the attestation process and 

requiring that farm worker housing be 

inspected prior to occupancy is 

consistent with their Department of 

Health’s licensing and inspection 

program. 

An employee advocate organization 

commented that while the proposed 

provision is an important step in 

assuring compliance with housing 

requirements, the proposed regulations 

still do not adequately address the 

problem of ghosthousing, wherein 

employers list housing that is never 

actually intended to be used to house 

workers. This commenter explained that 

when there is no post-certification 

inspection requirement, the potential 

exists for abuse by unscrupulous 

employers who would purposefully 

arrange for the inspection of housing 

they have no intention of using. It 

suggested adding a post-certification 

inspection requirement for the SWA to 

inspect housing midway through the 

certification period. In this commenter’s 

view, such a requirement would 

discourage the practice of an employer 

listing housing that either does not 

exist, or exists but is not used. This 

commenter also suggested the 

strengthening of the protections 

afforded to workers with respect to 

housing, including an additional 

requirement for inspection of substitute 

housing during occupancy; the 

elimination of references in the 

regulations to conditional access to the 

interstate clearance system based on the 

employer’s assurance that housing will 

be in compliance by a specified date; 

and the clarification that the strictest 

standard applies to housing subject to 

multiple housing standards (e.g., local, 

State and Federal). 

The Department also received a few 

comments not directly related to its 

proposed housing provisions. One 

commenter, a worker-led nonprofit 

organization that recruits, trains and 

places H–2A workers, explained that in 

the border region (e.g., Yuma County, 

AZ), many H–2A workers have the 

option of returning to their homes and 

families at night, and many prefer to do 

so rather than stay in employerprovided housing. This commenter 

suggested establishment of a 

commission to develop an alternative 

border-based housing policy for the H– 

2A program. Although no changes were 

proposed to the provision of range 

housing or the standards applicable to 

range housing, comments from an 

association representing the sheep and 

livestock industries and a Federal Lands 

Council urged the Department to 

continue to provide special procedures 

for housing provided to sheepherders 

and workers engaged in the range 

production of livestock. A SWA and an 

employee advocate provided comment 

on the employer’s obligation to provide 

family housing to workers with families 

who request family housing when it is 

the prevailing practice in the area of 

intended employment and occupation 

(§ 655.122(d)(5)). Both commenters 

requested that the Department clarify 

that if a State statute or court decision 

applicable to the jurisdiction requires an 

employer to provide family housing, 

then the State statute or court decision 

is to be considered the prevailing 

practice with respect to the provision of 

family housing. 

The INA requires employers to 

provide housing in accordance with 

regulations issued by the Secretary. The 

employer may meet this obligation by 

providing housing meeting the 

applicable regulations. The Department 

recognizes that this requirement is 

unique to the H–2A program, but 

statutory requirements prohibit the 

Department from providing the 

flexibility suggested by some employers 

to authorize a housing voucher in lieu 

of employer-furnished housing, to limit 

the practice of H–2A employers 

providing housing to their workers, or to 

relieve employers in border regions 

from this requirement. Likewise, the 

Department is statutorily prohibited 

from requiring compliance with the 

stricter of applicable local, State or 

Federal standards if multiple standards 

apply to rental and/or public 

accommodations or other substantially 

similar class of habitation. 

Instead, the Department is returning 

to its position contained in the 1987 

Rule that employers must provide 

housing to their H–2A workers and to 

their workers in corresponding 

employment who are not reasonably 

able to return to their residence within 

the same day. As explained in the 

section discussing the definition of 

corresponding employment, the 

requirement on employers to provide 

housing to workers in corresponding 

employment helps ensure that those 

workers receive the same level of wages, 

benefits, and working conditions as the 

H–2A workers, and therefore that the 

employment of the H–2A workers does 

not adversely affect the employment of 

workers similarly employed. 

With regard to the timing of housing 

inspections, from the 1987 Rule until 

January 2009, ETA’s regulations 

required that employer-furnished 

housing be inspected and certified as 

meeting applicable standards as a 

condition of the Secretary granting H– 

2A certification to the employer. This 

requirement was based on the 

Department’s reading that the INA 

requires that the Secretary make a 

certification determination no later than 

30 days before the date of need (8 U.S.C. 

1188(c)(3)(A)) and that the 

determination of whether housing 

furnished by the employer meets the 

applicable safety and health standards 

be made no later than the date by which 

the Secretary is required to make the 

certification determination (8 U.S.C. 

1188(c)(4)). For more than 20 years, the 

Department read these two provisions in 

concert and concluded that the 

certification determination could not be 

made unless the employer-furnished 

housing had been inspected and found 

to meet applicable safety and health 

standards. The 2008 Final Rule changed 

the regulation to eliminate the 

requirement that housing be inspected 

and approved before certification in all 

cases. 

The INA establishes both the date by 

which the Secretary must make the 

certification determination and the date 

by which the determination of whether 

employer-furnished housing meets 

applicable standards must be made. The 

Department believes the 1987 Rule 

reading, which is also implemented in 

this Final Rule, is the more appropriate 

reading of these statutory requirements 

and, notwithstanding the Department’s 

earlier statements, is more consistent 

with congressional intent to ensure that 

U.S. workers are not adversely affected 

by the employment of H–2A workers. 

Reinstatement of this process also 

benefits employers by reconciling the 

Department’s H–2A certification process 

with applicable State laws requiring 

pre-occupancy inspection and 

certification of worker housing. 

Contrary to the suggestion of one 

commenter, the fact that the Department 

does not require pre-occupancy 

inspection of housing provided to farm 

workers outside of the H–2A program is 

not a reflection of the Department’s 

priorities, but a function of the 


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underlying statutory requirements and 

Departmental resources. 

The Department also notes that 

reinstating the provision at 

§ 655.122(d)(1) concerning conditional 

access to the interstate clearance system 

under the Wagner-Peyser regulations 

obviates the need for the conditional 

certification determinations included in 

the 2008 Final Rule. Employers whose 

housing has not yet been inspected may 

request conditional access to the 

interstate clearance system under the 

procedures set forth in 20 CFR 654.403. 

Likewise, employers whose housing has 

been inspected and found not to meet 

the required standards may seek 

conditional access to the interstate 

clearance system, thereby allowing the 

employer an opportunity to make the 

necessary repairs or improvements 

without penalizing the employer 

through denial of access to the interstate 

clearance system. In either situation, if 

the employer seeks and is granted 

conditional access to the interstate 

clearance system, the continued review 

and processing of its H–2A Application 

need not be held up. The Department 

believes this process appropriately 

balances the requirement that workers 

are provided safe and healthy housing 

while not unduly delaying H–2A 

certification determinations. In response 

to the suggestion that the Department 

eliminate all references to conditional 

access to the interstate clearance system, 

this provision exists in the Department’s 

regulations implementing the WagnerPeyser Act with respect to farm workers, 

which the Department has not proposed 

amending at this time. 

The Department understands that any 

delay in H–2A certification 

determinations is of concern; however, 

based on the Department’s examination 

of program activity for FY 2007 and 

2008, we do not anticipate the 

inordinate delays assumed by 

employers and associations. As 

explained in the proposed rule, 

certification determinations for FY 2007 

and 2008 were made, on average, 

approximately 27 calendar days before 

the employer’s certified start date of 

need. That analysis does not reveal the 

reason for the delay in certification 

determinations—whether the delay was 

the result of a delayed housing 

inspection, the failure of an employer to 

provide information requested by OFLC 

and necessary for OFLC to make the 

certification determination, or for some 

other reason. See discussion at 74 FR 

45932, Sep. 4, 2009. The Department 

appreciates that an individual H–2A 

program user or association may have 

experienced certification determinations 

made closer to their date of need than 

the average cited by the Department, but 

believes that requiring that the housing 

be certified as meeting applicable safety 

and health standards as a prerequisite to 

making the certification determination 

is both required by the most reasonable 

reading of the statute and is proper 

given the Department’s responsibility to 

protect U.S. and H–2A workers. As 

noted in the proposed rule, the 

Department is not responsible for any 

downstream delays in processing at 

either USCIS or the U.S. Consulate. 

The Department recognizes that there 

are situations beyond an employer’s 

control which impact the availability of 

certified housing the employer intended 

to use for housing workers and therefore 

has retained the provision in 

§ 655.122(d)(6) for the substitution of 

rental or public accommodation housing 

with a clarification that substitute 

housing must meet applicable 

standards. Concerns raised by 

employers that SWA staff may not be 

authorized to conduct, or may not be 

sufficiently trained in the conduct of, 

inspections of occupied housing will be 

addressed through the Department’s 

current process for providing guidance 

to SWAs on implementation of 

Departmental programs. As explained in 

the discussion of 29 CFR part 501 in this 

preamble, the Department will continue 

to exercise its discretion with respect to 

allowing employers a reasonable 

opportunity to correct housing safety 

and health violations before imposition 

of sanctions, such as revocation and 

debarment. 

Comments suggesting that the 

Department impose a requirement for 

post-occupancy inspection of housing 

midway through the certification period 

and post-occupancy inspection of 

substitute housing are outside the scope 

of this rulemaking. However, the WHD 

does conduct inspections of occupied 

housing during all H–2A investigations 

and during agricultural investigations 

outside of the H–2A program when 

housing is owned or controlled by the 

employer. Post-certification audits also 

provide the Department with a tool for 

ensuring H–2A employers provide 

housing meeting applicable standards to 

their workers. 

The Department will continue to 

provide guidance to the SWAs with 

respect to determining whether the 

prevailing practice in the area of 

intended employment and occupation 

includes the provision of family 

housing. The Department agrees with 

commenters that where agricultural 

employers are required by State statute 

or applicable court decisions to provide 

family housing to workers with families, 

the prevailing practice is to provide 

family housing. 

The Department does not believe that 

requiring completion of the housing 

inspection before the certification 

determination is made will result in 

negative economic consequences for 

employers. Some agricultural employers 

commented that their financial burdens 

would increase under this provision; 

however, these commenters provided no 

evidence of increased financial burden 

for the Department’s consideration. 

e. Workers’ Compensation 

The Department proposed to retain 

the 2008 Final Rule requirements 

regarding an employer’s statutory 

obligation to provide workers’ 

compensation insurance coverage in 

compliance with (or equivalent to) State 

law. However, the Department also 

proposed to return to requiring 

employers to provide the CO with proof 

of workers’ compensation insurance 

coverage, including the name of the 

insurance carrier, the insurance policy 

number, and proof that the coverage is 

in effect during the dates of need. The 

Final Rule adopts this requirement as 

proposed. 

Several commenters supported the 

proposed change, while others asserted 

that the change was unnecessary. They 

contended that the Department should 

simply accept the employer’s attestation 

that it had obtained adequate insurance 

coverage, without any proof. The 

Department disagrees with that position. 

In an industry as dangerous as farming, 

the availability of workers’ 

compensation coverage is absolutely 

critical. It is essential that the 

Department be satisfied that the 

appropriate coverage is in place. 

Requiring employers to prove the 

existence of such coverage creates no 

meaningful additional burden for 

employers since they would have to 

retain that documentation in any event. 

f. Employer-Provided Items 

The NPRM proposed to amend the 

2008 Final Rule by requiring employers 

to provide to the worker, without 

charge, all tools, supplies and 

equipment necessary to complete the 

job. The Final Rule adopts this 

provision without change. 

The Department received few specific 

comments addressing this provision. 

One commenter expressed general 

support for the provision. Another 

commenter suggested the addition of 

language providing that if any of these 

items are provided by the worker, the 

employer will reimburse the worker for 

the cost of the items. It is not necessary 

to adopt the additional language 


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suggested by the commenter, because 

the rule plainly and unequivocally 

states that the employer must provide 

these items without charge. Moreover, 

as discussed in more detail in the 

section regarding deductions, 

employees must receive the required 

wage rate free and clear. Therefore, 

unless specifically authorized by these 

regulations, employees may not provide 

or have their pay docked for any item 

that is an employer business expense 

where doing so would reduce their 

wages below the required wage rate. 

g. Meals 

The Department proposed a meals 

provision identical to the 2008 Final 

Rule requiring the employer to provide 

three meals a day (which the employer 

may provide for a charge in accordance 

with § 655.173) or free and convenient 

kitchen facilities to the workers 

enabling them to prepare their own 

meals. The Department decided to 

retain this provision without change in 

the Final Rule. 

A few commenters addressed the 

proposed provision governing meals. 

One commenter supported the 

mandatory provision of meals and other 

benefits provided to workers. This 

commenter noted that entitlements, 

such as meals, protect U.S. workers by 

creating a disincentive to use foreign 

temporary labor solely because of lower 

cost. 

Another commenter suggested that 

workers should be provided with food 

preparation expenses if kitchens are not 

available. The Department notes that the 

Final Rule requires that the employer 

either provide workers with meals or 

furnish free and convenient cooking 

facilities and that this is adequate to 

secure the benefit that was intended by 

Congress. 

h. Transportation; Daily Subsistence 

The NPRM proposed to require an 

employer to pay the worker for the 

reasonable costs incurred for 

transportation and subsistence from the 

place from which the worker has come 

to the place of employment if the 

worker completes 50 percent of the 

work contract period and the employer 

has not previously advanced or 

provided transportation to the place of 

employment and subsistence costs. If it 

is the prevailing practice of non-H–2A 

agricultural employers to advance such 

costs, or if the employer extends such 

benefits to similarly situated H–2A 

workers, the employer must advance or 

provide such costs to workers in 

corresponding employment who are 

traveling to the worksite. The 

transportation reimbursement must be 

no less than the most economical and 

reasonable common carrier 

transportation charges, and the daily 

subsistence payment must be at least 

what the employer would charge the 

worker for providing three meals a day 

(if applicable), but no less than the 

amount permitted under § 655.173(a). 

The NPRM, thus, proposed to return to 

the language of the 1987 Rule that the 

transportation reimbursement be for the 

cost from the place from which the 

worker has departed. The NPRM also 

proposed to remind employers that the 

FLSA applies independently of the H– 

2A requirements. 

Section 655.122(h)(2) of the NPRM 

proposed to require employers to 

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 completes the work contract 

period or is terminated without cause 

(deleting the 2008 Final Rule’s 

definition of the U.S. consulate or port 

of entry as the place from which the 

worker departed). Consistent with the 

1987 Rule, the NPRM proposed that if 

the worker has subsequent H–2A 

employment, the current employer must 

pay for transportation to that worksite 

unless the subsequent employer has 

agreed in the work contract to pay for 

transportation and daily subsistence. 

The NPRM added that an employer is 

not relieved of its obligation if an H–2A 

worker is displaced as a result of the 

employer’s compliance with the 

requirement to hire U.S. workers who 

are referred within the first 50 percent 

of the contract period. 

Section 655.122(h)(3) of the NPRM 

proposed to continue to require 

employers to provide transportation 

between the workers’ employerprovided housing and the employer’s 

worksite at no cost to the workers. 

Finally, § 655.122(h)(4) of the NPRM 

also proposed to require that all 

employer-provided transportation 

comply with all applicable laws and 

provide, at a minimum, the same 

transportation safety standards, driver 

licensure, and vehicle insurance as 

required under 29 U.S.C. 1841, 29 CFR 

500.105, and 29 CFR 500.120 to 

500.128. The NPRM thus proposed to 

extend the 2008 Final Rule’s similar 

requirements, which were applicable 

only to transportation between the 

living quarters and the worksite, 

because such safety requirements 

already exist elsewhere in other Federal, 

State or local transportation laws. 

The Final Rule adopts § 655.122(h) of 

the NPRM as proposed, with a technical 

correction to an internal cross reference. 

The vast majority of the comments 

pertained to § 655.122(h)(1). Numerous 

employers and their representatives 

objected to the proposed change 

regarding the requirement to pay for 

transportation from the place from 

which the worker has come, rather than 

transportation from the consulate or 

port of entry. They stated that it makes 

more sense to pay for transportation 

from the consulate, because that allows 

an employer to know in advance or to 

estimate more precisely what its costs 

will be. Some commenters expressed 

concern about how an employer will 

know with certainty where a worker’s 

home is and how much the 

transportation from there to the 

consulate costs, and they wondered 

whether they would be liable for 

whatever an employee claims his travel 

costs were. Others stated that their first 

contact with the worker is at the 

consulate, where the workers must go 

through government screening to ensure 

that they meet the requirements for 

entry into the U.S., and that there is not 

an employer-employee relationship 

until an H–2A visa is issued at the 

consular office because that establishes 

the worker’s entitlement to enter the 

country. Several other employer 

representatives emphasized that their 

disagreement was not with the proposed 

regulation, but with the NPRM’s 

inconsistent preamble language, which 

described the requirement as to pay for 

the cost to and from the worker’s home. 

These commenters gave an example of 

an employee whose home is in Hawaii, 

but who was recruited in New Haven, 

CT by the Connecticut SWA, and they 

emphasized that it would be 

unreasonable to require a Connecticut 

employer to return the worker to 

Hawaii. These commenters noted that 

historically the requirement was to pay 

for transportation to and from the point 

of recruitment, which may or may not 

be the worker’s home. They suggested 

that the Final Rule should eliminate the 

inconsistency by clarifying that the 

requirement is the same as it was in the 

1987 Rule, which would eliminate the 

confusion caused by the preamble and 

bring the costs within the control of the 

eventual employer. Finally, as discussed 

in much more detail with regard to 

§ 655.122(p), a number of employers 

encouraged the Department to follow 

the FLSA interpretation that had been 

set forth in the preamble to the 2008 

Final Rule, which repudiated the 

decision in Arriaga v. Florida Pacific 

Farms, 305 F.3d 1228 (11th Cir. 2002). 


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These commenters objected to any 

requirement to reimburse an employee’s 

transportation costs in the first 

workweek, rather than when the worker 

has completed 50 percent of the work 

contract period. They emphasized that 

the employee benefits from getting a job 

in the U.S., and so the employer should 

not be viewed as the primary 

beneficiary of the transportation. 

In contrast, employee representatives 

approved of the proposed change back 

to the requirements of the 1987 Rule. 

Employee commenters noted that 

employees have suffered economically 

from the reduced reimbursement only 

for costs from the consulate and, 

therefore, welcomed the return to the 

prior rule. They also stated that U.S. 

workers will no longer be at a 

competitive disadvantage regarding this 

benefit. Other employee representatives 

stated that the reinstatement of the 

former requirement is appropriate 

because the transportation costs impose 

an undue burden on workers when the 

expense benefits employers, and they 

emphasized that employers should be 

required to bear the full cost of their 

decision to import foreign workers in 

order to ensure that they do not prefer 

H–2A workers over U.S. workers. One 

employee advocate specifically 

emphasized that it is important to make 

clear that the FLSA applies 

independently of the H–2A 

requirements with regard to 

transportation. 

The Final Rule adopts § 655.122(h)(1) 

as proposed. The Department believes 

that it is appropriate to return to the 

language of the 1987 Rule requiring 

employers to reimburse employees for 

their inbound transportation from the 

place from which the worker has come 

to work for the employer. The 

Department did not intend for the 

inartful language in the preamble to the 

NPRM, referring to the worker’s home, 

to indicate a different standard that 

would be problematic for employers to 

implement. The Department believes 

that employers will not have difficulty 

returning to the standard that they used 

for more than 20 years. As a number of 

employer representatives 

acknowledged, whether with regard to 

workers in the U.S. or workers recruited 

in a foreign country, employers will 

know where they recruited the workers 

and, thus, can predict and control their 

ultimate transportation costs. Finally, 

with regard to the reference to the 

FLSA, an issue discussed in detail with 

regard to § 655.122(p), the Department 

believes that it is important to remind 

employers of their obligations under 

other statutes to enable them to ensure 

that they are in compliance with all 

applicable laws. 

In addition, a few employers or their 

representatives commented on the 

proposal to incorporate the standards 

used under the MSPA governing vehicle 

safety, licensure and insurance 

requirements for all employer-provided 

transportation, rather than just for 

transportation between the living 

quarters and the worksite (as did the 

2008 Final Rule). They objected to this 

requirement, stating that it was 

inappropriate to apply MSPA standards 

to H–2A workers, who are statutorily 

excluded from MSPA. However, the 

transportation of H–2A workers is an 

essential part of the H–2A program. 

Transportation safety standards have 

been set for H–2A workers in the 

Department’s regulations from the 

outset of the program, through the 

incorporation of existing standards. The 

1987 Rule, for example, incorporated 

existing Federal, State, and local 

transportation laws and regulations. As 

noted in the preamble to the 2008 Final 

Rule, the Department does not seek to 

apply MSPA to H–2A workers and has 

no authority to do so. Rather, the 

regulation simply adopts these 

established safety standards under the 

Department’s H–2A regulatory 

authority, in order to better assure the 

safety of H–2A workers. 

Finally, one employee representative 

stated that the current subsistence 

allowance does not allow workers to 

purchase nutritionally adequate meals 

during their journey to the workplace or 

their return home. The commenter 

stated that the Department should 

determine an appropriate dollar figure, 

such as by surveying meal prices in the 

types of establishments frequented by 

charter bus companies and readily 

available to passengers on common 

carriers or some other method, and then 

indexing the amount for inflation. The 

Department did not propose any 

changes to the subsistence amount or 

the methodology for setting it; therefore, 

it believes that it would be outside the 

scope of this rulemaking to adopt the 

suggested change. However, the 

Department notes that it does update the 

subsistence amount each year to 

account for inflation, based on the CPI. 

i. Three-Fourths Guarantee 

The NPRM proposed to retain the 

three-fourths guarantee from the 2008 

Final Rule, which had clarified that the 

guarantee must offer the worker 

employment for a total number of work 

hours equal to at least three-fourths of 

the workdays of the contract period, 

beginning with the first workday after 

the worker arrives at the place of 

employment. The NPRM clarified the 

three-fourths guarantee requirement to 

ensure that the guarantee will not have 

been met if the employer merely offered 

some work to employees on threefourths of the days in the contract, if the 

workday did not consist of the full 

number of work hours disclosed in the 

job order (e.g., hours offered on a day in 

which fewer than the full number of 

hours stated in the job order have been 

offered). The Department also proposed 

to retain the provision addressing 

displaced H–2A workers, with a 

clarification that the provision now 

refers to the reinstated 50 percent 

requirement. The Final Rule generally 

adopts the proposal, with a minor 

clarifying edit. 

The Department received several 

comments on the proposed three-fourths 

guarantee requirement. Some 

commenters opposed the requirement 

by stating that the three-fourths 

guarantee only benefits workers and is 

therefore one-sided. Several 

commenters, including members of 

Congress, supported the continuation of 

the three-fourths guarantee. A few 

commenters noted that the three-fourths 

guarantee, as proposed in the NPRM, 

does not go far enough to protect 

workers, and they offered suggestions to 

make the requirement more meaningful. 

Several commenters asserted that 

some employers manipulate the period 

of employment and number of promised 

work hours in an attempt to minimize 

the amount of the three-fourths 

guarantee. One commenter stated its 

belief that employers purposefully 

evade the requirement by overstating 

the hours of work in the job order and 

artificially prolonging the season 

beyond the end of available work so that 

idle workers voluntarily depart before 

the end of the stated contract period and 

are no longer entitled to the threefourths guarantee protection, provided 

that the employer made the proper 

required notifications. The commenter 

suggested that the Department impose 

on H–2A employment contracts the first 

week guarantee already available to U.S. 

workers under the interstate clearance 

order regulations (20 CFR 

653.501(d)(2)(v)(A)), as well as an 

analogous last week guarantee. As an 

alternative, this commenter suggested 

that the three-fourths guarantee be 

applied to each successive 4-week 

period rather than once to the entire 

contract period. Another commenter 

suggested that if it became clear that the 

three-fourths guarantee could not be 

met, the workers should have the option 

of demanding their three-fourths 

guarantee and returning home at the 

expense of the employer. This 


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commenter also asserted that because 

job orders that include multiple crops 

and/or multiple locations often do not 

have consecutive work periods, workers 

experience days and sometimes weeks 

of down time with no way of knowing 

whether they will be offered enough 

work to earn the three-fourths 

guarantee. To address this uncertainty, 

the commenter suggested that the 

monetary amount of the minimum 

three-fourths guarantee be stated in the 

job order and job offer. The commenter 

urged that if a job order exceeds a 

3-month period and includes work to be 

performed for consecutive periods in 

more than one type of crop or for more 

than one fixed-site agricultural business, 

the three-fourths guarantee should be 

calculated for the work period 

corresponding to each crop and each 

area of intended employment. Lastly, 

this commenter suggested that the 

proposed three-fourths guarantee 

requirement be included in each 

contract for which an H–2ALC is 

providing workers and that anticipated 

delays between jobs be disclosed so that 

potential employees, both U.S. and 

foreign, have a clear idea of the amount 

of work that will actually be offered. 

Several commenters advocated 

requiring that all offered days of work 

be at least 8 hours. Another commenter 

agreed, stating that the three-fourths 

guarantee could be made a meaningful 

protection for farm workers by requiring 

employers to guarantee each worker at 

least 8 hours of work per day over the 

course of the season. The commenter 

asserted that such a requirement would 

prevent employers from overestimating 

the number of workers needed to 

perform the job. This commenter also 

suggested that the Department reinforce 

that job orders must accurately reflect 

the applicant’s true labor needs and that 

the requirement for full-time 

employment means that the employer 

must offer at least 35 hours per week to 

all workers under the job order 

throughout the entire contract period. 

Additionally, several employer 

commenters noted that the inclusion of 

a 35-hour full-time employment 

requirement in the proposed definition 

of job offer would have an impact on the 

amount of hours required to meet the 

three-fourths guarantee. 

The Department is aware that certain 

circumstances or events beyond the 

control of the employer may make the 

fulfillment of the contract impossible, 

and the Final Rule includes a provision 

that, upon a finding of contract 

impossibility by the CO, the employer is 

relieved of the full three-fourths 

guarantee obligation and is instead 

permitted to reduce the guarantee to the 

time period from the start of the work 

until the time of the contract’s 

termination. The Department has 

determined that the contract 

impossibility provision strikes an 

appropriate balance between ensuring 

fairness to workers and flexibility to 

employers. 

Although many of these suggestions 

would further strengthen the threefourths guarantee requirement, the 

Department believes that it would be 

inappropriate to implement such 

significant changes to a fundamental 

and longstanding requirement of the 

program, without affording the 

regulated community the opportunity to 

formally comment on such proposals. 

Nevertheless, WHD will continue to 

carefully evaluate the facts when it 

conducts investigations to evaluate 

whether there has been any fraud with 

regard to dates of need specified in the 

job order and will pay close attention to 

evidence of fraud or other issues that 

may emerge over time. Moreover, the 

WHD plans to do increased outreach to 

workers to ensure that they understand 

their rights with regard to the threefourths guarantee. Therefore, the 

Department retains the requirement as 

proposed with a minor editorial 

clarification. 

j. Earnings Records 

The NPRM proposed to require 

employers to retain payroll records for 

not less than 5 years. Numerous 

comments objected to this extension of 

the 2008 Final Rule’s 3-year record 

retention requirement. The Department 

has decided to return to the 3-year 

requirement. Discussion of the 

comments can be found in the preamble 

section regarding document retention 

requirements at § 655.167. 

k. Hours and Earnings Statements 

Employers are required to provide 

earnings statements to workers each pay 

period. The Department proposed that 

these statements include the beginning 

and ending dates of the pay period, and 

the employer’s name, address and 

Federal Employment Identification 

Number. The Final Rule retains these 

requirements as proposed. Several 

commenters objected to this addition, 

stating that it would apply the 

requirements of the MSPA to H–2A 

workers. The commenters noted that 

MSPA does not include H–2A workers 

within its protections. See 29 U.S.C. 

1802(8)(B)(ii) and (10)(B)(iii). The 

Department has determined that this 

information, which is easily 

ascertainable by the employer, and may 

be added to the existing earnings 

statement, is essential to the employee’s 

understanding as to whether he or she 

has been paid correctly, as well as the 

identity of the employer. Employees 

will also need this information if they 

are to report violations of the H–2A 

provisions to the Department. 

Accordingly, this information is 

important to assuring that the wages and 

working conditions of H–2A workers do 

not adversely affect U.S. workers. While 

it is true that this information is also 

required by MSPA regulations, that 

requirement is not a reason to exclude 

it from earnings statements where it is 

necessary to fulfill the H–2A statutory 

purpose. 

l. Rates of Pay 

The Department proposed to return to 

the approach taken in the 1987 Rule 

with respect to employer productivity 

standards. This Final Rule retains the 

proposed language although the 

provision has been modified to reflect 

the additional agreed-upon collective 

bargaining wage rate factor discussed 

above. Under that provision employers 

must apply the productivity standard 

that was normally required the year they 

first used H–2A workers unless they 

entered the system prior to 1977. For 

those employers who entered the system 

before that time, the 1977 standard 

applies. In either case, the OFLC 

Administrator may approve a higher 

minimum. A number of employer 

associations objected to the proposal on 

a number of grounds including 

questioning the need for any regulation 

of productivity standards, expressing 

concerns about the use of a 1977 

baseline and noting the need to consider 

how technological changes might 

impact productivity. We have carefully 

evaluated these comments and believe 

that they do not reflect an appreciation 

of the history surrounding this 

requirement or acknowledge the 

flexibility built into the proposal. 

The Department’s regulations have 

reflected a concern about productivity 

standards for more than 30 years. 43 FR 

10313, Mar. 10, 1978. The concerns 

arose from program experience in which 

employers that paid on a piece rate basis 

when facing rising hourly guarantees 

would increase productivity standards 

rather than raise piece rates. Initial 

efforts to address this issue by 

regulating piece rates were 

unsatisfactory and the 1987 Rule took 

the alternative approach of simply 

freezing productivity standards, subject 

to the employer making a showing that 

technological developments justify 

higher standards. That approach served 

the program well for 20 years and the 

comments offer no compelling reasons 

to adopt a different approach. Nothing 


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negates our historic concern that rising 

hourly guarantees will encourage 

employers to raise productivity 

standards rather than piece rates. 

Likewise, the regulation has proven 

flexible enough to address legitimate 

productivity increases. For example, 

apple growers were allowed to raise 

productivity standards to reflect the 

introduction of dwarf trees. 

In addition, the Final Rule adds 

references to a collectively bargained 

wage as one of the potential highest 

required wage rates, for the reasons 

discussed above. 

m. Frequency of Pay 

The Department proposed to return to 

the 1987 Rule with regard to the 

frequency of pay. The Final Rule 

provides that workers shall be paid at 

least twice monthly or according to the 

prevailing practice in the area of 

intended employment, whichever is 

more frequent. In addition to stating the 

frequency of pay in the job order, the 

rule adds a clarification that employees 

must actually be paid at the time 

specified in the job order (i.e., when 

wages are due). 

Commenters objected to the 

requirement that employees be paid 

when the wages are due, stating that this 

is an MSPA requirement, and therefore 

inapplicable to H–2A workers. The idea 

that an employer must pay its workers 

based on its statement in the job order 

is not novel. Courts have recognized 

that a prompt payment requirement is 

inherent in the FLSA, and that 

employers must pay employees their 

wages on the day their paycheck is 

ordinarily due. See, e.g., Biggs v. 

Wilson, 1 F.3d 1537 (9th Cir. 1993), cert. 

denied, 510 U.S. 1081 (1994). The 

promise to pay a required wage is worth 

little if there is no requirement as to 

when the wage should be paid. 

n. Abandonment of Employment or 

Termination for Cause 

The Department proposed to retain 

the requirements of the 2008 Final Rule 

on the abandonment of employment or 

termination for cause. The Department 

has decided to adopt this provision as 

proposed, with clarifying edits. Under 

the Final Rule, a worker is deemed to 

have abandoned employment after he or 

she fails to report for work for 5 

consecutive working days. 

The Department received a few 

comments addressing this provision. 

One commenter argued that this 

provision is one-sided because it 

permits the employer, but not the 

employee, to be relieved of the contract 

requirements in case of a material 

breach. The commenter proposed a 

revision to the regulations to exclude 

circumstances where the worker 

abandons employment because of the 

employer’s material breach of a term or 

condition of the contract. 

The Department has decided against 

including this suggested revision. The 

issue of an abandonment based on a 

material breach by the employer is a 

fact-based scenario that is subject to 

inconsistent interpretation and one over 

whose consequences (status of the H–2A 

worker) the Department has no control. 

The issue of workers who justifiably 

abandon employment can be best 

addressed through normal Department 

enforcement processes against the 

offending employer. WHD and/or ETA 

will address matters within each 

agency’s purview, and make appropriate 

referrals to other agencies, including 

DHS. 

A few commenters argued that the 

requirement to report to DOL and DHS 

within 2 days after discovering that a 

worker has abandoned employment is 

not reasonable. The commenter 

proposed a change in the requirement to 

permit the employer to wait until 2 days 

after the end of the pay period during 

which the worker failed to report for 

work for 5 consecutive working days. 

The Department is not making this 

recommended change because the 

Department believes it is important for 

its regulations to mirror the DHS 

regulations on this point. 

The NPRM clarified that notice for 

both H–2A workers and workers in 

corresponding employment needs to be 

made to the NPC and notice concerning 

an H–2A worker needs to be made to 

DHS. We note that the regulatory 

language is specific to a worker 

voluntarily having abandoned 

employment or having been terminated 

for cause. The factual basis underlying 

any notification provided is subject to 

review during an audit or investigation. 

If an audit or investigation finds that 

fraud, misrepresentation or other 

violations were present, the employer 

would not be relieved from the threefourths guarantee requirement nor from 

the obligation to provide outbound 

transportation. 

The Department also made minor 

clarifications in the Final Rule to reflect 

that the notification requirement 

relieving the employer of its obligation 

for the three-fourths guarantee and 

outbound transportation applies to both 

H–2A workers and workers in 

corresponding employment as it had in 

previous rules. 

o. Contract Impossibility 

In the NPRM, the Department 

proposed to retain the 2008 Final Rule 

requirements regarding contract 

impossibility and included an 

additional obligation from the 1987 Rule 

that requires employers to make efforts 

to transfer the worker to other 

comparable employment acceptable to 

the worker in the event the employer is 

prevented from fulfilling the 

requirements of the work contract. One 

commenter stated that it believed that 

any transfer of a worker to other 

comparable employment due to contract 

impossibility should be mutually 

acceptable to the employer and the 

worker since both have a vital interest 

in the worker’s future employment and 

neither should be allowed unreasonably 

to impede the other from future 

employment opportunities. The 

Department believes, however, that if it 

were to require that such transfers be 

mutually acceptable, the employer 

could object to any comparable 

employment opportunity. The purpose 

of this section is to protect the worker 

and maximize the worker’s employment 

opportunities—and not to create a 

means for an employer to protect its 

labor supply for future seasons. 

Accordingly, the Department has 

retained the same requirement in the 

Final Rule as proposed in the NPRM. 

In addition, the Department has 

edited the section to eliminate the 

requirement that the employer receive 

documentation of the new assignment 

from the worker. This was removed to 

clarify that the first employer is not the 

arbiter of the worker’s status beyond 

employment with the first employer. 

p. Deductions 

Section 655.122(p) of the NPRM 

proposed to require employers to make 

all deductions required by law and to 

specify all other deductions in the job 

offer. Further, it proposed that if an 

employer paid the employee’s 

transportation and daily subsistence 

expenses to the place of employment, 

the employer could deduct those 

expenses from the worker’s paycheck, 

but the job offer had to state that the 

worker would be reimbursed the full 

amount of the deduction upon the 

worker’s completion of 50 percent of the 

work contract period. Additionally, an 

employer subject to the FLSA may not 

make deductions that would violate the 

FLSA. The Final Rule generally adopts 

the rule as proposed, with a new 

paragraph to more fully describe what is 

meant by the term reasonable. 

A large number of commenters 

addressed this provision. Numerous 

employee advocates emphasized that 

farm workers’ wages have been reduced 

by inappropriate wage deductions. 

Some employee advocates and 


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Congressional representatives suggested 

that the Department should do more to 

protect employees’ wages from 

deductions for employer business 

expenses, and to ensure that workers 

receive the full required wage rate, by 

forbidding all deductions not required 

by law. Other employee advocates 

stated that the regulation should clearly 

delineate which deductions are 

permissible and which are not, rather 

than just requiring that deductions be 

reasonable. Some also suggested that the 

Department should strengthen the 

regulation by adding language 

incorporating the free and clear 

principle found in the FLSA and 

Service Contract Act regulations, 

thereby prohibiting any deductions or 

de facto deductions for expenses that 

primarily benefit the employer if the 

deductions would bring the employees’ 

wages below the required wage. These 

commenters noted that the higher wage 

rates guaranteed by the requirements of 

the H–2A program can be subverted by 

unreasonable or unauthorized 

deductions, just as the FLSA minimum 

wage can be subverted. One farm worker 

advocacy organization specifically 

emphasized that H–2A workers are 

among the poorest and most vulnerable 

workers and should not be required to 

wait until they have completed 50 

percent of the contract period to be 

reimbursed for their transportation and 

transit meal expenses. Others stated that 

the regulations should expressly forbid 

employers from recouping these 

expenses in any later workweek. 

In contrast, numerous employers and 

their representatives stated that the 

requirement to reimburse employees for 

their inbound transportation and 

subsistence at the 50 percent point is 

appropriate, asserting that these costs 

are not for the primary benefit of the 

employer. They commented that 

employers, therefore, should not be 

required to reimburse these expenses in 

the first workweek under the FLSA. 

Specifically, several employer 

associations stated that the Department 

should return to the FLSA interpretation 

set forth in the preamble to the 2008 

Final Rule, repudiate the decision in 

Arriaga v. Florida Pacific Farms, 305 

F.3d 1228 (11th Cir. 2002), and 

conclude that transportation and 

subsistence are not for the primary 

benefit of the employer. Under that 

analysis, refusing to reimburse such 

costs would not be a de facto deduction 

from the first week’s wages that could 

constitute a minimum wage violation 

under the FLSA. These commenters 

emphasized that employers should not 

have to reimburse such costs in the first 

workweek under the FLSA, since the H– 

2A regulations provide that they must 

be reimbursed after the employee 

completes 50 percent of the job period. 

They also commented that the balance 

struck by requiring reimbursement at 

the 50 percent point works well, 

because both parties have an investment 

in the employment. A few of these 

commenters predicted that the rate at 

which workers leave their H–2A 

employment and stay in the U.S. out of 

visa status will increase if the FLSA 

requires reimbursement in the first 

workweek. One employer representative 

stated that while there may be some 

concern that withholding 

reimbursement until the middle of the 

contract period may go to the other 

extreme, the Department’s final policy 

choice should reflect the mutual 

benefits to both the employer and the 

employee. 

The Department concludes that the 

Final Rule should mirror the proposed 

rule, with additional clarifying 

language. The Department believes that, 

in order to avoid confusion, it is 

important for this regulation to continue 

to remind both employers and 

employees that, where an employer is 

covered by the FLSA, the requirements 

of that statute also will apply. As the 

WHD explained in Field Assistance 

Bulletin 2009–2 (Aug. 21, 2009), which 

addressed the application of the FLSA 

to employers utilizing the H–2B visa 

program, employers that are covered by 

more than one law must always 

determine their wage requirements 

under each applicable statute and then 

apply the highest requirement in order 

to satisfy all laws. See Powell v. United 

States Cartridge Co., 399 U.S. 497, 519 

(1950). That Bulletin noted that an 

employer may participate in the H–2B 

visa program only when it demonstrates 

both that there are not sufficient U.S. 

workers available and that the 

employment of foreign workers will not 

adversely affect the wages and working 

conditions of similarly employed U.S. 

workers. Employers who want to bring 

in H–2B guestworkers must first comply 

with numerous requirements related to 

the recruitment of U.S. workers in order 

to satisfy the Department that there are 

not sufficient U.S. workers available. 

Any foreign workers who ultimately are 

brought in under the program are 

permitted to work only on a temporary 

basis, with no possibility of the job 

becoming permanent no matter how 

well the employees perform or what 

skills they acquire. Moreover, the 

employees may work only for the 

employer who received the labor 

certification for the H–2B visa program. 

At the conclusion of the specified work 

period, the workers must leave the 

country and they are not permitted to 

seek subsequent work from another U.S. 

employer, unless that subsequent 

employer also is certified under the H– 

2B program. In that context, the WHD 

concluded in the Bulletin that, under 

the FLSA, the transportation expenses 

and visa fees of H–2B employees are for 

the primary benefit of the H–2B 

employers. 

As the Bulletin noted, the H–2A visa 

program is similar to the H–2B program, 

because it also provides for the 

temporary employment of 

nonimmigrants only when there are not 

sufficient U.S. workers available for the 

jobs and the employment of foreign 

workers will not adversely affect the 

wages and working conditions of 

similarly employed U.S. workers. The 

H–2A program also involves special 

recruiting requirements directed at 

locating any available U.S. workers, and 

the H–2A workers who enter the 

country are similarly limited to 

temporary employment for the 

qualifying employer, and must leave the 

country at the end of the work contract 

period unless they go to another 

qualifying employer. Because of the 

similar statutory requirements and 

similar structure of the H–2A and H–2B 

programs, the same FLSA analysis 

applies to the H–2A program as was set 

forth in the Field Assistance Bulletin. 

Therefore, an H–2A employer covered 

by the FLSA is responsible for paying 

inbound transportation costs in the first 

workweek of employment to the extent 

that shifting such costs to employees 

(either directly or indirectly) would 

effectively bring their wages below the 

FLSA minimum wage. 

The Bulletin also noted that, under 

the FLSA, there is no legal difference 

between deducting a cost from a 

worker’s wages and shifting a cost to the 

employee to bear directly. Thus, 

employers may not make deductions 

from employees’ wages for employer 

expenses or require employees to pay 

for such costs out of pocket, if that 

would bring them below the minimum 

wage, because the minimum wage is 

received only when wages are paid free 

and clear. The Department concludes 

that it is appropriate to continue to 

remind employers and employees in the 

H–2A regulations of the simultaneous 

applicability of the FLSA; otherwise, the 

H–2A requirement that an employer 

reimburse transportation only after the 

employee completes 50 percent of the 

contract period could result in 

confusion regarding the FLSA 

requirement to ensure payment of at 


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least the minimum wage in the first 

workweek. 

Furthermore, in order to provide 

additional clarity, the Final Rule 

describes what is meant by the 

statement that deductions must be 

reasonable. The Department’s 

regulations implementing the FLSA 

provide that the reasonable cost of an 

item may not include a profit to the 

employer or any affiliated person, 29 

CFR 531.3(b), and that the cost of 

furnishing any facility found to be 

primarily for the benefit or convenience 

of the employer is not reasonable and 

cannot be counted in computing wages. 

See 29 CFR 531.3(d)(1). This is so even 

if the employer asserts that the 

employee has voluntarily agreed to bear 

such costs. Moreover, wages cannot be 

considered to have been received unless 

they are paid finally and 

unconditionally or free and clear, 

without any kickback, directly or 

indirectly. See 29 CFR 531.35. Thus, for 

example, if an employee must purchase 

a uniform with the employer’s logo, 

there would be a violation of the FLSA 

in any workweek when the cost of such 

a uniform purchased by the employee 

cuts into the required minimum or 

overtime wages. The same principles 

also apply under the SCA. See 29 CFR 

4.168. The Department believes that the 

same principles also must apply to the 

H–2A required wage rate, in order to 

ensure that the employee receives the 

legally required wage free and clear 

without any inappropriate, 

unauthorized deductions. Therefore, the 

Final Rule adds language similar to that 

found in the FLSA and SCA regulations, 

with a cross-reference to the FLSA 

regulations. 

However, the FLSA regulations 

recognize that an employer may make a 

deduction from wages where the 

employee has voluntarily assigned a 

sum to another, such as a creditor, 

donee, or other third party (e.g., for 

insurance, union dues, or charitable 

donations), provided that neither the 

employer nor any person acting in his 

behalf or interest derives any benefit or 

profit from the transaction. See 29 CFR 

531.40. Therefore, the Final Rule does 

not prohibit all deductions or identify 

the specific deductions that are 

permissible. Of course, § 655.122(f) of 

this Final Rule requires employers to 

provide all tools, supplies and 

equipment required to perform the job, 

without charge to the worker, so no 

deductions for those items are 

permitted. 

Finally, because the NPRM proposed 

to allow an employer to deduct any 

inbound transportation and subsistence 

costs that the employer paid directly, 

and to retain the longstanding 

requirement that an employer must 

reimburse an employee for such 

expenses only when the employee has 

completed 50 percent of the work 

contract period, the Final Rule does not 

require an employer to reimburse an 

employee in the first workweek up to 

the level of the H–2A required wage. 

The Department does not believe that 

requiring reimbursement of inbound 

transportation and subsistence expenses 

up to the H–2A required wage in the 

first workweek would be appropriate, 

because the NPRM did not propose to 

modify the longstanding requirement to 

reimburse these expenses only after an 

employee completes 50 percent of the 

work contract period. Rather, the Final 

Rule provides with regard to inbound 

transportation and subsistence expenses 

that employers must comply with the 

FLSA, where applicable, which means 

that their reimbursement obligation in 

the first workweek for these expenses is 

limited to the FLSA minimum wage 

level. However, all other deductions 

must be reasonable, as discussed above, 

and other deductions are tested against 

the required H–2A wage rate, not just 

the FLSA minimum wage. The 

requirement that all deductions must be 

disclosed is retained as proposed; 

therefore, deductions that are not 

disclosed are not permissible. The 

Department understands the concerns 

expressed by the commenters regarding 

the requirements of this regulation and 

will carefully monitor the experiences 

of workers and growers under the new 

rule to determine whether it is 

appropriate to revisit this issue in the 

future. 

q. Disclosure of Work Contract 

The 2008 Final Rule and earlier rules 

have required that a copy of the work 

contract be provided to the worker and 

that the copy be provided no later than 

on the day work commences. The 

NPRM proposed that this disclosure be 

made, as necessary and reasonable, in a 

language understood by the worker. 

This provision has been retained. Some 

comments asserted that this requirement 

would require translations into regional 

and village-specific dialects. The 

Department intends for employers to 

make translations into major languages, 

and not every dialect. The Department 

believes that employers should provide 

the terms and conditions of employment 

to a prospective worker in a manner that 

permits the worker to understand the 

nature of the employment being offered, 

as well as the worker’s commitment and 

rights under that employment. 

In addition, we received comments 

that suggested that the copy of the work 

contract be provided on the day the 

worker’s visa is issued or at the time of 

recruitment. These comments stated 

that it is unfair to allow a worker to 

travel hundreds or thousands of miles 

before learning the terms and conditions 

of employment, and that far too often 

workers are not accurately apprised of 

the terms of the work contract until they 

are in the U.S. The Department agrees. 

Accordingly, the Final Rule requires 

that a written copy of the work contract 

be provided to an H–2A worker no later 

than the time at which the H–2A worker 

applies for the visa in a language 

understood by the worker (as discussed 

above). The written copy can be 

provided at any point in the hiring 

process prior to this point to ensure that 

the H–2A worker has written notice of 

the terms and conditions of employment 

prior to departing the worker’s home 

country. A written copy of the contract 

need not be provided to each foreign 

worker who is a potential candidate for 

employment during the process of 

recruiting or soliciting. However, when 

the employer and the worker have 

reached a stage in discussing 

employment that has gone beyond the 

recruiting or solicitation stage and an 

offer of employment has been made, a 

copy of the work contract has to be 

provided. For a worker in corresponding 

employment, a copy needs to be 

provided no later than the day on which 

work begins, although employers may 

be obligated to provide written 

disclosure sooner to migrant or seasonal 

agricultural workers covered by MSPA. 

Recognizing that some H–2A workers 

may move to subsequent approved H– 

2A employment, the regulations provide 

in such situations that the copy be 

provided no later than the time an offer 

of employment is made by the 

subsequent H–2A employer. Finally, the 

requirement to provide a copy of the 

work contract was already contained in 

the proposal, and this change only 

modifies when the copy is to be 

provided. Therefore, any additional 

costs would be negligible. 

As discussed above, the Final Rule 

clarifies that employers who have an 

approved modification of a job order 

must provide the revised job order to 

the workers in the language understood 

by the workers. If the modification of 

the job order is approved after the 

workers receive the original job order or 

contract, disclosure of the revised terms 

and conditions must occur as soon as 

practicable. 


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Federal Register / Vol. 75, No. 29 / Friday, February 12, 2010 / Rules and Regulations 6917 

Application Filing Procedures 

8. Section 655.130 Application Filing 

Requirements 

a. What To File 

The Department proposed to require 

employers to file an Application with a 

copy of Form ETA–790. The Department 

received no comments in response to 

this proposal; therefore, the Final Rule 

adopts the language of the NPRM with 

minor clarifying edits. 

b. Timeliness 

The Department proposed to accept 

Applications no less than 45 days from 

the date of need in order to assure 

compliance with its statutory mandate 

to certify all applications within 30 days 

from the date of need. The Department 

received no comments in response to 

this proposal; therefore, the Final Rule 

adopts the language of the NPRM. 

c. Location and Method of Filing 

The Department proposed to accept 

Applications by U.S. mail or private 

mail courier to the NPC. The 

Department received no comments in 

response to this proposal; therefore, the 

Final Rule adopts the language of the 

NPRM. 

d. Signatures 

The Department proposed, consistent 

with the 2008 Final Rule, to require 

applicants to submit original forms and 

signatures. However, the NPRM 

clarified that this requirement also 

applies to associations filing as agents 

for their members, and requires them to 

obtain signatures of all their employermembers before submitting the 

Application to the Department. The 

Department clarified the existing 

requirement to ensure that all employermembers are on notice of the obligations 

each is assuming and must adhere to 

under the Application. The Department 

is retaining this requirement. 

The Department received comments 

opposing the signature requirement and 

indicating that it would be both time 

consuming and burdensome for 

associations. The commenters also 

objected to an alleged lack of 

justification offered by the Department 

for imposing the requirement. 

In order to foster fair play and full 

disclosure, the Department has 

determined that it must require 

individual signatures of all employers 

applying for a temporary labor 

certification. The Department expects 

that this practice will result in better 

compliance and more individual 

involvement by employers to assure that 

program requirements are met and that 

both U.S. and foreign workers are 

treated fairly. 

e. Other Comments on Application 

Filing Requirements 

One commenter proposed that all 

documents filed with the SWA and 

OFLC be made readily available to U.S. 

workers and their representatives 

through the Freedom of Information Act 

(FOIA) or an electronic means through 

a publicly accessible Web site. This 

comment was addressed under the 

section dealing with the electronic job 

registry, on which the Department 

intends to post, when the system is 

available, all open and pending job 

orders. 

9. Section 655.131 Association Filing 

Requirements 

The Department proposed to continue 

allowing associations to file on behalf of 

their members. The NPRM clarified the 

role of associations as filers (sole 

employer, joint employer or agent), in 

order to assist the association and 

employer-members in understanding 

the obligations each party is 

undertaking with respect to the 

Application. As in the past, an 

association will be required to identify 

in what capacity it is filing, so there is 

no doubt as to whether the association 

is subject to the obligations of an agent 

or an employer (whether individual or 

joint). This requirement is a 

continuation from both the 1987 Rule 

and 2008 Final Rule that required an 

association of agricultural producers to 

identify whether the association is the 

sole employer, a joint employer with its 

employer-members, or the agent of its 

employer-members. The Department is 

retaining this provision with a change 

related to the filing of master 

applications, as discussed more fully 

below. 

One commenter generally opposed 

the provision indicating that it should 

be dropped because it requires 

associations, agents and FLCs to provide 

to DOL confidential and/or proprietary 

business information. The Department 

notes that neither the NPRM nor the 

Final Rule requires that program users 

submit information that is confidential 

or constitutes proprietary business 

information. The Final Rule simply 

requires that the association retain 

documentation substantiating the 

employer or agency status of the 

association and be prepared to submit 

such documentation in response to a 

Notice of Deficiency from the CO prior 

to issuing a Final Determination or 

audit. While we do not believe that 

information submitted in response to a 

Notice of Deficiency or an audit request 

would be confidential business 

information, we want to reassure 

employers and associations that 

information identified as confidential 

will be protected consistent with 

Departmental regulations. 

a. Individual Applications 

As discussed above, the Department 

proposed to continue permitting 

associations to file as individuals and is 

retaining this provision in the Final 

Rule. The Department received no 

comments on this proposal. 

b. Master Applications 

As explained in the NPRM, master 

applications filed by associations are 

clearly contemplated by the INA, and 

the Department has permitted master 

applications as a matter of practice. In 

the 2008 Final Rule, the Department 

recognized their use. The NPRM 

proposed to continue the use of master 

applications but in a more limited 

fashion. The Department is retaining the 

NPRM provision addressing master 

applications with several changes. In 

response to many comments received on 

this issue, the Department has 

reconsidered the one-State limitation 

and has expanded the area of intended 

employment for associations filing 

master applications to at most two 

contiguous States. In addition, the 

Department is clarifying that a master 

application may cover the same 

occupations or comparable agricultural 

employment. 

The Department received a number of 

comments in response to its proposed 

regulations governing master 

applications. One commenter expressed 

full support for the proposed changes 

indicating that they will allow for better 

accountability in the advertising and 

referral process. 

Numerous commenters asserted that 

the proposed changes to the provision 

governing the use of master applications 

will prove more difficult for employers, 

without sufficient justification by the 

Department for the changes. Many of 

these commenters noted that there is no 

reason to limit the use of the master 

applications to only one State, some 

noting that many farms cross over State 

lines. 

Similarly, many asserted that a 

limitation to a single occupation and 

comparable work is not justified 

because many farmers perform different 

types of work on their farms, and 

forcing them to duplicate the 

Application process for each type of job 

would greatly increase the cost of 

meeting their labor needs, and in some 

cases negatively offset the cost sharing 


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6918 Federal Register / Vol. 75, No. 29 / Friday, February 12, 2010 / Rules and Regulations 

among the employers covered by a 

master application. 

Several commenters opposed the 

single-State, single-occupation and 

comparable work limitations, asserting 

they will incur greater financial and 

administrative burdens due to a sudden 

increase in the number of master 

applications they will be required to 

prepare and file to cover all employers, 

workers and job occupations that would 

have been covered by the same master 

application under the 2008 Final Rule. 

These commenters proposed that the 

Department permit the bundling of job 

orders and master applications to reach 

across State lines so long as the jobs are 

similar and the wages are the same. The 

same commenters opposed the 

increased paperwork burden. 

Many commenters claimed that the 

changes appear unjustified and that the 

Department failed to offer a justification 

based on instances of violations or data 

indicating that master applications are 

being abused in a way that would be 

addressed by proposed changes. Some 

commenters asserted that this change, 

along with other changes in 

requirements, will increase the cost of 

compliance and force some employers 

out of the program. 

One commenter indicated that 

narrowing the scope of master 

applications that are essential for many 

H–2A employers will particularly affect 

smaller employers or those with shorter 

seasonal needs. According to this 

commenter, the one-State limitation 

fails to account for weather patterns and 

climate that govern the seasons and 

therefore drive most agricultural 

activities. Further, it is reasonable to 

permit employers and workers in 

regions where similar activities take 

place at the same time to increase 

efficiency and effectiveness by working 

together through the use of master 

applications. 

Another of these commenters noted 

that both labor and management 

understand that multi-employer 

Applications offer a benefit to farm 

workers by providing job opportunities. 

The same commenter contended that 

the Department should provide 

employers with additional flexibility 

rather than impose restrictive 

requirements. In addition, it asserted 

that an additional benefit of the 

expanded availability of master 

applications would result in greater 

work opportunities for workers, lower 

costs for employer participation, and a 

higher level of compliance among the 

participating farmers. 

The Department agrees with the 

commenters regarding the benefits of 

master applications and has therefore 

retained their use, as intended in the 

INA. The Department’s changes to the 

regulatory requirements are not 

intended to discourage employers from 

utilizing master applications but are 

rather designed to preserve program 

integrity and foremost, aim at greater 

protections for U.S. and foreign workers. 

In addition, the Final Rule continues to 

require a single date of need as a basic 

element for a master application, as well 

as a longstanding requirement that 

master applications may only be filed by 

an association acting as a joint employer 

with its members. The Department 

highlights joint responsibility of the 

association and its employer-members 

by requiring that the association identify 

all employer-members that will employ 

H–2A workers. The Application must 

demonstrate that each employer has 

agreed to the conditions of H–2A labor 

certification. 

The Department has modified the 

provision governing master applications 

to expand the area of intended 

employment. The modification strikes a 

balance between the programmatic goals 

of protecting job opportunities for U.S. 

workers and ensuring uniform 

enforcement of the terms and conditions 

and the need to provide flexibility for 

employer associations. Monitoring 

program compliance becomes more 

difficult and the potential for violations 

increases when workers under a single 

application are dispersed across several 

States. Limiting the area of intended 

employment to two contiguous States 

will make it more likely that employers 

under the same application will learn of 

and have the ability to correct potential 

problems and avoid liability. 

The Department has determined that 

limiting the master applications to a 

single occupation or comparable work 

provides necessary protections for both 

U.S. and foreign workers by providing a 

disincentive to employers to 

overestimate job opportunities or 

timeframes. Such limits also provide 

greater incentives to the domestic U.S. 

workforce. Recruiting workers under a 

master application, with many different 

job openings that may be located at 

different sites and subject to different 

terms and conditions, may discourage 

some U.S. workers from responding. 

This may also make the recruitment and 

retention of U.S. workers more difficult 

because some workers may not want to 

perform diverse activities. This 

requirement will also assist employers 

in working together to ensure that terms 

and conditions are met with respect to 

each set of workers employed under a 

specific master application. The 

Department expects that the nature of 

the job opportunities that can be 

included in a master application will 

largely mirror how master applications 

were treated under the 1987 Rule. We 

further note that the regulatory text has 

been changed to substitute the word or 

for the word and in the phrase ‘‘single 

occupation and comparable work.’’ 

Although associations may be 

required to prepare greater numbers of 

applications, the requirement is 

intended to make it easier for them to 

track compliance with the terms and 

conditions. As applications become 

more specialized, the associations may 

find that the number of their 

participating members increases for 

each application, therefore preserving 

the cost-sharing benefits. Similarly, the 

need for efficiency in processing 

applications is far outweighed by the 

anticipated improvement in the process, 

and the increased protections for both 

U.S. and foreign workers that will 

result. 

The Department is supportive of the 

use of master applications by employers 

(large and small) as a means to meet 

seasonal needs and believes that the 

commenters’ concerns regarding the 

impact of limitations are exaggerated. 

The Final Rule returns to the traditional 

use of master applications as operated 

between 1987 and 2009. The Final Rule, 

with its expansion of the use of master 

applications beyond a single State, 

preserves the flexibility inherent in the 

use of master applications while 

ensuring that they are not vehicles for 

abuse or a way to skirt program 

requirements. Nothing in the Final Rule 

impacts employers with shorter 

seasonal needs. 

10. Section 655.132 H–2A Labor 

Contractor (H–2ALC) Filing 

Requirements 

The NPRM revised the provision by 

providing an introductory paragraph 

that explained what other provisions of 

the regulations H–2ALCs are subject to 

and deleted the redundant sections in 

the H–2ALC section. The Final Rule 

adopts these changes as proposed, with 

minor editorial clarifications. 

The Department received many 

comments addressing the need for the 

regulation of H–2ALCs. Most 

commenters agreed with the proposal 

that specific obligations for H–2ALCs 

are necessary. However, a majority felt 

that the Department did not go far 

enough to regulate H–2ALCs, asserting 

that H–2ALCs are the most egregious 

violators of the H–2A program. They 

pointed out that some H–2ALCs recruit 

workers when they do not have actual 

jobs to offer; therefore, these 

commenters were pleased that the 

Department is now requiring additional 


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documentation about their contracts and 

that the WHD has more enforcement 

authority. One commenter contended 

that H–2ALCs exaggerate their labor 

needs in order to maximize their profits 

by creating something close to a Ponzi 

scheme in which foreign workers pay 

exorbitant recruiting fees abroad. This 

commenter suggested that the 

Department create a form for the 

contract between an H–2ALC and fixedsite employer in order to ensure that all 

necessary information is provided to the 

Department such as the legal name of 

the farm, its address, number of workers 

needed, dates of need, tasks to be 

performed, and the remuneration that 

the fixed-site employer intends to pay 

an H–2ALC. One commenter requested 

that the Department explicitly 

acknowledge State and Federal 

protections provided to all workers 

during recruitment and employment 

including those related to 

discrimination and retaliation. This 

same commenter requested that we 

require an H–2ALC to provide a 

recruitment plan. Additionally, a 

commenter recommended the creation 

of a Federal H–2ALC licensing and 

continuing education requirement. 

The Department believes that the 

proposed regulations provide sufficient 

protections to address these 

commenters’ concerns, and no 

additional restrictions or forms or 

licensing requirements are necessary at 

this time. The proposed protections, 

including the requirements to submit 

proof of the H–2ALCs’ work contracts, 

will help eliminate these egregious 

abuses and therefore were retained. 

a. Scope of H–2ALC Applications 

As stated previously, the NPRM 

proposed to eliminate multiple areas of 

intended employment in one 

Application and substituted a 

requirement that each Application be 

limited to worksites in only one area of 

intended employment. The Department 

received several substantive comments 

on this particular provision. 

A legal aid organization commended 

the Department for forbidding multiple 

areas of employment in a single 

application. The commenter claimed 

that U.S. workers are harmed because 

positive recruitment takes place only at 

the initial area of intended employment 

and by the time the itinerary reaches 

some of the later areas of intended 

employment, the 50 percent rule has 

lapsed and the U.S. workers lack access 

to the work opportunities. The 

commenter also asserted that the H–2A 

workers incur unnecessary expense 

because there may be weeks of 

downtime between areas of intended 

employment so they travel back home to 

Mexico at their own expense. The 

commenter stated that this would not be 

the case if the job order accurately 

reflected the actual work activities. 

The Department believes that the 

enhanced restrictions on H–2ALCs serve 

to address this issue and retains the 

provision as proposed in the NPRM. 

b. Required Information 

(i) Identify Name and Location of FixedSite Employers and Crop Activities 

The requirement to list the name and 

location of each fixed-site employer to 

which an H–2ALC expects to provide 

H–2A workers, including the beginning 

and ending dates of when the workers 

are needed and a description of the 

activities the workers are expected to 

perform and crops upon which they will 

work, is the same in both the 2008 Final 

Rule and the NPRM. The Department 

received several comments, all in 

support of this provision. One farm 

worker advocacy group suggested that 

the Department add an additional 

requirement to include the monetary 

value of the three-fourths guarantee for 

the applicable work performed at each 

fixed site. The three-fourths guarantee is 

not calculated by each fixed-site 

employer; therefore, the Department 

cannot implement this suggestion. 

(ii) Required Information and 

Submissions 

The Department did not receive any 

comments on this section of the 

proposed rule. Therefore, the 

Department is adopting the provision as 

proposed with minor editorial changes. 

(iii) H–2A Labor Contractor (H–2ALC) 

Bond Requirements 

The Department proposed to continue 

to require that an H–2ALC obtain a bond 

to demonstrate its ability to meet its 

financial obligations to its employees. 

This permits the Department to ensure 

that labor contractors can meet their 

payroll and other obligations contained 

in the terms of the job order and the H– 

2A program obligations. The Final Rule 

requires that an H–2ALC submit the 

original surety bond (and any 

extensions thereof) to the Department 

with the Application. This change is not 

expected to place any additional burden 

on an H–2ALC applicant since such 

applicants were previously required to 

submit fundamental information from 

the bond that most applicants 

accomplished by providing a copy of 

the bond. This requirement to provide 

the bond itself will ensure that the 

Department has legal recourse to make 

a claim to the surety against the bond 

following a final order finding 

violations. 

Several farm worker advocates 

suggested that H–2ALCs should have 

the option of joint employment with 

each fixed-site employer in lieu of the 

bond requirement. They noted that in 

that situation, fixed-site employers 

would be held jointly responsible for 

the treatment of the farm workers. The 

Department believes that the increased 

surety bond amounts provide better 

protections. 

(iv) Provide Copies of Work Contracts 

The NPRM proposed to add a 

provision requiring H–2ALCs to provide 

copies of their work contracts. The 

comments were generally in favor of 

this requirement. One commenter 

requested that additional language be 

added to this provision, specifically, 

that each contract disclose the fact that 

an H–2ALC intends to employ H–2A 

workers in connection with the contract 

and that workers employed at the same 

site at the same time in any work 

included in the job order are employed 

in corresponding employment. One 

commenter opined that we are requiring 

H–2ALCs to provide too much 

confidential and proprietary business 

information and that those provisions 

should be dropped. 

The Department has determined that 

the requirement to include proof of 

work contracts is appropriate for 

protecting agricultural workers, and 

does not believe additional language is 

necessary. Additionally, as stated above, 

the Department intends to protect any 

material identified as confidential in 

accordance with Departmental 

regulations. 

(v) Housing/Transportation 

The NPRM required housing and 

transportation to comply with the 

standards in § 655.122, and relevant 

comments are addressed in the 

preamble for that section. The Final 

Rule adopts the NPRM as proposed. 

11. Section 655.133 Requirements for 

Agents 

The NPRM proposed to require agents 

to provide, as a part of the Application, 

copies of agreements demonstrating 

representation—in the form of a 

contract, agency agreement, or other 

proof of the relationship and the 

authority of the agent to represent the 

employer. In addition, the Department 

proposed to require agents who are 

required to register as FLCs under 

MSPA to provide proof of registration. 

The Department is retaining this 

provision as proposed. 


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The Department received several 

comments discussing the enhanced 

requirements for agents. One commenter 

objected to the changed requirements 

arguing that agents, associations and 

labor contractors should not be required 

to provide confidential/proprietary 

business information. 

Some commenters opposed the 

requirement arguing that the current 

Form ETA–9142 Application for 

Temporary Employment Certification 

(Form ETA–9142) already contains a 

section where the employer may 

authorize another to act as an agent on 

its behalf and that providing the agency 

agreement creates a redundancy in the 

application process. One of these 

commenters indicated that both the 

employer and agent are required by law 

to personally attest with original 

signatures to the accuracy of all 

representations made in the Form ETA– 

9142, and knowingly misrepresenting 

constitutes a felony criminal offense 

punishable by $250,000 fines and up to 

5 years in jail. In light of such severe 

penalties, this commenter did not see 

the necessity for additional information 

ascertaining the validity of the 

representation. 

One commenter claimed that 

employers hire agents simply to assist 

them with the paperwork and asserted 

that the scope of such representation in 

most cases never involves activities that 

would require the agent to register as a 

FLC. In addition, the commenter posited 

that enhanced requirements are 

unnecessary because the Department 

already imposes separate requirements 

on H–2ALCs and FLCs. 

An association of employers opposed 

the enhanced requirements for agents 

arguing that the proposed changes are 

punitive and the Department did not 

provide justification for the new 

restrictions and did not explain how 

they will correct or prevent any program 

abuses. This commenter specifically 

opposed the requirement to submit 

agency agreements and noted that this 

requirement will simply result in more 

paperwork and cost for employers. The 

commenter further asserted that the 

Department has no need for private 

contract information and should be 

solely concerned with employer 

compliance with program requirements. 

One commenter expressed concern 

about the possibility that its proprietary 

information may be subject to public 

release under FOIA. 

One commenter offered support for 

the enhanced requirements for agents, 

including that agents obtain a bond and 

licensure. 

The Final Rule adopts the provision 

as proposed. The Department is 

requiring agents to supply copies of the 

agreements defining the scope of the 

agency relationship in addition to 

completing all relevant portions of the 

Application to ensure that there is a 

bona fide agency relationship to ensure 

program integrity. The requirement, 

however, in no way obligates either the 

agent or the employer to disclose any 

trade secrets, or other proprietary 

business information. For example, the 

Department has no interest in or need to 

know the amount of the fee that the 

agent is charging the employer. The 

Final Rule only requires the agent to 

provide sufficient documentation to 

clearly demonstrate the scope of the 

agency. 

Preserving program integrity requires 

the Department to ascertain the validity 

and scope of the agency relationship. 

The current application procedures 

require both the employer and the agent 

to attest under penalty of perjury that all 

information provided on the Form ETA– 

9142 is true and correct. It further 

includes a declaration by the agent or 

employee of the employer that it is 

authorized to act on its behalf in 

connection with the Application. This 

attestation, however, simply evidences 

an existing relationship; unlike the 

actual agency agreement, it does not 

define the scope of the agency 

relationship and consequently the scope 

of employer’s or agent’s liability. For 

these reasons, the Department is 

retaining the provision as proposed. 

In addition, the Department wishes to 

assure all commenters and stakeholders 

that it will continue to follow all 

applicable legal and internal procedures 

for complying with FOIA requests that 

ensure the protection of private data. 

The Department agrees with the 

commenter supporting the need for 

enhanced requirements for agents. The 

Department, however, does not feel that 

it is appropriate at this time to impose 

a bonding requirement on agents unless 

the Department determines on a case by 

case basis that they are more 

appropriately classified as H–2ALCs. 

12. Section 655.134 Emergency 

Situations 

The Department proposed to retain 

the criteria for accepting and processing 

Applications filed less than 45 days 

before the date of need on an emergency 

basis. The Department received no 

comments on this proposal and retains 

it in the Final Rule, with minor editorial 

clarifications. 

13. Section 655.135 Assurances and 

Obligations of H–2A Employers 

a. Non-Discriminatory Hiring Practices 

The Department proposed to require 

employers to make certain assurances as 

a condition for certification. The first of 

these assurances was that the job 

opportunity remain open to any 

qualified U.S. worker regardless of race, 

color, national origin, age, sex, religion, 

handicap, or citizenship, and that 

rejections of U.S. workers must be only 

for lawful, job-related reasons. 

The Department received a few 

comments on this provision. The 

Department received a comment that 

this provision is not necessary and 

should be deleted because the employer 

is already required to comply with all 

applicable laws. Another commenter 

suggested adding the phrase and as 

otherwise provided by State law to the 

end of the first sentence. 

The Department does not agree with 

suggested deletion. The provision is 

intended to be specific to the hiring 

practices of H–2A employers, such that 

the jobs, even those filled by H–2A 

workers prior to the end of the 

recruitment period, remain available to 

U.S. workers. The Department declines 

to add the suggested phrase here 

because this concept is addressed 

elsewhere in the regulation. Therefore, 

the Final Rule contains the language 

proposed in the NPRM, with an edit 

clarifying that the employer’s 

obligations continue through the 50 

percent point of the work contract. 

b. No Strike or Lockout 

The NPRM proposed that employers 

be required to assure the Department 

that there was no strike or lockout in the 

course of a labor dispute at the worksite. 

The Department received several 

comments from various groups who 

requested that the Department return to 

the language of the 1987 Rule and the 

2008 Final Rule which limited such 

assurance to strikes or lockouts 

involving the specific job opportunity 

sought to be filled. These commenters 

claimed that the proposed wording can 

leave too much room for mischief 

among those who would seek to block 

the hiring of H–2A workers. They 

expressed concern that the proposed 

language was broad and would allow 

one or two workers to claim that they 

walked off the job over a labor dispute 

and in such a situation the employer’s 

Application would be denied. They also 

pointed out that the National Labor 

Relations Act does not cover 

agricultural employment, which means 

that there is no official process for 

determining the existence of a labor 


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Federal Register / Vol. 75, No. 29 / Friday, February 12, 2010 / Rules and Regulations 6921 

dispute. These commenters state that 

the 1987 Rule language was carefully 

crafted to make it clear that if a worker 

walks off the job claiming a labor 

dispute, only the job opportunity 

vacated by that worker, and not the 

entire Application, is barred from 

certification. One of the commenters 

pointed out that the Department 

provided no justification for the 

proposed change. Several of the 

commenters opined that the proposed 

definition of strike in the definition 

section does not alleviate this problem 

because concerted stoppage of work by 

employees as a result of a labor dispute 

still allows two employees to act in 

concert to prevent an Application from 

being certified. 

The Department is concerned that 

narrowing the provision as 

recommended by the commenters 

would unjustifiably limit the freedom of 

agricultural workers to engage in 

concerted activity during a labor 

dispute. This would be inconsistent 

with Congress’ broad prohibition against 

granting labor certifications where there 

is a strike or lockout in the course of a 

labor dispute. The Department believes 

that revising the language based on 

these comments would result in H–2A 

workers performing not only the jobs 

identified in the certification, but also 

the jobs performed by those workers 

engaged in the labor dispute. Therefore, 

the Final Rule retains the language as 

proposed. 

c. Recruitment Requirements 

The Department proposed to require 

an assurance from the employer that it 

had and would 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 a job through 50 percent of the 

contract period including all extensions, 

and would conduct recruitment 

activities as set forth in the regulation. 

The Department received no comments 

on the section dealing with the 

assurance. Therefore the Final Rule 

generally adopts the NPRM provision as 

proposed with minor clarifying edits. 

This includes the deletion of the 

‘‘whichever occurs first’’ language 

regarding the end date of the positive 

recruitment. We have modified this 

language to impose clarity that one date, 

if known, will overrule the other. For a 

full discussion of this provision refer to 

the preamble discussion under 

§ 655.158. 

d. Fifty Percent Rule 

The Department proposed 

reinstatement of the 50 percent rule, 

which requires employers to hire U.S. 

workers through 50 percent of the 

contract period, as outlined in 8 U.S.C. 

1188(c)(3)(B)(i). We received many 

comments for and against this proposal, 

and for the reasons discussed below, the 

Department is retaining the provision as 

published in the NPRM. 

Several Congressional commenters 

supporting the rule noted that the 50 

percent rule played a crucial role in the 

reservation of these jobs for U.S. 

workers. Another commenter noted that 

the 50 percent rule was not only an 

essential protection for U.S. workers, 

but a significant inducement for 

employers to make serious attempts to 

recruit U.S. workers as a condition of 

H–2A certification. Several commenters 

cited the role that the rule plays in the 

continued opportunities for U.S. 

workers for the jobs, close to and even 

beyond the start date of the contract. 

Other commenters who supported a 

return to the 50 percent rule noted that 

the longer referral period provides 

essential access to U.S. workers with 

respect to H–2A jobs. Even some 

employer commenters opposed to the 

reinstatement of the 50 percent rule 

recognized the Department’s statutory 

need to strike a balance between the 

priority given to U.S. workers and the 

right of an employer, when it has met 

its legal obligations, to employ H–2A 

workers. 

Several employer commenters 

opposed to the rule focused on the 

complications the H–2A employer faces 

in hiring an H–2A worker, only to have 

the pattern of employment potentially 

disrupted by a domestic worker. Other 

commenters asserted that U.S. workers 

are not well served by the 50 percent 

rule when the employer does not want 

to hire them because the foreign workers 

have arrived. A number of commenters 

stated that there was not sufficient 

evidence that the rule worked as 

intended. Many commenters referred to 

the alternative 30-day rule imposed in 

the 2008 Final Rule as a preferred 

alternative. 

Many commenters focused on the 

unreliability of the domestic workforce 

referred during the 50 percent period. 

They noted that referred workers were 

unlikely to even show up for interviews, 

and that many of those who are hired 

last for no more than a few days. Others 

noted that most employers receiving 

referrals during the 50 percent period 

choose not to release the H–2A worker 

but retain that worker, either in a 

superfluous position or as the potential 

replacement worker for when the U.S. 

worker either does not show up for 

work or quits employment. One 

commenter noted that, in its State, 

referrals more than doubled in 2009 yet 

very few actually showed up for 

interviews and ultimately they saw no 

increase in domestic workers accepting 

job offers. 

Some commenters objected to the cost 

of interviewing U.S. workers, 

particularly for small farmers. One 

commenter questioned the return to the 

50 percent rule, noting what this 

commenter considered to be the small 

number of workers (11,000) referred by 

One-Stop Career Centers nationwide. 

A commenter stated there is no 

evidence that the adoption of the 30-day 

rule in the 2008 Final Rule (as opposed 

to the 50 percent rule) has adversely 

impacted U.S. workers. Another asked 

whether the Department had come 

across new or different information 

regarding the effectiveness of the 50 

percent rule to merit its reinstatement. 

The 50 percent rule predates the H– 

2A program; it was originally created as 

part of the predecessor H–2 agricultural 

worker program in 1978. See 

§ 655.203(e); 43 FR 10316, Mar. 10, 

1978. In 1986, IRCA added the 50 

percent rule to the INA as a temporary 

3-year statutory requirement, pending 

the findings of a study that the 

Department was required to conduct 

and review other relevant materials, 

including evidence of benefits to U.S. 

workers and costs to employers, 

addressing the advisability of 

continuing a policy which requires an 

employer as a condition for certification 

to continue to accept qualified, eligible 

U.S. workers for employment after the 

date the H–2A workers depart for work 

with the employer. 8 U.S.C 

1188(c)(3)(B)(i). In the absence of the 

enactment of Federal legislation prior to 

the end of the 3-year period, Congress 

instructed the Secretary to publish the 

findings immediately and promulgate 

an interim or final regulation based on 

the findings. 

The study conducted during that time 

period included the two States 

determined to have had the highest 

number of U.S. workers who responded 

to referrals during the 50 percent period; 

it sought only to determine the costs to 

employers that hired workers referred 

under the 50 percent rule and the 

concomitant benefits to the U.S. workers 

hired under the rule. Accordingly, in 

1990, pursuant to what is now 8 U.S.C. 

1188(c)(3)(B)(iii), ETA published an 

Interim Final Rule to continue the 50 

percent requirement. 55 FR 29356, Jul. 

19, 1990. The perceived shortcomings of 

the study were cited by the Department 

in calling for comments regarding the 50 

percent rule in 2008, and in conducting 

another study that attempted to secure 

additional information regarding the 

effectiveness of the 50 percent rule. That 


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12See ‘‘Findings from Survey of Key Stakeholders 

on the H–2A 50 Percent Rule,’’ HeiTech Services, 

Inc. Contract Number: DOU069A20380, April 11, 

2008. 

study, however, also was focused to 

meet the needs of the 2008 Final 

Rulemaking process.12 It selected only 9 

participants from each of three 

stakeholder groups—farm employers, 

SWAs, and farm worker advocates. 

Despite the protests of at least one 

commenter that this study plainly 

demonstrates the ineffectiveness of the 

provision, the study did not constitute 

a comprehensive analysis of the 

effectiveness of the rule. 

The Department had a clear statutory 

obligation to determine if there was a 

need to require employers to continue 

the longstanding practice of accepting 

referrals from the time of departure of 

the H–2A workforce until 50 percent of 

the contract period has elapsed. The 

Department’s obligation continues and 

must be implemented in furtherance of 

the Congressional policy that aliens not 

be admitted under this section unless 

there are not sufficient workers in the 

U.S. who are able, willing, and qualified 

to perform the labor or service needed 

and that the employment of the alien in 

such labor or services will not adversely 

affect the wages and working conditions 

of workers in the U.S. similarly 

employed. 8 U.S.C. 1188(c)(3)(B)(iii). 

The Department’s promulgation of a 

different timeframe in 2008 Final Rule 

as an alternative to the 50 percent rule 

was not in accordance with the 

Department’s Congressional mandate to 

ensure that foreign workers are not 

admitted unless sufficient U.S. workers 

are unavailable and their wages and 

working conditions will not be 

adversely affected. 

We have considered the commenters’ 

anecdotal concerns about the 

unreliability of the domestic workforce 

referred during the 50 percent period. 

However, the potential costs that may be 

incurred as a result of U.S. workers 

leaving shortly after they are hired are 

outweighed by the benefit to U.S. 

workers and the Department’s statutory 

responsibilities to ensure that U.S. 

workers continue to have access to these 

jobs. 

The Department believes the 

opportunity provided U.S. workers by 

the 50 percent rule is not insignificant 

and notes that SWAs have a duty 

through the labor exchange system to 

refer qualified individuals. The States 

have within their grasp a variety of ways 

to ensure referrals are coordinated and 

integrated to make sure that those most 

in need of and desiring access to these 

opportunities are given the required 

access through the 50 percent period. 

States are reminded of their 

responsibility to use these tools to the 

fullest extent. Staff-assisted referrals are 

one significant mechanism by which 

SWAs can ensure that those seeking 

these particularized positions have 

access to them. The Department notes 

that over the 20 years during which the 

50 percent rule was in operation 

employers did not raise significant 

concerns with regard to this policy. 

With regard to the comment 

concerning new or different information 

about the effectiveness of the 50 percent 

rule, the Department does not rely on 

new information as the basis for the 

reinstatement of the 50 percent rule. 

The information that is available 

through these comments is in conflict. 

While employers argue that this rule 

presents obstacles to their effective 

operation, worker advocates and some 

SWAs contend with equal vigor that the 

existence of the 50 percent rule is 

essential to ensuring that agricultural 

job opportunities are available to 

domestic workers. The 2008 study, 

which was based on employers that 

employed only 12 percent of the H–2A 

workers, was an inadequate basis upon 

which to change the Department’s 

longstanding rule. The Department finds 

the lack of definitive data to be the very 

reason to protect the vulnerable 

domestic workforce, rather than deny it 

access to these jobs. 

The Department has accordingly 

determined it must protect the needs of 

the U.S. worker population, even if 

there is potential uncertainty for the 

employer in terms of managing labor 

supply and labor costs during the life of 

the contract. Moreover, we note that this 

benefit, if employers’ comments are 

correct, is one very few U.S. workers 

avail themselves of—thus making the 

cost to employers negligible. 

With regard to comments that SWAs 

refer a small number of workers under 

this rule, the Department does not 

believe that 11,000 job opportunities for 

U.S. workers are inconsequential, 

particularly when compared to the 

approximately 70,000 H–2A workers 

admitted. Moreover, with respect to 

small farmers specifically mentioned as 

being unduly burdened in this process, 

Congress provided the option of noncompliance with the 50 percent rule in 

what is now 8 U.S.C. 1188(c)(3)(B)(ii), as 

implemented in the Final Rule. 

i. Small Farm Exemption 

The Department proposed a return to 

the 1987 Rule’s small farm exemption 

from the 50 percent rule. Most of those 

supporting the proposal to reinstate this 

exemption further requested that the 

Department eliminate the provisions 

limiting its application to those small 

farms that are not members of an 

association filing a master application 

(or otherwise associated with other 

employers). The Department cannot 

accommodate this request. This 

limitation was not regulatory, but 

statutory. See 8 U.S.C. 1188(c)(3)(B)(ii). 

In that provision, Congress specifically 

excluded small employers who are 

members of associations from the smallemployer exemption to the 50 percent 

rule. The association, however, can 

assign any workers referred under the 

50 percent rule to employers who need 

additional workers or who can more 

easily accommodate the referred 

workers, thus minimizing or eliminating 

the burden on small farmers. 

ii. Other Comments on the 50 Percent 

Rule 

Another commenter asked whether 

the Department would reinstate policy 

guidance addressing the referral of U.S. 

workers to an H–2A employer after the 

arrival of the H–2A workers. The 

Department issued guidance in 1993 

and 2007 instructing SWAs to refer U.S. 

workers to an H–2A employer whose H– 

2A workers have already arrived only if 

there is no suitable alternative 

employment available or if the worker 

expresses a preference for an H–2A 

employer’s job opening. The 

Department does not believe it is 

appropriate to include such guidance in 

the context of the regulation. 

e. Compliance With Applicable Laws 

In the NPRM, the Department 

proposed to require employers to 

comply with all applicable Federal, 

State and local laws and regulations, 

including health and safety laws, during 

the period of employment that is the 

subject of the labor certification. This 

proposal expanded the scope of the 

prior guarantees which, under both the 

1987 Rule and the 2008 Final Rule, 

limited the required compliance to 

employment-related laws. In addition, 

the proposed regulations made explicit 

that H–2A employers may be subject to 

the provisions of the FLSA. The 

Department has decided to retain the 

enhanced requirement in order to 

emphasize and ensure that both H–2A 

and U.S. workers are provided all of the 

protections to which they are entitled. 

One commenter supported the 

expanded proposal, asserting that the 

new assurance would assist State and 

local governments in curbing illegal 

immigration and exploitation of foreign 

agricultural workers, and it would also 

grant more uniform protections to all 

workers. Another commenter supported 


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the enhanced provision but suggested a 

change to expand the protections to the 

period of recruitment, as well as the 

duration of the work contract. 

The Department agrees that emphasis 

on compliance with all applicable laws 

and regulations is intended to bolster 

protections for both U.S. and foreign 

workers. The provision puts employers 

on notice that they must comply with 

all applicable laws specifically as a 

condition of program participation. In 

addition it provides State and local 

agencies with an incentive to work 

together with the Department to identify 

violators and address issues related to 

the employment of temporary foreign 

agricultural workers. 

As to the comment suggesting an 

expansion of the protection to the 

period of recruitment as well as the 

duration of the work contract, we 

believe that the prohibition against 

discrimination during the period of 

recruitment provides adequate 

protection. Additionally, several 

commenters requested that the 

Department prohibit employers from 

holding or confiscating workers’ 

passports, visas, or other immigration 

documents. The Department recognizes 

the worker’s right not to relinquish 

possession of his or her passport to the 

employer. Therefore, the Department is 

adding a provision to this section to 

require employers to comply with 

existing Federal law that prohibits 

confiscation of such documents 

(William Wilberforce Trafficking 

Victims Protection Reauthorization Act 

of 2008, 18 U.S.C. 1592(a)). 

f. Job Opportunity is Full-Time 

The NPRM proposed to require 

employers to offer only full-time 

temporary employment of at least 35 

hours per work week, an increase from 

the 30 hours per week in the 2008 Final 

Rule. The Department made this change 

on the basis that that a 35-hour work 

week more accurately reflects 

agricultural work patterns and also 

strikes a more appropriate balance 

between the employers’ needs and the 

employment and income needs of both 

U.S. and foreign workers. 

The Department received a number of 

comments on this requirement. Some of 

these comments addressed the increased 

requirement in the context of the threefourths guarantee which is also 

discussed elsewhere in this preamble. 

One commenter offered unqualified 

support for the proposed 35-hour per 

week proposal. Another commenter, a 

legal aid organization, proposed changes 

to the provision that would define a 

full-time job opportunity as constituting 

8 hours per day and no less than 40 

hours per week. Another commenter 

suggested that the Department adopt a 

37-hour per week requirement instead, 

because it would more accurately reflect 

the reality in the field. As part of its 

justification, this commenter argued that 

an increase in the hours would bolster 

the three-fourths guarantee and ensure 

that workers are actually employed for 

the duration of the contract. 

Several commenters opposed the new 

definition of full-time employment. 

Some commenters asserted that the 

increased hourly requirement increases 

the obligation of the employer to meet 

the minimum hour requirement and 

thus increases the number of hours for 

purposes of the three-fourths guarantee. 

Another commenter indicated that this 

would drive up costs for H–2A 

employers. Other commenters asserted 

that the proposed change in the 

requirement would drive labor costs up 

16 percent because the requirement and 

the three-fourths guarantee are now 

applicable not only to H–2A workers 

but also to U.S. workers in 

corresponding employment. One 

commenter also argued that this change 

is compounded by the change in the 

AEWR methodology resulting in 

prohibitive costs for employers. 

Some commenters suggested the 

Department retain the 30-hour per week 

requirement because it provides farmers 

with more flexibility in meeting the 

three-fourths guarantee when they are 

faced with unforeseen circumstances 

such as inclement weather, etc. Several 

commenters argued that the Department 

offers no justification for increasing the 

requirement or statistical data indicating 

that 35 hours, instead of 30, strikes a 

more appropriate balance between 

employers’ needs and the needs of U.S. 

and foreign workers. One of these 

commenters argued that farmers do not 

have the flexibility to set the sale prices 

in order to absorb costs associated with 

the new proposal, which will result in 

many family farms going out of business 

and loss of employment for U.S. 

workers. 

The Department’s experience in 

program administration and 

enforcement has shown that the 30-hour 

requirement does not adequately reflect 

the reality of agricultural production 

and that most employers over the course 

of the season offer well in excess of that 

number of hours. Although the 

Department believes that agricultural 

employers need some flexibility to 

account for the unpredictable factors 

affecting agriculture, the Department’s 

primary responsibility is to ensure the 

availability and viability of job 

opportunities for U.S. workers. The 

Department has determined that 

requiring employers to use 35 hours as 

the minimum threshold for full-time 

employment will strike a more 

appropriate balance between the reality 

in the field, the workers’ needs for 

meaningful hours and wages, and the 

farmers’ need for flexibility. The 

Department is therefore retaining the 35- 

hour work week, as proposed. 

g. No Recent or Future Layoffs 

The Department proposed to require 

an employer to assure that it has not 

laid off and will not lay off any similarly 

employed U.S. worker in the occupation 

in which the employer is seeking to hire 

H–2A workers within 60 days of the 

date of need. The Department has 

modified the provision in response to 

comments and has clarified the 

circumstances under which a layoff 

would not be improper. 

The Department received a number of 

comments addressing the proposal. One 

commenter expressed concern that the 

layoff provision could create confusion 

and complications for certain employers 

with long seasons; coupled with the 

longer recruitment provisions, the 

employer may be required to begin 

recruitment of U.S. workers (and the 

application process for H–2A workers) 

before or at the time that it is dismissing 

workers associated with the prior work 

contract/prior season. This commenter 

further argued that offering to re-hire 

these workers may not remedy the 

situation because many of them may not 

commit to a job opportunity until a later 

date. This commenter recommended 

that the Department adopt a shorter 

recruitment period, and/or a shorter 

layoff protection period and/or require 

employers to attest to their intent to 

rehire all qualified U.S. workers who 

have been laid off due to the season 

ending. Another commenter argued that 

it and other employers in the industry 

regularly dismiss their year-round 

employees between December and 

February. This commenter proposed 

that the Department change the 

provision so it does not bar such 

employers from using the program. 

One commenter proposed changes to 

the provision to impose the requirement 

on both the employer and the fixed-site 

business (to the extent they are not one 

and the same). In addition, this 

commenter proposed additional 

language to prohibit the employer or 

fixed-site business from causing the 

layoff in addition to actually laying off 

the workers. 

In response to the concerns of 

employers with long seasons or who 

dismiss their employees between 

December and February that they would 

be barred from the program the Final 


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Rule clarifies that layoffs are 

permissible when H–2A workers are 

laid off before any U.S. workers in 

corresponding employment are laid off. 

We have previously made this point in 

29 CFR 501.19(e) and have moved it to 

this provision. Moreover, we note that 

the employer is required to offer 

employment to all U.S. workers 

employed in the prior season. The 

Department continues to believe that 

offering the maximum job opportunities 

to U.S. workers is critical to the 

Department’s responsibilities under the 

H–2A program. 

The Final Rule does not extend the 

concept of joint employment to H– 

2ALCs and fixed-site employers at the 

same location for purposes of the no 

layoff provision, where the fixed-site 

employer does not qualify as a joint 

employer. Only an employer may lay off 

its own employees and therefore each 

employer is individually responsible for 

ensuring that it does so only for lawful, 

job-related reasons. Adding the 

proposed language to the provision 

would create confusion regarding joint 

employment and the ultimate 

responsibility for the workers under the 

program. 

h. No Unfair Treatment 

The Department proposed to prohibit 

employers from intimidating, 

threatening, coercing, blacklisting, 

discharging or in any manner 

discriminating against workers or 

former workers who file a complaint 

against the employer, or who institute 

any proceeding against the employer, or 

testify in any proceeding against the 

employer, or consult with an employee 

of a legal assistance program or an 

attorney on matters related to a 

proceeding against the employer, or 

exercise or assert any right or protection 

under the H–2A program. This 

provision supplements existing 

provisions in these regulations requiring 

compliance with Federal, State and 

local laws, and provisions which 

prohibit unfair treatment. The 

Department is retaining the provision as 

proposed. 

Some commenters expressed 

unqualified support for the provision. 

Other commenters proposed to add into 

this provision new language that would 

include protections for workers who file 

complaints with the SWA or assert 

rights or institute actions based on State 

employment or housing law or 

regulations. A Congressional commenter 

proposed that the Department consider 

additional protections, including visa 

extensions, to prevent retaliation against 

foreign workers who file complaints 

alleging unlawful conduct. 

The Department believes that its 

provision requiring compliance with all 

applicable Federal, State and local laws 

already provides for the additional 

State-related protections proposed by 

one of the commenters. 

The Department supports providing 

protections to workers so that they may 

complain of violations without fear of 

retaliation. However, the Department 

does not have the authority to provide 

for an extension of status or stay for a 

foreign worker; this authority rests 

exclusively with DHS and the 

Department can take no action with 

respect to extending the status of any 

individual worker. 

i. Notify Workers of Duty To Leave 

United States 

The NPRM proposed to continue to 

require an employer to inform H–2A 

workers that they are required to depart 

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

period, or if they become separated from 

the employer before the end of that 

period. The requirement that the 

workers depart applies to all H–2A 

workers who do not have a subsequent 

offer of employment, approved by 

USCIS in a subsequent nonimmigrant 

worker petition, from another H–2A 

employer. This continues a requirement 

in the program which parallels DHS 

regulations. The Department received 

no comments addressing this provision, 

and is retaining this provision as 

modified. 

j. Comply With the Prohibition Against 

Employees Paying Fees 

The NPRM proposed to prohibit the 

employer or its agent from seeking or 

receiving payment of any kind 

(including, but not limited to, monetary 

payments, wage concessions, kickbacks, 

etc.) from an employee for any activity 

related to obtaining the H–2A labor 

certification, including payment of the 

employer’s attorneys’ fees, application 

fees, or recruitment costs, but not costs 

that are the responsibility of the 

workers, such as passport fees. The 

proposed rule deleted the reference in 

the 2008 Final Rule to visa fees as a cost 

that is the responsibility of the workers. 

The preamble to the NPRM explained 

that visa fees, border inspection fees, 

and other government-mandated fees 

are directly related to the employer’s 

need for the workers to enter the U.S. 

to work for the employer. The Final 

Rule generally adopts the language as 

proposed, with the removal of the 

reference to the FLSA as unnecessary. 

Employee advocates generally 

endorsed the proposed prohibitions on 

cost shifting. For example, one 

employee advocate stated that 

exorbitant recruitment fees imposed on 

H–2A workers, including transportation 

fees, passport and visa expenses, require 

workers to bankrupt themselves and 

their families just to enter the U.S. This 

commenter suggested, as did others, that 

the Department should further clarify 

that fees are the responsibility of the 

employer and, because they primarily 

benefit the employer, may not be 

recouped in a later workweek. Another 

employee advocate suggested that the 

Department should go further to 

eliminate employers’ incentive to prefer 

H–2A to U.S. workers and prevent 

employers from shifting to others the 

costs of importing H–2A by expressly 

requiring the reimbursement of passport 

fees, hotel costs while waiting in the 

consular city to interview for and 

receive the work visa, and visa 

processing fees. 

A number of employers and their 

representatives objected to the 

requirement that employers pay the 

workers’ visa fees. For example, some 

commenters emphasized that consulate, 

border crossing and visa fees should 

remain the responsibility of the workers, 

stating that workers also benefit from 

the employment relationship and 

should have some investment in the 

relationship. They predicted that there 

would be increased absconding from the 

job upon arrival if employees did not 

have a financial stake in their decision 

to enter the country. Other employers 

and their representatives similarly 

commented that visa fees should remain 

the responsibility of the worker, both in 

order to control employers’ costs, and 

because they are a natural cost of the 

decision to go to another country for a 

job, from which the employee also 

benefits. Others emphasized that 

facilitation of the visa application 

process by foreign agents, compensated 

by the foreign beneficiaries, is a 

longstanding practice, which eases the 

process at the consulate; they stated that 

using such facilitators is not a condition 

of employment, but a voluntary choice 

by the workers. Moreover, they stated 

that some applicants will require such 

assistance because they are not literate 

in English, do not have access to a 

computer, or lack the ability to navigate 

the various Department of State (DOS) 

forms, yet all of this assistance is 

outside the control and knowledge of 

the employer. Another employer 

representative expressed concern that if 

it fronted the worker money for the visa 

appointment fee, the visa application 

fee and the visa printing fee, its costs 

would be higher and the worker could 

simply take the money and disappear. 

On the other hand, another employer 


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association acknowledged that many 

employers already advance these costs 

or reimburse them in the first workweek 

as a result of the decision in Arriaga v. 

Florida Pacific Farms, L.L.C., 305 F.3d 

1228 (11th Cir. 2002), which held that 

such visa-related costs are an employer 

business expense. Moreover, several 

employer associations stated that they 

strongly supported the prohibition on 

collecting fees from workers, stating that 

it was an essential protection for foreign 

workers, who are often subject to 

exploitation in their home countries. A 

farm bureau similarly supported the 

concept that workers should not be 

required to pay these fees, but it 

expressed concern about liability for 

cross-border payments that it had no 

knowledge of and therefore suggested 

deleting words like kickback, bribe, and 

tribute. 

The Final Rule generally adopts the 

provision as proposed. Governmentmandated fees such as visa application, 

border crossing and visa fees (including 

those imposed by the DOS or other 

government contractors) are integral to 

the employer’s choice to use the H–2A 

program to bring foreign workers into 

the country. Such expenses provide no 

benefit to the employee other than for 

that particular limited employment 

situation. As the Department recognized 

in the preamble to the 2008 Final Rule, 

requiring employers to bear the full cost 

of their decision to import foreign 

workers is a necessary step toward 

preventing the exploitation of foreign 

workers, with its concomitant adverse 

effect on U.S. workers. Moreover, as one 

employer association acknowledged, 

many employers already are advancing 

or reimbursing these costs in the first 

workweek. 

As to employer concerns that some 

unscrupulous individuals may take 

money that the employer advances and 

never report for work, the Department 

notes that employers are not obligated to 

advance such fees to employees. 

Employers may wait and reimburse 

such fees in the employee’s first 

paycheck. Furthermore, the Department 

is not adopting the suggestion of one 

employee advocate to require employers 

to reimburse employees for their 

passport costs, because employees may 

use their passport for personal purposes 

unrelated to their H–2A employment 

with a particular employer. See Wage 

and Hour Division Field Assistance 

Bulletin 2009–2, http://www.dol.gov/ 

whd/FieldBulletins/ 

FieldAssistanceBulletin2009_2.pdf. 

Finally, as noted in the preamble to the 

2008 Final Rule, employers are not 

responsible for an employee’s voluntary 

choice to use the services of an 

independent facilitator, such as to assist 

the employee in obtaining access to the 

internet and in dealing with the DOS, so 

long as such fees are not made a 

condition of access to the job 

opportunity. However, as was also 

noted in that preamble, the Department 

will monitor such activities to attempt 

to ensure that any such charges are not 

de facto recruitment fees charged for 

access to the H–2A program. 

The Department does not believe it is 

appropriate to identify the border 

crossing, visa, and other governmentmandated fees that must be paid by the 

employer with more specificity, as those 

fees may change over time. Moreover, 

there is no need to repeat that such fees 

may not be recouped in a later 

workweek, as the discussion of 

deductions under § 655.122(p) makes 

clear that deductions for such employer 

business expenses may not be made if 

they bring the worker below the 

required H–2A wage rate. 

k. Contracts With Third Parties Comply 

With Prohibitions 

The NPRM proposed to require an 

employer to assure that it has 

contractually forbidden any foreign 

labor contractor or recruiter that the 

employer engages in the international 

recruitment of H–2A workers to seek or 

receive payments or other compensation 

from prospective employees, except as 

allowed under the DHS regulation at 8 

CFR 214.2(h)(5)(xi)(A). The proposal 

clarified that the contractual prohibition 

must extend to any agent of the foreign 

labor contractor or recruiter, and that 

the employer must make the 

documentation available upon request. 

The Final Rule adopts this provision as 

proposed, with minor clarifying 

corrections. 

Employee representatives favored the 

proposed provision. For example, one 

employee advocate applauded the 

proposal, which carries forward the 

current rule’s prohibition on shifting 

recruitment costs, noting that 

recruitment fees are a burden on foreign 

H–2A workers and their families. 

Another employee representative 

similarly expressed approval of the 

prohibition against employers and their 

agents seeking or receiving payments 

from prospective employees. Several 

unions commented that farm workers 

often come to the U.S. as the indentured 

servants of the recruiters and 

middlemen to whom they have 

promised to pay thousands of dollars. 

Other commenters stated that more 

must be done to protect vulnerable H– 

2A workers during recruitment abroad, 

with the ultimate employers being made 

responsible for the recruiters they use. 

One commenter suggested that the 

Department should require employers to 

compensate their recruiters to eliminate 

the incentive for them to charge fees to 

H–2A workers. 

Some farmers expressed concern that 

they might be required to reimburse 

employees who claim that they were 

forced to pay a foreign recruiter a fee, 

even though the farmer’s agent 

prohibited fees, and they wanted the 

rule to be clear on what the farmer must 

do to comply. Others similarly 

wondered how the Department would 

investigate workers’ claims of alleged 

payments abroad to verify whether they 

were paid, and they wanted a clearer 

explanation of how the provision would 

be enforced, with objective standards for 

compliance and a safe harbor if the 

required contractual terms were in 

place. One employer representative 

emphasized that the Arriaga decision 

did not require an employer to pay 

recruiter fees if the employer is not in 

a position to know of or exercise control 

over such payments. And one foreign 

recruiter stated that it wanted to be able 

to charge employees a fee, because 

farmers are not willing to pay recruiters 

until the employees have worked for 

some time. Another labor recruiter 

stated that the prohibition against 

charging workers for recruiter fees was 

a respectable decision by the 

Department. However, it wanted some 

assurance that the Department would 

enforce the prohibition, so that 

responsible employers are not 

disadvantaged if unscrupulous parties 

continue to charge workers fees. 

As the preamble to the 2008 Final 

Rule emphasized, the Department is 

adamant that recruitment of the foreign 

worker is an expense to be borne by the 

employer and not by the foreign worker. 

Examples of exploitation of foreign 

workers, who in some instances have 

been required to give recruiters 

thousands of dollars to secure a job, 

have been widely reported. The 

Department is concerned that workers 

who have heavily indebted themselves 

to secure a place in the H–2A program 

may be subject to exploitation in ways 

that would adversely affect the wages 

and working conditions of U.S. workers 

by creating conditions akin to 

indentured servitude, driving down 

wages and working conditions for all 

workers, foreign and domestic. 

For the same reasons, the Department 

continues to believe that employers 

should be required to assure that they 

have contractually forbidden their 

foreign labor contractors or recruiters 

from seeking or receiving payment from 

prospective employees, and that the 

prohibition should extend to their 


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agents. Contrary to the concerns 

expressed by some employer 

commenters, as the 2008 Final Rule 

preamble recognized, the rule does not 

require farmers to pay all costs that 

employees may claim that they paid to 

recruiters abroad. Rather, the employer 

must contractually prohibit its foreign 

labor recruiters and their agents from 

charging or receiving such fees. In other 

words, paying such fees cannot be made 

a condition of access to the job. In 

response to a recruiter’s concern that the 

Department enforce this requirement to 

ensure that responsible employers are 

not disadvantaged while unscrupulous 

agencies continue to charge workers fees 

so they can provide workers more 

cheaply, the Department emphasizes 

that it will monitor these activities to 

the extent possible to ensure that the 

required contractual terms are bona fide. 

While the Department’s power to 

enforce regulations across international 

borders is constrained, it will attempt to 

ensure the bona fides of such contracts 

and will work together with DHS, 

whose regulations also preclude the 

approval of an H–2A petition and 

provide for potential revocation if the 

employer knows or has reason to know 

that the worker has paid, or has agreed 

to pay, fees to a recruiter or facilitator 

as a condition of gaining access to the 

H–2A program. As the 2008 preamble 

stated, when employers use recruiters, 

they must make it abundantly clear that 

the recruiter and its agents are not to 

receive remuneration from the alien 

recruited in exchange for access to a job 

opportunity. For example, evidence 

showing that the employer paid the 

recruiter no fee or an extraordinarily 

low fee, or continued to use a recruiter 

about whom the employer had received 

numerous credible complaints, could be 

an indication that the contractual 

prohibition was not bona fide. Finally, 

we have deleted language referring to 

the DHS regulations since those 

regulations defer to DOL regulations to 

the extent that such costs and fees 

relating to transportation and certain 

government mandated fees are 

prohibited by DOL. 

l. Notice of Worker Rights 

The Department proposed for the first 

time to require employers to post and 

maintain in conspicuous locations at the 

worksite a poster provided by the 

Department describing the rights and 

protections for workers employed 

pursuant to the INA. The posting is 

required to be in English and, to the 

extent necessary, in any language 

common to a significant portion of the 

workers if they are not fluent in English. 

A number of commenters stated that 

while they thought that having to 

provide a written job contract or a copy 

of the job order was already adequate, 

they did not object to the requirement 

to display a poster as long as any 

necessary translations were provided by 

DOL. We note that the posting of this 

notice will provide information not only 

to H–2A workers but will also provide 

information to U.S. workers, including 

workers who otherwise may not know 

that they may be engaged in 

corresponding employment and be 

entitled to the terms and conditions of 

H–2A employment. 

Providing such notification of their 

rights to workers through a worksite 

poster of their rights is consistent with 

other programs administered and 

enforced by the Department. It ensures 

that both U.S. and H–2A workers are 

aware of their rights and are provided 

with resources (in the form of phone 

numbers or contact information) which 

they may use to notify the Department 

of any issues at the worksite or report 

employers who fail to meet their 

obligations under the program. The 

Department is retaining this 

requirement, with clarification that the 

poster be in any language common to a 

significant portion of workers, as made 

available by DOL. 

One commenter expressed opposition 

to this requirement, indicating that farm 

operations have limited available space 

for posting information and that posting 

may become nonproductive based on 

the quantity of information posted. 

One commenter proposed that the 

Department adopt a notification 

requirement whereby the H–2A 

employer would have to notify the SWA 

within 2 work days that the H–2A 

workers have arrived. This commenter 

argued that this requirement would 

facilitate outreach by SWAs to H–2A 

workers and facilitate an understanding 

by both H–2A and U.S. workers of the 

work contract terms. It would also give 

the H–2A workers notice of available 

resources should any challenges arise. 

The commenter noted that State 

resources will also be better used if 

SWAs are not left to guess or conduct 

various trips to see whether or not the 

H–2A workers have arrived. 

The Department has determined that 

requiring the posting of rights specific to 

workers in the H–2A program is 

necessary to ensure worker protections 

and program integrity. Although 

workers may have access to other 

information or recourse for violations, 

directly providing them with knowledge 

about their rights under the program is 

intended to ensure timely reporting of 

violations. It further provides employers 

with an additional incentive to fully 

comply with the assurances and 

obligations under the program. 

Several commenters requested that 

the Department prohibit employers from 

holding or confiscating workers’ 

passports, visas, or other immigration 

documents. Some of these commenters 

noted that this practice deters workers 

from leaving abusive situations or 

challenging unfair employer conduct, 

and that employers use this practice to 

control and exploit workers. 

As required by the Trafficking Victims 

Protection Reauthorization Act, the 

Department recognizes the need to 

inform a foreign worker of his or her 

right not to relinquish possession of his/ 

her passport to the employer. Although 

the regulations already incorporate this 

protection under the provision that 

requires employers to comply with all 

applicable laws, the Department is 

adding a provision under the 

Assurances section expressly to require 

employers to comply. The Department 

anticipates that adding explicit 

references in these provisions to these 

requirements will provide the necessary 

additional worker protections. 

The Department declines to adopt the 

requirement that an employer notify the 

SWA within 2 working days that the H– 

2A workers have arrived. The role of the 

SWAs under these regulations consists 

of various activities involving the 

employer related to the recruitment of 

H–2A workers, including placement of 

job orders and referring U.S. workers to 

employers for the designated time 

period, and conducing housing 

inspections. Arrival of the H–2A 

workers is not a key event in these 

activities. 

Processing of Applications for 

Temporary Employment Certification 

14. Sections 655.140–655.145 

The Department received no specific 

comments on the application review 

process (§ 655.140), the Notice of 

Acceptance process (§ 655.141), the 

Notice of Deficiency process (§ 655.143), 

and submission of modified 

applications (§ 655.144). However, the 

Department did receive a comment from 

a law firm that made it clear to the 

Department that the organization of this 

section created confusion. The 

commenter thought that the Notice of 

Deficiency would be sent out after the 

Notice of Acceptance. In reviewing this 

comment, the Department decided that 

it would be best to reorganize the order 

of the sections, delete a misplaced 

section, and make minor word changes 

to facilitate a better understanding of the 

process. Thus, the Notice of Deficiency 

section will be renumbered and become 


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§ 655.141 and the first sentence will 

begin with if the CO determines the 

Application is incomplete instead of 

when the CO determines the 

Application is incomplete. The 

submission of modified applications 

will be renumbered and become 

§ 655.142 because only Applications 

that were returned to the employer with 

a Notice of Deficiency need to be 

modified; therefore, it is logical that it 

must follow the Notice of Deficiency 

section. The Notice of Acceptance will 

become § 655.143 and the electronic job 

registry, which is used only after any 

deficiencies have been cured and a 

Notice of Acceptance has been issued, 

will become § 655.144. 

In addition, § 655.141(c)(5) has been 

changed to state that the employer must 

seek administrative review within 5 

business days or submit a modified 

application pursuant to § 655.142. The 

language in the NPRM which required 

that an application be denied unless the 

modified application was received 

within 5 days would have negated the 

purpose of § 655.142. 

15. Section 655.142 (now § 655.144)

Electronic Job Registry 

The NPRM proposed for the first time 

the creation of an electronic job registry. 

The comments received were almost 

equally divided between those who 

supported it and those who opposed it. 

The major concern of those who were 

against creating a new registry was that 

the Department did not explain the 

concept in detail and it was hard for 

them to understand why it would be 

any different from America’s Job Bank. 

Several growers’ associations and a U.S. 

Senator declared that this proposal is a 

waste of taxpayer dollars because the 

information is already available through 

the SWAs. They believe that the only 

justification for such a new database 

would be the elimination of all the other 

recruitment requirements. Several of the 

commenters thought the registry raises 

privacy issues. They feared that 

confidential business information 

would be available on the Internet and 

would allow advocacy litigators to 

harass the employers or simply subject 

the employers to random non-legitimate 

referrals from across the country, which 

require the employer to expend time 

and money responding to such inquiries 

and referrals. 

The NPRM proposed to create this 

registry for two reasons. One was for 

public disclosure and transparency. The 

other was to have an additional tool 

through which U.S. workers can be 

matched with employers. A few of the 

commenters, including SWAs, who 

agreed with the concept of the registry 

applauded the Department for more 

open public disclosure of the 

information and admitted that the 

current systems are not uniform and 

that it will be easier for them to track 

H–2A job orders and enhance the efforts 

to match workers with jobs. One of the 

SWAs thought the public disclosure 

would help relieve the SWA from the 

time currently spent responding to 

inquiries from the media and interest 

groups. The Department’s experience 

has been that SWA information is not 

uniform, and that the creation of the job 

registry will greatly assist the 

dissemination of this information to the 

public; that it will save tax dollars 

through the elimination of numerous 

requests through the FOIA rather than 

cost them for what the Department 

believes is not a redundant system. 

A legal aid bureau commended the 

Department for proposing the registry 

because it will alleviate the current 

frustrations experienced by the public 

and stakeholders who must wait for 

responses to FOIA requests. The 

Department also aims to reduce the 

substantial number of the FOIA requests 

it receives each year by publishing the 

job orders online. 

Most of the other commenters who 

agreed with the registry also 

acknowledged their hope that this 

Federal registry would become the only 

electronic registry of H–2A job 

opportunities and be used in lieu of 

either the newspaper advertisement or 

the SWA posting. Some SWAs thought 

the idea was good in principle, but 

thought that the Department should use 

an existing registry such as JobCentral. 

JobCentral is a partnership between the 

National Association of State Workforce 

Agencies and Direct Employers 

Association. SWAs can use the system 

at no cost. The Department examined 

the option of using an existing registry 

but found that the costs would impose 

an additional burden on employers. 

Therefore, the Department has decided 

not to adopt this proposal. 

The NPRM did not provide a great 

deal of detail on how the registry would 

operate. Those details are provided 

here. The Department will announce 

through a notice in the Federal Register 

when the registry is operational. After 

creating the infrastructure for the 

registry, the Department plans to scan 

the Form ETA–790 after redacting 

confidential information, as it would for 

a FOIA request. The redacted image of 

the Form ETA–790 will be posted on the 

registry. This should alleviate 

commenters’ concerns about the public 

dissemination on the Internet of 

confidential business information. The 

same search functions that are available 

to currently search PDF files will be 

available to search the postings on the 

registry. The Department believes this 

will be an effective mechanism to make 

this information available to workers, 

employers and advocates. 

Post-Acceptance Requirements 

16. Sections 655.150–655.158 

The NPRM proposed both pre- and 

post-filing recruitment. The SWA 

would, as always, be responsible for 

placing the job order. If the initial test 

of the labor market did not yield enough 

U.S. workers, the employer would file 

an Application with the Department. 

Once the CO accepted the Application, 

the CO would direct the SWA to place 

the job order in its interstate clearance 

system and send the job order to any 

States designated by the CO to be 

traditional supply States. The employer 

would be directed to place the 

newspaper advertisements where the 

CO determines appropriate. As in both 

the 1987 Rule and the 2008 Final Rule, 

the NPRM requires that newspaper 

advertisements direct applicants to 

report or apply for the job opportunity 

at the nearest office of the local SWA 

where the ad appears. 

The 1987 Rule contained very specific 

additional recruitment requirements 

that an employer had to perform in 

order to comply with the positive 

recruitment requirements of the 

regulations, such as radio advertising, 

contacting FLCs, migrant workers and 

other potential workers by letter and/or 

telephone, or contacting such entities as 

schools, business and labor 

organizations, or fraternal and veterans’ 

organization. The 2008 Final Rule 

changed the additional recruitment 

requirements by eliminating many of 

these steps and by requiring employers 

to contact former U.S. employees. The 

NPRM proposed a hybrid of the two 

earlier rules. The NPRM kept the 2008 

Final Rule requirement to contact 

former employees but proposed to give 

the CO discretion to order additional 

recruitment as determined necessary, 

which could include newspaper or 

radio advertising, contacting local 

unions or FLCs or any other method 

used by non-H–2A employers, 

depending on the prevailing practice in 

the area of intended employment. 

The requirement to recruit in 

traditional or expected labor supply 

States is a statutory requirement in 8 

U.S.C. 1188(b)(4). The 1987 Rule 

required the OFLC Administrator to 

ascertain the normal recruitment 

practices of non-H–2A agricultural 

employers in the area to determine what 

recruitment efforts, if any, should be 


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required of the employers in other 

traditional or expected labor supply 

States. The 2008 Final Rule mandates 

that the Secretary publish a Federal 

Register notice each year that specifies 

which States are considered traditional 

or expected supply States and which 

newspapers in those States are to be 

used for advertising. The NPRM 

eliminated the Federal Register notice 

requirement and put the burden of 

determining the places and methods of 

recruitment on the CO at the NPC. The 

NPRM did not mention mandated 

newspaper advertising in the traditional 

or expected supply States. 

17. Section 655.150 Interstate 

Clearance of Job Order 

One commenter misunderstood the 

proposed role of the SWA, thinking that 

the NPRM proposed to return 

recruitment oversight to the SWA. In 

fact, under the NPRM the NPC would 

take on that role. Another commenter 

misunderstood the role of the SWA 

under the 2008 Final Rule by saying that 

it does not require the SWA to place 

interstate job orders, when in fact it 

does. Other commenters were against 

maintaining the requirement for placing 

job orders through the interstate 

clearance system. These commenters 

thought the interstate clearance system 

was an antiquated process that does not 

produce enough U.S. workers. An 

association of growers provided 

anecdotal evidence about how few 

referrals are received by the growers in 

the commenter’s State from the 

interstate clearance system. This 

commenter contended that because the 

number of referrals added up to less 

than 3 percent of the total number of 

workers needed by its grower members, 

the system is a failure. The Department 

recognizes that growers cannot, in all 

cases, meet their labor needs through 

the domestic labor force. However, the 

Department’s objective is to make sure 

that every U.S. worker who wants a job 

in agriculture is made aware of the 

opportunity. Use of the interstate 

clearance system is also required by 

statute at 8 U.S.C. 1188(b)(4). Congress 

specifically directed the Department to 

make sure that employers’ job orders are 

circulated in the interstate employment 

service system. Therefore, the 

Department is not able to eliminate this 

provision, and it is retained in the Final 

Rule with minor editorial modifications. 

18. Sections 655.151–655.152

Newspaper Advertisements/Advertising 

Requirements 

The Department proposed to require 

employers to engage in newspaper 

advertisement as part of their positive 

recruitment efforts. The Department 

removed proposed § 655.151(b) because 

it was inconsistent with the 

requirements of the CO to direct 

recruitment, but has otherwise adopted 

the proposed provision with clarifying 

modifications. 

The Department received several 

comments, with only one in favor of the 

newspaper advertising requirement. The 

vast majority requested that the 

Department abolish this form of 

recruitment because it is both too costly 

and ineffective. Several commenters, 

including one U.S. Senator, requested 

that the Department justify the 

requirement for newspaper advertising 

with statistical evidence of its efficacy. 

The 2008 Final Rule eliminated a 

number of recruitment steps whose 

value was questionable, difficult to 

monitor and burdensome on the 

employer, such as mandatory contact 

with FLCs, schools, fraternal and 

veterans’ organizations, and nonprofit 

organizations. As commenters pointed 

out during the comment period in this 

rulemaking and in the rulemaking for 

the 2008 Final Rule, agricultural 

workers usually find out about 

agricultural jobs by word of mouth. The 

Department agrees but, as pointed out in 

the 2008 Final Rule, it is almost 

impossible to mandate and enforce such 

a recruitment step. What the 

Department has found over more than 

20 years of H–2A program experience is 

that even though the agricultural 

workers themselves may not frequently 

buy and read the newspapers, their 

friends and relatives often do, as do job 

placement agencies and those who 

advocate on behalf of, and provide 

services to, such workers. None of the 

commenters presented the Department 

with a viable alternative for getting 

notice of job opportunities to interested 

constituencies. Therefore, the 

Department declines to remove this 

requirement. 

Some commenters specifically 

objected to the Sunday edition 

requirement because it is more 

expensive to place the ad in the Sunday 

edition and because that edition is more 

expensive to buy. Commenters also 

pointed out that newspapers are going 

out of business because of all of the new 

electronic media available. The 

Department does not disagree with the 

commenters on these points. However, 

newspapers are still the best medium in 

which to advertise low-skilled jobs, and 

Sunday is still the most popular day for 

job listings. Therefore, the Department 

declines to eliminate this requirement. 

One comment requested that the 

Department allow associations of 

agricultural producers acting as agents 

for their members and filing master 

applications to advertise their master 

applications in lieu of an individual 

advertisement for each member, and 

allow the association to name itself in 

the advertisement instead of requiring it 

to list every individual employer 

associated with the Application. The 

NPRM did not change the master 

application concept. Master 

applications can only be filed by 

associations who will be joint 

employers with their members. The 

association only needs to place one 

advertisement on behalf of itself and its 

members. Each member does not need 

to place an individual ad. Likewise, the 

NPRM did not propose to require 

associations filing master applications 

to list all of the members in the 

advertisement. Quite the contrary, the 

language in § 655.152(a) requires only a 

statement that the names and locations 

of its members can be obtained at the 

local SWA in the State where the 

advertisement appeared. However, if the 

association wishes to file an Application 

as an agent, it may do so only on an 

individual basis for each of its members 

separately, and the advertisements 

would need to be run by each 

individual member. The wording of the 

regulation in this particular instance is 

very clear, and we decline to make any 

changes in the Final Rule. 

The Department received numerous 

comments on the new requirement that 

advertisements should direct applicants 

to report or apply at their local SWA. 

The NPRM included a provision 

requiring that where the worksite is 

remote relative to the population most 

likely to apply for the job opportunity, 

an accessible alternative location for any 

required interviews must be provided 

by the employer. 

One commenter, a SWA, agreed with 

this requirement. All of the other SWAs 

that commented on the issue were 

against this provision, because they 

thought it was an added cost burden 

that would require farmers to rent and 

staff offices. Some of the commenters 

did point out that a SWA would 

probably have space available for 

interviewing, but that it still would 

force the farmer to lose valuable time on 

the farm to travel to the interview site. 

Several asked why the Government is 

requiring farmers to have face-to-face 

interviews when the virtual office now 

exists allowing so many people in other 

professions to conduct such interviews 

over the phone or other virtual means, 

the Government is requiring farmers to 

conduct face-to-face interviews. 

The Department agrees with these 

comments. The provision was proposed 

because of the practice of some 


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employers to demand face-to-face 

interviews in remote places that cost the 

worker not only transportation costs to 

arrive at the location, but even an 

entrance fee to get on the property, such 

as a National Forest. 

However, several farmers stated that if 

the workers cannot even find their way 

to the worksite for an interview, then it 

is likely that they will be unable to get 

themselves to the job site each day to 

report to work or it is an indication that 

they are not interested. The Department 

categorically disagrees with this 

assessment. The statute requires that the 

job be advertised in other States and 

territories of the U.S. where U.S. 

workers are willing to travel once 

offered the job, such as to a remote job 

site. 

After considering all of the comments, 

the Department has decided to amend 

its regulation to resolve the problem 

identified by the commenters. In-person 

interviews cannot play a significant role 

in the H–2A process since numbers of 

domestic applicants, and all of the 

prospective H–2A workers, are hired at 

locations distant from the area of 

intended employment. Domestic 

applicants generally are interviewed, if 

at all, by telephone. Potential H–2A 

workers are interviewed, if at all, by an 

employer’s representative overseas. The 

Final Rule reflects these realities by 

requiring that employers who conduct 

interviews must do so by telephone or 

establish a means by which applicants 

may be interviewed in the location in 

which they are applying. We have also 

continued the prohibition on employers 

requiring employees to pay fees to apply 

for the job for which they are sought and 

on other fees such as testing fees. The 

Department views entrance fees or 

access fees to property where the 

interview is to be conducted as 

indicating a lack of good faith in the 

recruitment of such workers. The 

interview process must be one that 

represents little or no cost to the worker. 

Some of the commenters claimed that 

the Department did not account in our 

cost-benefit analysis for the cost to the 

employer of having access to a place in 

which to conduct interviews. However, 

because we are not and never have 

required in-person interviews of 

workers, and because we also assumed 

employers who wanted face-to-face 

interviews would use the free services 

of the One-Stop Career Centers, we need 

not factor in any costs. Employers who 

wish to require more costly interview 

methods do so by their own choice, not 

from any requirement of these 

regulations. 

19. Section 655.153 Contact With 

Former U.S. Employees 

The 2008 Final Rule listed specific 

methods for contacting former 

employees and methods of recording 

responses. The NPRM proposed to 

simplify the procedures for contacting 

these former employees. A few 

commenters opined that the new, less 

specific language meant that the 

employer now had to send all 

correspondence to former U.S. 

employees by certified mail. The NPRM 

allowed employers to continue to use 

the methods described in the 2008 Final 

Rule, such as maintaining copies of 

correspondence signed and dated by the 

employer or maintaining dated logs 

demonstrating that each worker was 

contacted, including the phone number, 

e-mail address, or other means used to 

make contact. However, if it is easier for 

the employer to print out a list of 

previous employees and attach a 

telephone bill that shows calls placed to 

all of the employees, then the 

Department will not require that 

employer to rewrite the entire contact 

list into a formal log. The 2008 Final 

Rule also specifically required the 

employer to enter the data a second time 

into the recruitment report. The 

recruitment report requirements are 

clear in § 655.156, and do not need to 

be repeated in this section. All workers 

who apply or respond to solicitations 

must be listed in the recruitment report. 

A worker advocate group commended 

the Department on keeping the 

requirement to contact former 

employees; however, it pointed out that 

this provision has been very poorly 

enforced because many former 

employees report being refused re-hire 

by companies using H–2A workers. The 

Department believes the text of the rule 

provides clear and appropriate 

requirements with which employers 

should be able to comply; therefore the 

Final Rule adopts the NPRM language 

with minor editorial changes. 

20. Section 655.154 Additional 

Positive Recruitment 

The requirements for positive 

recruitment and for recruitment in 

traditional or expected labor supply 

States are mandated by statute. 

Specifically, the statute requires that 

positive recruitment efforts be made 

within a multistate 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. 

The NPRM cited the statute and gave 

the CO discretion to determine if any 

additional recruitment is necessary in 

such States. The CO would order 

recruitment efforts that are normal for 

similar and smaller employers in the 

area of intended employment. 

Some commenters opined that the 

2008 Final Rule was more specific on 

how the traditional or expected labor 

supply States will be determined than 

was the NPRM. The majority of 

commenters did not think that giving 

the CO discretion to determine what the 

additional recruitment should be and 

where was a good idea. These 

commenters asserted that the NPRM 

lacks any objective and transparent 

standards, which means that employers 

will be subject to inconsistent, arbitrary, 

or contradictory directions from COs. 

Another commenter felt that the 

Department did not have the right to 

delegate the Secretary’s statutory 

obligations to COs. Several commenters 

opined that the Department did not 

explain how the States would be 

identified or how many would be 

required. 

One commenter went into great detail 

about the lack of rationale in the NPRM 

for changing to a discretionary model 

from a specific model. According to this 

commenter, the 2008 Final Rule 

contained an extensive analysis of the 

rationale behind the requirements in the 

section in its preamble and the 

Department failed to justify its reasons 

for departing from the rationale. This 

commenter stated that the Department 

failed to explain the basis for changing 

course and has provided so little 

description of what the employers might 

expect that the Department failed to 

provide the necessary notice and 

opportunity for comment to the 

employers. This commenter requested 

that the Department return to the 2008 

Final Rule language. 

An agricultural service provider 

concurred with many of the comments 

mentioned above, citing its experience 

with current processing procedures and 

noting the cost and futility of the 

advertising currently required by the 

CO. Another commenter contended that 

employers must be advised of the 

requirements and costs they will incur 

before they decide to enter the program. 

We acknowledge this concern and have 

accordingly sought to limit the expense 

to employers while still satisfying the 

Department’s statutory obligation to 

ensure recruitment of U.S. workers in 

traditional labor supply States. 

A U.S. Senator was concerned that 

there was no set limit on the number of 

traditional or expected labor supply 

States that could be designated whereas 


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before the Department had promised 

that there would never be more than 

three States designated. The Department 

did not plan to designate more than 

three but, in light of all the comments, 

has added that explicit provision to the 

regulatory text. The Senator also opined 

that if the Secretary believes that 

sufficient workers can be found in other 

States, then the Secretary should 

expend the time and resources 

necessary to find them instead of the 

employers having to do so. 

One commenter believed that the 

Department was going to require 

advertising in ethnic newspapers in the 

traditional or expected labor supply 

States. The NPRM does not contain such 

a requirement. The NPRM mentions 

ethnic newspapers only in the 

document retention requirements, 

simply stating that if advertisements 

were run in an ethnic newspaper, the 

employer must maintain proof of 

publication along with the other 

documents listed in that section. 

The Department has determined to 

retain the proposed requirement with 

one modification that clarifies that the 

employer will not be required to 

conduct positive recruitment in more 

than three States for each area of 

intended employment. 

First, commenters who suggested that 

the Department is affirmatively 

obligated to locate domestic workers 

before a certification can be denied are 

incorrect. Under 8 U.S.C. 1188(b)(4), 

employers seeking to use H–2A workers 

must conduct positive recruitment 

outside the local area. 

In the NPRM, the Department moved 

from the rigid model imposed by the 

2008 Final Rule to one in which the CO 

has more discretion in order to allow 

the Department more flexibility in 

gathering information to determine 

where available workers may be found, 

even within a single growing season. 

Since many farm workers migrate over 

the course of the year and since the time 

it takes to perform various farm work 

activities varies from year to year, the 

more flexible model proposed in the 

NPRM gives the CO the opportunity to 

use current information to determine 

the States to which to refer an employer 

to conduct positive recruitment. The 

designation model of the 2008 Final 

Rule required the Secretary make such 

designations on an annual basis by 

formally soliciting and then reviewing 

information supplied from States, 

employers, and worker organizations. 

The annual designation process was an 

ambitious and unnecessarily formalized 

process of collecting information from a 

wide range of sources, and then making 

a decision for each State which three 

other States, if any, would be designated 

as States in which positive recruitment 

must be conducted. This process ties the 

CO’s hands and prevents the CO from 

using later information which may show 

that workers are available in a State 

different from one of the pre-designated 

States or from using information that 

shows that workers are not available in 

one of the pre-designated States. The 

Department believes it can accomplish 

the same collection of information 

through less formal means, and use that 

information more effectively by 

allowing the CO some discretion in the 

selection of the methods and areas in 

which they are employed based on the 

best and most recent information 

available. The NPC already receives 

information on the availability of 

workers from SWAs and will welcome, 

although not require, information on 

labor supply from those same entities 

identified previously to assist in its 

decisions on the best sources of labor to 

be required of employers. 

The types of recruitment used in the 

program have not varied tremendously 

through the decades. The Department 

intends to continue to rely on 

newspaper advertising. While not as 

important a recruitment tool as it may 

have been in the past, we believe it 

remains valuable and imposes no 

additional costs over what has been 

required since the 1987 Rule. 

Finally, the Department did not plan 

to designate more than three States but, 

in light of the comments, has added an 

explicit provision to the regulatory text 

limiting to three the number of States in 

which an employer will be required to 

conduct positive recruitment. 

21. Section 655.155 Referrals of U.S. 

Workers 

The NPRM proposed to eliminate the 

requirement that SWAs verify 

employment eligibility and return to the 

standard of the 1987 Rule requiring 

applicants to indicate that they are 

qualified. The Department received 

numerous comments on this proposal, 

which are discussed above. 

22. Section 655.156 Recruitment 

Report 

The NPRM proposed to have the 

employer submit the recruitment report 

only once on a date certain as specified 

by the NPC in its letter of acceptance. 

The NPRM preamble inadvertently 

included two submissions of the 

recruitment report to the CO. The 

Department received comments noting 

that submitting the report twice was an 

unnecessary burden. The Department 

agrees and because the regulatory text 

only required one submission, the 

Department clarifies its intent to require 

only one submission of the recruitment 

report in this preamble and does not 

make any changes to the Final Rule. 

One commenter requested that the 

Department eliminate the need to 

continue updating the recruitment 

report throughout the 50 percent rule 

period because the employer’s 

obligation to recruit ends when the H– 

2A worker leaves to come to the U.S. 

While the employer’s positive 

recruitment obligation ends when the 

H–2A workers depart for the job site, the 

obligation to continue to accept referrals 

or to process potential gate hires 

continues throughout the period of the 

50 percent rule. The Department needs 

to be able to determine whether the 

employer has met its obligations. Thus, 

the employer must continue to log those 

referrals into the recruitment report and 

explain whether or not they were hired 

and if not, what the lawful job-related 

reason was. Therefore, the Department 

declines to change the requirement to 

update the recruitment report and has 

made one minor editorial change to this 

section. 

23. Section 655.157 Withholding of 

U.S. Workers Prohibited 

The statute prohibits the willful 

withholding of U.S. workers until the 

beginning of the contract period in order 

to force the employer to send the H–2A 

workers home under the 50 percent 

rule. One commenter expressed support 

for the Department’s inclusion of these 

provisions in the proposed regulation. 

Another commenter requested that the 

Department make a minor change to the 

section by inserting the words ‘‘if 

possible’’ after the requirement that the 

employer clearly identify the person or 

entity that withheld the workers. This 

commenter asserts that it is sometimes 

difficult for the employer to know who 

the actual person or entity is. The 

Department declines to make this 

change and retains the proposed 

language, because without identifying 

the actual person or entity allegedly 

withholding U.S. workers the 

Department has no facts upon which to 

investigate the complaint. Additionally, 

the Department corrected a 

typographical error in this provision. 

24. Section 655.158 Duration of 

Positive Recruitment 

The NPRM proposed, consistent with 

the INA, that positive recruitment end 

on the date H–2A workers depart for the 

employer’s place of business. 

One commenter claimed that the 

Department provided no rationale for 

requiring recruitment up to and 

including the day the H–2A workers 


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depart for the employer’s place of 

business and requests that the 

Department remove this requirement. 

The same commenter also requested 

that the Department adopt the 

additional provision from the 2008 

Final Rule of stopping the recruitment 

3 days before the first date of need. The 

Final Rule clarifies that 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 business. 

Labor Certification Determinations 

25. Sections 655.160–655.167 

The Department did not receive any 

comments that were within scope for 

§§ 655.160–.162. One commenter did 

suggest that we add requirements for 

training new crew leaders and field 

supervisors to § 655.160, which only 

deals with the 30-day requirement for 

the Department to adjudicate an 

Application. The Department does not 

believe this suggestion is appropriate for 

this section and training of employees of 

an H–2A employer, particularly in the 

H–2ALC context, is dealt with more 

specifically in the H–2ALC section. The 

Department has also made minor 

editorial changes to §§ 655.164–.165, 

deleting language believed to be 

unnecessary. 

26. Section 655.163 Certification Fee 

The NPRM did not propose to change 

the certification fee and received one 

comment agreeing with the fee 

structure. The Department is adopting 

the provision as proposed. 

27. Section 655.166 Appeal 

Procedures (Now Determinations Based 

on Unavailability) 

The Final Rule simplifies the 

regulatory text by centralizing the 

information about appeals in § 655.171. 

A commenter identified one type of 

determination for which appeal rights 

did not appear to be included in the 

provision. Specifically, the commenter 

was referring to the right to appeal a 

denial or partial denial, where U.S. 

workers were found to be available, but 

later became unavailable. The INA 

requires that this particular right to 

appeal must be adjudicated within 72 

hours, while § 655.171 only provides for 

5-day turnarounds. Therefore, the 

Department has added procedures 

similar to those in the 2008 Final Rule 

that provided the process for requesting 

such redeterminations. 

28. Section 655.167 Document 

Retention Requirements 

The NPRM proposed a document 

retention requirement of 5 years. A 

number of comments opposed the 

proposed increase to 5 years, from the 

3-year requirement in the 2008 Final 

Rule. The reasons varied from simply 

that the requirement being too 

burdensome on employers to the need 

for consistency with other less onerous 

statutory document retention 

requirements such as the FLSA and 

MSPA. In light of all the comments, the 

Department has reconsidered its 

position on this issue and changed the 

Final Rule to reflect a 3-year retention 

requirement. 

Post-Certification Activities 

29. Sections 655.170–655.174 

The Department proposed certain 

post-certification activities. These 

included the allowance and process for 

short-term extension requests; appeals 

of denial of submitted Applications; 

employers’ obligations in the event of 

withdrawal of a job order; the setting of 

(and process for appealing) meal 

charges; and the creation of public 

disclosure data of H–2A applicants. The 

Department received comments on most 

of these provisions. 

30. Section 655.170 Extensions 

The Department received one 

comment noting that the Department 

eliminated the right to appeal denials of 

extension requests. The commenter 

pointed out that the Department did not 

cite any relevant statistics about 

extension requests, number of denials, 

number of appeals, and number of 

unsuccessful appeals, nor did it provide 

any justification for removing the right 

to appeal in the NPRM. The Department 

agrees and has provided for appeal 

rights in these cases. Additionally, the 

Department has included a requirement 

that employers provide a copy of the 

approved extension to workers in 

accordance with the disclosure 

requirements. 

31. Section 655.171 Appeals 

The Department has modified the 

provision concerning de novo hearings 

to require that such hearings be held in 

5 business days after the Administrative 

Law Judge (ALJ) receipt of the 

administrative file. While no comments 

were received on this provision, our 

administrative experience has shown 

that the 5 calendar day provision was 

not workable. 

32. Section 655.172 Withdrawal of Job 

Orders and Application for Temporary 

Employment Certification 

The Department received no 

comments on this proposed section. It is 

accordingly adopted as proposed. 

33. Section 655.173 Setting Meal 

Charges, Petition for Higher Meal 

Charges 

The NPRM did not propose any 

changes to the section addressing meal 

charges for workers. The Department 

received a comment from a farm worker 

advocacy group that requested we 

include a statement that the maximum 

meal charge set by these regulations is 

subject to applicable State law and an 

employer may deduct only the lesser of 

the two. This same commenter also 

wanted us to amend this section to 

prohibit employers from deducting for 

days that the employers offered the 

workers no work or less than 8 hours. 

This commenter contends that some 

employers combine several crops into 

one job order and have such lengthy 

down times as to cause workers’ wages 

for a week to have a zero balance once 

the meal charges are deducted. 

With respect to meals, the employer 

must either provide three meals a day 

(with an allowable charge) or must 

furnish free and convenient cooking and 

kitchen facilities that will enable the 

workers to prepare their own meals 

during the entire contract period. The 

commenter’s suggested language that an 

employer should be prohibited from 

charging employees for meals consumed 

on days where no work was provided 

was not proposed in the NPRM and it 

would not be appropriate to make this 

change without the opportunity for 

public notice and comment. With regard 

to meal charges and State law, the 

regulations elsewhere specifically 

require the employer to comply with 

applicable State laws. Therefore, the 

Department declines to make any 

changes to this provision. 

34. Section 655.174 Public Disclosure 

The 2008 Final Rule did not discuss 

public disclosure. The Department has 

been providing publicly accessible 

information about users of the H–2A 

program on its Web site for several years 

now at http://www.flcdatacenter.com/. 

The NPRM proposed to codify a 

longstanding practice of disclosing this 

information. 

The Department received several 

comments on this proposal. Several 

thought it was duplicative of the 

electronic job registry proposed in 

§ 655.142; however, it is not. The 

electronic job registry will be a 


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6932 Federal Register / Vol. 75, No. 29 / Friday, February 12, 2010 / Rules and Regulations 

temporary posting of scanned copies of 

the job order and other pertinent 

documents for the duration of the 

recruitment and 50 percent referral 

periods. Then those documents will be 

removed. The public disclosure data 

will continue, as it is now, to be in a 

spreadsheet format with only the most 

basic information, such as the name of 

the employer, attorney, and agent, 

address of the employer, case number, 

decision and date, contract period 

certified, number of workers requested 

and number certified, occupation of 

certified workers, number of work hours 

a week, wage rate, and the State where 

the foreign workers will perform the 

work. This disclosure data will remain 

on the OFLC Web site for at least 3 

years. 

Some commenters requested that the 

Department add language to this section 

to clarify and reiterate that States must 

disclose all information such as housing 

inspection reports, and other pertinent 

documents when requested to do so 

under a FOIA. These commenters state 

that the States are refusing to provide 

information under the guise of 

protecting privacy. However, States are 

not subject to FOIA, which governs 

Federal agencies. Therefore, the 

Department declines to add any text to 

the regulatory language. 

One farm worker advocacy group 

requested that we mandate employers to 

contract with non-profit groups to 

provide ‘‘Know Your Rights’’ training to 

all first-time H–2A workers during paid 

work hours. This request is beyond the 

scope of the NPRM. The cost associated 

with such a requirement was not 

accounted for in the cost-benefit 

analysis and employers did not have a 

chance to comment on such a 

requirement. The Department believes 

that the new requirement that was 

proposed in the NPRM and is in the 

Final Rule requiring employers to post 

a Department-provided worker’s rights 

poster will be sufficient to apprise 

foreign workers of their rights. 

Integrity Measures 

35. Section 655.180 Audits 

The Department proposed to make 

minor changes to the audit process 

established in the 2008 Final Rule. The 

proposed section retains the 

Department’s discretion to choose 

which labor certifications requests it 

will audit. The Department is retaining 

the proposed provision with additional 

minor changes. 

One commenter proposed a change to 

the language of the provision 

substituting the word will for the word 

may in order to clarify that the 

Department has the discretion to audit 

a particular Application, not that it will 

necessarily audit each Application. The 

Department agrees and made the 

requested change. 

A few commenters contended that the 

audit procedure is a duplicative process 

since both WHD and OFLC have 

concurrent enforcement authority 

enabling each to separately audit an 

Application. These commenters asserted 

that only WHD should have the 

enforcement authority under the final 

regulations governing the H–2A 

program, because duplicative 

enforcement will unnecessarily expend 

government resources and create 

confusion and a burden for employers. 

Several commenters contended that 

the 2008 Final Rule more justifiably 

included the audit procedure because of 

its reliance on self-attestations by 

employers, and that the NPRM proposed 

a full-adjudication model, therefore 

eliminating the justification for using 

the audit process. This commenter 

further argued that after certification, 

the Department should have only one 

investigative process—WHD 

investigations—and suggested that the 

Department eliminate the audit 

procedures. 

One commenter argued that should 

the proposed Audit procedures be 

included in the final regulations, the 

Department should extend to 30 days 

the minimum time for a response to a 

Department audit request. 

Two commenters, a national farm 

bureau and a grower’s association, 

opposed the requirement that the CO 

refer any findings of discrimination to 

the Department of Justice (DOJ), arguing 

that such a finding may or may not have 

merit considering the relative 

complexity of discrimination law. These 

commenters argued that the 

Department’s proposed regulations 

attempt to deputize COs to make 

findings about violations of law for 

which they have no mandate or 

expertise. 

The Department disagrees with the 

commenters. The Department’s audit 

responsibilities rest solely with OFLC. 

These responsibilities are distinct from 

its revocation and debarment authorities 

and therefore are not duplicative. 

OFLC’s authority to conduct audits is an 

integral part of ensuring that both U.S. 

and foreign workers are provided the 

full scope of protections available under 

the H–2A program. The audit gives 

OFLC an opportunity to assess 

compliance and instruct the employer to 

make changes or adjustments in its 

compliance with the regulations and 

program requirements. OFLC focuses on 

the issuance and denial of labor 

certifications, while WHD focuses on 

whether employers have complied with 

the obligations to U.S. and H–2A 

workers. While audits may lead to 

revocation and/or debarment, they also 

allow OFLC to determine whether the 

certifications it has granted have been 

correctly adjudicated so that it can 

adjust its processes to more accurately 

adjudicate Applications. 

The Department disagrees with those 

commenters who called for a longer 

response period. The Final Rule 

provides for a timeframe of no more 

than 30 days for an employer to respond 

to an audit letter. The Department has 

concluded that the proposed timeframe 

strikes a balance between the 

employer’s need for sufficient time to 

prepare its audit response and the 

Department’s need to ascertain the level 

of compliance in time to address any 

potential violations affecting U.S. and 

H–2A workers. 

Both the 2008 Final Rule and this 

Final Rule include the provision 

requiring the CO to refer findings that 

an employer discouraged an eligible 

U.S. worker from applying, or failed to 

hire, discharged, or otherwise 

discriminated against an eligible U.S. 

worker, to the Department of Justice, 

Civil Rights Division, Office of Special 

Counsel for Unfair Immigration Related 

Employment Practices. The Department 

wishes to clarify that it is not 

undertaking a new or separate mandate 

to conduct audits for the purpose of 

identifying employers engaging in 

alleged discriminatory hiring practices. 

Rather, the Final Rule documents an 

existing practice under which the 

Department assists the Office of the 

Special Counsel to carry out its 

responsibilities under 8 U.S.C. 1324B 

prohibiting unfair immigration-related 

employment practices. Under the Final 

Rule, employers are placed on notice 

that engaging in a practice to discourage 

U.S. workers from applying for H–2A 

job opportunities or similar 

discriminatory practices may lead to 

additional liability under the INA and 

the DOJ regulations at 28 CFR part 44. 

36. Section 655.181 Revocation 

The NPRM proposed to expand the 

grounds upon which the Department 

may revoke an approved labor 

certification. It also proposed to change 

the revocation procedure so that the 

Department no longer sends a Notice of 

Intent to Revoke. We received a number 

of comments on these proposals. The 

Department has retained the provision 

with some modifications. One edit 

clarifies throughout that it is the OFLC 

Administrator, rather than the CO, who 

exercises the revocation authority. The 


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