25972 Federal Register / Vol. 74, No. 102 / Friday, May 29, 2009 / Rules and Regulations 

DEPARTMENT OF LABOR 

Employment and Training 

Administration 

20 CFR Part 655 

Wage and Hour Division 

29 CFR Parts 501, 780, and 788 

RIN 1205–AB55 

Temporary Employment of H–2A 

Aliens in the United States 

AGENCY: Employment and Training 

Administration and Wage and Hour 

Division, Employment Standards 

Administration, Labor. 

ACTION: Final rule; suspension of rule. 

SUMMARY: The Department of Labor 

(DOL or the Department) is suspending 

the H–2A Final Rule published on 

December 18, 2008 and in effect as of 

January 17, 2009. That Final Rule 

amended the regulations governing the 

certification for temporary employment 

of nonimmigrant workers in agricultural 

occupations on a temporary or seasonal 

basis, and the enforcement of 

contractual obligations applicable to 

employers of such nonimmigrant 

workers. To ensure continued 

functioning of the H–2A program, the 

Department is republishing and 

reinstating the regulations in place on 

January 16, 2009 for a period of 9 

months, after which the Department 

will either have engaged in further 

rulemaking or lift the suspension. 

DATES: Effective June 29, 2009. 

FOR FURTHER INFORMATION CONTACT: For 

further information regarding 20 CFR 

part 655, contact William L. Carlson, 

Ph.D., Administrator, Office of Foreign 

Labor Certification, Employment and 

Training Administration (ETA), U.S. 

Department of Labor, 200 Constitution 

Avenue, NW., Room C–4312, 

Washington, DC 20210; Telephone (202) 

693–3010 (this is not a toll-free 

number). Individuals with hearing or 

speech impairments may access the 

telephone number above via TTY by 

calling the toll-free Federal Information 

Relay Service at 1–800–877–8339. For 

further information regarding 29 CFR 

parts 501, 780 and 788, contact James 

Kessler, Branch Chief, Farm Labor 

Enforcement, Wage and Hour Division, 

Employment Standards Administration, 

U.S. Department of Labor, 200 

Constitution Avenue, NW., Room S– 

3510, Washington, DC 20210; 

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

toll-free number). Individuals with 

hearing or speech impairments may 

access the telephone number above via 

TTY by calling the toll-free Federal 

Information Relay Service at 1–800– 

877–8339. 

SUPPLEMENTARY INFORMATION:

I. Background and Overview 

The H–2A visa program provides a 

means for U.S. agricultural employers to 

employ foreign workers on a temporary 

basis to perform agricultural labor or 

services when U.S. labor is in short 

supply. 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)) defines an H–2A 

worker as a nonimmigrant admitted to 

the U.S. on a temporary or seasonal 

basis to perform agricultural labor or 

services. Section 214(c)(1) of the INA (8 

U.S.C. 1184(c)(1)) mandates that the 

Secretary of the Department of 

Homeland Security (DHS) consult with 

the Secretary of the Department of Labor 

(the Secretary) with respect to the 

adjudication of H–2A petitions, and, by 

cross-referencing Section 218 of the INA 

(8 U.S.C. 1188), with respect to 

determining the availability of U.S. 

workers and the effect on wages and 

working conditions. Section 218 also 

provides further details of the H–2A 

application process and the 

requirements to be met by the 

agricultural employer. 

The Department’s regulations at 20 

CFR part 655, subpart B—‘‘Labor 

Certification Process for Temporary 

Agricultural Employment Occupations 

in the United States (H–2A Workers),’’ 

govern the H–2A labor certification 

process. The Department’s regulations at 

29 CFR part 501 implement its 

enforcement responsibilities under the 

H–2A program. The Department’s 

regulations on Fair Labor Standards Act 

(FLSA) exemptions applicable to 

agriculture, processing of agricultural 

commodities, and related subjects under 

the FLSA at 29 CFR part 780, and the 

Department’s regulations on FLSA 

exemptions applicable to forestry and 

logging operations at 29 CFR part 788, 

set forth the Department’s interpretation 

of the FLSA provisions relating to 

agriculture, forestry, and logging. 

On December 18, 2008, the 

Department published a Final Rule 

revising title 20 of the Code of Federal 

Regulations (20 CFR) part 655 and title 

29 of the Code of Federal Regulations 

(29 CFR) parts 501, 780, and 788 (the 

December 2008 Rule or Final Rule). See 

73 FR 77110, Dec. 18, 2008. The 

December 2008 Rule replaced the 

previous versions of 20 CFR part 655 

(2008) and 29 CFR part 501 (2008) that, 

for the most part, were first published 

at 52 FR 20507, Jun. 1, 1987. With 

respect to the provisions under 29 CFR 

parts 780 and 788 that were amended by 

the December 2008 Rule, the previous 

versions of 29 CFR 780.115, 780.201, 

780.205, and 780.208 were published at 

37 FR 12084, Jun. 17, 1972, and the 

previous version of 29 CFR 788.10 was 

published at 34 FR 15784, Oct. 14, 1969. 

Following the issuance of the 

December 2008 Rule, United Farm 

Workers and others filed a lawsuit in 

the U.S. District Court for the District of 

Columbia on January 12, 2009 

challenging the December 2008 Rule. 

United Farm Workers, et al. v. Chao, et 

al., Civil No. 09–00062 RMU (D.D.C.). 

The plaintiffs asserted that in 

promulgating the December 2008 Rule, 

the Department violated section 218 of 

the Immigration and Nationality Act as 

well as the Administrative Procedure 

Act. The plaintiffs requested a 

temporary restraining order and 

preliminary injunction, along with a 

permanent injunction that would 

prohibit DOL from implementing the 

December 2008 Rule. On January 15, 

2009, Judge Ricardo M. Urbina denied 

the plaintiffs’ request for a temporary 

restraining order and preliminary 

injunction on the basis that the 

plaintiffs failed to show ‘‘likely, 

imminent and irreparable harm;’’ the 

court did not address the merits of the 

case or whether the plaintiffs 

demonstrated the substantial likelihood 

of success on the merits. Accordingly, 

the December 2008 Rule went into effect 

as scheduled on January 17, 2009. 

As the Department began 

implementing the December 2008 Rule, 

it immediately encountered a number of 

operational challenges which continue 

to prevent the full, effective and 

efficient implementation of the 

December 2008 regulation. The 

Department also has realized that the 

implementation of the December 2008 

Rule without further consideration of 

the relevant legal and economic 

concerns that have arisen since its 

publication was proving to be disruptive 

and confusing not only to the 

Department’s administration of the H– 

2A program but also to State Workforce 

Agencies (SWAs), agricultural 

employers, and domestic and foreign 

workers, especially in light of the severe 

economic conditions facing the country. 

Furthermore, the development of the 

December 2008 Rule was based in part 

on the policy positions of the prior 

Administration with which the current 

Administration may differ and wish to 

reconsider, especially in light of 

changed economic conditions. This is 

particularly true with respect to the 

changes to wages paid to H–2A workers 

wrought by the shift of the Adverse 

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Federal Register / Vol. 74, No. 102 / Friday, May 29, 2009 / Rules and Regulations 25973 

1The commenters’ suggestion that SWAs are no 

longer required to perform housing inspections 

under the December 2008 Rule is simply inaccurate; 

the fact that, in some exigent circumstances, the 

Department will not withhold a certification for 

lack of an inspection does not relieve the SWA of 

its responsibility to perform the statutorily required 

inspection. The December 2008 Rule is clear that 

the SWAs are still expected to perform 

preoccupancy housing inspections. 

Effect Wage Rate (AEWR) from the wage 

rates based on data compiled by the U.S. 

Department of Agriculture (USDA) to 

those calculated on data from the 

Bureau of Labor Statistics in its 

Occupational Employment Statistical 

Survey (OES). This reconsideration may 

result in new rulemaking to seek 

additional comment from affected users 

and other interested parties. In light of 

the potential for new rulemaking, the 

Department believes it would not be an 

efficient use of limited agency 

resources, appropriated from taxpayer 

funds, to continue to attempt to 

operationalize the December 2008 Rule, 

and that it would be disruptive and 

confusing for program users and the 

Department to engage in the steps 

necessary to make the current rule fully 

operational. 

For these reasons, on March 17, 2009 

the Department published a Notice of 

Proposed Suspension of Rule (the 

Notice), which proposed to suspend the 

December 2008 Rule for 9 months and 

reinstate on an interim basis the prior 

H–2A regulation in effect on January 16, 

2009 (the Prior Rule). 74 F.R. 11408 

(March 17, 2009). The suspension of the 

December 2008 Rule and temporary 

reinstatement of the Prior Rule will 

allow the Department to review the 

December 2008 Rule to ensure that it 

effectively carries out the statutory 

objectives and requirements of the 

program in a manner that minimizes 

disruption to the Department, SWAs, 

employers, and workers by temporarily 

reinstating prior regulations which had 

been in effect for over 20 years and with 

which the agricultural community 

already is familiar. 

II. Comments on the Proposal and the 

Department’s Responses and Decision 

The Department received over 800 

comments in response to the 

publication of the Notice of Proposed 

Suspension of Rule (the Notice). The 

majority of the comments were based on 

form letters raising similar issues and 

concerns. Commenters included 

individual farmers and associations of 

farmers, farm bureaus, law firms, 

farmworker advocates, State agencies 

(including SWAs), Members of 

Congress, and individual members of 

the public. The Department has 

reviewed the comments and taken them 

into consideration in drafting this Final 

Suspension Rule (Final Rule, or Final 

Suspension). 

The Department received several 

comments through means beyond those 

listed in the Notice or after the comment 

period closed. In fairness to all parties, 

these comments were not reviewed in 

the consideration of the Final Rule. In 

addition, in the Notice, the Department 

requested that parties limit their 

comments to the issue of whether the 

Department should suspend the 

December 2008 Rule for further review 

and consideration of the issues that 

have arisen since the December 2008 

Rule’s publication. Though all 

comments have been reviewed, only 

those comments responding to issues on 

which the Department sought comment 

were considered in this Final Rule. 

A. Comments Regarding the Stated 

Policy Rationale for Suspension 

1. The Department’s Problems in 

Implementing the December 2008 Rule 

Have Resulted in Confusion, Processing 

Delays and Program Disruption 

a. Lack of Resources 

The Department received a number of 

comments, both supporting and 

opposing a suspension, responding to 

the suggestion that both the Department 

and the SWAs lack resources to fully 

implement and administer the current 

regulations. Some commenters 

indicated support for the Department’s 

position that the December 2008 rule 

should be suspended due to the 

shortage in resources available for fully 

implementing and administering that 

rule past the transition period. 

Conversely, a substantial number of 

comments called into question the 

substance of the rationale, arguing that 

the Department failed to present 

concrete evidence of a lack of resources 

to fully implement the December 2008 

rule. The majority of comments that 

discussed the lack of resources to 

operationalize the program as written in 

the December 2008 Rule argued that the 

Department presented insufficient 

evidence and only relatively vague 

statements with no clear supporting 

evidence. Other commenters asserted 

that the new program is in fact already 

operational and has been for more than 

two months and is working just as the 

DOL said it would in the December 

2008 Rule. One commenter pointed to 

some evidence believed to contradict 

the Department’s claims of insufficient 

resources, citing the DOL’s discretionary 

budget for the Fiscal Year 2009 being 

more than $17.5 billion, constituting a 

nearly 50% increase over Fiscal Year 

2008 levels, and indicating that the 

growing trend is likely to continue with 

the President’s budget for Fiscal Year 

(FY) 2010 which includes further 

increases for the Department. 

The Department’s FY 2009 budget is 

irrelevant to the Department’s ability to 

implement the December 2008 Rule 

when it was promulgated. The 

December 2008 rulemaking was 

commenced and conducted without 

regard to resources required by the 

Employment and Training 

Administration (ETA) generally or for 

Office of Foreign Labor Certification 

(OFLC) specifically to implement the 

changed processes and the potential 

increased use of the program. The 

Department has determined that the 

agency’s mandate is advanced by 

evaluating the December 2008 Rule, as 

opposed to bringing a potentially flawed 

program into full operation. The 

suspension will allow the Department to 

focus its resources in a more efficient 

manner, and will result in a more 

thorough determination regarding the 

best direction for the H–2A program. 

A few commenters asserted that the 

Department’s claims of resource 

shortfalls are suspect in light of having 

engaged in the perceived costly exercise 

of suspending the December 2008 Rule 

and reinstating the old regulations that 

will presumably require more work on 

the part of the Department and the 

SWAs. Other commenters asserted that 

complaints of funding shortfalls have 

been prevalent in the State and local 

DOL offices long before the current 

regulations were implemented. A 

handful of commenters argued that the 

attestation process under the current 

regulations and related SWA relief from 

certain housing inspection obligations 

lessened demand on DOL resources, 

thus undermining the Department’s 

argument of budgetary shortfalls. One 

commenter indicated that DOL failed to 

provide evidence about the new role of 

the SWAs under the current regulations, 

arguing that SWAs have less to do under 

the current regulations than before and 

therefore should require the same or 

lesser amount of resources. 

The Department’s statutory 

obligations, especially many of those it 

delegates to the SWAs, have not 

changed regardless of the set of 

regulations under which they operate. 

The process of filing an application for 

H–2A workers under either set of 

regulations still begins with the 

placement of an agricultural order into 

clearance with the SWA having 

jurisdiction over the work, and 

continues through the State-assisted 

referral process and the mandatory 

housing inspection.1 SWAs retain many 

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2 In addition, the Department has not yet created 

a fillable form, compelling employers to print the 

form and type or hand-write the information being 

collected. 

3This is in fact incorrect, even if relevant; even 

in recent years the Department has engaged in 

significant outreach to its user communities in 

foreign labor programs. See, e.g., Announcement of 

Public briefings on the H–2B Temporary Nonagricultural Worker Labor Certification Program, 72 

FR 17940 (Apr. 10, 2007); Announcement of Public 

Briefings on Using Redesigned Labor Certification 

Forms and Stakeholder Meeting, 74 FR 2634 (Jan. 

15, 2009). 

of the same responsibilities under the 

December 2008 Rule as they did under 

the prior rule. 

b. Inability To Implement Sequence of 

Operational Events 

In the Notice of Proposed Suspension, 

the Department cited as crucial to the 

proposed suspension its inability to 

implement the sequence of operational 

events required to avoid confusion and 

processing delays, including 

implementing an automated review 

system, and training program users and 

SWA staff. One commenter supporting 

this rationale for the suspension 

indicated that the December 2008 

regulations compound the application 

processing problem with guaranteed 

delays in temporary programs—mainly 

H–2A and H–2B—by creating an 

additional burden in increased 

supervised recruitment, as well as 

increased demands from the PERM 

program. Since its effective date, the 

Department has seen a steady increase 

in the numbers of delayed applications, 

where compliance with the statutory 

processing times has not been met. (See 

below section II.A.1.c. Processing 

Delays.) Delayed applications can 

translate into delayed petitions for 

nonimmigrant workers, delayed entries 

by needed workers, and—for lack of 

workers—delayed activities by farms 

and farming operations. The Department 

is concerned with the correlation 

between this increasing delay in the 

Department’s meeting of its statutory 

mandate. The suspension is intended to 

allow the Department to work with a 

system with which it is familiar while 

it determines whether to retain the new 

system or engage in new rulemaking. 

Using a system with which the 

Department is familiar and which it has 

the infrastructure to implement will 

hopefully reduce processing times and 

enable the Department to more closely 

meet its statutory processing 

obligations. 

Some commenters argued that all new 

rules require staff training, new 

materials and programs, but that issues 

arising during the implementation 

period may not be permanent and 

should not derail a lawfully 

promulgated rule. The Department 

readily recognizes that new regulations 

undergo necessary implementation 

phases and that alone is not a reason to 

suspend a rule, even where (as here) the 

office is promulgating significant 

changes for the first time in over 20 

years that create considerable need for 

re-training staff and establishing of new 

guidelines for adjudication, new policy 

interpretations, etc. However, here the 

extremely narrow window between the 

publication and the effective date of the 

current regulations, especially since it 

occurred during the Presidential 

transition period, simply provided too 

little time for the Department to 

adequately train both staff and users in 

the basics of the program, much less the 

many nuances in program 

administration. Thus, absent a 

suspension, an untenable situation has 

developed in which the newly 

promulgated H–2A program has not 

been effectively implemented, putting 

users and adjudicators alike at a 

substantive disadvantage. 

A number of comments focused on 

the Department’s statement of need for 

an automated processing system and 

asserted that the December 2008 H–2A 

program is less resource intensive than 

the old program which had no 

automated system, and is therefore less 

in need of such a system. Other 

commenters pointed out that the prior 

H–2A program never had an automated 

processing system due to its complexity. 

Another commenter said that the 

Department never promised an 

automated system nor was the regulated 

community expecting one, and that in 

its experience, the processing times 

have been faster under the new 

program. Still other commenters 

pointed out that reverting to the old 

program, with its duplicative filing and 

requirements for manual processing, 

will not result in shorter processing 

times. 

In the December 2008 Rule, the 

Department noted that an automated 

system was contemplated at some future 

time for the public. However, the 

Department’s inability to create an 

internal automated system for tracking 

and processing of applications, not an 

external one, is the most substantial 

factor with which the Department is 

currently concerned. In a time in which 

the Department receives thousands of 

H–2A applications, an automated 

system geared to the relevant format and 

information collection is a necessity for 

the 21st century. Core program 

processing requirements—such as the 

calculation of statutory processing dates 

from date of receipt—require some 

electronic ability for collection and 

calculation. The current system, 

designed to a now-obsolete information 

collection of two pages (compared to the 

current 10 page collection), is simply 

inadequate to track the increased 

information required under the 

December 2008 regulations— 

information that, under an attestationbased collection, is critical for analysis 

to determine compliance with program 

requirements. Use of the current system 

to administer the December 2008 Rule 

will adversely impact program integrity. 

The Department notes, for example, that 

an inability to systematically track 

information that would enable it to 

conduct audits of certified applications 

and undertake actions resulting from 

audits means that the Department 

cannot effectively implement that part 

of the new system. This lack of 

functionality creates a significant 

inability to adequately address the 

procedures and systems necessary to 

implement an attestation-based system.2

Furthermore, the ability to capture 

particular data elements from 

employers’ applications as a basis for 

determining how to allocate audit 

resources was fundamental to the design 

of the December 2008 Rule. As 

discussed in the preamble to the 

December 2008 Rule, the Department 

envisioned a robust audit system that 

monitored filings under the reengineered attestation-based process to 

ensure that the employment of H–2A 

workers does not adversely affect the 

wages and working conditions of 

similarly employed U.S. workers. 

Without such a system, the potential for 

fraud is increased, program integrity is 

in jeopardy, and U.S. workers are at risk 

of adverse affect. 

In response to the Department’s 

statements about its inability to provide 

sufficient training for SWAs and 

stakeholders on the December 2008 

regulations, a number of commenters 

indicated that trainings were conducted 

in Denver and Atlanta in advance of the 

effective date of the regulations. In 

addition, several commenters asserted 

that DOL conducted more than one 

training for both SWA staff and 

employers prior to the effective date of 

the regulations and noted that this was 

the first time DOL presented training on 

the December 2008 Rule to the user 

community.3 Another commenter 

indicated that extensive training was 

conducted and materials were provided 

at no charge to stakeholders and had 

been available in PDF on DOL’s Web 

site. 

The Department made attempts to 

educate both stakeholders and SWAs as 

well as its own staff, holding not only 

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Federal Register / Vol. 74, No. 102 / Friday, May 29, 2009 / Rules and Regulations 25975 

briefing sessions for the public (in 

which some SWA staff participated) but 

also for SWAs, limiting the latter to the 

transition procedures. However, the 

December 2008 Rule, published during 

the middle of a Presidential transition 

period, became effective only 30 days 

after the publication, as noted above. 

This gave both internal and external 

users little time to understand, 

implement, and adapt to the changes 

contained in the December 2008 Rule. 

Most significantly, the Department had 

little opportunity, prior to the effective 

date of the rule, to provide adequate 

assistance to the affected communities 

on both sides of the application process. 

c. Processing Delays 

In its March 17, 2009 Notice of 

Proposed Suspension, the Department 

pointed to delays and corresponding 

disruption to the program in the middle 

of the growing season as a core reason 

for temporarily suspending the current 

regulations pending additional review. 

Most comments received in response 

to this statement disagreed with the 

Department’s assertion that it had 

experienced processing delays. Many 

commenters complained that the 

Department failed to offer specific, 

detailed and concrete evidence 

demonstrating the nature and extent of 

the processing delays. Large growers 

associations cited contrary experience, 

indicating either fewer delays under the 

current regulations than in the past, or 

timely processing of applications. 

However, several commenters along 

with a substantial number of other 

program users expressed a great deal of 

frustration with the Department for 

failing to meet their need for extensive 

technical assistance, as well as a general 

lack of comprehension of the December 

2008 Rule. 

One commenter stated that DOL staff 

has done a good job implementing the 

current regulations on the operational 

level, despite complaints of inadequate 

staff, improper infrastructure and 

archaic computer support. Others 

commenters noted that employers have 

experienced fewer delays under the new 

regulations despite the fact that the H– 

2A program has always been 

understaffed. 

Despite the anecdotal experiences of 

individual commenters, the ability of 

the Chicago National Processing Center 

(CNPC) to issue timely case decisions 

under the new H–2A regulations has 

decreased. Timely case decisions (in 

which an acceptance/modification letter 

is issued no later than 7 days of receipt 

of the H–2A application and/or a final 

determination no later than 30 days 

before the employer’s date of need) have 

decreased as a percentage of H–2A 

applications adjudicated in any given 

week. While the percentage of delayed 

cases—cases outside the statutory 

timeframes for adjudication—has varied 

since the effective date of the current 

rule, it has not fallen below 27% of all 

cases in process at that time, and has 

been as high as 58%. The median days 

processing time for 2009 has also 

exceeded the times in 2008; in February 

2009, the median number of days to 

process a case was 27 days (compared 

to 23 days for the same time period in 

2008). In March 2009, the median 

number of days to process a case was 

25, compared to 23 days in March 2008. 

In summary, the number of days from 

case receipt to adjudication has 

increased, as has the Department’s 

percentage of delayed cases. Therefore, 

despite the December 2008 rule’s 

intended purpose, that rule is at least 

one factor in the increases in the time 

in which applications have been 

handled, which has led to increased 

delays in application processing. 

While the increased processing times 

may seem modest, they are cause for 

concern to the Department. In a 

statutory processing timeframe in which 

applications are filed only 45 days prior 

to the date of need and must be 

adjudicated no later than 30 days prior 

to date of need, delays of even a few 

days signal a significant failure by the 

Department to meet its statutory 

timeframes. One of the Department’s 

goals in seeking to streamline the 

processing of H–2A applications was to 

ensure timely processing of 

applications—which was already a 

concern for the Department. Not only 

has that goal not been achieved, the new 

processing model has, at least so far, 

pushed that goal farther away. The 

processing delays also highlight the 

Department’s ever-increasing inability 

to adequately perform its functions 

under the December 2008 Rule. This is 

particularly worrisome considering that 

the Department has seen its number of 

H–2A applications actually decrease 

compared to the same time span last 

year, with the Department receiving 

only 706 H–2A applications in February 

2009, compared to 930 applications it 

received during the same month last 

year. Due to this demonstrated trend, 

the Department foresees increased 

difficulties in meeting its statutory 

processing times if the H–2A program 

experiences its anticipated increase in 

future participation. Delays in the 

Department’s processing times mean 

that DHS and the Department of State 

have less time to process visa petitions, 

grant visas and admit workers before the 

employer’s date of need. While there is 

no evidence that the current delays have 

caused harm, if the delays continue to 

increase, as it appears likely that they 

will, at some point the harm will 

become very real. 

Though most commenters did not 

address the effect of additional demands 

on the Department to process incoming 

applications, one large growers’ 

association opposed to the suspension 

noted that the existing DOL-reported 

delays will be increased by a 

suspension, resulting in unacceptable 

delays and gridlock for H–2A and H–2B 

employers for the majority of 

applications scheduled to be filed in 

April through June 2009. 

The Department disagrees that a 

suspension will exacerbate the current 

delays in processing program 

applications. The process for filing and 

handling applications during the 

suspension will be the filing procedures 

of the former rule with which CNPC and 

SWA staff and all previous program 

users are familiar. The burden of review 

during a suspension will be shared by 

SWAs and the CNPC. As a consequence, 

processing times should decrease with 

the reinstatement of the former rule. 

d. Confusion and Disruption Under the 

Procedures of the December 2008 Rule 

The Department said in its March 17, 

2009 Notice of Proposed Suspension 

that there is increasing evidence that 

continuing to implement the December 

2008 regulations in light of existing 

experience and before additional 

examination is disruptive and confusing 

to the Department’s administration of 

H–2A program, SWAs, agricultural 

employers and domestic and foreign 

workers. 

The Department received several 

comments supporting the suspension 

because of this confusion and ensuing 

disruption. One commenter noted that 

the regulations should be suspended 

because they have caused confusion 

among employers, State Workforce 

Agency staff and workers. Another 

commenter cited anecdotal evidence of 

policy confusion and contradictions on 

the local level requiring a certain group 

of employers to pay overtime wages 

contrary to the current regulations, 

although this commenter generally 

opposed suspension of the 2008 rule on 

this basis. Another commenter, writing 

on behalf of a State Workforce Agency, 

indicated that confusion is already 

manifest in the processing of job orders 

during the transition period. Yet another 

commenter provided examples of 

confusion prevalent in communications 

between the SWA and the CNPC on 

such issues as the timing of receipt of 

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25976 Federal Register / Vol. 74, No. 102 / Friday, May 29, 2009 / Rules and Regulations 

job orders from the CNPC, the use of 

master applications, and the timely 

identification of traditional labor supply 

States. 

Another commenter indicated that 

SWAs are currently receiving 

insufficient support from the CNPC for 

dealing with pre-filing issues, such as 

rejection of qualified U.S. workers. 

Confusion also exists about the timing 

of housing inspections which are being 

conducted under two sets of differing 

regulations. The same commenter 

provided additional evidence of 

confusion and disruption, including the 

presence of anomalies in wage rates, 

which have caused the issuance of wage 

rate determinations that are occasionally 

lower than the State minimum wage 

rate; and also, instances where an SWA 

was instructed to make referrals to nonprovider and non-traditional labor 

supply states, which in turn reduced the 

chances of getting U.S. workers to fill 

the positions. 

The Department received other 

comments which challenged its 

assertions about the confusion and 

disruption caused by the current 

regulations. The most common 

objection from the commenters 

challenged the very existence of 

confusion and disruption under the 

December 2008 regulations, and noted 

that DOL did not specify in the Notice 

of Proposed Suspension the types of 

confusion and disruption experienced 

in administering the program or present 

examples. In addition, a large number of 

commenters argued that employers and 

the larger regulated community were 

not experiencing confusion. At least one 

commenter added that DOL would 

create confusion and disruption by 

suspending the regulations. One large 

grower association identified DOL as the 

source of confusion and disruption and 

accused the Department of limiting 

access to guidance, training and 

informational resources, and neglecting 

to fulfill its obligations in advising the 

regulated community on the current 

regulations. 

The majority of commenters opposed 

to the suspension posited that there is 

no disruption among users resulting 

from the relevant legal and economic 

concerns associated with the December 

2008 Rule. One commenter indicated 

that the current H–2A program is 

different from the prior regulatory 

regime in form and substance but the 

changes do not constitute such a 

fundamental shift in the Department’s 

obligations, given the long lead time 

before the rule’s promulgation to 

warrant a precipitous change in 

direction. One association noted that the 

largest users of the current H–2A 

program reported that the December 

2008 regulations have made for a more 

logical, predictable, reliable and less 

disruptive approach to securing legal 

labor than the old regulations. 

While each commenter’s experience 

may be different, the Department 

disagrees with those commenters that 

there has been no disruption or 

confusion resulting from the new 

regulations. That the Department did 

not spell out in detail the specifics of 

the confusion experienced by program 

users, but only summarized the level of 

confusion and suggested it was 

sufficient to propose suspending the 

rule, does not negate the existence or 

lessen the impact of such confusion. 

Indeed, the Department received over 

200 e-mail inquiries seeking 

clarification of the December 2008 

regulations during the 3 months that a 

special mailbox was open to the public. 

Moreover, the inquiries that the 

Department has received show the 

general lack of understanding and 

knowledge among employers with the 

process implemented by the December 

2008 Rule. As noted above, the 

Department did conduct two briefing 

sessions for the public in December 

2008 just before the publication of the 

December 2008 Rule, which fewer than 

200 H–2A employers, agents, attorneys, 

farmworker advocates, State Workforce 

Agency employees, and others were able 

to attend. The attendees were provided 

an advance (draft) copy of the rule text 

at the meeting, and were provided a 

brief overview of the new regulations to 

be issued by DOL, (by both ETA and 

ESA). The Department of Homeland 

Security, which issued its own H–2A 

regulations at the same time, also 

participated in both briefings. These two 

briefings, however, did not even begin 

to respond to the questions and 

concerns arising from the new rule. 

Moreover, because of the resource 

constraints discussed earlier and the 

change in administrations and 

priorities, the Department has not been 

able to individually address the 

subsequent comments and questions nor 

provide adequate general program 

guidance. 

After that briefing, the Department 

has received, between late December 

and early March, at least 250 written 

inquiries from program users on the 

basic program requirements. Some of 

these questions, both simple and 

complex, have come from some of the 

same commenters who now say they 

have seen no difficulties with the new 

rule. While a few questions 

demonstrated an understanding of the 

new rule, many others demonstrated 

complete confusion with the new 

regulatory requirements, the forms, or 

the process in general. The following are 

some of the questions received by the 

Department as recently as March 2009 

which show a fundamental lack of 

understanding of the new rule: 

‘‘Do I advertise before I send in the 

application and do I send copies of this 

advertising?’’ 

‘‘To confirm, does form 9142 take the place 

of both form 750 and 790 in the new H–2A 

certification processing?’’ 

‘‘Does employer have to place a job order 

with SWA before filing the application with 

DOL? Is there any wait time?’’ 

These questions evidence confusion 

about the basic program requirements 

and employers’ obligations under the 

December 2008 regulations. 

In addition, many more questions 

were directed to the individual SWAs, 

which at times over the past few months 

have provided contradictory or 

misinformed guidance (as noted by 

some commenters), in large part due to 

the SWA staff’s own lack of 

understanding of the December 2008 

rule. The Department has become 

aware, for example, that at least one 

SWA, a full month into the program, 

was erroneously giving out incorrect 

wage rates, which were directly contrary 

to the requirements of the new 

regulations. Another SWA asked the 

Department, as recently as April 2009, 

whether, on an application filed under 

the December 2008 Rule, it was required 

to refer, and the employer required to 

accept, referrals through 50 percent of 

the contract period (the ‘‘50 percent 

rule’’ of the former regulations), not the 

30 days post-date of need as required 

under the December 2008 Rule. 

SWAs still have a significant role 

under the December 2008 regulation, so 

their fundamental misunderstanding of 

the essential elements of the new 

regulation threatens program integrity 

and contributes to the public’s 

continued confusion about the H–2A 

application process and corresponding 

employer obligations. 

The most telling evidence of 

confusion among the farming employer 

community, however, lies in the 

number of applications the Department 

has received that require modifications 

in order to be made acceptable for 

processing. In the first three months of 

the program, January, February and 

March 2009, the Department found that 

50%, 56%, and 46% of the applications 

processed in those months, respectively, 

required modifications to the 

applications. For the same timeframe 

last year, the percentages of applications 

requiring modifications were 10%, 16%, 

and 26%, respectively. This severe 

disparity of modifications of everything 

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Federal Register / Vol. 74, No. 102 / Friday, May 29, 2009 / Rules and Regulations 25977 

4There is little dispute among commenters with 

the Department’s position that farm hires are 

disadvantaged in the labor market relative to most 

other U.S. wage and salary workers. U.S. 

Department of Agriculture, ‘‘Profile of Hired 

Farmworkers, A 2008 Update,’’ Economic Research 

Report, No. 60, July 2008, page iii. 

from minimum requirements to contract 

issues demonstrates how little 

knowledge of the new regulations even 

seasoned users of the program have 

been able to glean. 

Based on the volume and nature of 

the inquiries that the Department has 

received in the early days of the 

December 2008 Rule, as well as the 

number of applications that require 

further investigation, the Department 

disagrees that there is no confusion. The 

significant lack of understanding of the 

new rule is evident from the questions 

the Department continues to receive 

daily from even seasoned program 

users, and is of deep concern to the 

Department. Even if some members of 

the regulated community understand 

the current implementation of the new 

rule sufficiently for compliance 

purposes, there remains the fact that the 

December 2008 rule is not yet fully 

implemented, as the Department is still 

operating the program within the 

transition procedures prior to full Final 

Rule implementation. 

2. Avoiding the Disruption of Fully 

Implementing a Complex Regulatory 

Scheme When Further Review of Policy 

and Economic Concerns Are Warranted 

In the March 17 Notice, the 

Department identified as a factor in 

considering whether to suspend the 

current regulations the disruptive effect 

of implementing a complex regulatory 

scheme without further consideration of 

the legal and economic concerns that 

have arisen during the current economic 

downturn, such as the rising 

unemployment among U.S. workers and 

the impact that may have on the 

Department’s H–2A statutory obligation 

to ensure no adverse effect on the U.S. 

worker population from the 

introduction of the foreign workforce. 

Although the Department received 

many comments opposing this basis for 

suspending the regulations, the 

Department also received several 

comments strongly supporting the 

proposed action. 

One commenter asserted that the 

current regulations should be 

suspended because of the change in 

economic circumstances which has 

taken place since the promulgation of 

the December 2008 Rule, including the 

increased unemployment that is having 

an effect on the availability of U.S. 

workers. Another commenter on the 

State level noted that unemployment 

has increased nationally and in its State 

in a way not anticipated during the 

rulemaking process for the December 

2008 Rule. The commenter urged that 

the Department must have an 

opportunity to reconsider policy 

implications of the H–2A program 

overall, particularly those program 

components that are likely to have an 

adverse impact on the U.S. workforce in 

the changed economic circumstances. 

Another commenter indicated that 

DOL did not provide supporting 

evidence showing that the delay in 

implementation of the December 2008 

regulations will cause disruption in the 

agricultural sales, production and 

market conditions, even in this unstable 

economic environment. This commenter 

went on to assert that DOL’s proposed 

suspension will drive up costs and force 

users out of the program and negatively 

impact supporting jobs in the greater 

economy, thus itself generating a 

disruptive economic impact. Another 

commenter noted that DOL’s mandate is 

not to abate the effects of increased 

unemployment but to protect workers, 

which it is adequately doing under the 

current regulations. 

The commenter’s objection to the 

proposed suspension based on the 

purported increase in employers’ 

expenses due to an increase in required 

wage rates is a critical reason the 

Department needs to examine and reevaluate the wage regime instituted 

under the December 2008 Rule. One of 

the Department’s most important 

functions in its administration of the H– 

2A program is to ensure that admission 

of H–2A workers does not adversely 

affect the wages of U.S. workers. At all 

times, but particularly in the midst of a 

severe economic downturn, the 

Department is required to ensure that its 

regulations do not create or compound 

an adverse effect on U.S. workers. This 

is particularly the case where, as in the 

H–2A program, the Department has a 

statutory obligation to ensure protection 

of U.S. agricultural workers, one of the 

most vulnerable sectors of the 

workforce.4 The many commenters who 

cite increased wages as a central reason 

for not suspending the December 2008 

Rule are doing so on the grounds that 

wage costs for their foreign workforce 

under the former regulations will be 

higher than under the December 2008 

Rule. One of the primary reasons that 

the new Administration wants to review 

the December 2008 Rule is precisely to 

determine whether the generally 

reduced wage rates under that rule are 

having a depressive effect on 

farmworker wages. 

The Department stated in its Notice of 

Proposed Suspension that the December 

2008 Rule, and the policy positions 

from which the rule was promulgated, 

may need to be reconsidered given the 

efforts being made by the current 

Administration to stabilize the 

economy. A majority of commenters 

criticized the Department for 

considering a change in the regulations 

on policy grounds. Some of these 

commenters asserted that even if the 

current Administration does not agree 

with the policies represented by the 

December 2008 Rule, the December 

2008 Rule was carefully considered, 

planned and prepared over a long 

period of time and underwent a 

significant amount of review. Others 

noted that the December 2008 Rule was 

legally promulgated and should not be 

‘‘scrapped’’ without the Department first 

undertaking a similarly painstaking new 

rulemaking process. 

The Department also received 

comments supporting its desire to 

revisit the policies of the previous 

Administration reflected in the 

December 2008 Rule in light of the goals 

and objectives of the current 

Administration. One such commenter 

argued that it would be an inefficient 

use of limited agency resources, as well 

as confusing and disruptive to the 

program users, to engage in the full 

implementation of the December 2008 

Rule if the Department is likely to issue 

a different rule soon. This commenter 

felt the suspension would be less 

disruptive and confusing than 

continuation of the December 2008 rule. 

The Department agrees that it is not 

appropriate to fully implement a rule 

that is under reexamination by the 

current Administration. The 

Administration has, through the 

suspension, taken the first step to begin 

a review of the regulatory policies of the 

previous Administration reflected in the 

December 2008 Rule in light of its own 

policies. 

The Department also agrees with 

those commenters who feel that less 

disruption will follow from a 

suspension than from a continuation of 

the December 2008 Rule. The 

Administration is not at this time 

eliminating the rulemaking of the 

previous Administration; rather, it is 

temporarily putting that rulemaking on 

hold in order to review the policies in 

that rulemaking and, if warranted, 

reopen the issues contained in the H–2A 

program for further notice and 

comment. The suspension is of limited 

duration in both effect and time; by 

providing notice and an end date, the 

Department is limiting the impact of the 

suspension as much as is feasible while 

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still enabling the review the 

Administration believes is necessary. 

The December 2008 Rule is not now 

being ‘‘scrapped’’ but is being 

temporarily suspended in order for the 

Administration to undertake what it 

considers to be an essential review. 

B. Impetus for the Timing of Suspension 

The March 17 Notice of Proposed 

Suspension stresses the importance of 

moving swiftly with the suspension in 

order to avoid confusion and disruption 

of the H–2A program in the midst of the 

growing season. 

One group of farmworker advocate 

organizations offered support for the 

immediate implementation of a 

suspension, arguing that the regulations 

must be suspended before the end of the 

transition period of the current 

regulations to avoid compounded 

confusion and disruptions in 

application processing due to the 

Department’s inability to fully and 

properly implement the complex new 

regulatory program. Other comments 

supported this position, noting that if 

there is a likelihood that a new program 

will be designed and the December 2008 

Rule changed, the December 2008 Rule 

should be suspended immediately in 

order to prevent confusion and 

disruption. 

Most commenters, however, criticized 

the Department’s timing of the 

suspension, indicating that it would be 

disruptive during the critical time for 

crop production. The commenters 

argued that the suspension overlapping 

with the growing season will hurt the 

employers who have already planned 

and calculated their costs on the basis 

of the current regulations. 

As discussed further below, however, 

the Department has clearly indicated its 

intent to apply the current regulations to 

all applications filed prior to the 

effective date of this Final Rule. Since 

most applications for this growing 

season have been filed or will have been 

filed before this Final Rule becomes 

effective, the Department does not 

believe that the concerns about 

disruption for this season are a major 

concern. For additional discussion, see 

Section III. infra. 

C. The Department’s Authority To 

Suspend the December 2008 Rule 

A number of commenters objected to 

the proposed suspension of the 

December 2008 Rule because the 

Department’s rulemaking process for the 

proposed suspension was not in 

compliance with the Administrative 

Procedure Act (APA). There appeared to 

be differing views among the 

commenters on the conformity of the 

Notice of Proposed Suspension with the 

rulemaking requirements under the 

APA. Accordingly, the Department 

reiterates the key facts relating to the 

rulemaking process undertaken thus far. 

On March 17, 2009, the Department 

published its Notice of Proposed 

Suspension in the Federal Register. The 

Notice proposed to suspend the 

December 2008 Rule for nine months 

and to reinstate the Prior Rule. The 

Notice requested comments relating 

solely to the proposed suspension itself 

(i.e., not the substance or merits of 

either rule) from the public through 

March 27, 2009. The publication of the 

Notice of Proposed Suspension did not 

in any way result in the immediate 

suspension of the December 2008 Rule. 

Rather, the Department accepted 

comments from the public during the 

ten-day period between March 17, 2009 

and March 27, 2009. Once the comment 

period closed, the Department reviewed 

and considered the comments that it 

received from the public and, through 

this Final Rule, is suspending the 

December 2008 Rule and reinstating the 

Prior Rule for 9 months. The suspension 

of the December 2008 Rule and 

reinstatement of the Prior Rule will not 

take effect until 30 days after the date 

of this Final Rule’s publication. 

These facts are significant with 

respect to various comments that the 

Department’s actions during this 

rulemaking process are a violation of the 

APA. Because different actions are cited 

by the commenters as bases of the 

asserted APA violation, we address each 

action separately. 

1. 10-Day Comment Period 

A number of commenters argued that 

the 10-day comment period provided in 

the Notice of Proposed Suspension was 

unreasonable and violated the APA. 

Commenters claimed that many farmers 

were in the midst of their growing 

season, and 10 days was too short of a 

period to provide a sufficient response 

to the notice. Rather, these commenters 

stated that an adequate comment period 

required at least 30 days. Additionally, 

some commenters cited the apparent 

discrepancy between the 10-day 

comment period for the proposed 

suspension and the 60-day comment 

period for the Department’s rulemaking 

process for the December 2008 Rule. 

Accordingly, there were many requests 

to extend the comment period up to 60– 

90 days. 

Section 553 of the APA plainly states: 

(b) General notice of proposed rule making 

shall be published in the Federal Register, 

unless persons subject thereto are named and 

either personally served or otherwise have 

actual notice thereof in accordance with law. 

The notice shall include: 

a statement of time, place, and nature of 

public rule making proceedings; 

reference to the legal authority under 

which the rule is proposed; and 

either the terms or substance of the 

proposed rule or a description of the subjects 

and issues involved. 

* * * * * 

(c) After notice required by this section, 

* * * the agency shall give interested 

persons an opportunity to participate in the 

rule making through submission of written 

data, views, or arguments with or without 

opportunity for oral presentation. After 

consideration of the relevant matter 

presented, the agency shall incorporate in the 

rules adopted a concise general statement of 

their basis or purpose. 

An agency is only required to provide 

a ‘‘meaningful opportunity’’ for 

comments on a proposed rule, which 

means that an agency’s mind must be 

open to considering them. See Grand 

Canyon Air Tour Coalition v. FAA, 154 

F.3d 455 (D.C. Cir. 1998). Nowhere does 

the APA set forth a minimum time 

period for accepting rulemaking 

comments. In fact, courts have upheld 

comment periods as short as seven days. 

See Northwest Airlines, Inc. v. 

Goldschmidt, 645 F.2d 1309 (8th Cir. 

1981). Additionally, comment periods 

shorter than 30 days have been upheld 

where there was no evidence of any 

harm to the petitioners by the short 

comment period, as demonstrated by 

the volume and substance of comments 

received by the agency and the 

measurable effect such comments had 

on the final rule. See Florida Power & 

Light Company v. U.S., 846 F.2d 765, 

772 (D.C. Cir. 1988) (upholding 15-day 

comment period where 61 comments 

were received, ‘‘some of them lengthy’’) 

and Omnipoint Corporation v. FCC, 78 

F.3d 620, 630 (D.C. Cir. 1996) 

(upholding 15-day comment period 

where 45 comments and 42 letters were 

received). 

Here, the Department received over 

800 comments, many of which 

contained detailed analyses of the 

impact suspension would have on the 

participants in the H–2A program and 

which the Final Rule has addressed and 

taken into account. Given the absence of 

a required minimum comment period 

under the APA, the sheer volume and 

substance of the comments and the 

Department’s detailed discussion and 

consideration of the comments in this 

Final Rule, the Department believes that 

the 10-day comment period for this 

rulemaking is reasonable. Furthermore, 

while the Department did provide a 

longer comment period during the 2008 

H–2A rulemaking process, a shorter 

timeframe is warranted here given the 

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need for expediency as discussed earlier 

in this preamble and the much more 

limited scope of this suspension 

rulemaking. 

2. Limitation of Scope of Comments to 

Suspension 

An agricultural association objected to 

the Department’s limitation of the scope 

of comments to the suspension itself, as 

opposed to comments on the merits or 

substance of either the current H–2A 

rule or its predecessor rule. The 

association stated that it has numerous 

comments it would like to offer on both 

the current regulations, as well as the 

prior regulations, and on this basis the 

association objected to the Department’s 

reinstatement of the old regulations 

during the suspension period. 

As the Notice of Proposed Suspension 

makes clear, the current Administration 

intends to review and evaluate the 

social and economic implications of the 

December 2008 Rule. The Department 

stated that if it were to decide to 

suspend the December 2008 Rule, the 

Department will either ‘‘engage in 

further rulemaking or the suspension 

will be lifted after 9 months.’’ Thus, 

comments on the merits of the existing 

and previous program would be 

appropriate when the merits of the 

program are actually at issue in that 

rulemaking. The suspension of the 

December 2008 Rule and reinstatement 

of the Prior Rule is strictly a temporary 

measure arising from the Department’s 

need to review in an expeditious 

manner the December 2008 Rule to 

ensure that the Department effectively 

carries out the statutory objectives and 

requirements of the H–2A program. The 

December 2008 Rule has not been 

repealed; it will only be held in 

abeyance for nine months. Unless the 

Department engages in further 

rulemaking, about which comments on 

the substance and merits of the 

proposed regulation will be solicited, 

the December 2008 Rule will continue 

to remain in effect once the suspension 

expires after nine months. 

3. Effective Date of Suspension 

As mentioned earlier, there was some 

confusion among the commenters as to 

when the suspension would take effect. 

Some commenters believed that the 

suspension took effect upon publication 

of the Notice of Proposed Suspension or 

would take effect immediately at the 

close of the comment period. Another 

commenter believed that the suspension 

would take effect before April 1, 2009. 

Accordingly, a few commenters stated 

that the Department was required to 

show good cause in order for the 

suspension of the current H–2A rule to 

take effect immediately. However, the 

Department never stated in the Notice of 

Proposed Suspension, nor does it intend 

in this Final Rule, that the suspension 

would take effect immediately. 

As explained earlier, neither the 

publication of the Notice of Proposed 

Suspension, nor the close of the 

comment period resulted in the 

immediate suspension of the December 

2008 Rule. The Department never 

intended to issue, and in fact is not 

issuing, a Final Rule suspending the 

December 2008 Rule without having 

undertaken a substantive review and 

consideration of the comments that 

were submitted during the comment 

period. Part of this misunderstanding 

may be attributed to the Department’s 

reference in its Notice of Proposed 

Suspension that ‘‘if the suspension 

continues on April 1, 2009, the previous 

regulations that were in effect on April 

1, 2008 would appear in the next 

published version of the CFR as 20 CFR 

655.1 and 20 CFR part 655.’’ The 

Department merely intended to track the 

publication schedule of the CFR, in 

which title 20 is updated annually as of 

April 1st. However, the Department 

acknowledges that the statement may 

have been thought to erroneously imply 

that the suspension would have been in 

effect before April 1, 2009, which was 

not the Department’s intention. The 

Department would like to clarify that 

because the suspension did not take 

effect before April 1, 2009, this year’s 

published version of the CFR as 20 CFR 

655.1 and 20 CFR part 655 will contain 

the December 2008 Rule in effect as of 

April 1, 2009. 

A farmworker advocacy organization 

expressed support for the suspension to 

take effect immediately upon 

publication of the Final Rule of 

suspension. However, while the 

circumstances described in this 

preamble warrant suspending the 

December 2008 Rule, the Department 

recognizes the need to have some period 

of adjustment to the Prior Rule, in light 

of the challenges associated with 

changing regulatory programs, as noted 

by many commenters. Accordingly, the 

Department has determined not to 

waive the 30-day delayed effective date 

requirement in Section 553(d) of the 

APA. 

D. Impact of Suspension 

The Department received many 

comments expressing concern about the 

impact of the suspension. The 

Department first would like to explain 

and clarify how the suspension of the 

current rule and reinstatement of the 

Prior Rule will take effect before 

addressing the particular concerns 

raised by commenters. The suspension 

will become effective 30 days after the 

date of publication of this Final Rule. 

The Department stated in its Notice of 

Proposed Suspension that ‘‘[i]f a final 

decision is reached to suspend the H– 

2A Final Rule, any H–2A application for 

which pre-filing positive recruitment 

was initiated in accordance with the H– 

2A Final Rule prior to the date of 

suspension will continue to be governed 

by the H–2A Final Rule.’’ This 

statement must be understood in the 

context of the Department’s subsequent 

extension of the transition procedures. 

On April 16, 2009, after the issuance 

of the Notice of Proposed Suspension, 

the Department published an Interim 

Final Rule (IFR) which extended the 

transition period under 20 CFR 

655.102(b)(2) to cover all applications 

with a date of need on or before January 

1, 2010. See 74 FR 17597. During the 

transition period employers do not 

engage in pre-filing recruitment in 

traditional or expected labor supply 

States in which there are a significant 

number of qualified domestic workers. 

Under the transition procedures, 

employers are provided information on 

expected labor supply States as part of 

their post-filing recruitment 

instructions. Given that all applications 

filed before the effective date of the 

suspension will still be subject to the 

transition provision at 20 CFR 

655.102(b)(2), which provides for postfiling recruitment, no employers will be 

required to engage in pre-filing positive 

recruitment before the effective date of 

the suspension. Nevertheless, in 

keeping with the intent expressed in the 

Notice of Proposed Suspension, any H– 

2A application which is filed while the 

December 2008 Rule is still in effect will 

continue to be governed by the 

December 2008 Rule, while applications 

filed on or after the effective date of the 

suspension and the reinstatement of the 

Prior Rule will be governed by the Prior 

Rule. 

Despite a recommendation from a 

farmworker advocacy organization to 

apply the Prior Rule to all pending and 

approved job orders, the Department 

does not believe there is a legal basis to 

do so, and therefore will not apply the 

Prior Rule to applications filed under 

the December 2008 Rule. Following the 

farmworker advocacy organization’s 

suggestion would undermine 

employers’ expectations and reliance on 

the current rule prior to its suspension. 

Moreover, implementing this suggestion 

may violate the prohibition on 

retroactive rulemaking. See Nat’l Mining 

Ass’n v. Dep’t of Labor, 292 F.3d 849, 

860 (D.C. Cir. 2002). 

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5Note that the discontinuation of Form ETA– 

9142 in the H–2A program in no way affects the 

requirement to use the Form ETA–9142 in the H– 

2B program. 

The reinstatement of the Prior Rule 

will be accompanied by the 

reinstatement of Form ETA–750 in the 

H–2A program. Form ETA–9142 for H– 

2A applications5 may be filed up to the 

day before the effective date of the 

suspension. However, as of the effective 

date of this Final Rule, employers will 

be expected to use Form ETA–750, and 

any H–2A applications filed using the 

Form ETA–9142 will not be accepted. 

1. Uncertainty of Applicable 

Regulations; Impact on Planning and 

Operations 

A number of commenters expressed 

concerns about the confusion and 

disruption that would result from the 

suspension of the December 2008 Rule. 

In particular, a State agricultural agency 

questioned: (1) Whether farmers would 

be allowed to abandon applications 

when they learn that they are going to 

be subject to the Prior Rule; (2) whether 

it would be possible for farmers to end 

up with some workers being subject to 

the December 2008 Rule and some to 

the Prior Rule; (3) whether farmers will 

find that their applications filed under 

the December 2008 Rule are rejected 

once the Prior Rule is in place. Such 

concerns were echoed by a number of 

farmers and agricultural associations, 

particularly as to how the suspension 

would affect applications filed but not 

yet approved. 

Employers always have had the 

ability to abandon or withdraw pending 

applications without penalty, regardless 

of which regulations apply. However, as 

explained above, the Department has 

clearly identified the time frame for 

determining whether an application 

falls under the December 2008 Rule or 

the Prior Rule. Applications filed before 

the effective date of this Final Rule will 

be governed by the December 2008 Rule. 

Applications filed on or after the 

effective date of this Final Rule will be 

governed by the Prior Rule. Thus, 

applications filed before the effective 

date of this Final Rule will not be 

governed by the Prior Rule and 

therefore, could not be rejected, nor will 

the employer be penalized, because the 

application is not in compliance with 

the Prior Rule. 

The Department understands that one 

of the results of this suspension is that 

a farmer may have workers subject to 

two different sets of rules, depending on 

the date on which the applications 

covering the H–2A workers were filed. 

However, as discussed in greater detail 

in Section II(C)(3) of this preamble, such 

situations already occur and have not 

detrimentally affected the H–2A 

enforcement process. 

A number of growers also raised 

concerns about having invested much 

time and effort in learning the December 

2008 Rule, and that their reliance on the 

December 2008 Rule in planning for 

their 2009 growing season will cause 

them to incur additional administrative, 

operations, and financial burdens if the 

December 2008 Rule is suspended. In 

particular, one agricultural association 

stated that their members planned for 

their 2009 crop activities using the 

December 2008 Rule to budget for 

operating costs, secure financing, plan 

personnel needs, finalize contracts, and 

schedule product deliveries. They 

claimed that such changes mid-season 

would not only disrupt their operations, 

but could potentially put them out of 

business based on differences in 

compliance costs, particularly with 

respect to wages and transportation. 

One State department of agriculture 

claimed that the suspension would 

cause disruptions in the harvest due to 

an insufficient labor supply and create 

shortages of products in the marketplace 

which would raise food prices. Other 

commenters were concerned that the 

suspension would create a disincentive 

for employers to participate in the H–2A 

program and result in greater use of 

illegal labor and the outsourcing of food 

production. 

The Department acknowledges that 

the suspension of the December 2008 

Rule is a change that will inevitably 

result in some disruption from the 

status quo created by the December 

2008 Rule. However, the Department 

does not believe that the disruption will 

rise to the damaging levels claimed by 

the commenters. First of all, the Prior 

Rule that will be reinstated through this 

Final Rule and which was replaced by 

the December 2008 Rule only 3 months 

ago had been in effect for over 20 years. 

Clearly, the agricultural industry did not 

grind to a halt during that period, and 

most of the current users under the H– 

2A program have a sufficient degree of 

familiarity and experience with the 

Prior Rule. Even though one agricultural 

association claimed that there was a 

wide consensus regarding the problems 

with the Prior Rule and that reverting 

back to it would be more disruptive 

than staying with the December 2008 

Rule which has only a few perceived 

minor problems, the rulemaking record 

of the December 2008 Rule contradicts 

these points. The Department received 

over 11,000 comments in response to 

the NPRM for the December 2008 Rule, 

which addressed a diversity of issues in 

the H–2A program and evidenced a lack 

of consensus regarding the purported 

advantages of the December 2008 Rule. 

Additionally, as discussed earlier, 

applications which have been filed 

under the December 2008 Rule, and 

which represent most of the 

applications that will be filed for this 

growing season, will continue to be 

governed by the December 2008 Rule. 

This Final Rule also suspends the 

December 2008 revisions to 29 CFR part 

501, implementing the Department’s 

enforcement of the H–2A program, as 

that regulation is so integrally 

intertwined into 20 CFR part 655, 

Subpart B that a suspension of the 

December 2008 rule must apply equally 

to both revised regulations. 

2. Elimination of Certain Categories of 

Activities From the H–2A Program 

A number of commenters expressed 

concern about the impact that the 

proposed suspension would have on 

certain categories of activities which 

were classified as ‘‘agricultural’’ under 

the December 2008 Rule, but which 

were not part of the H–2A program 

under the Prior Rule. While the 

Department acknowledges and 

understands that the suspension may 

affect growers conducting such 

activities more so than others, the 

Department has determined that for 

purposes of administrative efficiency 

and advancing consistency in 

application, the suspension will apply 

to the December 2008 Rule in its 

entirety. The particular concerns of the 

commenters are addressed in greater 

detail below. 

a. Logging 

The Department received a number of 

comments from logging contractors, 

employers related to the logging 

industry (e.g., sawmills, land 

companies), and associations 

representing the logging industry. All of 

these commenters opposed the 

proposed suspension arguing that the 

suspension removes the only alternative 

source of labor for this industry for this 

year. The temporary suspension of the 

December 2008 Rule will remove 

logging from the definition of 

agricultural labor or services, and thus, 

employers seeking to hire temporary 

foreign labor will have to file 

applications under the non-agricultural 

H–2B program. The H–2B program is 

limited to 66,000 visas per year, with 

33,000 being made available during 

each 6 month period of a fiscal year. 

The United States Citizenship and 

Immigration Service (USCIS) announced 

that the cap for the second half of Fiscal 

Year 2009 was reached on January 7, 

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6 6 USCIS Press Release, USCIS Reaches H–2B 

Cap for Second Half of Fiscal Year 2009. Available 

at: http://www.uscis.gov/portal/site/uscis/

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?vgnextoid=b2b547

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4718190aRCRD. 

2009.6 Therefore, petitions for new H– 

2B workers seeking employment start 

dates prior to October 1, 2009 would be 

rejected by USCIS. The commenters 

stated that the suspension would 

devastate the logging industry and harm 

the related forest products industries. 

Several of these commenters identified 

June 1, 2009 as the approximate 

beginning date of the upcoming summer 

harvest season. 

The Department recognizes that the 

suspension will remove the ability of 

the logging industry to obtain workers 

via the H–2A program for the 9-month 

period the suspension is in effect. 

However, as stated earlier, any H–2A 

application which was filed under the 

December 2008 Rule prior to the 

effective date of the suspension will 

continue to be governed by the 

December 2008 Rule. The Department’s 

experience in administering the labor 

certification processes for the temporary 

worker programs is that the most of the 

applications for job opportunities in the 

logging industry are received and 

processed during late winter or early 

spring. Therefore, the Department 

believes that the majority of 

applications for temporary employment 

in the logging industry will be 

processed prior to the effective date of 

this Final Rule and will be subject to the 

December 2008 Rule, as they will have 

been filed before its suspension takes 

effect. Even taking the industry’s date of 

June 1, 2009 as the start of the logging 

season and thus as the beginning date of 

need, all applications for loggers (of 

which there are only annual 

applications for approximately 600 

workers) are expected to be filed and 

processed prior to the effective date of 

this Final Rule. 

b. Incidental Activity and Packing 

Two U.S. Senators expressed concern 

that reinstating the Prior Rule would 

eliminate the expanded definition of 

agriculture under the December 2008 

Rule which included: (1) Work typically 

performed on a farm and incidental to 

the agricultural labor or services for 

which the H–2A worker is sought, but 

not specifically listed on the 

Application for Temporary Employment 

Certification; and (2) packing shed 

operations that were not part of a 

farming operation, where fresh fruits 

and vegetables are packaged for sale 

after harvest. 

Even though the definition of 

‘‘agricultural or labor services’’ under 

the Prior Rule differs from that provided 

in the December 2008 Rule, the 

definition of ‘‘agricultural or labor 

services’’ under the Prior Rule still 

encompasses incidental work and 

packing shed operations. The Prior 

Rule, like the December 2008 Rule, 

incorporates the definitions of 

‘‘agricultural labor’’ from Section 

3121(g) of the Internal Revenue Code 

and ‘‘agriculture’’ from Section 3(f) of 

the Fair Labor Standards Act (FLSA) in 

the definition of ‘‘agricultural or labor 

services.’’ 

The definition of ‘‘agriculture’’ from 

Section 3(f) of the FLSA includes 

incidental work: 

(f) * * * farming in all its branches and 

among other things includes the cultivation 

and tillage of the soil, dairying, the 

production, cultivation, growing, and 

harvesting of any agricultural or horticultural 

commodities (including commodities as 

defined as agricultural commodities in 

section 1141j(g) of Title 12), the raising of 

livestock, bees, fur-bearing animals, or 

poultry, and any practices (including any 

forestry or lumbering operations) performed 

by a farmer or on a farm as an incident to 

or in conjunction with such farming 

operations, including preparation for market, 

delivery to storage or to market or to carriers 

for transportation to market. 

(emphasis added). 

The definition of agriculture in the 

December 2008 Rule, however, also 

included in the definition of 

‘‘agricultural labor or services of a 

temporary or seasonal nature’’ the 

following provision that specifically 

addressed incidental work beyond the 

definition of agriculture provided under 

Section 3(f) of the FLSA: 

Other work typically performed on a farm 

that is not specifically listed on the 

Application for Temporary Labor 

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

percent of the total time worked on the job 

duties and activities that are listed on the 

Application for Temporary Employment 

Certification) and incidental to the 

agricultural labor or services for which the 

H–2A worker was sought. 

20 CFR 655.100(d)(1)(vi). 

Although reinstatement of the Prior 

Rule would eliminate this provision, the 

definition of agriculture under Section 

3(f) of the FLSA is broad enough to 

encompass the work described in 20 

CFR 655.100(d)(1)(vi). The definition of 

‘‘agricultural labor’’ from section 

3121(g) of the Internal Revenue Code 

includes packing shed operations by 

including all service performed: 

(4)(A) In the employ of the operator of a 

farm in handling, planting, drying, packing, 

packaging, processing, freezing, grading, 

storing, or delivering to storage or to market 

or to a carrier for transportation to market, in 

its unmanufactured state, any agricultural or 

horticultural commodity; but only if such 

operator produced more than one-half of the 

commodity with respect to which such 

service is performed. 

The definition of agriculture under 

the December 2008 Rule, however, also 

included in the definition of 

‘‘agricultural labor or services of a 

temporary or seasonal nature’’ a 

provision that specifically addressed 

packing that goes beyond the definition 

of agricultural labor in Section 3121(g) 

of the Internal Revenue Code: 

Handling, planting, drying, packing, 

packaging, processing, freezing, grading, 

storing, or delivering to storage, 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. 

20 CFR 655.100(d)(1)(v). 

Although packing shed operations 

which were not part of the farming 

operation would no longer be included 

in the definition of agriculture once the 

Prior Rule is reinstated, the Department 

does not believe that the removal of 

such activities would unduly harm 

growers; in fact, the Department 

received no comments from any growers 

objecting to the suspension on that 

ground. Accordingly, while the 

Department recognizes the concerns 

raised by the commenters about the 

changes in definition of agricultural 

labor or services of a temporary or 

seasonal nature, the Department does 

not believe that such changes are so 

critical that they outweigh the benefits 

of suspending the December 2008 Rule. 

3. Enforcement; Wage Discrimination 

Many commenters expressed concern 

that suspending the December 2008 

Rule and replacing it with the Prior Rule 

would subject workers performing the 

same work to different certifications, 

different regulatory requirements and 

different wages. 

Such disparities already exist. Under 

the December 2008 Rule, for example, 

U.S. workers hired during the period of 

time set forth in the labor certification 

are entitled to H–2A wages as they are 

engaged in corresponding employment, 

while U.S. workers who were already in 

the employer’s employ are not. 

Similarly, a grower may pay its own 

U.S. workers one wage and hire a labor 

contractor employing H–2A workers 

paid at a different wage, though both 

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sets of workers will be employed in the 

same fields performing the same work. 

Suspending the December 2008 Rule 

will allow for the reconsideration of the 

questions arising from these disparities. 

4. Flaws in the Text of the Prior 

Regulation 

An agricultural association noted that 

the reinstatement of the Prior Rule 

verbatim would include the 

reinstatement of certain errors in the 

regulation, such as a pre-McConnell 

Amendment reference to the granting of 

certifications no later than 20 days 

before the date of need. The Department 

acknowledges that the Prior Rule 

contains that error, but this error, along 

with other outdated references in the 

regulatory text, did not and will not 

prevent the Department from complying 

with its statutory requirements under 

the Immigration and Nationality Act 

and other laws. 

E. Suspension of 29 CFR Part 501 

As discussed above, 29 CFR part 501 

implements the Department’s 

enforcement responsibilities under the 

H–2A program. These regulations 

complement the ETA regulations at 20 

CFR Part 655 Subpart B and are so 

integrated with the ETA regulations that 

the suspension of 20 CFR part 655 

necessitates the suspension of 29 CFR 

part 501. This is evident in that in the 

comments received, commenters did not 

differentiate between the ETA and the 

WHD regulations. 

F. Suspension of Pertinent Sections of 

29 CFR Parts 780 and 788 

As part of the H–2A rulemaking, the 

Fair Labor Standards Act (FLSA) 

regulations, 29 CFR 780.115, 780.201, 

780.205, and 780.208, were amended to 

include the production of Christmas 

trees within the scope of ‘‘agriculture’’ 

under the FLSA and to remove specific 

reference to Christmas trees as part of 

forestry activities in 29 CFR 788.10. 

This classification of Christmas tree 

production impacts workers’ 

entitlement to minimum wages and 

overtime pay, as well as the application 

of child labor protections under the 

FLSA. 

As explained in the preamble to the 

December 2008 Rule, this provision was 

based on the decision in U.S. 

Department of Labor v. North Carolina 

Growers Association, 377 F.3d 345 (4th 

Cir. 2004), which held that production 

of Christmas trees was within the scope 

of the FLSA definition of agriculture at 

29 U.S.C. 203(f), thus allowing 

application of exemptions pertaining to 

agriculture. 29 U.S.C. 213(a)(6)(A) and 

29 U.S.C. 213(b)(12). That decision was 

contrary to regulations dating from the 

1950s which included Christmas trees 

among ‘‘other forestry products’’ that 

were not included within the scope of 

FLSA agriculture. See 16 FR 481–482, 

Jan 28, 1950; 21 FR 2933, May 3, 1956. 

Comments from growers and 

representatives of this industry opposed 

suspension of these FLSA revisions, 

pointing out that the treatment of 

Christmas tree production under the 

FLSA is unrelated to the changes made 

to the H–2A program, and that the 

Christmas tree regulation is not 

impacted by the programmatic concerns 

affecting the H–2A regulations. 

The Department acknowledges that 

this change in FLSA regulations is 

unrelated to the H–2A program and was 

not necessary to accomplish the 

revisions to the H–2A program. 

Nevertheless, the Department believes 

that suspending these FLSA regulatory 

changes will provide an opportunity for 

additional review with an explicit focus 

on the ramifications of the rule on the 

implementation of the FLSA. For 

example, neither the NPRM nor the 

preamble to the December 2008 Rule 

mentioned the impact of the regulatory 

change on child labor protections in this 

industry. Accordingly, no comments 

were received, and no information was 

obtained, concerning the impact of this 

change on child labor protections. DOL 

is especially sensitive to potential 

adverse impacts that the December 2008 

Rule’s FLSA regulatory changes might 

have on our Nation’s most vulnerable 

workers, including low-wage workers 

and youth. 

Given the longstanding nature of the 

Department’s prior position on this 

issue, and the removal of FLSA wage 

and child labor protections that the 

December 2008 Rule triggered, it is the 

Department’s view that a suspension of 

the December 2008 Rule in its entirety 

is appropriate to provide an opportunity 

for a more complete review of this 

important regulatory issue. 

III. Administrative Information 

A. Executive Order 12866—Regulatory 

Planning and Review 

Under Executive Order (E.O.) 12866, 

the Department must determine whether 

a regulatory action is ‘‘significant’’ and 

therefore subject to the requirements of 

the E.O. and subject to review by the 

Office of Management and Budget 

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

a ‘‘significant regulatory action’’ as an 

action that is likely to result in a rule 

(1) having an annual effect on the 

economy of $100 million or more, or 

adversely and materially affecting a 

sector of the economy, productivity, 

competition, jobs, the environment, 

public health or safety, or State, local or 

tribal governments or communities (also 

referred to as ‘‘economically 

significant’’); (2) creating serious 

inconsistency or otherwise interfering 

with an action taken or planned by 

another agency; (3) materially altering 

the budgetary impacts of entitlement 

grants, user fees, or loan programs or the 

rights and obligations of recipients 

thereof; or (4) raising novel legal or 

policy issues arising out of legal 

mandates, the President’s priorities, or 

the principles set forth in the E.O. 

The Department has determined that 

this Final Rule is not an ‘‘economically 

significant regulatory action’’ under 

Section 3(f)(1) of E.O.12866. The 

procedures for filing an Application for 

Temporary Employment Certification 

under the H–2A visa category on behalf 

of nonimmigrant temporary agricultural 

workers, under this regulation, will not 

have an economic impact of $100 

million or more. The regulation will not 

adversely affect the economy or any 

sector thereof, productivity, 

competition, jobs, the environment, or 

public health or safety in a material 

way. In fact, this Final Rule is intended 

to provide to growers clear and 

consistent guidance on the requirements 

for participation in the H–2A temporary 

worker program, and to eliminate the 

potential for disruption, confusion, and 

processing delays resulting from the 

Department’s and SWAs’ lack of 

resources for efficient implementation 

of the December 2008 Rule. The 

Department, however, has determined 

that this Final Rule is a ‘‘significant 

regulatory action’’ under Section 3(f)(4) 

of the E.O. and accordingly OMB has 

reviewed this Final Rule. 

Summary of Impacts 

The changes in this Final Rule are 

expected to have little net direct cost 

impact on employers, above and beyond 

the baseline of the current costs 

required by the program as it is 

currently implemented. While the effect 

of the December 2008 Rule was to 

require employers to engage in 

recruitment of U.S. workers in advance 

of filing their applications for foreign 

labor certification, the Department 

included a transition period to enable it 

to implement the new rule and to enable 

employers to become accustomed to the 

filing procedures and new recruitment 

regime under the new regulations. 

During the transition period, employers 

initiate recruitment after filing the 

temporary labor certification 

application. The transition period 

contained in the December 2008 Rule 

applied to employers with a date of 

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need before July 1, 2009. On April 16, 

2009, the Department published an 

Interim Final Rule extending the 

transition period to include all 

employers with a date of need on or 

before January 1, 2010. See 74 FR 17597. 

Therefore, employers will experience no 

change from the current application 

filing and recruitment procedures. 

During the 9-month suspension 

period, employer costs for newspaper 

advertising will decrease slightly, as this 

Final Rule suspends the requirement 

that one of the two required 

advertisements be run on a Sunday. 

This Final Rule temporarily reinstates 

the requirement on employers to engage 

in post-filing recruitment efforts as 

determined by the OFLC Administrator. 

It is the Department’s view that the 

protections and opportunities for 

employment for U.S. workers provided 

by this requirement more than outweigh 

the marginal uncertainty in recruitment 

costs for employers. 

During the 9-month suspension 

period, civil money penalties are 

returned to the level established in 1987 

(maximum of $1,000 per violation). The 

Department recognizes the deterrent 

effect of civil money penalties on 

fostering greater program compliance 

under the Final Rule, and will use, as 

appropriate, all of the tools available to 

ensure compliance with H–2A program 

requirements. 

In the December 2008 Rule, the 

Department estimated the biggest cost to 

employers of that rule to be the 

increased cost of foreign recruitment, 

since employers can no longer allow 

foreign recruiters with whom they were 

in privity of contract to charge foreign 

workers fees for recruitment. Despite the 

temporary suspension, the Department 

does not anticipate any increase in 

employer costs because regulations 

issued by the Department of Homeland 

Security, USCIS on December 18, 2008 

prohibit the payment of certain jobplacement related fees by prospective 

H–2A workers. See 73 FR 76891 

(codified at 8 CFR 214.2(h)(5)(xi)). 

Employers are encouraged to review 

their obligations under the USCIS rule 

with respect to payments made by 

foreign workers to foreign recruiters. 

The Department also estimated that 

employers’ recordkeeping costs under 

the December 2008 Rule would increase 

minimally; with the return to the 

previous H–2A Final Rule, the costs 

associated with recordkeeping 

requirements will minimally decrease. 

The Department identified no other 

specific cost changes as a result of the 

December 2008 Rule and therefore, can 

identify no other specific cost changes 

that would result from the temporary 

suspension of that rule. 

Based on historical program use, the 

Department estimates that 

approximately 83% of applications will 

have been processed by the effective 

date of this Final Rule, therefore few 

applications will be subject to the 

previous H–2A program rules during the 

9-month suspension. The Department 

recognizes that for the employers 

submitting applications under the 

reinstated regulations, particularly 

employers who have already received 

certifications based on the December 

2008 Rule, there will be some confusion 

and perhaps a change in labor costs for 

applications filed after the effective date 

of the suspension due to the different 

adverse effect wage rate (AEWR) 

methodology. However, in analyzing 

those potential costs it is unclear that 

such costs will be significant based on 

the number of users who will have 

already initiated the application process 

prior to the suspension. 

B. Regulatory Flexibility Analysis 

When an agency issues a rulemaking 

proposal, the Regulatory Flexibility Act 

(RFA) requires that a regulatory 

flexibility analysis be prepared and 

made available for public comment. The 

RFA must describe the impact of the 

rule on small entities. See 5 U.S.C. 

603(a). Section 605 of the RFA allows an 

agency to certify a rule, in lieu of 

preparing an analysis, if the rulemaking 

is not expected to have significant 

economic impact on a substantial 

number of small entities. The Secretary 

has notified the Chief Counsel for 

Advocacy, Small Business 

Administration (SBA), and certifies 

under the RFA at 5 U.S.C. 605(b), that 

this rule will not have a significant 

economic impact on a substantial 

number of small entities. The rule does 

not substantively change existing 

obligations for employers who choose to 

participate in the H–2A temporary 

agricultural worker program. 

As a factual basis for such a 

certification, although this rule can and 

does affect small entities, there are not 

a substantial number of small entities 

that will be affected, nor is there a 

significant economic impact upon those 

small entities that are affected. Of the 

total 2,089,790 farms in the United 

States, 98 percent have sales of less than 

$750,000 per year and fall within SBA’s 

definition of small entities. In FY 2007, 

however, only 7,725 employers filed 

requests for only 80,294 workers. That 

represents fewer than 1 percent of all 

farms in the United States. Even if all of 

the 7,725 employers who filed 

applications under H–2A in FY2007 

were small entities, that is still a 

relatively small number of employers 

affected. However, the universe of filers 

expected to file applications under this 

Final Rule is far fewer than the 7,725 

employers who filed in FY2007. The 

Department estimates approximately 

1,313 employers to file during the 9- 

month period this Final Rule is in place, 

not all of which would be small entities. 

Even more important than the number 

of small entities affected, the 

Department believes, for the reasons 

stated above, that the costs incurred by 

employers under this Final Rule will 

not be substantially different from those 

incurred under the current application 

filing process. Employers seeking to hire 

foreign workers on a temporary basis 

under the H–2A program must continue 

to establish to the Secretary of Labor’s 

satisfaction that their recruitment 

attempts have not yielded enough 

qualified and available U.S. workers and 

that their hiring of foreign workers will 

not adversely affect the wages and 

working conditions of similarly 

employed U.S. workers. Similar to the 

current process, employers under this 

process will file a standardized 

application for temporary labor 

certification and will retain recruitment 

documentation, a recruitment report, 

and any supporting evidence or 

documentation justifying the temporary 

need for the services or labor to be 

performed. Therefore, the Department 

believes that this Final Rule is expected 

to have little net direct cost impact on 

employers, above and beyond the 

baseline of the current costs required by 

the program as it is currently 

implemented. 

C. Unfunded Mandates Reform Act of 

1995 

Section 202 of the Unfunded 

Mandates Reform Act (UMRA) of 1995 

(2 U.S.C. 1501 et seq.) directs agencies 

to assess the effects of a Federal 

regulatory action on State, local, and 

tribal governments, and the private 

sector to determine whether the 

regulatory action imposes a Federal 

mandate which may result in 

expenditures by such governments or 

the private sector of $100,000,000 or 

more. A Federal mandate is defined in 

the Act at 2 U.S.C. 658(5)–(7) to include 

any provision in a regulation that 

imposes an enforceable duty upon State, 

local, or tribal governments, or imposes 

a duty upon the private sector which is 

not voluntary. Further, each agency is 

required to provide a process where 

State, local, and tribal governments may 

comment on the regulation as it 

develops, which further promotes 

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coordination between the Federal and 

the State, local, and tribal governments. 

This Final Rule imposes a minimal 

duty upon State, local or tribal 

governments. However, as discussed 

above, this Final Rule will not result in 

expenditures of $100,000,000 by 

governments or private entities. 

D. Executive Order 13132—Federalism 

Executive Order 13132 addresses the 

Federalism impact of an agency’s 

regulations on the States’ authority. 

Under E.O. 13132, Federal agencies are 

required to consult with States prior to 

and during the implementation of 

national policies that have a direct effect 

on the States, the relationship between 

the Federal government and the States, 

or on the distribution of power and 

responsibilities among the various 

levels of government. Further, an agency 

is permitted to limit a State’s discretion 

when it has statutory authority and the 

regulation is a national activity that 

addresses a problem of national 

significance. This Final Rule has no 

direct effect on the States, the 

relationship between the Federal 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government. 

E. Executive Order 13175—Indian 

Tribal Governments 

Executive Order 13175 requires 

Federal agencies to develop policies in 

consultation with tribal officials when 

those policies have tribal implications. 

This final rule regulates the H–2A visa 

program and does not have tribal 

implications. Therefore, the Department 

has determined that this E.O. does not 

apply to this rulemaking. 

F. Assessment of Federal Regulations 

and Policies on Families 

Section 654 of the Treasury and 

General Government Appropriations 

Act of 1999 (5 U.S.C. 601 note) requires 

agencies to assess the impact of Federal 

regulations and policies on families. 

The assessment must address whether 

the regulation strengthens or erodes the 

stability, integrity, autonomy, or safety 

of the family. 

The final rule does not have an 

impact on the autonomy or integrity of 

the family as an institution, as it is 

described under this provision. The 

Department has determined that 

although there may be some costs 

associated with the final rule, they are 

not of a magnitude to adversely affect 

family well-being. 

G. Executive Order 12630—Protected 

Property Rights 

Executive Order 12630, Governmental 

Actions and the Interference with 

Constitutionally Protected Property 

Rights, prevents the Federal government 

from taking private property for public 

use without compensation. It further 

institutes an affirmative obligation that 

agencies evaluate all policies and 

regulations to ensure there is no impact 

on constitutionally protected property 

rights. Such policies include rules and 

regulations that propose or implement 

licensing, permitting, or other condition 

requirements or limitations on private 

property use, or that require dedications 

or exactions from owners of private 

property. The Department has 

determined that this Final Rule has no 

effect on constitutionally protected 

property rights. 

H. Executive Order 12988—Civil Justice 

Reform 

Section 3 of E.O. 12988, Civil Justice 

Reform, requires Federal agencies to 

draft regulations in a manner that will 

reduce needless litigation and will not 

unduly burden the Federal court 

system. Therefore, agencies are required 

to review regulations for drafting errors 

and ambiguity; to minimize litigation; 

ensure that it provides a clear legal 

standard for affected conduct rather 

than a general standard; and promote 

simplification and burden reduction. 

The rule has been drafted in language 

that states as clearly as possible the 

bases for the decision to suspend the 

December 2008 Rule and reinstate the 

Prior Rule. Therefore, the Department 

has determined that the regulation 

meets the applicable standards set forth 

in Section 3 of E.O. 12988. The 

Department received no comments 

about this section. 

I. Plain Language 

Every Federal agency is required to 

draft regulations that are written in 

plain language to better inform the 

public about policies. The Department 

has assessed this Final Rule under the 

plain language requirements and 

determined that it follows the 

Government’s standards requiring 

documents to be accessible and 

understandable to the public. The 

purpose of this Final Rule is to provide 

to growers clear and consistent guidance 

on the requirements for participation in 

the H–2A temporary worker program, 

and to eliminate the potential for 

disruption, confusion, and processing 

delays resulting from the Department’s 

and SWAs’ lack of resources for efficient 

implementation of the temporarily 

suspended rule. 

J. Executive Order 13211—Energy 

Supply 

This final rule is not subject to E.O. 

13211, which assesses whether a 

regulation is likely to have a significant 

adverse effect on the supply, 

distribution, or use of energy. 

Accordingly, the Department has 

determined that this rule does not 

represent a significant energy action and 

does not warrant a Statement of Energy 

Effects. 

K. Paperwork Reduction Act 

The paperwork requirements of this 

rule have been previously complied 

with in accordance with the Paperwork 

Reduction Act of 1980 (44 U.S.C. 3501 

et seq.). Specifically, under the Prior 

Regulation, the information collection 

instrument used by the employer to file 

an application was the Form ETA–750. 

This is a currently approved collection 

under OMB control number 1205–0015, 

which expires 10/31/2011. Because the 

request for OMB to approve the 

extension of this collection was filed in 

2008, prior to the effective date of the 

rule being now suspended, the burden 

information reported to OMB in that 

extension request took into account the 

H–2A program’s time and monetary 

burden on the public. Therefore, no 

adjustments are necessary at this time. 

List of Subjects 

20 CFR Part 655 

Administrative practice and 

procedure, Foreign workers, 

Employment, Employment and training, 

Enforcement, Forest and forest products, 

Fraud, Health professions, Immigration, 

Labor, Passports and visas, Penalties, 

Reporting and recordkeeping 

requirements, Unemployment, Wages, 

Working conditions. 

29 CFR Part 501 

Administrative practice and 

procedure, Agriculture, Aliens, 

Employment, Housing, Housing 

standards, Immigration, Labor, Migrant 

labor, Penalties, Transportation, Wages. 

29 CFR Part 780 

Agricultural commodities, 

Agriculture, Employment, Forests and 

forest products, Labor, Minimum wages, 

Nursery stock, Overtime pay, Wages. 

29 CFR Part 788 

Employment, Forests and forest 

products, Labor, Overtime pay, Wages. 

■ Accordingly, the Department of Labor 

amends 20 CFR part 655 and 29 CFR 

parts 501, 780, and 788 as follows: 

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Federal Register / Vol. 74, No. 102 / Friday, May 29, 2009 / Rules and Regulations 25985 

Title 20—Employees’ Benefits 

PART 655—TEMPORARY 

EMPLOYMENT OF ALIENS IN THE 

UNITED STATES 

■ 1. The authority citation for part 655 

is revised to read as follows: 

Authority: Section 655.0 issued under 8 

U.S.C. 1101(a)(15)(H)(i) and (ii), 1182(m), (n), 

and (t), 1184, 1188, and 1288(c) and (d); 29 

U.S.C. 49 et seq.; sec. 3(c)(1), Pub. L. 101– 

238, 103 Stat. 2099, 2102 (8 U.S.C. 1182 

note); sec. 221(a), Pub. L. 101–649, 104 Stat. 

4978, 5027 (8 U.S.C. 1184 note); sec. 323, 

Pub. L. 103–206, 107 Stat. 2149; Title IV, 

Pub. L. 105–277, 112 Stat. 2681; Pub. L. 106– 

95, 113 Stat. 1312 (8 U.S.C. 1182 note); and 

8 CFR 213.2(h)(4)(i). 

Section 655.00 issued under 8 U.S.C. 

1101(a)(15)(H)(ii), 1184, and 1188; 29 U.S.C. 

49 et seq.; and 8 CFR 214.2(h)(4)(i). 

Subparts A and C issued under 8 U.S.C. 

1101(a)(15)(H)(ii)(b) and 1184; 29 U.S.C. 49 et 

seq.; and 8 CFR 214.2(h)(4)(i). 

Subpart B issued under 8 U.S.C. 

1101(a)(15)(H)(ii)(a), 1184, and 1188; and 29 

U.S.C. 49 et seq. 

Subparts D and E issued under 8 U.S.C. 

1101(a)(15)(H)(i)(a), 1182(m), and 1184; 29 

U.S.C. 49 et seq.; and sec. 3(c)(1), Pub. L. 

101–238, 103 Stat. 2099, 2103 (8 U.S.C. 1182 

note). 

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

1184 and 1288(c); and 29 U.S.C. 49 et seq. 

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

1101(a)(15)(H)(i)(b) and (b1), 1182(n), 1182(t), 

and 1184; 29 U.S.C. 49 et seq.; sec 303(a)(8), 

Pub. L. 102–232, 105 Stat. 1733, 1748 (8 

U.S.C. 1182 note); and Title IV, Pub. L. 105– 

277, 112 Stat. 2681. 

Subparts J and K issued under 29 U.S.C. 49 

et seq.; and sec. 221(a), Pub. L. 101–649, 104 

Stat. 4978, 5027 (8 U.S.C. 1184 note). 

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

1101(a)(15)(H)(i)(c), 1182(m), and 1184; and 

29 U.S.C. 49 et seq. 

■ 2. Revise the heading to part 655 to 

read as set forth above. 

§ 655.5 [Redesignated as § 655.81 and 

Suspended] 

■ 3a. Redesignate § 655.5 as § 655.81 

and suspend it. 

§ 655.1 [Redesignated as § 655.5 and 

Suspended] 

■ 3b. Redesignate § 655.1 as § 655.5 and 

suspend it. 

■ 4. Add § 655.1 to read as follows: 

§ 655.1 Scope and purpose of subpart A. 

This subpart sets forth the procedures 

governing the labor certification process 

for the temporary employment of 

nonimmigrant aliens in the United 

States in occupations other than 

agriculture, logging, or registered 

nursing. 

Subpart B [Redesignated as Subpart N 

and Suspended] 

■ 5. Redesignate subpart B, consisting of 

§§ 655.90, 655.92, 655.93, and 655.100 

through 655.119, as subpart N, 

consisting of §§ 655.1290, 655.1292, 

655.1293, and 655.1300 through 

655.1319, and suspend newly 

designated subpart N. 

■ 6. Add subpart B to read as follows: 

Subpart B—Labor Certification Process for 

Temporary Agricultural Employment in the 

United States (H–2A Workers) 

Sec. 

655.90 Scope and purpose of subpart B. 

655.92 Authority of the Office of Foreign 

Labor Certification (OFLC) 

Administrator. 

655.93 Special circumstances. 

655.100 Overview of this subpart and 

definition of terms. 

655.101 Temporary alien agricultural labor 

certification applications. 

655.102 Contents of job offers. 

655.103 Assurances. 

655.104 Determinations based on 

acceptability of H–2A applications. 

655.105 Recruitment period. 

655.106 Referral of U.S. workers; 

determinations based on U.S. worker 

availability and adverse effect; activities 

after receipt of the temporary alien 

agricultural labor certification. 

655.107 Adverse effect wage rates (AEWRs). 

655.108 H–2A applications involving fraud 

or willful misrepresentation. 

655.110 Employer penalties for 

noncompliance with terms and 

conditions of temporary alien 

agricultural labor certifications. 

655.111 Petition for higher meal charges. 

655.112 Administrative review and de novo 

hearing before an administrative law 

judge. 

655.113 Job Service Complaint System; 

enforcement of work contracts. 

Subpart B—Labor Certification 

Process for Temporary Agricultural 

Employment in the United States (H– 

2A Workers) 

§ 655.90 Scope and purpose of subpart B. 

(a) General. This subpart sets out the 

procedures established by the Secretary 

of Labor to acquire information 

sufficient to make factual 

determinations of: (1) Whether there are 

sufficient able, willing, and qualified 

U.S. workers available to perform the 

temporary and seasonal agricultural 

employment for which an employer 

desires to import nonimmigrant foreign 

workers (H–2A workers); and (2) 

whether the employment of H–2A 

workers will adversely effect the wages 

and working conditions of workers in 

the U.S. similarly employed. Under the 

authority of the INA, the Secretary of 

Labor has promulgated the regulations 

in this subpart. This subpart sets forth 

the requirements and procedures 

applicable to requests for certification 

by employers seeking the services of 

temporary foreign workers in 

agriculture. This subpart provides the 

Secretary’s methodology for the twofold determination of availability of 

domestic workers and of any adverse 

effect which would be occasioned by 

the use of foreign workers, for particular 

temporary and seasonal agricultural jobs 

in the United States. 

(b) The statutory standard. (1) A 

petitioner for H–2A workers must apply 

to the Secretary of Labor for a 

certification that, as stated in the INA: 

(A) There are not sufficient workers who 

are able, willing, and qualified, and who will 

be available at the time and place needed, to 

perform the labor or services involved in the 

petition, and 

(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. 

(2) Section 216(b) of the INA further 

requires that the Secretary may not issue 

a certification if the conditions 

regarding U.S. worker availability and 

adverse effect are not met, and may not 

issue a certification if, as stated in the 

INA: 

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

of a labor dispute which, under the 

regulations, precludes such certification. 

(2)(A) The employer during the previous 

two-year period employed H–2A workers and 

the Secretary has determined, after notice 

and opportunity for a hearing, that the 

employer at any time during that period 

substantially violated a material term or 

condition of the labor certification with 

respect to the employment of domestic or 

non-immigrant workers. 

(B) No employer may be denied 

certification under subparagraph (A) for more 

than three years for any violation described 

in such subparagraph. 

(3) The employer has not provided the 

Secretary with satisfactory assurances that if 

the employment for which the certification is 

sought is not covered by State workers’ 

compensation law, the employer will 

provide, at no cost to the worker, insurance 

covering injury and disease arising out of and 

in the course of the worker’s employment 

which will provide benefits at least equal to 

those provided under the State workers’ 

compensation law for comparable 

employment. 

(4) The Secretary determines that the 

employer has not made positive recruitment 

efforts within a multistate region of 

traditional or expected labor supply where 

the Secretary finds that there are a significant 

number of qualified United States workers 

who, if recruited, would be willing to make 

themselves available for work at the time and 

place needed. Positive recruitment under this 

paragraph is in addition to, and shall be 

conducted within the same time period as, 

the circulation through the interstate 

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25986 Federal Register / Vol. 74, No. 102 / Friday, May 29, 2009 / Rules and Regulations 

employment service system of the employer’s 

job offer. The obligation to engage in positive 

recruitment * * * shall terminate on the date 

the H–2A workers depart for the employer’s 

place of employment. 

(3) Regarding the labor certification 

determination itself, section 216(c)(3) of 

the INA, as quoted in the following, 

specifically directs the Secretary to 

make the certification if: 

(i) The employer has complied with the 

criteria for certification (including criteria for 

the recruitment of eligible individuals as 

prescribed by the Secretary), and 

(ii) The employer does not actually have, 

or has not been provided with referrals of, 

qualified individuals who have indicated 

their availability to perform such labor or 

services on the terms and conditions of a job 

offer which meets the requirements of the 

Secretary. 

(c) The Secretary’s determinations. 

Before any factual determination can be 

made concerning the availability of U.S. 

workers to perform particular job 

opportunities, two steps must be taken. 

First, the minimum level of wages, 

terms, benefits, and conditions for the 

particular job opportunities below 

which similarly employed U.S. workers 

would be adversely affected must be 

established. (The regulations in this 

subpart establish such minimum levels 

for wages, terms, benefits, and 

conditions of employment.) Second, the 

wages, terms, benefits, and conditions 

offered and afforded to the aliens must 

be compared to the established 

minimum levels. If it is concluded that 

adverse effect would result, the ultimate 

determination of availability within the 

meaning of the INA cannot be made 

since U.S. workers cannot be expected 

to accept employment under conditions 

below the established minimum levels. 

Florida Sugar Cane League, Inc. v. 

Usery, 531 F. 2d 299 (5th Cir. 1976). 

Once a determination of no adverse 

effect has been made, the availability of 

U.S. workers can be tested only if U.S. 

workers are actively recruited through 

the offer of wages, terms, benefits, and 

conditions at least at the minimum level 

or the level offered to the aliens, 

whichever is higher. The regulations in 

this subpart set forth requirements for 

recruiting U.S. workers in accordance 

with this principle. 

(d) Construction. This subpart shall be 

construed to effectuate the purpose of 

the INA that U.S. workers rather than 

aliens be employed wherever possible. 

Elton Orchards, Inc. v. Brennan, 508 F. 

2d 493, 500 (1st Cir. 1974); Flecha v. 

Quiros, 567 F. 2d 1154, 1156 (1st Cir. 

1977). Where temporary alien workers 

are admitted, the terms and conditions 

of their employment must not result in 

a lowering of the wages, terms, and 

conditions of domestic workers 

similarly employed. Williams v. Usery, 

531 F. 2d 305, 306 (5th Cir. 1976), cert. 

denied, 429 U.S. 1000, and the job 

benefits extended to any U.S. workers 

shall be at least those extended to the 

alien workers. 

§ 655.92 Authority of the Office of Foreign 

Labor Certification (OFLC) Administrator. 

Under this subpart, the accepting for 

consideration and the making of 

temporary alien agricultural labor 

certification determinations are 

ordinarily performed by the Office of 

Foreign Labor Certification (OFLC) 

Administrator (OFLC Administrator), 

who, in turn, may delegate this 

responsibility to a designated staff 

member. The OFLC Administrator will 

informally advise the employer or agent 

of the name of the official who will 

make determinations with respect to the 

application. 

§ 655.93 Special circumstances. 

(a) Systematic process. The 

regulations under this subpart are 

designed to provide a systematic 

process for handling applications from 

the kinds of employers who have 

historically utilized nonimmigrant alien 

workers in agriculture, usually in 

relation to the production or harvesting 

of a particular agricultural crop for 

market, and which normally share such 

characteristics as: 

(1) A fixed-site farm, ranch, or similar 

establishment; 

(2) A need for workers to come to 

their establishment from other areas to 

perform services or labor in and around 

their establishment; 

(3) Labor needs which will normally 

be controlled by environmental 

conditions, particularly weather and 

sunshine; and 

(4) A reasonably regular workday or 

workweek. 

(b) Establishment of special 

procedures. In order to provide for a 

limited degree of flexibility in carrying 

out the Secretary’s responsibilities 

under the INA, while not deviating from 

the statutory requirements to determine 

U.S. worker availability and make a 

determination as to adverse effect, the 

OFLC Administrator has the authority to 

establish special procedures for 

processing H–2A applications when 

employers can demonstrate upon 

written application to and consultation 

with the OFLC Administrator that 

special procedures are necessary. In a 

like manner, for work in occupations 

characterized by other than a reasonably 

regular workday or workweek, such as 

the range production of sheep or other 

livestock, the OFLC Administrator has 

the authority to establish monthly, 

weekly, or bi-weekly adverse effect 

wage rates for those occupations, for a 

Statewide or other geographical area, 

other than the rates established 

pursuant to § 655.107 of this part, 

provided that the OFLC Administrator 

uses a methodology to establish such 

adverse effect wage rates which is 

consistent with the methodology in 

§ 655.107(a). Prior to making 

determinations under this paragraph (b), 

the OFLC Administrator may consult 

with employer representatives and 

worker representatives. 

(c) Construction. This subpart shall be 

construed to permit the OFLC 

Administrator to continue and, where 

the OFLC Administrator deems 

appropriate, to revise the special 

procedures previously in effect for the 

handling of applications for 

sheepherders in the Western States (and 

to adapt such procedures to occupations 

in the range production of other 

livestock) and for custom combine 

crews. 

§ 655.100 Overview of this subpart and 

definition of terms. 

(a) Overview—(1) Filing applications. 

This subpart provides guidance to an 

employer who desires to apply for 

temporary alien agricultural labor 

certification for the employment of H– 

2A workers to perform agricultural 

employment of a temporary or seasonal 

nature. The regulations in this subpart 

provide that such employer shall file an 

H–2A application, including a job offer, 

on forms prescribed by the Employment 

and Training Administration (ETA), 

which describes the material terms and 

conditions of employment to be offered 

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

workers, with the OFLC Administrator. 

The entire application shall be filed 

with the OFLC Administrator no less 

than 45 calendar days before the first 

date of need for workers, and a copy of 

the job offer shall be submitted at the 

same time to the local office of the State 

employment service agency which 

serves the area of intended employment. 

Under the regulations, the OFLC 

Administrator will promptly review the 

application and notify the applicant in 

writing if there are deficiencies which 

render the application not acceptable for 

consideration, and afford the applicant 

a five-calendar-day period for 

resubmittal of an amended application 

or an appeal of the OFLC 

Administrator’s refusal to approve the 

application as acceptable for 

consideration. Employers are 

encouraged to file their applications in 

advance of the 45-calendar-day period 

mentioned above in this paragraph 

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Federal Register / Vol. 74, No. 102 / Friday, May 29, 2009 / Rules and Regulations 25987 

(a)(1). Sufficient time should be allowed 

for delays that might arise due to the 

need for amendments in order to make 

the application acceptable for 

consideration. 

(2) Amendment of applications. This 

subpart provides for the amendment of 

applications, at any time prior to the 

OFLC Administrator’s certification 

determination, to increase the number 

of workers requested in the initial 

application; without requiring, under 

certain circumstances, an additional 

recruitment period for U.S. workers. 

(3) Untimely applications. If an H–2A 

application does not satisfy the 

specified time requirements, this 

subpart provides for the OFLC 

Administrator’s advice to the employer 

in writing that the certification cannot 

be granted because there is not 

sufficient time to test the availability of 

U.S. workers; and provides for the 

employer’s right to an administrative 

review or a de novo hearing before an 

administrative law judge. Emergency 

situations are provided for, wherein the 

OFLC Administrator may waive the 

specified time periods. 

(4) Recruitment of U.S. workers; 

determinations—(i) Recruitment. This 

subpart provides that, where the 

application is accepted for 

consideration and meets the regulatory 

standards, the State agency and the 

employer begin to recruit U.S. workers. 

If the employer has complied with the 

criteria for certification, including 

recruitment of U.S. workers, by 20 

calendar days before the date of need 

specified in the application (except as 

provided in certain cases), the OFLC 

Administrator makes a determination to 

grant or deny, in whole or in part, the 

application for certification. 

(ii) Granted applications. This subpart 

provides that the application for 

temporary alien agricultural labor 

certification is granted if the OFLC 

Administrator finds that the employer 

has not offered foreign workers higher 

wages or better working conditions (or 

has imposed less restrictions on foreign 

workers) than those offered and afforded 

to U.S. workers; that sufficient U.S. 

workers who are able, willing, and 

qualified will not be available at the 

time and place needed to perform the 

work for which H–2A workers are being 

requested; and that the employment of 

such aliens will not adversely affect the 

wages and working conditions of 

similarly employed U.S. workers. 

(iii) Fees—(A) Amount. This subpart 

provides that each employer (except 

joint employer associations) of H–2A 

workers shall pay to the OFLC 

Administrator fees for each temporary 

alien agricultural labor certification 

received. The fee for each employer 

receiving a temporary alien agricultural 

labor certification is $100 plus $10 for 

each job opportunity for H–2A workers 

certified, provided that the fee to an 

employer for each temporary alien 

agricultural labor certification received 

shall be no greater than $1,000. In the 

case of a joint employer association 

receiving a temporary alien agricultural 

labor certification, each employermember receiving a temporary alien 

agricultural labor certification shall pay 

a fee of $100 plus $10 for each job 

opportunity for H–2A workers certified, 

provided that the fee to an employer for 

each temporary alien agricultural labor 

certification received shall be no greater 

than $1,000. The joint employer 

association will not be charged a 

separate fee. 

(B) Timeliness of payment. The fee 

must be received by the OFLC 

Administrator no later than 30 calendar 

days after the granting of each 

temporary alien agricultural labor 

certification. Fees received any later are 

untimely. Failure to pay fees in a timely 

manner is a substantial violation which 

may result in the denial of future 

temporary alien agricultural labor 

certifications. 

(iv) Denied applications. This subpart 

provides that if the application for 

temporary alien agricultural labor 

certification is denied, in whole or in 

part, the employer may seek review of 

the denial, or a de novo hearing, by an 

administrative law judge as provided in 

this subpart. 

(b) Definitions of terms used in this 

subpart. For the purposes of this 

subpart: 

Accept for consideration means, with 

respect to an application for temporary 

alien agricultural labor certification, the 

action by the OFLC Administrator to 

notify the employer that a filed 

temporary alien agricultural labor 

certification application meets the 

adverse effect criteria necessary for 

processing. An application accepted for 

consideration ultimately will be 

approved or denied in a temporary alien 

agricultural labor certification 

determination. 

Administrative law judge means a 

person within the Department of Labor 

Office of Administrative Law Judges 

appointed pursuant to 5 U.S.C. 3105; or 

a panel of such persons designated by 

the Chief Administrative Law Judge 

from the Board of Alien Labor 

Certification Appeals established by 

part 656 of this chapter, but which shall 

hear and decide appeals as set forth in 

§ 655.112 of this part. ‘‘Chief 

Administrative Law Judge’’ means the 

chief official of the Department of Labor 

Office of Administrative Law Judges or 

the Chief Administrative Law Judge’s 

designee. 

Administrator, Office of Foreign Labor 

Certification (OFLC) means the primary 

official of the Office of Foreign Labor 

Certification (OFLC Administrator), or 

the OFLC Administrator’s designee. 

Adverse effect wage rate (AEWR) 

means the wage rate which the OFLC 

Administrator has determined must be 

offered and paid, as a minimum, to 

every H–2A worker and every U.S. 

worker for a particular occupation and/ 

or area in which an employer employs 

or seeks to employ an H–2A worker so 

that the wages of similarly employed 

U.S. workers will not be adversely 

affected. 

Agent means a legal entity or person, 

such as an association of agricultural 

employers, or an attorney for an 

association, which (1) is authorized to 

act on behalf of the employer for 

temporary alien agricultural labor 

certification purposes, and (2) is not 

itself an employer, or a joint employer, 

as defined in this paragraph (b). 

Department of Homeland Security 

(DHS) through the United States 

Citizenship and Immigration Services 

(USCIS) makes the determination under 

the INA on whether or not to grant visa 

petitions to employers seeking H–2A 

workers to perform temporary 

agricultural work in the United States. 

DOL means the United States 

Department of Labor. 

Eligible worker means a U.S. worker, 

as defined in this section. 

Employer means a person, firm, 

corporation or other association or 

organization which suffers or permits a 

person to work and (1) which has a 

location within the United States to 

which U.S. workers may be referred for 

employment, and which proposes to 

employ workers at a place within the 

United States and (2) which has an 

employer relationship with respect to 

employees under this subpart as 

indicated by the fact that it may hire, 

pay, fire, supervise or otherwise control 

the work of any such employee. An 

association of employers shall be 

considered the sole employer if it has 

the indicia of an employer set forth in 

this definition. Such an association, 

however, shall be considered as a joint 

employer with an employer member if 

it shares with the employer member one 

or more of the definitional indicia. 

Employment Service (ES), in this 

subpart, refers to the system of Federal 

and State entities responsible for 

administration of the labor certification 

process for temporary and seasonal 

agricultural employment of 

nonimmigrant foreign workers. This 

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25988 Federal Register / Vol. 74, No. 102 / Friday, May 29, 2009 / Rules and Regulations 

includes the State Workforce Agencies 

(SWAs), the National Processing Centers 

(NPCs) and the Office of Foreign Labor 

Certification (OFLC). 

Employment Standards 

Administration means the agency 

within the Department of Labor (DOL), 

which includes the Wage and Hour 

Division, and which is charged with the 

carrying out of certain functions of the 

Secretary under the INA. 

Employment and Training 

Administration (ETA) means the agency 

within the Department of Labor (DOL) 

which includes the Office of Foreign 

Labor (OFLC). 

Federal holiday means a legal public 

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

H–2A worker means any 

nonimmigrant alien admitted to the 

United States for agricultural labor or 

services of a temporary or seasonal 

nature under section 101(a)(15)(H)(ii)(a) 

of the INA (8 U.S.C. 1101(a)(15)(H) 

(ii)(a)). 

INA means the Immigration and 

Nationality Act, as amended (8 U.S.C. 

1101 et seq.). 

Job offer means the offer made by an 

employer or potential employer of H–2A 

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

describing all the material terms and 

conditions of employment, including 

those relating to wages, working 

conditions, and other benefits. 

Job opportunity means a job opening 

for temporary, full-time employment at 

a place in the United States to which 

U.S. workers can be referred. 

Office of Foreign Labor Certification 

(OFLC) means the organizational 

component within the ETA that 

provides national leadership and policy 

guidance and develops regulations and 

procedures to carry out the 

responsibilities of the Secretary of Labor 

under the INA concerning alien workers 

seeking admission to the United States 

in order to work under the Immigration 

and Nationality Act, as amended. 

Positive recruitment means the active 

participation of an employer or its 

authorized hiring agent in locating and 

interviewing applicants in other 

potential labor supply areas and in the 

area where the employer’s 

establishment is located in an effort to 

fill specific job openings with U.S. 

workers. 

Prevailing means, with respect to 

certain benefits other than wages 

provided by employers and certain 

practices engaged in by employers, that: 

(i) Fifty percent or more of employers 

in an area and for an occupation engage 

in the practice or offer the benefit; and 

(ii) This 50 percent or more of 

employers also employs 50 percent or 

more of U.S. workers in the occupation 

and area (including H–2A and non-H– 

2A employers for purposes of 

determinations concerning the 

provision of family housing, frequency 

of wage payments, and workers 

supplying their own bedding, but nonH–2A employers only for 

determinations concerning the 

provision of advance transportation and 

the utilization of farm labor contractors). 

Secretary means the Secretary of 

Labor or the Secretary’s designee. 

Solicitor of Labor means the Solicitor, 

United States Department of Labor, and 

includes employees of the Office of the 

Solicitor of Labor designated by the 

Solicitor to perform functions of the 

Solicitor under this subpart. 

State Workforce Agency (SWA) means 

the State employment service agency 

designated under § 4 of the WagnerPeyser Act to cooperate with OFLC in 

the operation of the ES System. 

Temporary alien agricultural labor 

certification means the certification 

made by the Secretary of Labor with 

respect to an employer seeking to file 

with DHS a visa petition to import an 

alien as an H–2A worker, pursuant to 

sections 101(a)(15)(H)(ii)(a), 214(a) and 

(c), and 216 of the INA that (1) there are 

not sufficient workers who are able, 

willing, and qualified, and who will be 

available at the time and place needed, 

to perform the agricultural labor or 

services involved in the petition, and (2) 

the employment of the alien in such 

agricultural labor or services will not 

adversely affect the wages and working 

conditions of workers in the United 

States similarly employed (8 U.S.C. 

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

and 1186). 

Temporary alien agricultural labor 

certification determination means the 

written determination made by the 

OFLC Administrator to approve or deny, 

in whole or in part, an application for 

temporary alien agricultural labor 

certification. 

United States (U.S.) worker means any 

worker who, whether a U.S. national, a 

U.S. citizen, or an alien, is legally 

permitted to work in the job opportunity 

within the United States (as defined at 

§ 101(a)(38) of the INA (8 U.S.C. 

1101(a)(38)). 

Wages means all forms of cash 

remuneration to a worker by an 

employer in payment for personal 

services. 

(c) Definition of agricultural labor or 

services of a temporary or seasonal 

nature. For the purposes of this subpart, 

‘‘agricultural labor or services of a 

temporary or seasonal nature’’ means 

the following: 

(1) ‘‘Agricultural labor or services’’. 

Pursuant to section 101(a)(15)(H)(ii)(a) 

of the INA (8 U.S.C. 1101(a)(15)(H) 

(ii)(a)), ‘‘agricultural labor or services’’ is 

defined for the purposes of this subpart 

as either ‘‘agricultural labor’’ as defined 

and applied in section 3121(g) of the 

Internal Revenue Code of 1954 (26 

U.S.C. 3121(g)) or ‘‘agriculture’’ as 

defined and applied in section 3(f) of 

the Fair Labor Standards Act of 1938 (29 

U.S.C. 203(f)). An occupation included 

in either statutory definition shall be 

‘‘agricultural labor or services’’, 

notwithstanding the exclusion of that 

occupation from the other statutory 

definition. For informational purposes, 

the statutory provisions are quoted 

below: 

(i) ‘‘Agricultural labor’’. Section 

3121(g) of the Internal Revenue Code of 

1954 (26 U.S.C. 3121(g)), quoted as 

follows, defines the term ‘‘agricultural 

labor’’ to include all service performed: 

(1) On a farm, in the employ of any person, 

in connection with cultivating the soil, or in 

connection with raising or harvesting any 

agricultural or horticultural commodity, 

including the raising, shearing, feeding, 

caring for, training, and management of 

livestock, bees, poultry, and furbearing 

animals and wildlife; 

(2) Services performed in the employ of the 

owner or tenant or other operator of a farm, 

in connection with the operation, or 

maintenance of such farm and its tools and 

equipment, or in salvaging timber or clearing 

land of brush and other debris left by a 

hurricane, if the major part of such service 

is performed on a farm; 

(3) In connection with the production or 

harvesting of any commodity defined as an 

agricultural commodity in section 15(g) of 

the Agricultural Marketing Act, as amended 

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

ginning of cotton, or in connection with the 

operation or maintenance of ditches, canals, 

reservoirs, or waterways, not owned or 

operated for profit, used exclusively for 

supplying and storing water for farming 

purposes; 

(4)(A) In the employ of the operator of a 

farm in handling, planting, drying, packing, 

packaging, processing, freezing, grading, 

storing, or delivering to storage or to market 

or to a carrier for transportation to market, in 

its unmanufactured state, any agricultural or 

horticultural commodity; but only if such 

operator produced more than one-half of the 

commodity with respect to which such 

service is performed; 

(B) In the employ of a group of operators 

of farms (other than a cooperative 

organization) in the performance of service 

described in subparagraph (A), but only if 

such operators produced all of the 

commodity with respect to which such 

service is performed. For purposes of this 

subparagraph, any unincorporated group of 

operators shall be deemed a cooperative 

organization if the number of operators 

comprising such group is more than 20 at any 

time during the calendar quarter in which 

such service is performed; 

(C) The provisions of subparagraphs (A) 

and (B) shall not be deemed to be applicable 

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with respect to service performed in 

connection with commercial canning or 

commercial freezing or in connection with 

any agricultural or horticultural commodity 

after its delivery to a terminal market for 

distribution for consumption; or 

(5) On a farm operated for profit if such 

service is not in the course of the employer’s 

trade or business or is domestic service in a 

private home of the employer. 

As used in this subsection, the term ‘‘farm’’ 

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

ranches, nurseries, ranges, greenhouses or 

other similar structures used primarily for 

the raising of agricultural or horticultural 

commodities, and orchards. 

(ii) ‘‘Agriculture’’. Section 203(f) of 

title 29, United States Code, (section 3(f) 

of the Fair Labor Standards Act of 1938, 

as codified), quoted as follows, defines 

‘‘agriculture’’ to include: 

(f) * * * farming in all its branches and 

among other things includes the cultivation 

and tillage of the soil, dairying, the 

production, cultivation, growing, and 

harvesting of any agricultural or horticultural 

commodities (including commodities as 

defined as agricultural commodities in 

section 1141j(g) of Title 12), the raising of 

livestock, bees, fur-bearing animals, or 

poultry, and any practices (including any 

forestry or lumbering operations) performed 

by a farmer or on a farm as an incident to 

or in conjunction with such farming 

operations, including preparation for market, 

delivery to storage or to market or to carriers 

for transportation to market. 

(iii) ‘‘Agricultural commodity’’. 

Section 1141j(g) of title 12, United 

States Code, (section 15(g) of the 

Agricultural Marketing Act, as 

amended), quoted as follows, defines 

‘‘agricultural commodity’’ to include: 

(g) * * * in addition to other agricultural 

commodities, crude gum (oleoresin) from a 

living tree, and the following products as 

processed by the original producer of the 

crude gum (oleoresin) from which derived: 

Gum spirits of turpentine, and gum rosin, as 

defined in section 92 of Title 7. 

(iv) ‘‘Gum rosin’’. Section 92 of title 

7, United States Code, quoted as 

follows, defines ‘‘gum spirits of 

turpentine’’ and ‘‘gum rosin’’ as— 

(c) ‘‘Gum spirits of turpentine’’ means 

spirits of turpentine made from gum 

(oleoresin) from a living tree. 

(h) ‘‘Gum rosin’’ means rosin remaining 

after the distillation of gum spirits of 

turpentine. 

(2) ‘‘Of a temporary or seasonal 

nature’’—(i) ‘‘On a seasonal or other 

temporary basis’’. For the purposes of 

this subpart, ‘‘of a temporary or seasonal 

nature’’ means ‘‘on a seasonal or other 

temporary basis’’, as defined in the 

Employment Standards 

Administration’s Wage and Hour 

Division’s regulation at 29 CFR 500.20 

under the Migrant and Seasonal 

Agricultural Worker Protection Act 

(MSPA). 

(ii) MSPA definition. For 

informational purposes, the definition 

of ‘‘on a seasonal or other temporary 

basis’’, as set forth at 29 CFR 500.20, is 

provided below: 

‘‘On a seasonal or other temporary basis’’ 

means: 

Labor is performed on a seasonal basis, 

where, ordinarily, the employment pertains 

to or is of the kind exclusively performed at 

certain seasons or periods of the year and 

which, from its nature, may not be 

continuous or carried on throughout the year. 

A worker who moves from one seasonal 

activity to another, while employed in 

agriculture or performing agricultural labor, 

is employed on a seasonal basis even though 

he may continue to be employed during a 

major portion of the year. 

A worker is employed on ‘‘other temporary 

basis’’ where he is employed for a limited 

time only or his performance is contemplated 

for a particular piece of work, usually of 

short duration. Generally, employment, 

which is contemplated to continue 

indefinitely, is not temporary. 

‘‘On a seasonal or other temporary basis’’ 

does not include the employment of any 

foreman or other supervisory employee who 

is employed by a specific agricultural 

employer or agricultural association 

essentially on a year round basis. 

‘‘On a seasonal or other temporary basis’’ 

does not include the employment of any 

worker who is living at his permanent place 

of residence, when that worker is employed 

by a specific agricultural employer or 

agricultural association on essentially a year 

round basis to perform a variety of tasks for 

his employer and is not primarily employed 

to do field work. 

(iii) ‘‘Temporary’’. For the purposes of 

this subpart, the definition of 

‘‘temporary’’ in paragraph (c)(2)(ii) of 

this section refers to any job opportunity 

covered by this subpart where the 

employer needs a worker for a position, 

either temporary or permanent, for a 

limited period of time, which shall be 

for less than one year, unless the 

original temporary alien agricultural 

labor certification is extended based on 

unforeseen circumstances, pursuant to 

§ 655.106(c)(3) of this part. 

§ 655.101 Temporary alien agricultural 

labor certification applications. 

(a) General—(1) Filing of application. 

An employer who anticipates a shortage 

of U.S. workers needed to perform 

agricultural labor or services of a 

temporary or seasonal nature may apply 

to the OFLC Administrator, for a 

temporary alien agricultural labor 

certification for temporary foreign 

workers (H–2A workers). A signed 

application for temporary alien 

agricultural worker certification shall be 

filed by the employer, or by an agent of 

the employer, with the OFLC 

Administrator. At the same time, a 

duplicate application shall be submitted 

to the SWA serving the area of intended 

employment. 

(2) Applications filed by agents. If the 

temporary alien agricultural labor 

certification application is filed by an 

agent on behalf of an employer, the 

agent may sign the application if the 

application is accompanied by a signed 

statement from the employer which 

authorizes the agent to act on the 

employer’s behalf. The employer may 

authorize the agent to accept for 

interview workers being referred to the 

job and to make hiring commitments on 

behalf of the employer. The statement 

shall specify that the employer assumes 

full responsibility for the accuracy of 

the application, for all representations 

made by the agent on the employer’s 

behalf, and for compliance with all 

regulatory and other legal requirements. 

(3) Applications filed by associations. 

If an association of agricultural 

producers which uses agricultural labor 

or services files the application, the 

association shall identify whether it is: 

(i) The sole employer; (ii) a joint 

employer with its employer-member 

employers; or (iii) the agent of its 

employer-members. The association 

shall submit documentation sufficient to 

enable the OFLC Administrator to verify 

the employer or agency status of the 

association; and shall identify by name 

and address each member which will be 

an employer of H–2A workers. 

(b) Application form. Each H–2A 

application shall be on a form or forms 

prescribed by ETA. The application 

shall state the total number of workers 

the employer anticipates employing in 

the agricultural labor or service activity 

during the covered period of 

employment. The application shall 

include: 

(1) A copy of the job offer which will 

be used by each employer for the 

recruitment of U.S. and H–2A workers. 

The job offer shall state the number of 

workers needed by the employer, based 

upon the employer’s anticipation of a 

shortage of U.S. workers needed to 

perform the agricultural labor or 

services, and the specific estimated date 

on which the workers are needed. The 

job offer shall comply with the 

requirements of §§ 655.102 and 653.501 

of this chapter, and shall be signed by 

the employer or the employer’s agent on 

behalf of the employer; and 

(2) An agreement to abide by the 

assurances required by § 655.103 of this 

part. 

(c) Timeliness. Applications for 

temporary alien agricultural labor 

certification are not required to be filed 

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more than 45 calendar days before the 

first day of need. The employer shall be 

notified by the OFLC Administrator in 

writing within seven calendar days of 

filing the application if the application 

is not approved as acceptable for 

consideration. The OFLC 

Administrator’s temporary alien 

agricultural labor certification 

determination on the approved 

application shall be made no later than 

20 calendar days before the date of need 

if the employer has complied with the 

criteria for certification. To allow for the 

availability of U.S. workers to be tested, 

the following process applies: 

(1) Application filing date. The entire 

H–2A application, including the job 

offer, shall be filed with the OFLC 

Administrator, in duplicate, no less than 

45 calendar days before the first date on 

which the employer estimates that the 

workers are needed. Applications may 

be filed in person; may be mailed to the 

OFLC Administrator (Attention: H–2A 

Certifying Officer) by certified mail, 

return receipt requested; or delivered by 

guaranteed commercial delivery which 

will ensure delivery to the OFLC 

Administrator and provide the employer 

with a documented acknowledgment of 

receipt of the application by the OFLC 

Administrator. Any application received 

45 calendar days before the date of need 

will have met the minimum timeliness 

of filing requirement as long as the 

application is eventually approved by 

the OFLC Administrator as being 

acceptable for processing. 

(2) Review of application; recruitment; 

certification determination period. 

Section 655.104 of this part requires the 

OFLC Administrator to promptly review 

the application, and to notify the 

applicant in writing within seven 

calendar days of any deficiencies which 

render the application not acceptable for 

consideration and to afford an 

opportunity for resubmittal of an 

amended application. The employer 

shall have five calendar days in which 

to file an amended application. Section 

655.106 of this part requires the OFLC 

Administrator to grant or deny the 

temporary alien agricultural labor 

certification application no later than 20 

calendar days before the date on which 

the workers are needed, provided that 

the employer has complied with the 

criteria for certification, including 

recruitment of eligible individuals. Such 

recruitment, for the employer, the State 

agencies, and DOL to attempt to locate 

U.S. workers locally and through the 

circulation of intrastate and interstate 

agricultural clearance job orders 

acceptable under § 653.501 of this 

chapter and under this subpart, shall 

begin on the date that an acceptable 

application is filed, except that the SWA 

shall begin to recruit workers locally 

beginning on the date it first receives 

the application. The time needed to 

obtain an application acceptable for 

consideration (including the job offer) 

after the five-calendar-day period 

allowed for an amended application 

will postpone day-for-day the 

certification determination beyond the 

20 calendar days before the date of 

need, provided that the OFLC 

Administrator notifies the applicant of 

any deficiencies within seven calendar 

days after receipt of the application. 

Delays in obtaining an application 

acceptable for consideration which are 

directly attributable to the OFLC 

Administrator will not postpone the 

certification determination beyond the 

20 calendar days before the date of 

need. When an employer resubmits to 

the OFLC Administrator (with a copy to 

the SWA) an application with 

modifications required by the OFLC 

Administrator, and the OFLC 

Administrator approves the modified 

application as meeting necessary 

adverse effect standards, the modified 

application will not be rejected solely 

because it now does not meet the 45- 

calendar-day filing requirement. If an 

application is approved as being 

acceptable for processing without need 

for any amendment within the sevencalendar-day review period after initial 

filing, recruitment of U.S. workers will 

be considered to have begun on the date 

the application was received by the 

OFLC Administrator; and the OFLC 

Administrator shall make the temporary 

alien agricultural labor certification 

determination required by § 655.106 of 

this part no later than 20 calendar days 

before the date of need provided that 

other regulatory conditions are met. 

(3) Early filing. Employers are 

encouraged, but not required, to file 

their applications in advance of the 45- 

calendar-day minimum period specified 

in paragraph (c)(1) of this section, to 

afford more time for review and 

discussion of the applications and to 

consider amendments, should they be 

necessary. This is particularly true for 

employers submitting H–2A 

applications for the first time who may 

not be familiar with the Secretary’s 

requirements for an acceptable 

application or U.S. worker recruitment. 

Such employers particularly are 

encouraged to consult with DOL and 

SWA staff for guidance and assistance 

well in advance of the minimum 45- 

calendar-day filing period. 

(4) Local recruitment; preparation of 

clearance orders. At the same time the 

employer files the H–2A application 

with the OFLC Administrator, a copy of 

the application shall be submitted to the 

SWA which will use the job offer 

portion of the application to prepare a 

local job order and begin to recruit U.S. 

workers in the area of intended 

employment. The SWA also shall begin 

preparing an agricultural clearance 

order, but such order will not be used 

to recruit workers in other geographical 

areas until the employer’s H–2A 

application is accepted for 

consideration and the clearance order is 

approved by the OFLC Administrator 

and the SWA is so notified by the OFLC 

Administrator. 

(5) [Reserved] 

(d) Amendments to application to 

increase number of workers. 

Applications may be amended at any 

time, prior to an OFLC Administrator 

certification determination, to increase 

the number of workers requested in the 

initial application by not more than 20 

percent (50 percent for employers of less 

than ten workers) without requiring an 

additional recruitment period for U.S. 

workers. Requests for increases above 

the percent prescribed, without 

additional recruitment, may be 

approved only when the need for 

additional workers could not have been 

foreseen, and that crops or commodities 

will be in jeopardy prior to the 

expiration of an additional recruitment 

period. 

(e) Minor amendments to 

applications. Minor technical 

amendments may be requested by the 

employer and made to the application 

and job offer prior to the certification 

determination if the OFLC 

Administrator determines they are 

justified and will have no significant 

effect upon the OFLC Administrator’s 

ability to make the labor certification 

determination required by § 655.106 of 

this part. Amendments described at 

paragraph (d) of this section are not 

‘‘minor technical amendments’’. 

(f) Untimely applications—(1) Notices 

of denial. If an H–2A application, or any 

part thereof, does not satisfy the time 

requirements specified in paragraph (c) 

of this section, and if the exception in 

paragraph (d) of this section does not 

apply, the OFLC Administrator may 

then advise the employer in writing that 

the certification cannot be granted 

because, pursuant to paragraph (c) of 

this section, there is not sufficient time 

to test the availability of U.S. workers. 

The notice of denial shall inform the 

employer of its right to an 

administrative review or de novo 

hearing before an administrative law 

judge. 

(2) Emergency situations. 

Notwithstanding paragraph (f)(1) of this 

section, in emergency situations the 

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OFLC Administrator may waive the 

time period specified in this section on 

behalf of employers who have not made 

use of temporary alien agricultural 

workers (H–2 or H–2A) for the prior 

year’s agricultural season or for any 

employer which has other good and 

substantial cause (which may include 

unforeseen changes in market 

conditions), provided that the OFLC 

Administrator has an opportunity to 

obtain sufficient labor market 

information on an expedited basis to 

make the labor certification 

determination required by § 216 of the 

INA (8 U.S.C. 1186). In making this 

determination, the OFLC Administrator 

will accept information offered by and 

may consult with representatives of the 

U.S. Department of Agriculture. 

(g) Length of job opportunity. The 

employer shall set forth on the 

application sufficient information 

concerning the job opportunity to 

demonstrate to the OFLC Administrator 

that the need for the worker is ‘‘of a 

temporary or seasonal nature’’, as 

defined at § 655.100(c)(2) of this part. 

Job opportunities of 12 months or more 

are presumed to be permanent in nature. 

Therefore, the OFLC Administrator shall 

not grant a temporary alien agricultural 

labor certification where the job 

opportunity has been or would be filled 

by an H–2A worker for a cumulative 

period, including temporary alien 

agricultural labor certifications and 

extensions, of 12 months or more, 

except in extraordinary circumstances. 

§ 655.102 Contents of job offers. 

(a) Preferential treatment of aliens 

prohibited. The employer’s job offer to 

U.S. workers shall offer the U.S. workers 

no less than the same benefits, wages, 

and working conditions which the 

employer is offering, intends to offer, or 

will provide to H–2A workers. 

Conversely, no job offer may impose on 

U.S. workers any restrictions or 

obligations which will not be imposed 

on the employer’s H–2A workers. This 

does not relieve the employer from 

providing to H–2A workers at least the 

same level of minimum benefits, wages, 

and working conditions which must be 

offered to U.S. workers consistent with 

this section. 

(b) Minimum benefits, wages, and 

working conditions. Except when higher 

benefits, wages or working conditions 

are required by the provisions of 

paragraph (a) of this section, DOL has 

determined that in order to protect 

similarly employed U.S. workers from 

adverse effect with respect to benefits, 

wages, and working conditions, every 

job offer which must accompany an H– 

2A application always shall include 

each of the following minimum benefit, 

wage, and working condition 

provisions: 

(1) Housing. The employer shall 

provide to those workers who are not 

reasonably able to return to their 

residence within the same day housing, 

without charge to the worker, which 

may be, at the employer’s option, rental 

or public accommodation type housing. 

(i) Standards for employer-provided 

housing. Housing provided by the 

employer shall meet the full set of DOL 

Occupational Safety and Health 

Administration standards set forth at 29 

CFR 1910.142, or the full set of 

standards at §§ 654.404–654.417 of this 

chapter, whichever are applicable, 

except as provided for under paragraph 

(b)(1)(iii) of this section. Requests by 

employers, whose housing does not 

meet the applicable standards, for 

conditional access to the intrastate or 

interstate clearance system, shall be 

processed under the procedures set 

forth at § 654.403 of this chapter. 

(ii) Standards for range housing. 

Housing for workers principally 

engaged in the range production of 

livestock shall meet standards of the 

DOL Occupational Safety and Health 

Administration for such housing. In the 

absence of such standards, range 

housing for sheepherders and other 

workers engaged in the range 

production of livestock shall meet 

guidelines issued by ETA. 

(iii) Standards for other habitation. 

Rental, public accommodation, or other 

substantially similar class of habitation 

must meet local standards for such 

housing. In the absence of applicable 

local standards, State standards shall 

apply. In the absence of applicable local 

or State standards, Occupational Safety 

and Health Administration standards at 

29 CFR 1910.142 shall apply. Any 

charges for rental housing shall be paid 

directly by the employer to the owner or 

operator of the housing. When such 

housing is to be supplied by an 

employer, the employer shall document 

to the satisfaction of the OFLC 

Administrator that the housing complies 

with the local, State, or Federal housing 

standards applicable under this 

paragraph (b)(1)(iii). 

(iv) Charges for public housing. If 

public housing provided for migrant 

agricultural workers under the auspices 

of a local, county, or State government 

is secured by an employer, and use of 

the public housing unit normally 

requires charges from migrant workers, 

such charges shall be paid by the 

employer directly to the appropriate 

individual or entity affiliated with the 

housing’s management. 

(v) Deposit charges. Charges in the 

form of deposits for bedding or other 

similar incidentals related to housing 

shall not be levied upon workers by 

employers who provide housing for 

their workers. However, employers may 

require workers to reimburse them for 

damage caused to housing by the 

individual workers found to have been 

responsible for damage which is not the 

result of normal wear and tear related to 

habitation. 

(vi) Family housing. When it is the 

prevailing practice in the area of 

intended employment and the 

occupation to provide family housing, 

family housing shall be provided to 

workers with families who request it. 

(2) Workers’ compensation. The 

employer shall provide, at no cost to the 

worker, insurance, under a State 

workers’ compensation law or 

otherwise, covering injury and disease 

arising out of and in the course of the 

worker’s employment which will 

provide benefits at least equal to those 

provided under the State workers’ 

compensation law, if any, for 

comparable employment. The employer 

shall furnish the name of the insurance 

carrier and the insurance policy 

number, or, if appropriate, proof of State 

law coverage, to the OFLC 

Administrator prior to the issuance of a 

labor certification. 

(3) Employer-provided items. Except 

as provided below, the employer shall 

provide, without charge including 

deposit charge, to the worker all tools, 

supplies, and equipment required to 

perform the duties assigned; the 

employer may charge the worker for 

reasonable costs related to the worker’s 

refusal or negligent failure to return any 

property furnished by the employer or 

due to such worker’s willful damage or 

destruction of such property. Where it is 

a common practice in the particular 

area, crop activity and occupation for 

workers to provide tools and equipment, 

with or without the employer 

reimbursing the workers for the cost of 

providing them, such an arrangement is 

permissible if approved in advance by 

the OFLC Administrator. 

(4) Meals. Where the employer has 

centralized cooking and eating facilities 

designed to feed workers, the employer 

shall provide each worker with three 

meals a day. When such facilities are 

not available, the employer either shall 

provide each worker with three meals a 

day or shall furnish free and convenient 

cooking and kitchen facilities to the 

workers which will enable the workers 

to prepare their own meals. Where the 

employer provides the meals, the job 

offer shall state the charge, if any, to the 

worker for such meals. Until a new 

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amount is set pursuant to this paragraph 

(b)(4), the charge shall not be more than 

$5.26 per day unless the OFLC 

Administrator has approved a higher 

charge pursuant to § 655.111 of this 

part. Each year the charge allowed by 

this paragraph (b)(4) will be changed by 

the same percentage as the 12-month 

percent change in the Consumer Price 

Index for All Urban Consumers for Food 

between December of the year just 

concluded and December of the year 

prior to that. The annual adjustments 

shall be effective on the date of their 

publication by the OFLC Administrator 

as a notice in the Federal Register. 

(5) Transportation; daily 

subsistence—(i) Transportation to place 

of employment. The employer shall 

advance transportation and subsistence 

costs (or otherwise provide them) to 

workers when it is the prevailing 

practice of non-H–2A agricultural 

employers in the occupation in the area 

to do so, or when such benefits are 

extended to H–2A workers. The amount 

of the transportation payment shall be 

no less (and shall not be required to be 

more) than the most economical and 

reasonable similar common carrier 

transportation charges for the distances 

involved. If the employer has not 

previously advanced such 

transportation and subsistence costs to 

the worker or otherwise provided such 

transportation or subsistence directly to 

the worker by other means and if the 

worker completes 50 percent of the 

work contract period, the employer 

shall pay the worker for costs incurred 

by the worker for transportation and 

daily subsistence from the place from 

which the worker has come to work for 

the employer to the place of 

employment. The amount of the daily 

subsistence payment shall be at least as 

much as the employer will charge the 

worker for providing the worker with 

three meals a day during employment. 

If no charges will be made for meals and 

free and convenient cooking and 

kitchen facilities will be provided, the 

amount of the subsistence payment 

shall be no less than the amount 

permitted under paragraph (b)(4) of this 

section. 

(ii) Transportation from place of 

employment. If the worker completes 

the work contract period, the employer 

shall 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, 

came to work for the employer, or, if the 

worker has contracted with a 

subsequent employer who has not 

agreed in that contract to provide or pay 

for the worker’s transportation and daily 

subsistence expenses from the 

employer’s worksite to such subsequent 

employer’s worksite, the employer shall 

provide or pay for such expenses; 

except that, if the worker has contracted 

for employment with a subsequent 

employer who, in that contract, has 

agreed to pay for the worker’s 

transportation and daily subsistence 

expenses from the employer’s worksite 

to such subsequent employer’s worksite, 

the employer is not required to provide 

or pay for such expenses. 

(iii) Transportation between living 

quarters and worksite. The employer 

shall provide transportation between the 

worker’s living quarters (i.e., housing 

provided by the employer pursuant to 

paragraph (b)(1) of this section) and the 

employer’s worksite without cost to the 

worker, and such transportation will be 

in accordance with applicable laws and 

regulations. This paragraph (b)(5)(iii) is 

applicable to the transportation of 

workers eligible for housing, pursuant to 

paragraph (b)(1) of this section. 

(6) Three-fourths guarantee—(i) Offer 

to worker. The employer shall guarantee 

to offer the worker employment for at 

least three-fourths of the workdays of 

the total periods during which the work 

contract and all extensions thereof are 

in effect, beginning with the first 

workday after the arrival of the worker 

at the place of employment and ending 

on the expiration date specified in the 

work contract or in its extensions, if 

any. If the employer affords the U.S. or 

H–2A worker during the total work 

contract period less employment than 

that required under this paragraph 

(b)(6), the employer shall pay such 

worker the amount which the worker 

would have earned had the worker, in 

fact, worked for the guaranteed number 

of days. For purposes of this paragraph 

(b)(6), a workday shall mean the number 

of hours in a workday as stated in the 

job order and shall exclude the worker’s 

Sabbath and Federal holidays. An 

employer shall not be considered to 

have met the work guarantee if the 

employer has merely offered work on 

three-fourths of the workdays if each 

workday did not consist of a full 

number of hours of work time specified 

in the job order. The work shall be 

offered for at least three-fourths of the 

workdays (that is, 3⁄4 × (number of days) 

× (specified hours)). Therefore, if, for 

example, the contract contains 20 eighthour workdays, the worker shall be 

offered employment for 120 hours 

during the 20 workdays. A worker may 

be offered more than the specified hours 

of work on a single workday. For 

purposes of meeting the guarantee, 

however, the worker shall not be 

required to work for more than the 

number hours specified in the job order 

for a workday, or on the worker’s 

Sabbath or Federal holidays. 

(ii) Guarantee for piece-rate-paid 

worker. If the worker will be paid on a 

piece rate basis, the employer shall use 

the worker’s average hourly piece rate 

earnings or the AEWR, whichever is 

higher, to calculate the amount due 

under the guarantee. 

(iii) Failure to work. Any hours which 

the worker fails to work, up to a 

maximum of the number of hours 

specified in the job order for a workday, 

when the worker has been offered an 

opportunity to do so pursuant to 

paragraph (b)(6)(i) of this section and all 

hours of work actually performed 

(including voluntary work over 8 hours 

in a workday or on the worker’s Sabbath 

or Federal holidays) may be counted by 

the employer in calculating whether the 

period of guaranteed employment has 

been met. 

(iv) Displaced H–2A worker. The 

employer shall not be liable for payment 

under this paragraph (b)(6) with respect 

to an H–2A worker whom the OFLC 

Administrator certifies is displaced 

because of the employer’s compliance 

with § 655.103(e) of this part. 

(7) Records. (i) The employer shall 

keep accurate and adequate records 

with respect to the workers’ earnings 

including field tally records, supporting 

summary payroll records and records 

showing the nature and amount of the 

work performed; the number of hours of 

work offered each day by the employer 

(broken out by hours offered both in 

accordance with and over and above the 

three-fourths guarantee at paragraph 

(b)(6) of this section); the hours actually 

worked each day by the worker; the 

time the worker began and ended each 

workday; the rate of pay (both piece rate 

and hourly, if applicable); the worker’s 

earnings per pay period; the worker’s 

home address; and the amount of and 

reasons for any and all deductions made 

from the worker’s wages; 

(ii) If the number of hours worked by 

the worker is less than the number 

offered in accordance with the threefourths guarantee at paragraph (b)(6) of 

this section, the records shall state the 

reason or reasons therefore. 

(iii) Upon reasonable notice, the 

employer shall make available the 

records, including field tally records 

and supporting summary payroll 

records for inspection and copying by 

representatives of the Secretary of 

Labor, and by the worker and 

representatives designated by the 

worker; and 

(iv) The employer shall retain the 

records for not less than three years after 

the completion of the work contract. 

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(8) Hours and earnings statements. 

The employer shall furnish to the 

worker on or before each payday in one 

or more written statements the 

following information: 

(i) The worker’s total earnings for the 

pay period; 

(ii) The worker’s hourly rate and/or 

piece rate of pay; 

(iii) The hours of employment which 

have been offered to the worker (broken 

out by offers in accordance with and 

over and above the guarantee); 

(iv) The hours actually worked by the 

worker; 

(v) An itemization of all deductions 

made from the worker’s wages; and 

(vi) If piece rates are used, the units 

produced daily. 

(9) Rates of pay. (i) If the worker will 

be paid by the hour, the employer shall 

pay the worker at least the adverse effect 

wage rate in effect at the time the work 

is performed, the prevailing hourly 

wage rate, or the legal Federal or State 

minimum wage rate, whichever is 

highest, for every hour or portion 

thereof worked during a pay period; or 

(ii)(A) If the worker will be paid on a 

piece rate basis and the piece rate does 

not result at the end of the pay period 

in average hourly piece rate earnings 

during the pay period at least equal to 

the amount the worker would have 

earned had the worker been paid at the 

appropriate hourly rate, the worker’s 

pay shall be supplemented at that time 

so that the worker’s earnings are at least 

as much as the worker would have 

earned during the pay period if the 

worker had been paid at the appropriate 

hourly wage rate for each hour worked; 

and the piece rate shall be no less than 

the piece rate prevailing for the activity 

in the area of intended employment; 

and 

(B) If the employer who pays by the 

piece rate requires one or more 

minimum productivity standards of 

workers as a condition of job retention, 

(1) Such standards shall be specified 

in the job offer and be no more than 

those required by the employer in 1977, 

unless the OFLC Administrator 

approves a higher minimum; or 

(2) If the employer first applied for H– 

2 agricultural or H–2A temporary alien 

agricultural labor certification after 

1977, such standards shall be no more 

than those normally required (at the 

time of the first application) by other 

employers for the activity in the area of 

intended employment, unless the OFLC 

Administrator approves a higher 

minimum. 

(10) Frequency of pay. The employer 

shall state the frequency with which the 

worker will be paid (in accordance with 

the prevailing practice in the area of 

intended employment, or at least twice 

monthly whichever is more frequent). 

(11) Abandonment of employment; or 

termination for cause. If the worker 

voluntarily abandons employment 

before the end of the contract period, or 

is terminated for cause, and the 

employer notifies the SWA of such 

abandonment or termination, the 

employer will not be responsible for 

providing or paying for the subsequent 

transportation and subsistence expenses 

of any worker for whom the employer 

would have otherwise been required to 

pay such expenses under paragraph 

(b)(5)(ii) of this section, and that worker 

is not entitled to the ‘‘three-fourths 

guarantee’’ (see paragraph (b)(6) of this 

section). 

(12) Contract impossibility. If, before 

the expiration date specified in the work 

contract, the services of the worker are 

no longer required for reasons beyond 

the control of the employer due to fire, 

hurricane, or other Act of God which 

makes the fulfillment of the contract 

impossible the employer may terminate 

the work contract. In the event of such 

termination of a contract, the employer 

shall fulfill the three-fourths guarantee 

at paragraph (b)(6) of this section for the 

time that has elapsed from the start of 

the work contract to its termination. In 

such cases the employer will make 

efforts to transfer the worker to other 

comparable employment acceptable to 

the worker. If such transfer is not 

effected, the employer shall: 

(i) Offer to return the worker, at the 

employer’s expense, to the place from 

which the worker disregarding 

intervening employment came to work 

for the employer, 

(ii) Reimburse the worker the full 

amount of any deductions made from 

the worker’s pay by the employer for 

transportation and subsistence expenses 

to the place of employment, and 

(iii) Notwithstanding whether the 

employment has been terminated prior 

to completion of 50 percent of the work 

contract period originally offered by the 

employer, pay the worker for costs 

incurred by the worker for 

transportation and daily subsistence 

from the place from which the worker, 

without intervening employment, has 

come to work for the employer to the 

place of employment. Daily subsistence 

shall be computed as set forth in 

paragraph (b)(5)(i) of this section. The 

amount of the transportation payment 

shall be no less (and shall not be 

required to be more) than the most 

economical and reasonable similar 

common carrier transportation charges 

for the distances involved. 

(13) Deductions. The employer shall 

make those deductions from the 

worker’s paycheck which are required 

by law. The job offer shall specify all 

deductions not required by law which 

the employer will make from the 

worker’s paycheck. All deductions shall 

be reasonable. The employer may 

deduct the cost of the worker’s 

transportation and daily subsistence 

expenses to the place of employment 

which were borne directly by the 

employer. In such cases, the job offer 

shall state that the worker will be 

reimbursed the full amount of such 

deductions upon the worker’s 

completion of 50 percent of the worker’s 

contract period. However, an employer 

subject to the Fair Labor Standards Act 

(FLSA) may not make deductions which 

will result in payments to workers of 

less than the Federal minimum wage 

permitted by the FLSA as determined by 

the Secretary at 29 CFR part 531. 

(14) Copy of work contract. The 

employer shall provide to the worker, 

no later than on the day the work 

commences, a copy of the work contract 

between the employer and the worker. 

The work contract shall contain all of 

the provisions required by paragraphs 

(a) and (b) of this section. In the absence 

of a separate, written work contract 

entered into between the employer and 

the worker, the required terms of the job 

order and application for temporary 

alien agricultural labor certification 

shall be the work contract. 

(c) Appropriateness of required 

qualifications. Bona fide occupational 

qualifications specified by an employer 

in a job offer shall be consistent with the 

normal and accepted qualifications 

required by non-H–2A employers in the 

same or comparable occupations and 

crops, and shall be reviewed by the 

OFLC Administrator for their 

appropriateness. The OFLC 

Administrator may require the employer 

to submit documentation to substantiate 

the appropriateness of the qualification 

specified in the job offer; and shall 

consider information offered by and 

may consult with representatives of the 

U.S. Department of Agriculture. 

(d) Positive recruitment plan. The 

employer shall submit in writing, as a 

part of the application, the employer’s 

plan for conducting independent, 

positive recruitment of U.S. workers as 

required by §§ 655.103 and 655.105(a) of 

this part. Such a plan shall include a 

description of recruitment efforts (if 

any) made prior to the actual submittal 

of the application. The plan shall 

describe how the employer will engage 

in positive recruitment of U.S. workers 

to an extent (with respect to both effort 

and location(s)) no less than that of nonH–2A agricultural employers of 

comparable or smaller size in the area 

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of employment. When it is the 

prevailing practice in the area of 

employment and for the occupation for 

non-H–2A agricultural employers to 

secure U.S. workers through farm labor 

contractors and to compensate farm 

labor contractors with an override for 

their services, the employer shall 

describe how it will make the same 

level of effort as non-H–2A agricultural 

employers and provide an override 

which is no less than that being 

provided by non-H–2A agricultural 

employers. 

§ 655.103 Assurances. 

As part of the temporary alien 

agricultural labor certification 

application, the employer shall include 

in the job offer a statement agreeing to 

abide by the conditions of this subpart. 

By so doing, the employer makes each 

of the following assurances: 

(a) Labor disputes. The specific job 

opportunity for which the employer is 

requesting H–2A certification is not 

vacant because the former occupant is 

on strike or being locked out in the 

course of a labor dispute. 

(b) Employment-related laws. During 

the period for which the temporary 

alien agricultural labor certification is 

granted, the employer shall comply with 

applicable Federal, State, and local 

employment-related laws and 

regulations, including employmentrelated health and safety laws. 

(c) Rejections and terminations of 

U.S. workers. No U.S. worker will be 

rejected for or terminated from 

employment for other than a lawful jobrelated reason, and notification of all 

rejections or terminations shall be made 

to the SWA. 

(d) Recruitment of U.S. workers. The 

employer shall independently engage in 

positive recruitment until the foreign 

workers have departed for the 

employer’s place of employment and 

shall cooperate with the ES System in 

the active recruitment of U.S. workers 

by: 

(1) Assisting the ES System to prepare 

local, intrastate, and interstate job 

orders using the information supplied 

on the employer’s job offer; 

(2) Placing advertisements (in a 

language other than English, where the 

OFLC Administrator determines 

appropriate) for the job opportunities in 

newspapers of general circulation and/ 

or on the radio, as required by the OFLC 

Administrator: 

(i) Each such advertisement shall 

describe the nature and anticipated 

duration of the job opportunity; offer at 

least the adverse effect wage rate; give 

the 3⁄4 guarantee; state that work tools, 

supplies and equipment will be 

provided by the employer; state that 

housing will also be provided, and that 

transportation and subsistence expenses 

to the worksite will be provided or paid 

by the employer upon completion of 

50% of the work contract, or earlier, if 

appropriate; and 

(ii) Each such advertisement shall 

direct interested workers to apply for 

the job opportunity at the appropriate 

office of the State Workforce Agency in 

their area; 

(3) Cooperating with the ES System 

and independently contacting farm 

labor contractors, migrant workers and 

other potential workers in other areas of 

the State and/or Nation by letter and/or 

telephone; and 

(4) Cooperating with the ES System in 

contacting schools, business and labor 

organizations, fraternal and veterans’ 

organizations, and nonprofit 

organizations and public agencies such 

as sponsors of programs under the Job 

Training Partnership Act throughout the 

area of intended employment and in 

other potential labor supply areas in 

order to enlist them in helping to find 

U.S. workers. 

(e) Fifty-percent rule. From the time 

the foreign workers depart for the 

employer’s place of employment, the 

employer, except as provided for by 

§ 655.106(e)(1) of this part, shall provide 

employment to any qualified, eligible 

U.S. worker who applies to the 

employer until 50% of the period of the 

work contract, under which the foreign 

worker who is in the job was hired, has 

elapsed. In addition, the employer shall 

offer to provide housing and the other 

benefits, wages, and working conditions 

required by § 655.102 of this part to any 

such U.S. worker and shall not treat less 

favorably than H–2A workers any U.S. 

worker referred or transferred pursuant 

to this assurance. 

(f) Other recruitment. The employer 

shall perform the other specific 

recruitment and reporting activities 

specified in the notice from the OFLC 

Administrator required by § 655.105(a) 

of this part, and shall engage in positive 

recruitment of U.S. workers to an extent 

(with respect to both effort and location) 

no less than that of non-H–2A 

agricultural employers of comparable or 

smaller size in the area of employment. 

When it is the prevailing practice in the 

area of employment and for the 

occupation for non-H–2A agricultural 

employers to secure U.S. workers 

through farm labor contractors and to 

compensate farm labor contractors with 

an override for their services, the 

employer shall make the same level of 

effort as non-H–2A agricultural 

employers and shall provide an override 

which is no less than that being 

provided by non-H–2A agricultural 

employers. Where the employer has 

centralized cooking and eating facilities 

designed to feed workers, the employer 

shall not be required to provide meals 

through an override. The employer shall 

not be required to provide for housing 

through an override. 

(g) Retaliation prohibited. The 

employer shall not intimidate, threaten, 

restrain, coerce, blacklist, discharge, or 

in any manner discriminate against, and 

shall not cause any person to intimidate, 

threaten, restrain, coerce, blacklist, 

discharge, or in any manner 

discriminate against, any person who 

has with just cause: 

(1) Filed a complaint under or related 

to § 216 of the INA (8 U.S.C. 1186), or 

this subpart or any other DOL regulation 

promulgated pursuant to § 216 of the 

INA; 

(2) Instituted or caused to be 

instituted any proceeding under or 

related to § 216 of the INA, or this 

subpart or any other DOL regulation 

promulgated pursuant to § 216 of the 

INA (8 U.S.C. 1186); 

(3) Testified or is about to testify in 

any proceeding under or related to § 216 

of the INA (8 U.S.C. 1186), or this 

subpart or any other DOL regulation 

promulgated pursuant to § 216 of the 

INA; 

(4) Consulted with an employee of a 

legal assistance program or an attorney 

on matters related to § 216 of the INA 

(8 U.S.C. 1186), or this subpart or any 

other DOL regulation promulgated 

pursuant to § 216 of the INA; or 

(5) Exercised or asserted on behalf of 

himself/herself or others any right or 

protection afforded by § 216 of the INA 

(8 U.S.C. 1186), or this subpart or any 

other DOL regulation promulgated 

pursuant to § 216 of the INA. 

(h) Fees. The application shall 

include the assurance that fees will be 

paid in a timely manner, as follows: 

(1) Amount. The fee for each 

employer receiving a temporary alien 

agricultural labor certification is $100 

plus $10 for each job opportunity for H– 

2A workers certified, provided that the 

fee for an employer for each temporary 

alien agricultural labor certification 

received shall be no greater than $1,000. 

In the case of a joint employer 

association receiving a temporary alien 

agricultural labor certification, the fee 

for each employer-member receiving a 

temporary alien agricultural labor 

certification shall be $100 plus $10 for 

each job opportunity for H–2A workers 

certified, provided that the fee for an 

employer for each temporary alien 

agricultural labor certification received 

shall be no greater than $1,000. The 

joint employer association will not be 

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charged a separate fee. Fees shall be 

paid by a check or money order made 

payable to ‘‘Department of Labor’’, and 

are nonrefundable. In the case of 

employers of H–2A workers which are 

members of a joint employer association 

applying on their behalf, the aggregate 

fees for all employers of H–2A workers 

under the application may be paid by 

one check or money order. 

(2) Timeliness. Fees received by the 

OFLC Administrator within 30 calendar 

days after the date of the temporary 

alien agricultural labor certification 

determination are timely. 

§ 655.104 Determinations based on 

acceptability of H–2A applications. 

(a) State Workforce Agency activities. 

The State Workforce Agency (SWA), 

using the job offer portion of the H–2A 

application, shall promptly prepare a 

local job order and shall begin to recruit 

U.S. workers in the area of intended 

employment. The OFLC Administrator 

should notify the SWA by telephone no 

later than seven calendar days after the 

application was received by the OFLC 

Administrator if the application has 

been accepted for consideration. Upon 

receiving such notice or seven calendar 

days after the application is received by 

the SWA, whichever is earlier, the SWA 

shall promptly prepare an agricultural 

clearance order which will permit the 

recruitment of U.S. workers by the 

Employment Service System on an 

intrastate and interstate basis. 

(b) National Processing Center 

activities. The OFLC Administrator, 

upon receipt of the H–2A application, 

shall promptly review the application to 

determine whether it is acceptable for 

consideration under the timeliness and 

adverse effect criteria of §§ 655.101– 

655.103 of this part. If the OFLC 

Administrator determines that the 

application does not meet the 

requirements of §§ 655.101–655.103, the 

OFLC Administrator shall not accept the 

application for consideration on the 

grounds that the availability of U.S. 

workers cannot be adequately tested 

because the benefits, wages and working 

conditions do not meet the adverse 

effect criteria; however, if the OFLC 

Administrator determines that the 

application is not timely in accordance 

with § 655.101 of this part and that 

neither the first-year employer 

provisions of § 655.101(c)(5) nor the 

emergency provisions of § 655.101(f) 

apply, the OFLC Administrator may 

determine not to accept the application 

for consideration because there is not 

sufficient time to test the availability of 

U.S. workers. 

(c) Rejected applications. If the 

application is not accepted for 

consideration, the OFLC Administrator 

shall notify the applicant in writing (by 

means normally assuring next-day 

delivery) within seven calendar days of 

the date the application was received by 

the OFLC Administrator with a copy to 

the SWA. The notice shall: 

(1) State all the reasons the 

application is not accepted for 

consideration, citing the relevant 

regulatory standards; 

(2) Offer the applicant an opportunity 

for the resubmission within five 

calendar days of a modified application, 

stating the modifications needed in 

order for the OFLC Administrator to 

accept the application for consideration; 

(3) Offer the applicant an opportunity 

to request an expedited administrative 

review of or a de novo administrative 

hearing before an administrative law 

judge of the nonacceptance; the notice 

shall state that in order to obtain such 

a review or hearing, the employer, 

within seven calendar days of the date 

of the notice, shall file by facsimile 

(fax), telegram, or other means normally 

assuring next-day delivery a written 

request to the Chief Administrative Law 

Judge of the Department of Labor (giving 

the address) and simultaneously serve a 

copy on the OFLC Administrator; the 

notice shall also state that the employer 

may submit any legal arguments which 

the employer believes will rebut the 

basis of the OFLC Administrator’s 

action; and 

(4) State that if the employer does not 

request an expedited administrativejudicial review or a de novo hearing 

before an administrative law judge 

within the seven calendar days no 

further consideration of the employer’s 

application for temporary alien 

agricultural labor certification will be 

made by any DOL official. 

(d) Appeal procedures. If the 

employer timely requests an expedited 

administrative review or de novo 

hearing before an administrative law 

judge pursuant to paragraph (c)(3) of 

this section, the procedures at § 655.112 

of this part shall be followed. 

(e) Required modifications. If the 

application is not accepted for 

consideration by the OFLC 

Administrator, but the OFLC 

Administrator’s written notification to 

the applicant is not timely as required 

by § 655.101 of this part, the 

certification determination will not be 

extended beyond 20 calendar days 

before the date of need. The notice will 

specify that the OFLC Administrator’s 

temporary alien agricultural labor 

certification determination will be made 

no later than 20 calendar days before the 

date of need, provided that the 

applicant submits the modifications to 

the application which are required by 

the OFLC Administrator within five 

calendar days and in a manner specified 

by the OFLC Administrator which will 

enable the test of U.S. worker 

availability to be made as required by 

§ 655.101 of this part within the time 

available for such purposes. 

§ 655.105 Recruitment period. 

(a) Notice of acceptance of 

application for consideration; required 

recruitment. If the OFLC Administrator 

determines that the H–2A application 

meets the requirements of §§ 655.101– 

655.103 of this part, the OFLC 

Administrator shall promptly notify the 

employer (by means normally assuring 

next-day delivery) in writing with 

copies to the State agency. The notice 

shall inform the employer and the State 

agency of the specific efforts which will 

be expected from them during the 

following weeks to carry out the 

assurances contained in § 655.103 with 

respect to the recruitment of U.S. 

workers. The notice shall require that 

the job order be laced into intrastate 

clearance and into interstate clearance 

to such States as the OFLC 

Administrator shall determine to be 

potential sources of U.S. workers. The 

notice may require the employer to 

engage in positive recruitment efforts 

within a multi-State region of traditional 

or expected labor supply where the 

OFLC Administrator finds, based on 

current information provided by a State 

agency and such information as may be 

offered and provided by other sources, 

that there are a significant number of 

able and qualified U.S. workers who, if 

recruited, would likely be willing to 

make themselves available for work at 

the time and place needed. In making 

such a finding, the OFLC Administrator 

shall take into account other recent 

recruiting efforts in those areas and will 

attempt to avoid requiring employers to 

futilely recruit in areas where there are 

a significant number of local employers 

recruiting for U.S. workers for the same 

types of occupations. Positive 

recruitment is in addition to, and shall 

be conducted within the same time 

period as, the circulation through the 

interstate clearance system of an 

agricultural clearance order. The 

obligation to engage in such positive 

recruitment shall terminate on the date 

H–2A workers depart for the employer’s 

place of work. In determining what 

positive recruitment shall be required, 

the OFLC Administrator will ascertain 

the normal recruitment practices of nonH–2A agricultural employers in the area 

and the kind and degree of recruitment 

efforts which the potential H–2A 

employer made to obtain H–2A workers. 

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The OFLC Administrator shall ensure 

that the effort, including the location(s) 

of the positive recruitment required of 

the potential H–2A employer, during 

the period after filing the application 

and before the date the H–2A workers 

depart their prior location to come to 

the place of employment, shall be no 

less than: (1) The recruitment efforts of 

non-H–2A agricultural employers of 

comparable or smaller size in the area 

of employment; and (2) the kind and 

degree of recruitment efforts which the 

potential H–2A employer made to 

obtain H–2A workers. 

(b) Recruitment of U.S. workers. After 

an application for temporary alien 

agricultural labor certification is 

accepted for processing pursuant to 

paragraph (a) of this section, the OFLC 

Administrator shall provide overall 

direction to the employer and the SWA 

with respect to the recruitment of U.S. 

workers. 

(c) Modifications. At any time during 

the recruitment effort, the OFLC 

Administrator may require 

modifications to a job offer when the 

OFLC Administrator determines that the 

job offer does not contain all the 

provisions relating to minimum 

benefits, wages, and working 

conditions, required by § 655.102(b) of 

this part. If any such modifications are 

required after an application has been 

accepted for consideration by the OFLC 

Administrator, the modifications must 

be made; however, the certification 

determination shall not be delayed 

beyond the 20 calendar days prior to the 

date of need as a result of such 

modification. 

(d) Final determination. By 20 

calendar days before the date of need 

specified in the application, except as 

provided for under §§ 655.101(c)(2) and 

655.104(e) of this part for untimely 

modified applications, the OFLC 

Administrator, when making a 

determination of the availability of U.S. 

workers, shall also make a 

determination as to whether the 

employer has satisfied the recruitment 

assurances in § 655.103 of this part. If 

the OFLC Administrator concludes that 

the employer has not satisfied the 

requirements for recruitment of U.S. 

workers, the OFLC Administrator shall 

deny the temporary alien agricultural 

labor certification, and shall 

immediately notify the employer in 

writing with a copy to the SWA. The 

notice shall contain the statements 

specified in § 655.104(d) of this part. 

(e) Appeal procedure. With respect to 

determinations by the OFLC 

Administrator pursuant to this section, 

if the employer timely requests an 

expedited administrative review or a de 

novo hearing before an administrative 

law judge, the procedures in § 655.112 

of this part shall be followed. 

§ 655.106 Referral of U.S. workers; 

determinations based on U.S. worker 

availability and adverse effect; activities 

after receipt of the temporary alien 

agricultural labor certification. 

(a) Referral of able, willing, and 

qualified eligible U.S. workers. With 

respect to the referral of U.S. workers to 

job openings listed on a job order 

accompanying an application for 

temporary alien agricultural labor 

certification, no U.S. worker-applicant 

shall be referred unless such U.S. 

worker has been made aware of the 

terms and conditions of and 

qualifications for the job, and has 

indicated, by accepting referral to the 

job, that she or he meets the 

qualifications required and is able, 

willing, and eligible to take such a job. 

(b)(1) Determinations. If the OFLC 

Administrator, in accordance with 

§ 655.105 of this part, has determined 

that the employer has complied with the 

recruitment assurances and the adverse 

effect criteria of § 655.102 of this part, 

by the date specified pursuant to 

§ 655.101(c)(2) of this part for untimely 

modified applications or 20 calendar 

days before the date of need specified in 

the application, whichever is 

applicable, the OFLC Administrator 

shall grant the temporary alien 

agricultural labor certification request 

for enough H–2A workers to fill the 

employer’s job opportunities for which 

U.S. workers are not available. In 

making the temporary alien agricultural 

labor certification determination, the 

OFLC Administrator shall consider as 

available any U.S. worker who has made 

a firm commitment to work for the 

employer, including those workers 

committed by other authorized persons 

such as farm labor contractors and 

family heads. Such a firm commitment 

shall be considered to have been made 

not only by workers who have signed 

work contracts with the employer, but 

also by those whom the OFLC 

Administrator determines are likely to 

sign a work contract. The OFLC 

Administrator shall count as available 

any U.S. worker who has applied to the 

employer (or on whose behalf an 

application has been made), but who 

was rejected by the employer for other 

than lawful job-related reasons or who 

has not been provided with a lawful jobrelated reason for rejection by the 

employer, as determined by the OFLC 

Administrator. The OFLC Administrator 

shall not grant a temporary alien 

agricultural labor certification request 

for any H–2A workers if the OFLC 

Administrator determines that: 

(i) Enough able, willing, and qualified 

U.S. workers have been identified as 

being available to fill all the employer’s 

job opportunities; 

(ii) The employer, since the time the 

application was accepted for 

consideration under § 655.104 of this 

part, has adversely affected U.S. workers 

by offering to, or agreeing to provide to, 

H–2A workers better wages, working 

conditions or benefits (or by offering to, 

or agreeing to impose on alien workers 

less obligations and restrictions) than 

those offered to U.S. workers; 

(iii) The employer during the previous 

two-year period employed H–2A 

workers and the OFLC Administrator 

has determined, after notice and 

opportunity for a hearing, that the 

employer at any time during that period 

substantially violated a material term or 

condition of a temporary alien 

agricultural labor certification with 

respect to the employment of U.S. or H– 

2A workers; 

(iv) The employer has not complied 

with the workers’ compensation 

requirements at § 655.102(b)(2) of this 

part; or 

(v) The employer has not satisfactorily 

complied with the positive recruitment 

requirements specified by this subpart. 

Further, the OFLC Administrator, in 

making the temporary alien agricultural 

labor certification determination, will 

subtract from any temporary alien 

agricultural labor certification the 

specific verified number of job 

opportunities involved which are vacant 

because of a strike or other labor dispute 

involving a work stoppage, or a lockout, 

in the occupation at the place of 

employment (and for which H–2A 

workers have been requested). Upon 

receipt by the OFLC Administrator of 

such labor dispute information from any 

source, the OFLC Administrator shall 

verify the existence of the strike, labor 

dispute, or lockout and any resulting 

vacancies prior to making such a 

determination. 

(2) Fees. A temporary alien 

agricultural labor certification 

determination granting an application 

shall include a bill for the required fees. 

Each employer (except joint employer 

associations) of H–2A workers under the 

application for temporary alien 

agricultural labor certification shall pay 

in a timely manner a nonrefundable fee 

upon issuance of the temporary alien 

agricultural labor certification granting 

the application (in whole or in part), as 

follows: 

(i) Amount. The fee for each employer 

receiving a temporary alien agricultural 

labor certification is $100 plus $10 for 

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each job opportunity for H–2A workers 

certified, provided that the fee to an 

employer for each temporary alien 

agricultural labor certification received 

shall be no greater than $1,000. In the 

case of a joint employer association 

receiving a temporary alien agricultural 

labor certification, each employermember receiving a temporary alien 

agricultural labor certification shall pay 

a fee of $100 plus $10 for each job 

opportunity for H–2A workers certified, 

provided that the fee to an employer for 

each temporary alien agricultural labor 

certification received shall be no greater 

than $1,000. The joint employer 

association will not be charged a 

separate fee. The fees shall be paid by 

check or money order made payable to 

‘‘Department of Labor’’. In the case of 

employers of H–2A workers which are 

members of a joint employer association 

applying on their behalf, the aggregate 

fees for all employers of H–2A workers 

under the application may be paid by 

one check or money order. 

(ii) Timeliness. Fees received by the 

OFLC Administrator no more than 30 

calendar days after the date of the 

temporary alien agricultural labor 

certification determination are timely. 

(c) Changes to temporary alien 

agricultural labor certifications; 

temporary alien agricultural labor 

certifications involving employer 

associations—(1) Changes. Temporary 

alien agricultural labor certifications are 

subject to the conditions and assurances 

made during the application process. 

Any changes in the level of benefits, 

wages, and working conditions an 

employer may wish to make at any time 

during the work contract period must be 

approved by the OFLC Administrator 

after written application by the 

employer, even if such changes have 

been agreed to by an employee. 

Temporary alien agricultural labor 

certifications shall be for the specific 

period of time specified in the 

employer’s job offer, which shall be less 

than twelve months; shall be limited to 

the employer’s specific job 

opportunities; and may not be 

transferred from one employer to 

another, except as provided for by 

paragraph (c)(2) of this section. 

(2) Associations—(i) Applications. If 

an association is requesting a temporary 

alien agricultural labor certification as a 

joint employer, the temporary alien 

agricultural labor certification granted 

under this section shall be made jointly 

to the association and to its employer 

members. Except as provided in 

paragraph (c)(2)(iii) of this section, such 

workers may be transferred among its 

producer members to perform work for 

which the temporary alien agricultural 

labor certification was granted, provided 

the association controls the assignment 

of such workers and maintains a record 

of such assignments. All temporary 

alien agricultural labor certifications to 

associations may be used for the 

certified job opportunities of any of its 

members. If an association is requesting 

a temporary alien agricultural labor 

certification as a sole employer, the 

temporary alien agricultural labor 

certification granted pursuant to this 

section shall be made to the association 

only. 

(ii) Referrals and transfers. For the 

purposes of complying with the ‘‘fiftypercent rule’’ at § 655.103(e) of this part, 

any association shall be allowed to refer 

or transfer workers among its members 

(except as provided in paragraph 

(c)(2)(iii) of this section), and an 

association acting as an agent for its 

members shall not be considered a joint 

employer merely because of such 

referral or transfer. 

(iii) Ineligible employer-members. 

Workers shall not be transferred or 

referred to an association’s member, if 

that member is ineligible to obtain any 

or any additional workers, pursuant to 

§ 655.110 of this part. 

(3) Extension of temporary alien 

agricultural labor certification—(i) 

Short-term extension. An employer who 

seeks an extension of two weeks or less 

of the temporary alien agricultural labor 

certification shall apply for such 

extension to DHS. If DHS grants such an 

extension, the temporary alien 

agricultural labor certification shall be 

deemed extended for such period as is 

approved by DHS. No extension granted 

under this paragraph (c)(3)(i) shall be for 

a period longer than the original work 

contract period of the temporary alien 

agricultural labor certification. 

(ii) Long-term extension. For 

extensions beyond the period which 

may be granted by DHS pursuant to 

paragraph (c)(3)(i) of this section, an 

employer, after 50 percent of the work 

contract period has elapsed, may apply 

to the OFLC Administrator for an 

extension of the period of the temporary 

alien agricultural labor certification, for 

reasons related to weather conditions or 

other external factors beyond the control 

of the employer (which may include 

unforeseen changes in market 

conditions), provided that the 

employer’s need for an extension is 

supported in writing by the employer, 

with documentation showing that the 

extension is needed and could not have 

been reasonably foreseen by the 

employer. The OFLC Administrator 

shall grant or deny the request for 

extension of the temporary alien 

agricultural labor certification based on 

available information, and shall notify 

the employer of the decision on the 

request in writing. The OFLC 

Administrator shall not grant an 

extension where the total work contract 

period, including past temporary alien 

labor certifications for the job 

opportunity and extensions, would be 

12 months or more, except in 

extraordinary circumstances. The OFLC 

Administrator shall not grant an 

extension where the temporary alien 

agricultural labor certification has 

already been extended by DHS pursuant 

to paragraph (c)(3)(i) of this section. 

(d) Denials of applications. If the 

OFLC Administrator does not grant the 

temporary alien agricultural labor 

certification (in whole or in part) the 

OFLC Administrator shall notify the 

employer by means reasonably 

calculated to assure next-day delivery. 

The notification shall contain all the 

statements required in § 655.104(c) of 

this part. If a timely request is made for 

an administrative-judicial review or a de 

novo hearing by an administrative law 

judge, the procedures of § 655.112 of 

this part shall be followed. 

(e) Approvals of applications—(1) 

Continued recruitment of U.S. workers. 

After a temporary agricultural labor 

certification has been granted, the 

employer shall continue its efforts to 

recruit U.S. workers until the actual 

date the H–2A workers depart for the 

employer’s place of employment. 

(i) Unless the SWA is informed in 

writing of a different date, the SWA 

shall deem the third day immediately 

preceding the employer’s first date of 

need to be the date the H–2A workers 

depart for the employer’s place of 

employment. The employer may notify 

the SWA in writing if the workers 

depart prior to that date. 

(ii)(A) If the H–2A workers do not 

depart for the place of employment on 

or before the first date of need (or by the 

stated date of departure, if the SWA has 

been advised of a different date), the 

employer shall notify the SWA in 

writing (or orally, confirmed in writing) 

as soon as the employer knows that the 

workers will not depart by the first date 

of need, and in no event later than such 

date of need. At the same time, the 

employer shall notify the SWA of the 

workers’ expected departure date, if 

known. No further notice is necessary if 

the workers depart by the stated date of 

departure. 

(B) If the employer did not notify the 

SWA of the expected departure date 

pursuant to paragraph (e)(1)(ii)(A) of 

this section, or if the H–2A workers do 

not leave for the place of employment 

on or before the stated date of departure, 

the employer shall notify the SWA in 

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writing (or orally, confirmed in writing) 

as soon as the employer becomes aware 

of the expected departure date, or that 

the workers did not depart by the stated 

date and the new expected departure 

date, as appropriate. 

(2) Requirement for Active Job Order. 

The employer shall keep an active job 

order on file until the ‘‘50-percent rule’’ 

assurance at § 655.103(e) of this part is 

met, except as provided by paragraph (f) 

of this section. 

(3) Referrals by ES System. The ES 

system shall continue to refer to the 

employer U.S. workers who apply as 

long as there is an active job order on 

file. 

(f) Exceptions—(1) ‘‘Fifty-percent 

rule’’ inapplicable to small employers. 

The assurance requirement at 

§ 655.103(e) of this part does not apply 

to any employer who: 

(i) Did not, during any calendar 

quarter during the preceding calendar 

year, use more than 500 ‘‘man-days’’ of 

agricultural labor, as defined in section 

3(u) of the Fair Labor Standards Act of 

1938 (29 U.S.C. 203(u)), and so certifies 

to the OFLC Administrator in the H–2A 

application; and 

(ii) Is not a member of an association 

which has applied for a temporary alien 

agricultural labor certification under 

this subpart for its members; and 

(iii) Has not otherwise ‘‘associated’’ 

with other employers who are applying 

for H–2A workers under this subpart, 

and so certifies to the OFLC 

Administrator. 

(2) Displaced H–2A workers. An 

employer shall not be liable for payment 

under § 655.102(b)(6) of this part with 

respect to an H–2A worker whom the 

OFLC Administrator certifies is 

displaced due to compliance with 

§ 655.103(e) of this part. 

(g) Withholding of U.S. workers 

prohibited—(1) Complaints. Any 

employer who has reason to believe that 

a person or entity has willfully and 

knowingly withheld U.S. workers prior 

to the arrival at the job site of H–2A 

workers in order to force the hiring of 

U.S. workers under § 655.103(e) of this 

part may submit a written complaint to 

the SWA. The complaint shall clearly 

identify the person or entity whom the 

employer believes has withheld the U.S. 

workers, and shall specify sufficient 

facts to support the allegation (e.g., 

dates, places, numbers and names of 

U.S. workers) which will permit an 

investigation to be conducted by the 

SWA. 

(2) Investigations. The SWA shall 

inform the OFLC Administrator by 

telephone that a complaint under the 

provisions of paragraph (g) of this 

section has been filed and shall 

immediately investigate the complaint. 

Such investigation shall include 

interviews with the employer who has 

submitted the complaint, the person or 

entity named as responsible for 

withholding the U.S. workers, and the 

individual U.S. workers whose 

availability has purportedly been 

withheld. In the event the SWA fails to 

conduct such interviews, the OFLC 

Administrator shall do so. 

(3) Reports of findings. Within five 

working days after receipt of the 

complaint, the SWA shall prepare a 

report of its findings, and shall submit 

such report (including 

recommendations) and the original copy 

of the employer’s complaint to the 

OFLC Administrator. 

(4) Written findings. The OFLC 

Administrator shall immediately review 

the employer’s complaint and the report 

of findings submitted by the local office, 

and shall conduct any additional 

investigation the OFLC Administrator 

deems appropriate. No later than 36 

working hours after receipt of the 

employer’s complaint and the local 

office’s report, the OFLC Administrator 

shall issue written findings to the local 

office and the employer. Where the 

OFLC Administrator determines that the 

employer’s complaint is valid and 

justified, the OFLC Administrator shall 

immediately suspend the application of 

§ 655.103(e) of this part to the employer. 

Such suspension of § 655.103(e) of this 

part under these circumstances shall not 

take place, however, until the 

interviews required by paragraph (g)(2) 

of this section have been conducted. 

The OFLC Administrator’s 

determination under the provisions of 

this paragraph (g)(4) shall be the final 

decision of the Secretary, and no further 

review by any DOL official shall be 

given to it. 

(h) Requests for new temporary alien 

agricultural labor certification 

determinations based on nonavailability 

of able, willing, and qualified U.S. 

workers—(1) Standards for requests. If a 

temporary alien agricultural labor 

certification application has been 

denied (in whole or in part) based on 

the OFLC Administrator’s determination 

of the availability of able, willing, and 

qualified U.S. workers, and, on or after 

20 calendar days before the date of need 

specified in the temporary alien 

agricultural labor certification 

determination, such U.S. workers 

identified as being able, willing, 

qualified, and available are, in fact, not 

able, willing, qualified, or available at 

the time and place needed, the 

employer may request a new temporary 

alien agricultural labor certification 

determination from the OFLC 

Administrator. The OFLC Administrator 

shall expeditiously, but in no case later 

than 72 hours after the time a request is 

received, make a determination on the 

request. 

(2) Filing requests. The employer’s 

request for a new determination shall be 

made directly to the OFLC 

Administrator. The request may be 

made to the OFLC Administrator by 

telephone, but shall be confirmed by the 

employer in writing as required by 

paragraphs (h)(2)(i) or (ii) of this section. 

(i) Workers not able, willing, qualified, 

or eligible. If the employer asserts that 

any worker who has been referred by 

the ES System or by any other person 

or entity is not an eligible worker or is 

not able, willing, or qualified for the job 

opportunity for which the employer has 

requested H–2A workers, the burden of 

proof is on the employer to establish 

that the individual referred is not able, 

willing, qualified, or eligible because of 

lawful job-related reasons. The 

employer’s burden of proof shall be met 

by the employer’s submission to the 

OFLC Administrator, within 72 hours of 

the OFLC Administrator’s receipt of the 

request for a new determination, of a 

signed statement of the employer’s 

assertions, which shall identify each 

rejected worker by name and shall state 

each lawful job-related reason for 

rejecting that worker. 

(ii) U.S. workers not available. If the 

employer telephonically requests the 

new determination, asserting solely that 

U.S. workers are not available, the 

employer shall submit to the OFLC 

Administrator a signed statement 

confirming such assertion. If such 

signed statement is not received by the 

OFLC Administrator within 72 hours of 

the OFLC Administrator’s receipt of the 

telephonic request for a new 

determination, the OFLC Administrator 

may make the determination based 

solely on the information provided 

telephonically and the information (if 

any) from the SWA. 

(3) National Processing Center 

review—(i) Expeditious review. The 

OFLC Administrator expeditiously shall 

review the request for a new 

determination. The OFLC Administrator 

may request a signed statement from the 

SWA in support of the employer’s 

assertion of U.S. worker nonavailability 

or referred U.S. workers not being able, 

willing, or qualified because of lawful 

job-related reasons. 

(ii) New determination. If the OFLC 

Administrator determines that the 

employer’s assertion of nonavailability 

is accurate and that no able, willing, or 

qualified U.S. worker has been refused 

or is being refused employment for 

other than lawful job-related reasons, 

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the OFLC Administrator shall, within 72 

hours after receipt of the employer’s 

request, render a new determination. 

Prior to making a new determination, 

the OFLC Administrator promptly shall 

ascertain (which may be through the ES 

System or other sources of information 

on U.S. worker availability) whether 

able, willing, and qualified replacement 

U.S. workers are available or can be 

reasonably expected to be present at the 

employer’s establishment within 72 

hours from the date the employer’s 

request was received. 

(iii) Notification of new 

determination. If the OFLC 

Administrator cannot identify sufficient 

able, willing, and qualified U.S. workers 

who are or who are likely to be 

available, the OFLC Administrator shall 

grant the employer’s new determination 

request (in whole or in part) based on 

available information as to replacement 

U.S. worker availability. The OFLC 

Administrator’s notification to the 

employer on the new determination 

shall be in writing (by means normally 

assuring next-day delivery), and the 

OFLC Administrator’s determination 

under the provisions of this paragraph 

(h)(3) shall be the final decision of the 

Secretary, and no further review shall be 

given to an employer’s request for a new 

H–2A determination by any DOL 

official. However, this does not preclude 

an employer from submitting 

subsequent requests for new 

determinations, if warranted, based on 

subsequent facts concerning purported 

nonavailability of U.S. workers or 

referred workers not being eligible 

workers or not able, willing, or qualified 

because of lawful job-related reasons. 

§ 655.107 Adverse effect wage rates 

(AEWRs). 

(a) Computation and publication of 

AEWRs. Except as otherwise provided 

in this section, the AEWRs for all 

agricultural employment (except for 

those occupations deemed 

inappropriate under the special 

circumstances provisions of § 655.93 of 

this part) for which temporary alien 

agricultural labor certification is being 

sought shall be equal to the annual 

weighted average hourly wage rate for 

field and livestock workers (combined) 

for the region as published annually by 

the U.S. Department of Agriculture 

(USDA) based on the USDA quarterly 

wage survey. The OFLC Administrator 

shall publish, at least once in each 

calendar year, on a date or dates to be 

determined by the OFLC Administrator, 

AEWRs for each State (for which USDA 

publishes regional data), calculated 

pursuant to this paragraph (a) as a 

notice or notices in the Federal 

Register. 

(b) Higher prevailing wage rates. If, as 

the result of a State agency prevailing 

wage survey determination, the 

prevailing wage rate in an area and 

agricultural activity (as determined by 

the State agency survey and verified by 

the OFLC Administrator) is found to be 

higher that the AEWR computed 

pursuant to paragraph (a) of this section, 

the higher prevailing wage rate shall be 

offered and paid to all workers by 

employers seeking temporary alien 

agricultural labor certification for that 

agricultural activity and area. 

(c) Federal minimum wage rate. In no 

event shall an AEWR computed 

pursuant to this section be lower than 

the hourly wage rate published in 29 

U.S.C. 206(a)(1) and currently in effect. 

§ 655.108 H–2A applications involving 

fraud or willful misrepresentation. 

(a) Referral for investigation. If 

possible fraud or willful 

misrepresentation involving a 

temporary alien agricultural labor 

certification application is discovered 

prior to a final temporary alien 

agricultural labor certification 

determination or if it is learned that the 

employer or agent (with respect to an 

application) is the subject of a criminal 

indictment or information filed in a 

court, the OFLC Administrator shall 

refer the matter to the DHS and DOL 

Office of the Inspector General for 

investigation. The OFLC Administrator 

shall continue to process the application 

and may issue a temporary alien 

agricultural labor certification. 

(b) Continued processing. If a court 

finds an employer or agent not guilty of 

fraud or willful misrepresentation, or if 

the Department of Justice decides not to 

prosecute an employer or agent, the 

OFLC Administrator shall not deny the 

temporary alien agricultural labor 

certification application on the grounds 

of fraud or willful misrepresentation. 

The application, of course, may be 

denied for other reasons pursuant to this 

subpart. 

(c) Terminated processing. If a court 

or the DHS determines that there was 

fraud or willful misrepresentation 

involving a temporary alien agricultural 

labor certification application, the 

application is thereafter invalid, 

consideration of the application shall be 

terminated and the OFLC Administrator 

shall return the application to the 

employer or agent with the reasons 

therefor stated in writing. 

§ 655.110 Employer penalties for 

noncompliance with terms and conditions 

of temporary alien agricultural labor 

certifications. 

(a) Investigation of violations. If, 

during the period of two years after a 

temporary alien agricultural labor 

certification has been granted (in whole 

or in part), the OFLC Administrator has 

reason to believe that an employer 

violated a material term or condition of 

the temporary alien agricultural labor 

certification, the OFLC Administrator 

shall, except as provided in paragraph 

(b) of this section, investigate the matter. 

If, after the investigation, the OFLC 

Administrator determines that a 

substantial violation has occurred, the 

OFLC Administrator, shall notify the 

employer that a temporary alien 

agricultural certification request will not 

be granted for the next period of time in 

a calendar year during which the 

employer would normally be expected 

to request a temporary alien agricultural 

labor certification, and any application 

subsequently submitted by the employer 

for that time period will not be accepted 

by the OFLC Administrator. If multiple 

or repeated substantial violations are 

involved, the OFLC Administrator’s 

notice to the employer shall specify that 

the prospective denial of the temporary 

alien agricultural labor certification will 

apply not only to the next anticipated 

period for which a temporary alien 

agricultural labor certification would 

normally be requested, but also to any 

periods within the coming two or three 

years; two years for two violations, or 

repetitions of the same violations, and 

three years for three or more violations, 

or repetitions thereof. The OFLC 

Administrator’s notice shall be in 

writing, shall state the reasons for the 

determinations, and shall offer the 

employer an opportunity to request an 

expedited administrative review or a de 

novo hearing before an administrative 

law judge of the determination within 

seven calendar days of the date of the 

notice. If the employer requests an 

expedited administrative review or a de 

novo hearing before an administrative 

law judge, the procedures in § 655.112 

of this part shall be followed. 

(b) Employment Standards 

Administration investigations. The 

OFLC Administrator may make the 

determination described in paragraph 

(a) of this section based on information 

and recommendations provided by the 

Employment Standards Administration, 

after an Employment Standards 

Administration investigation has been 

conducted in accordance with the 

Employment Standards Administration 

procedures, that an employer has not 

complied with the terms and conditions 

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of employment prescribed as a 

condition for a temporary alien 

agricultural labor certification. In such 

instances, the OFLC Administrator need 

not conduct any investigation of his/her 

own, and the subsequent notification to 

the employer and other procedures 

contained in paragraph (a) of this 

section will apply. Penalties invoked by 

the Employment Standards 

Administration for violations of 

temporary alien agricultural labor 

certification terms and conditions shall 

be treated and handled separately from 

sanctions available to the OFLC 

Administrator, and an employer’s 

obligations for compliance with the 

Employment Standards 

Administration’s enforcement penalties 

shall not absolve an employer from 

sanctions applied by ETA under this 

section (except as noted in paragraph (a) 

of this section). 

(c) Less than substantial violations— 

(1) Requirement of special procedures. 

If, after investigation as provided for 

under paragraph (a) of this section, or an 

Employment Standards Administration 

notification as provided under 

paragraph (b) of this section, the OFLC 

Administrator determines that a less 

than substantial violation has occurred, 

but the OFLC Administrator has reason 

to believe that past actions on the part 

of the employer may have had and may 

continue to have a chilling or otherwise 

negative effect on the recruitment, 

employment, and retention of U.S. 

workers, the OFLC Administrator may 

require the employer to conform to 

special procedures before and after the 

temporary alien labor certification 

determination (including special on-site 

positive recruitment and streamlined 

interviewing and referral techniques) 

designed to enhance U.S. worker 

recruitment and retention in the next 

year as a condition for receiving a 

temporary alien agricultural labor 

certification. Such requirements shall be 

reasonable, and shall not require the 

employer to offer better wages, working 

conditions and benefits than those 

specified in § 655.102 of this part, and 

shall be no more than deemed necessary 

to assure employer compliance with the 

test of U.S. worker availability and 

adverse effect criteria of this subpart. 

The OFLC Administrator shall notify 

the employer in writing of the special 

procedures which will be required in 

the coming year. The notification shall 

state the reasons for the imposition of 

the requirements, state that the 

employer’s agreement to accept the 

conditions will constitute inclusion of 

them as bona fide conditions and terms 

of a temporary alien agricultural labor 

certification, and shall offer the 

employer an opportunity to request an 

administrative review or a de novo 

hearing before an administrative law 

judge. If an administrative review or de 

novo hearing is requested, the 

procedures prescribed in § 655.112 of 

this part shall apply. 

(2) Failure to comply with special 

procedures. If the OFLC Administrator 

determines that the employer has failed 

to comply with special procedures 

required pursuant to paragraph (c)(1) of 

this section, the OFLC Administrator 

shall send a written notice to the 

employer, stating that the employer’s 

otherwise affirmative temporary alien 

agricultural labor certification 

determination will be reduced by 

twenty-five percent of the total number 

of H–2A aliens requested (which cannot 

be more than those requested in the 

previous year) for a period of one year. 

Notice of such a reduction in the 

number of workers requested shall be 

conveyed to the employer by the OFLC 

Administrator in the OFLC 

Administrator’s written temporary alien 

agricultural labor certification 

determination required by § 655.101 of 

this part. The notice shall offer the 

employer an opportunity to request an 

administrative review or a de novo 

hearing before an administrative law 

judge. If an administrative review or de 

novo hearing is requested, the 

procedures prescribed in § 655.112 of 

this part shall apply, provided that if the 

administrative law judge affirms the 

OFLC Administrator’s determination 

that the employer has failed to comply 

with special procedures required by 

paragraph (c)(1) of this section, the 

reduction in the number of workers 

requested shall be twenty-five percent of 

the total number of H–2A aliens 

requested (which cannot be more than 

those requested in the previous year) for 

a period of one year. 

(d) Penalties involving members of 

associations. If, after investigation as 

provided for under paragraph (a) of this 

section, or notification from the 

Employment Standards Administration 

under paragraph (b) of this section, the 

OFLC Administrator determines that a 

substantial violation has occurred, and 

if an individual producer member of a 

joint employer association is 

determined to have committed the 

violation, the denial of temporary alien 

agricultural labor certification penalty 

prescribed in paragraph (a) shall apply 

only to that member of the association 

unless the OFLC Administrator 

determines that the association or other 

association member participated in, had 

knowledge of, or had reason to know of 

the violation, in which case the penalty 

shall be invoked against the association 

or other association member as well. 

(e) Penalties involving associations 

acting as joint employers. If, after 

investigation as provided for under 

paragraph (a) of this section, or 

notification from the Employment 

Standards Administration under 

paragraph (b) of this section, the OFLC 

Administrator determines that a 

substantial violation has occurred, and 

if an association acting as a joint 

employer with its members is 

determined to have committed the 

violation, the denial of temporary alien 

agricultural labor certification penalty 

prescribed in paragraph (a) of this 

section shall apply only to the 

association, and shall not be applied to 

any individual producer member of the 

association unless the OFLC 

Administrator determines that the 

member participated in, had knowledge 

of, or reason to know of the violation, 

in which case the penalty shall be 

invoked against the association member 

as well. 

(f) Penalties involving associations 

acting as sole employers. If, after 

investigation as provided for under 

paragraph (a) of this section, or 

notification from the Employment 

Standards Administration under 

paragraph (b) of this section, the OFLC 

Administrator determines that a 

substantial violation has occurred, and 

if an association acting as a sole 

employer is determined to have 

committed the violation, no individual 

producer member of the association 

shall be permitted to employ certified 

H–2A workers in the crop and 

occupation for which the H–2A workers 

had been previously certified for the 

sole employer association unless the 

producer member applies for temporary 

alien agricultural labor certification 

under the provisions of this subpart in 

the capacity of an individual employer/ 

applicant or as a member of a joint 

employer association, and is granted 

temporary alien agricultural labor 

certification by the OFLC Administrator. 

(g) Types of violations—(1) 

Substantial violation. For the purposes 

of this subpart, a substantial violation is 

one or more actions of commission or 

omission on the part of the employer or 

the employer’s agent, with respect to 

which the OFLC Administrator 

determines: 

(i)(A) That the action(s) is/are 

significantly injurious to the wages, 

benefits, or working conditions of 10 

percent or more of an employer’s U.S. 

and/or H–2A workforce; and that: 

(1) With respect to the action(s), the 

employer has failed to comply with one 

or more penalties imposed by the 

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Employment Standards Administration 

for violation(s) of contractual 

obligations found by that agency (if 

applicable), or with one or more 

decisions or orders of the Secretary or 

a court pursuant to § 216 of the INA (8 

U.S.C. 1186), this subpart, or 29 CFR 

part 501 (Employment Standards 

Administration enforcement of 

contractual obligations); or 

(2) The employer has engaged in a 

pattern or practice of actions which are 

significantly injurious to the wages, 

benefits, or working conditions of 10 

percent or more of an employer’s U.S. 

and/or H–2A workforce; 

(B) That the action(s) involve(s) 

impeding an investigation of an 

employer pursuant to § 216 of the INA 

(8 U.S.C. 1186), this subpart, or 29 CFR 

part 501 (Employment Standards 

Administration enforcement of 

contractual obligations); 

(C) That the employer has not paid 

the necessary fee in a timely manner; 

(D) That the employer is not currently 

eligible to apply for a temporary alien 

agricultural labor certification pursuant 

to § 655.210 of this part (failure of an 

employer to comply with the terms of a 

temporary alien agricultural labor 

certification in which the application 

was filed under subpart C of this part 

prior to June 1, 1987); or 

(E) That there was fraud involving the 

application for temporary alien 

agricultural labor certification or that 

the employer made a material 

misrepresentation of fact during the 

application process; and 

(ii) That there are no extenuating 

circumstances involved with the 

action(s) described in paragraph (g)(1)(i) 

of this section (as determined by the 

OFLC Administrator). 

(2) Less than substantial violation. For 

the purposes of this subpart, a less than 

substantial violation is an action of 

commission or omission on the part of 

the employer or the employer’s agent 

which violates a requirement of this 

subpart, but is not a substantial 

violation. 

§ 655.111 Petition for higher meal charges. 

(a) Filing petitions. Until a new 

amount is set pursuant to this paragraph 

(a), the OFLC Administrator may permit 

an employer to charge workers up to 

$6.58 for providing them with three 

meals per day, if the employer justifies 

the charge and submits to the OFLC 

Administrator the documentation 

required by paragraph (b) of this section. 

In the event the employer’s petition for 

a higher meal charge is denied in whole 

or in part, the employer may appeal 

such denial. Such appeals shall be filed 

with the Chief Administrative Law 

Judge. Administrative law judges shall 

hear such appeals according to the 

procedures in 29 CFR part 18, except 

that the appeal shall not be considered 

as a complaint to which an answer is 

required. The decision of the 

administrative law judge shall be the 

final decision of the Secretary. Each 

year the maximum charge allowed by 

this paragraph (a) will be changed by 

the same percentage as the twelvemonth percent change for the Consumer 

Price Index for all Urban Consumers for 

Food between December of the year just 

concluded and December of the year 

prior to that. The annual adjustments 

shall be effective on the date of their 

publication by the OFLC Administrator 

as a notice in the Federal Register. 

However, an employer may not impose 

such a charge on a worker prior to the 

effective date contained in the OFLC 

Administrator’s written confirmation of 

the amount to be charged. 

(b) Required documentation. 

Documentation submitted shall include 

the cost of goods and services directly 

related to the preparation and serving of 

meals, the number of workers fed, the 

number of meals served and the number 

of days meals were provided. The cost 

of the following items may be included: 

Food; kitchen supplies other than food, 

such as lunch bags and soap; labor costs 

which have a direct relation to food 

service operations, such as wages of 

cooks and restaurant supervisors; fuel, 

water, electricity, and other utilities 

used for the food service operation; and 

other costs directly related to the food 

service operation. Charges for 

transportation, depreciation, overhead 

and similar charges may not be 

included. Receipts and other cost 

records for a representative pay period 

shall be available for inspection by the 

OFLC Administrator for a period of one 

year. 

§ 655.112 Administrative review and de 

novo hearing before an administrative law 

judge. 

(a) Administrative review—(1) 

Consideration. Whenever an employer 

has requested an administrative review 

before an administrative law judge of a 

decision not to accept for consideration 

a temporary alien agricultural labor 

certification application, of the denial of 

a temporary alien agricultural labor 

certification, or of a penalty under 

§ 655.110 of this part, the OFLC 

Administrator shall send a certified 

copy of the ETA case file to the Chief 

Administrative Law Judge by means 

normally assuring next-day delivery. 

The Chief Administrative Law Judge 

shall immediately assign an 

administrative law judge (which may be 

a panel of such persons designated by 

the Chief Administrative Law Judge 

from the Board of Alien Labor 

Certification Appeals established by 

part 656 of this chapter, but which shall 

hear and decide the appeal as set forth 

in this section) to review the record for 

legal sufficiency. The administrative 

law judge shall not remand the case and 

shall not receive additional evidence. 

(2) Decision. Within five working days 

after receipt of the case file the 

administrative law judge shall, on the 

basis of the written record and after due 

consideration of any written 

submissions submitted from the parties 

involved or amici curiae, either affirm, 

reverse, or modify the OFLC 

Administrator’s denial by written 

decision. The decision of the 

administrative law judge shall specify 

the reasons for the action taken and 

shall be immediately provided to the 

employer, OFLC Administrator, and 

DHS by means normally assuring nextday delivery. The administrative law 

judge’s decision shall be the final 

decision of the Secretary and no further 

review shall be given to the temporary 

alien agricultural labor certification 

application or the temporary alien 

agricultural labor certification 

determination by any DOL official. 

(b) De novo hearing—(1) Request for 

hearing; conduct of hearing. Whenever 

an employer has requested a de novo 

hearing before an administrative law 

judge of a decision not to accept for 

consideration a temporary alien 

agricultural labor certification 

application, of the denial of a temporary 

alien agricultural labor certification, or 

of a penalty under § 655.110 of this part, 

the OFLC Administrator shall send a 

certified copy of the case file to the 

Chief Administrative Law Judge by 

means normally assuring next-day 

delivery. The Chief Administrative Law 

Judge shall immediately assign an 

administrative law judge (which may be 

a panel of such persons designated by 

the Chief Administrative Law Judge 

from the Board of Alien Labor 

Certification Appeals established by 

part 656 of this chapter, but which shall 

hear and decide the appeal as set forth 

in this section) to conduct the de novo 

hearing. The procedures contained in 29 

CFR part 18 shall apply to such 

hearings, except that: 

(i) The appeal shall not be considered 

to be a complaint to which an answer 

is required, 

(ii) The administrative law judge shall 

ensure that, at the request of the 

employer, the hearing is scheduled to 

take place within five working days 

after the administrative law judge’s 

receipt of the case file, and 

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(iii) The administrative law judge’s 

decision shall be rendered within ten 

working days after the hearing. 

(2) Decision. After a de novo hearing, 

the administrative law judge shall either 

affirm, reverse, or modify the OFLC 

Administrator’s determination, and the 

administrative law judge’s decision 

shall be provided immediately to the 

employer, OFLC Administrator, and 

DHS by means normally assuring nextday delivery. The administrative law 

judge’s decision shall be the final 

decision of the Secretary, and no further 

review shall be given to the temporary 

alien agricultural labor certification 

application or the temporary alien 

agricultural labor certification 

determination by any DOL official. 

§ 655.113 Job Service Complaint System; 

enforcement of work contracts. 

Complaints arising under this subpart 

may be filed through the Job Service 

Complaint System, as described in 20 

CFR part 658, subpart E. Complaints 

which involve worker contracts shall be 

referred by the local office to the 

Employment Standards Administration 

for appropriate handling and resolution. 

See 29 CFR part 501. As part of this 

process, the Employment Standards 

Administration may report the results of 

its investigation to ETA for 

consideration of employer penalties 

under § 655.110 of this part or such 

other action as may be appropriate. 

■ 7. Add subpart C to read as follows: 

Subpart C—Labor Certification Process for 

Logging Employment and Non-H–2A 

Agricultural Employment 

Sec. 

655.200 General description of this subpart 

and definition of terms. 

655.201 Temporary labor certification 

applications. 

655.202 Contents of job offers. 

655.203 Assurances. 

655.204 Determinations based on temporary 

labor certification applications. 

655.205 Recruitment period. 

655.206 Determinations of U.S. worker 

availability and adverse effect on U.S. 

workers. 

655.207 Adverse effect rates. 

655.208 Temporary labor certification 

applications involving fraud or willful 

misrepresentation. 

655.209 Invalidation of temporary labor 

certifications. 

655.210 Failure of employers to comply 

with the terms of a temporary labor 

certification. 

655.211 Petition for higher meal charges. 

655.212 Administrative-judicial reviews. 

655.215 Territory of Guam. 

Subpart C—Labor Certification 

Process for Logging Employment and 

Non-H–2A Agricultural Employment 

§ 655.200 General description of this 

subpart and definition of terms. 

(a) This subpart applies to 

applications for temporary alien 

agricultural labor certification filed 

before June 1, 1987, and to applications 

for temporary alien labor certification 

for logging employment. 

(b) An employer who desires to use 

foreign workers for temporary 

employment must file a temporary labor 

certification application including a job 

offer for U.S. workers with an 

appropriate State Workforce Agency. 

The employer should file an application 

a minimum of 80 days before the 

estimated date of need for the workers. 

If filed 80 days before need, sufficient 

time is allowed for the 60-day 

recruitment period required by the 

regulations and a determination by the 

OFLC Administrator as to the 

availability of U.S. workers 20 days 

before the date of need. Shortly after the 

application has been filed, the OFLC 

Administrator makes a determination as 

to whether or not the application has 

been filed in enough time to recruit U.S. 

workers and whether or not the job offer 

for U.S. workers offers wages and 

working conditions which will not 

adversely affect the wages and working 

conditions of similarly employed U.S. 

workers, as prescribed in the regulations 

in this subpart. If the application does 

not meet the regulatory wage and 

working condition standards, the OFLC 

Administrator shall deny the temporary 

labor certification application and offer 

the employer an administrative-judicial 

review of the denial by an 

Administrative Law Judge. If the 

application is not timely, the OFLC 

Administrator has discretion, as set 

forth in these regulations, to either deny 

the application or permit the process to 

proceed reasonably with the employer 

recruiting U.S. workers upon such terms 

as will accomplish the purposes of the 

INA and the DHS regulations. Where the 

application is timely and meets the 

regulatory standards, the State 

Workforce Agency, the employer, and 

the Department of Labor recruit U.S. 

workers for 60 days. At the end of the 

60 days, the OFLC Administrator grants 

the temporary labor certification if the 

OFLC Administrator finds that (1) the 

employer has not offered foreign 

workers higher wages or better working 

conditions (or less restrictions) than that 

offered to U.S. workers, and (2) U.S. 

workers are not available for the 

employer’s job opportunities. If the 

temporary labor certification is denied, 

the employer may seek an 

administrative-judicial review of the 

denial by an Administrative Law Judge 

as provided in these regulations. The 

Department of Labor thereafter advises 

the United States Citizenship and 

Immigration Services of the Department 

of Homeland Security (DHS) of 

approvals and denials of temporary 

labor certifications. The DHS may 

accept or reject this advice. 8 CFR 

214.2(h)(3). The DHS makes the final 

decision as to whether or not to grant 

visas to the foreign workers. 8 U.S.C. 

1184(a). 

(c) Definitions for terms used in this 

subpart. 

Administrative Law Judge means an 

official who is authorized to conduct 

administrative hearings. 

Administrator, Office of Foreign Labor 

Certification (OFLC Administrator) 

means the primary official of the Office 

of Foreign Labor Certification or the 

OFLC Administrator’s designee. 

Adverse effect rate means the wage 

rate which the OFLC Administrator has 

determined must be offered and paid to 

foreign and U.S. workers for a particular 

occupation and/or area so that the 

wages of similarly employed U.S. 

workers will not be adversely affected. 

The OFLC Administrator may determine 

that the prevailing wage rate in the area 

and/or occupation is the adverse effect 

rate, if the use (or non-use) of aliens has 

not depressed the wages of similarly 

employed U.S. workers. The OFLC 

Administrator may determine that a 

wage rate higher than the prevailing 

wage rate is the adverse effect rate if the 

OFLC Administrator determines that the 

use of aliens has depressed the wages of 

similarly employed U.S. workers. 

Agent means a legal person, such as 

an association of employers, which (1) 

is authorized to act as an agent of the 

employer for temporary labor 

certification purposes, and (2) which is 

not itself an employer, or a joint 

employer, as defined in this section. 

Area of intended employment means 

the area within normal commuting 

distance of the place (address) of 

intended employment. If the place of 

intended employment is within a 

Standard Metropolitan Statistical Area 

(SMSA), any place within the SMSA is 

deemed to be within normal commuting 

distance of the place of intended 

employment. 

Department of Homeland Security 

(DHS) through the United States 

Citizenship and Immigration Services 

(USCIS) makes the determination under 

the INA on whether or not to grant visa 

petitions to an alien seeking to perform 

temporary agricultural or logging work 

in the United States. 

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Employer means a person, firm, 

corporation or other association or 

organization (1) which currently has a 

location within the United States to 

which U.S. workers may be referred for 

employment, and which proposes to 

employ a worker at a place within the 

United States and (2) which has an 

employer relationship with respect to 

employees under this subpart as 

indicated by the fact that it hires, pays, 

fires, supervises and otherwise controls 

the work of such employees. An 

association of employers shall be 

considered an employer if it has all of 

the indicia of an employer set forth in 

this definition. Such an association, 

however, shall be considered as a joint 

employer with the employer member if 

it shares with the employer member one 

or more of the definitional indicia. 

Employment and Training 

Administration (ETA) means the agency 

within the Department of Labor (DOL) 

which includes the Office of Foreign 

Labor (OFLC). 

Job opportunity means a job opening 

for temporary, full-time employment at 

a place in the United States to which 

U.S. workers can be referred. 

Office of Foreign Labor Certification 

(OFLC) means the organizational 

component within the ETA that 

provides national leadership and policy 

guidance and develops regulations and 

procedures to carry out the 

responsibilities of the Secretary of Labor 

under the INA concerning alien workers 

seeking admission to the United States 

in order to work under the Immigration 

and Nationality Act, as amended. 

Secretary means the Secretary of 

Labor or the Secretary’s designee. 

State Workforce Agency (SWA) means 

the State employment service agency. 

Temporary labor certification means 

the advice given by the Secretary of 

Labor to the United States Citizenship 

and Immigration Services (USCIS) of the 

Department of Homeland Security 

(DHS), pursuant to the regulations of 

that agency at 8 CFR 214.2(h)(3)(i), that 

(1) there are not sufficient U.S. workers 

who are qualified and available to 

perform the work and (2) the 

employment of the alien will not 

adversely affect the wages and working 

conditions of similarly employed U.S. 

workers. 

United States workers means any 

worker who, whether U.S. national, 

citizen or alien, is legally permitted to 

work permanently within the United 

States. 

§ 655.201 Temporary labor certification 

applications. 

(a)(1) An employer who anticipates a 

labor shortage of workers for 

agricultural or logging employment may 

request a temporary labor certification 

for temporary foreign workers by filing, 

or by having an agent file, in duplicate, 

a temporary labor certification 

application, signed by the employer, 

with a SWA in the area of intended 

employment. 

(2) If the temporary labor certification 

application is filed by an agent, 

however, the agent may sign the 

application if the application is 

accompanied by a letter from each 

employer the agent represents, signed 

by the employer, which authorizes the 

agent to act on the employer’s behalf 

and which states that the employer 

assumes full responsibility for the 

accuracy of the application, for all 

representations made by the agent on 

the employer’s behalf, and for the 

fulfillment of all legal requirements 

arising under this subpart. 

(3) If an association of employers files 

the application, the association shall 

identify and submit documents to verify 

whether, in accordance with the 

definitions at § 655.200, it is: (i) The 

employer, (ii) a joint employer with its 

member employers, or (iii) the agent of 

its employer members. 

(b) Every temporary labor certification 

application shall include: 

(1) A copy of the job offer which will 

be used by the employer (or each 

employer) for the recruitment of both 

U.S. and foreign workers. The job offer 

for each employer shall state the 

number of workers needed by the 

employer, and shall be signed by the 

employer. The job offer shall comply 

with the requirements of §§ 655.202 and 

653.108 of this chapter; 

(2) The assurances required by 

§ 655.203; and 

(3) The specific estimated date of 

need of workers. 

(c) The entire temporary labor 

certification application shall be filed 

with the SWA in duplicate and in 

sufficient time to allow the State agency 

to attempt to recruit U.S. workers 

locally and through the Employment 

Service intrastate and interstate 

clearance system for 60 calendar days 

prior to the estimated date of need. 

Section 655.206 requires the OFLC 

Administrator to grant or deny the 

temporary labor certification application 

by the end of the 60 calendar days, or 

20 days from the estimated date of need, 

whichever is later. That section also 

requires the OFLC Administrator to 

offer employers an expedited 

administrative-judicial review in cases 

of denials of the temporary labor 

certification applications. Following an 

administrative-judicial review, the 

employer has a right to contest any 

denial before the DHS pursuant to 8 

CFR 214.2(h)(3)(i). Finally, employers 

need time, after the temporary labor 

certification determination, to complete 

the process for bringing foreign workers 

into the United States, or to bring an 

appeal of a denial of an application for 

the labor certification. Therefore, 

employers should file their temporary 

labor certification applications at least 

80 days before the estimated date of 

need specified in the application. 

(d) Applications may be amended at 

any time prior to OFLC Administrator 

determination to increase the number of 

workers requested in the original 

application for labor certification by not 

more than 15 percent without requiring 

an additional recruitment period for 

U.S. workers. Requests for increases 

beyond 15 percent may be approved 

only when it is determined that, based 

on past experience, the need for 

additional workers could not be 

foreseen and that a critical need for the 

workers would exist prior to the 

expiration of an additional recruitment 

period. 

(e) If a temporary labor certification 

application, or any part thereof, does 

not satisfy the time requirements 

specified in paragraph (c) of this 

section, and if the exception in 

paragraph (d) of this section does not 

apply, the SWA shall immediately send 

both copies directly to the appropriate 

OFLC Administrator. The OFLC 

Administrator may then advise the 

employer and the DHS in writing that 

the temporary labor certification cannot 

be granted because, pursuant to the 

regulations at paragraph (c) of this 

section, there is not sufficient time to 

test the availability of U.S. workers. The 

notice of denial to the employer shall 

inform the employer of the right to 

administrative-judicial review and to 

ultimately petition DHS for the 

admission of the aliens. In emergency 

situations, however, the OFLC 

Administrator may waive the time 

period specified in this section on 

behalf of employers who have not made 

use of temporary alien workers for the 

prior year’s harvest or for other good 

and substantial cause, provided the 

OFLC Administrator has sufficient labor 

market information to make the labor 

certification determinations required by 

8 CFR 214.2(h)(3)(i). 

(Approved by the Office of 

Management and Budget under control 

number 1205–0015) 

§ 655.202 Contents of job offers. 

(a) So that the employment of aliens 

will not adversely affect the wages and 

working conditions of similarly 

employed U.S. workers, each 

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employer’s job offer to U.S. workers 

must offer U.S. workers at least the same 

benefits which the employer is offering, 

intends to offer, or will afford, to 

temporary foreign workers. Conversely, 

no job offer may impose on U.S. workers 

any restrictions or obligations which 

will not be imposed on the employer’s 

foreign workers. For example, if the 

employer intends to advance 

transportation costs to foreign workers 

either directly or indirectly (by having 

them paid by the foreign government 

involved), the employer must offer to 

advance the transportation costs of U.S. 

workers. 

(b) Except when higher benefits, 

wages or working conditions are 

required by the provisions of paragraph 

(a) of this section, the OFLC 

Administrator has determined that, in 

order to protect similarly employed U.S. 

workers from adverse effect with respect 

to wages and working conditions, every 

job offer for U.S. workers must always 

include the following minimal benefit, 

wage, and working condition 

provisions: 

(1) The employer will provide the 

worker with housing without charge to 

the worker. The housing will meet the 

full set of standards set forth at 29 CFR 

1910.142 or the full set of standards set 

forth at part 654, subpart E of this 

chapter, whichever is applicable under 

the criteria of 20 CFR 654.401; except 

that, for mobile range housing for 

sheepherders, the housing shall meet 

existing Departmental guidelines. When 

it is the prevailing practice in the area 

of intended employment to provide 

family housing, the employer will 

provide such housing to such workers. 

(2)(i) If the job opportunity is covered 

by the State workers’ compensation law, 

the worker will be eligible for workers’ 

compensation for injury and disease 

arising out of and in the course of 

worker’s employment; or 

(ii) If the job opportunity is not 

covered by the State workers’ 

compensation law, the employer will 

provide at no cost to the worker, 

insurance covering injury and disease 

arising out of and in the course of the 

worker’s employment which will 

provide benefits at least equal to those 

provided under the State workers’ 

compensation law for comparable 

employment; 

(3) The employer will provide 

without cost to the worker all tools, 

supplies and equipment required to 

perform the duties assigned and, if any 

of these items are provided by the 

worker, the employer will reimburse the 

worker for the cost of those so provided; 

(4) The employer will provide the 

worker with three meals a day, except 

that where under prevailing practice or 

longstanding arrangement at the 

establishment workers prepare their 

meals, employers need furnish only free 

and convenient cooking and kitchen 

facilities. Where the employer provides 

the meals, the job offer shall state the 

cost to the worker for such meals. Until 

a new amount is set pursuant to this 

paragraph (b)(4), the cost shall not be 

more than $4.94 per day unless the 

OFLC Administrator has approved a 

higher cost pursuant to § 655.211 of this 

part. Each year the charge allowed by 

this paragraph (b)(4) will be changed by 

the 12-month percent change for the 

Consumer Price Index for All Urban 

Consumers for Food between December 

of the year just concluded and 

December of the year prior to that. The 

annual adjustments shall be effective on 

their publication by the OFLC 

Administrator in the Federal Register. 

(5)(i) The employer will provide or 

pay for the worker’s transportation and 

daily subsistence from the place, from 

which the worker, without intervening 

employment, will come to work for the 

employer, to the place of employment, 

subject to the deductions allowed by 

paragraph (b)(13) of this section. The 

amount of the daily subsistence 

payment shall be at least as much as the 

amount the employer will charge the 

worker for providing the worker with 

three meals a day during employment; 

(ii) If the worker completes the work 

contract period, the employer will 

provide or pay for the worker’s 

transportation and daily subsistence 

from the place of employment to the 

place, from which the worker, without 

intervening employment, came to work 

for the employer, unless the worker has 

contracted for employment with a 

subsequent employer who, in that 

contract, has agreed to pay for the 

worker’s transportation and daily 

subsistence expenses from the 

employer’s worksite to such subsequent 

employer’s worksite; and 

(iii) The employer will provide 

transportation between the worker’s 

living quarters and the employer’s 

worksite without cost to the worker, and 

such transportation will be in 

accordance with applicable laws and 

regulations; 

(6)(i) The employer guarantees to offer 

the worker employment for at least 

three-fourths of the workdays of the 

total period during which the work 

contract and all extensions thereof are 

in effect, beginning with the first 

workday after the arrival of the worker 

at the place of employment and ending 

on the termination date specified in the 

work contract, or in its extensions if 

any. For purposes of this paragraph, a 

workday shall mean any period 

consisting of 8 hours of work time. An 

employer shall not be considered to 

have met the work guarantee if the 

employer has merely offered work on 

three-fourths of the workdays. The work 

must be offered for at least three-fourths 

of the 8 hour workdays. (That is, 3⁄4 × 

(number of days × 8 hours.)) Therefore, 

if, for example, the contract contains 20 

workdays, the worker must be offered 

employment for 120 hours during the 20 

workdays. A worker may be offered 

more than 8 hours of work on a single 

workday. For purposes of meeting the 

guarantee, however, the worker may not 

be required to work for more than 8 

hours per workday, or on the worker’s 

Sabbath or Federal holidays; 

(ii) If the worker will be paid on a 

piece rate basis, the employer will use 

the worker’s average hourly earnings to 

calculate the amount due under the 

guarantee; and 

(iii) Any hours which the worker fails 

to work when the worker has been 

offered an opportunity to do so pursuant 

to paragraph (b)(6)(i) of this section, and 

all hours of work actually performed 

(including voluntary work over 8 hours 

in a workday, or on the worker’s 

Sabbath or Federal holidays) may be 

counted by the employer in calculating 

whether the period of guaranteed 

employment has been met; 

(7)(i) The employer will keep accurate 

and adequate records with respect to the 

workers’ earnings, including field tally 

records, supporting summary payroll 

records, and records showing: The 

nature and amount of the work 

performed; the number of hours of work 

offered each day by the employer 

(broken out by hours offered both in 

accordance with, and over and above, 

the guarantee); the hours actually 

worked each day by the worker; the 

time the worker began and ended each 

workday; the rate of pay; the worker’s 

earnings per pay period; and the amount 

of and reasons for any and all 

deductions made from the worker’s 

wages; 

(ii) If the number of hours worked by 

the worker is less than the number 

offered in accordance with the 

guarantee, the records will state the 

reason or reasons therefor; 

(iii) The records, including field tally 

records and supporting summary 

payroll records, will be made available 

for inspection and copying by 

representatives of the Secretary of 

Labor, and by the worker and the 

worker’s representatives; and 

(iv) The employer will retain the 

records for not less than three years after 

the completion of the contract; 

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(8) The employer will furnish to the 

worker at or before each payday, in one 

or more written statements: 

(i) The worker’s total earnings for the 

pay period; 

(ii) The worker’s hourly rate or piece 

rate of pay; 

(iii) The hours of employment which 

have been offered to the worker (broken 

out by offers in accordance with, and 

over and above, the guarantee); 

(iv) The hours actually worked by the 

worker; 

(v) An itemization of all deductions 

made from the worker’s wages; and 

(vi) If piece rates are used, the units 

produced daily; 

(9)(i) If the worker will be paid by the 

hour, the employer will pay the worker 

at least the adverse effect rate; or 

(ii)(A) If the worker will be paid on a 

piece rate basis, and the piece rate does 

not result at the end of the pay period 

in average hourly earnings during the 

pay period at least equal to the amount 

the worker would have earned had the 

worker been paid at the adverse effect 

rate, the worker’s pay will be 

supplemented at that time so that the 

worker’s earnings are at least as much 

as the worker would have earned during 

the pay period if the worker had been 

paid at the adverse effect rate. 

(B) If the employer who pays on a 

piece rate basis requires one or more 

minimum productivity standards of 

workers as a condition of job retention, 

(1) Such standards shall be no more 

than those applied by the employer in 

1977, unless the OFLC Administrator 

approves a higher minimum; or 

(2) If the employer first applied for 

temporary labor certification after 1977, 

such standards shall be no more than 

those normally required (at the time of 

that first application) by other 

employers for the activity in the area of 

intended employment, unless the OFLC 

Administrator approves a higher 

minimum. 

(10) The frequency with which the 

worker will be paid (in accordance with 

the prevailing practice in the area of 

intended employment, or at least 

biweekly whichever is more frequent); 

(11) If the worker voluntarily 

abandons employment before the end of 

the contract period, or is terminated for 

cause, the employer will not be 

responsible for providing or paying for 

the subsequent transportation and 

subsistence expenses of any worker for 

whom the employer would have 

otherwise been required to pay such 

expenses under paragraph (b)(5)(ii) of 

this section; 

(12) If, before the expiration date 

specified in the work contract, the 

services of the worker are no longer 

required for reasons beyond the control 

of the employer due to fire or other Act 

of God which makes the fulfillment of 

the contract impossible, and the OFLC 

Administrator so certifies, the employer 

may terminate the work contract. In 

such cases the employer will make 

efforts to transfer the worker to other 

comparable employment acceptable to 

the worker. If such transfer is not 

effected, the worker 

(i) Will be returned to the place from 

which the worker, without intervening 

employment, came to work for the 

employer at the employer’s expense; 

and 

(ii) Will be reimbursed the full 

amount of any deductions made from 

the worker’s pay by the employer for 

transportation and subsistence expenses 

to the place of employment borne 

directly or indirectly by the employer; 

(13) The employer will make those 

deductions from the worker’s paycheck 

which are required by law. The job offer 

shall specify all deductions, not 

required by law, which the employer 

will make from the worker’s paycheck. 

All deductions shall be reasonable. The 

employer may deduct the cost of the 

worker’s transportation and daily 

subsistence expenses to the place of 

employment which were borne directly 

by the employer; in such cases, 

however, the job offer shall state that the 

worker will be reimbursed the full 

amount of such deductions upon the 

worker’s completion of 50 percent of the 

worker’s contract period; and 

(14) The employer will provide the 

worker a copy of the work contract 

between the employer and the worker. 

The work contract shall contain all of 

the provisions required by paragraphs 

(a) and (b) of this section. 

§ 655.203 Assurances. 

As part of the temporary labor 

certification application, the employer 

shall include assurances, signed by the 

employer, that: 

(a) The job opportunity is not: 

(1) Vacant because the former 

occupant is on strike or being locked out 

in the course of a labor dispute; or 

(2) At issue in a labor dispute 

involving a work stoppage; 

(b) During the period for which the 

temporary labor certification is granted, 

the employer will comply with 

applicable Federal, State and local 

employment-related laws, including 

employment related health and safety 

laws; 

(c) The job opportunity is open to all 

qualified U.S. workers without regard to 

race, color, national origin, sex, or 

religion, and is open to U.S. workers 

with handicaps who are qualified to 

perform the work. No U.S. worker will 

be rejected for employment for other 

than a lawful job related reason; 

(d) The employer will cooperate with 

the employment service system in the 

active recruitment of U.S. workers until 

the foreign workers have departed for 

the employer’s place of employment by; 

(1) Allowing the employment service 

system to prepare local, intrastate and 

interstate job orders using the 

information supplied on the employer’s 

job offer; 

(2) Placing at least two advertisements 

for the job opportunities in local 

newspapers of general circulation. 

(i) Each such advertisement shall 

describe the nature and anticipated 

duration of the job opportunity; offer at 

least the adverse effect wage rate; give 

the 3⁄4 guarantee; state that work tools, 

supplies and equipment will be 

provided by the employer; state that 

housing will also be provided, and that 

transportation and subsistence expenses 

to the worksite will be provided or paid 

for by the employer; 

(ii) Each advertisement shall direct 

interested workers to apply for the job 

opportunity at the appropriate office of 

the State Workforce Agency in their 

area; 

(3) Cooperating with the employment 

service system in contacting farm labor 

contractors, migrant workers and other 

potential workers in other areas of the 

State and/or Nation by letter and/or 

telephone; 

(4) Cooperating with the employment 

service system in contacting schools, 

business and labor organizations, 

fraternal and veterans organizations, 

and non-profit organizations and public 

agencies such as sponsors of programs 

under the Comprehensive Employment 

and Training Act, throughout the area of 

intended employment, in order to enlist 

them in helping to find U.S. workers; 

and 

(5) If the employer, or an association 

of employers of which the employer is 

a member, intends to negotiate and/or 

contract with the Government of a 

foreign nation or any foreign 

association, corporation or organization 

in order to secure foreign workers, 

making the same kind and degree of 

efforts to secure U.S. workers; 

(e) From the time the foreign workers 

depart for the employer’s place of 

employment, the employer will provide 

employment to any qualified U.S. 

worker who applies to the employer 

until fifty percent of the period of the 

work contract, under which the foreign 

worker who is in the job was hired, has 

elapsed. In addition, the employer will 

offer to provide housing, and the other 

benefits, wages, and working conditions 

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required by § 655.202, to any such U.S. 

worker; and 

(f) Performing the other specific 

recruitment activities specified in the 

notice from the OFLC Administrator 

required by § 655.205(a). 

§ 655.204 Determinations based on 

temporary labor certification applications. 

(a) Within two working days after the 

temporary labor certification application 

has been filed with it, the SWA shall 

mail the duplicate application directly 

to the appropriate OFLC Administrator. 

(b) The SWA, using the job offer 

portion of its copy of the temporary 

labor certification application, shall 

promptly prepare a local job order and 

shall begin to recruit U.S. workers in the 

area of intended employment. 

(c) The OFLC Administrator, upon 

receipt of the duplicate temporary labor 

certification application, shall promptly 

review the application to determine 

whether it meets the requirements of 

§§ 655.201–655.203 in order to 

determine whether the employer’s 

application is (1) timely, and (2) 

contains offers of wages, benefits, and 

working conditions required to ensure 

that similarly employed U.S. workers 

will not be adversely affected. If the 

OFLC Administrator determines that the 

temporary labor certification application 

is not timely in accordance with 

§ 655.201 of this subpart, the OFLC 

Administrator may promptly deny the 

temporary labor certification on the 

grounds that, in accordance with that 

regulation, there is not sufficient time to 

adequately test the availability of U.S. 

workers. If the OFLC Administrator 

determines that the application does not 

meet the requirements of §§ 655.202– 

655.203 because the wages, working 

conditions, benefits, assurances, job 

offer, etc. are not as required, the OFLC 

Administrator shall deny the 

certification on the grounds that the 

availability of U.S. workers cannot be 

adequately tested because the wages or 

benefits, etc. do not meet the adverse 

effect criteria. 

(d) If the certification is denied, the 

OFLC Administrator shall notify the 

employer in writing of the 

determination, with a copy to the SWA. 

The notice shall: 

(1) State the reasons for the denial, 

citing the relevant regulations; and 

(2) Offer the employer an opportunity 

to request an expedited administrativejudicial review of the denial by an 

Administrative Law Judge. The notice 

shall state that in order to obtain such 

a review, the employer must, within five 

calendar days of the date of the notice, 

file by facsimile (fax), telegram, or other 

means normally assuring next day 

delivery a written request for such a 

review to the Chief Administrative Law 

Judge of the Department of Labor (giving 

the address) and simultaneously serve a 

copy on the OFLC Administrator. The 

notice shall also state that the 

employer’s request for review should 

contain any legal arguments which the 

employer believes will rebut the basis of 

the OFLC Administrator’s denial of 

certification; and 

(3) State that, if the employer does not 

request an expedited administrativejudicial review before an Administrative 

Law Judge within the five days: 

(i) The OFLC Administrator will 

advise the DHS that the certification 

cannot be granted, giving the reasons 

therefor, and that an administrativejudicial review of the denial was offered 

to the employer but not accepted, and 

enclosing, for DHS review, the entire 

temporary labor certification application 

file; and 

(ii) The employer has the opportunity 

to submit evidence to the DHS to rebut 

the bases of the OFLC Administrator’s 

determination in accordance with the 

DHS regulation at 8 CFR 214.2(h)(3)(i) 

but that no further review of the 

employer’s application for temporary 

labor certification may be made by any 

Department of Labor official. 

(e) If the employer timely requests an 

expedited administrative-judicial 

review pursuant to paragraph (d)(2) of 

this section, the procedures of § 655.212 

shall be followed. 

§ 655.205 Recruitment period. 

(a) If the OFLC Administrator 

determines that the temporary labor 

certification application meets the 

requirements of §§ 655.201 through 

655.203, the OFLC Administrator shall 

promptly notify the employer in 

writing, with copies to the SWA. The 

notice shall inform the employer and 

the SWA of the specific efforts which 

will be expected from them during the 

following weeks to carry out the 

assurances contained in § 655.203 with 

respect to the recruitment of U.S. 

workers. The notice shall require that 

the job order be placed both into 

intrastate clearance and into interstate 

clearance to such States as the OFLC 

Administrator shall determine to be 

potential sources of U.S. workers. 

(b) Thereafter, OFLC Administrator, 

shall provide overall direction to the 

employer and the SWA with respect to 

the recruitment of U.S. workers. 

(c) By the 60th day of the recruitment 

period, or 20 days before the date of 

need specified in the application, 

whichever is later, the OFLC 

Administrator, when making a 

determination of the availability of U.S. 

workers, shall also make a 

determination as to whether the 

employer has satisfied the recruitment 

assurances in § 655.203. If the OFLC 

Administrator concludes that the 

employer has not satisfied the 

requirement for recruitment of U.S. 

workers, the OFLC Administrator shall 

deny the temporary labor certification, 

and shall immediately notify the 

employer in writing with a copy to the 

State agency. The notice shall contain 

the statements specified in § 655.204(d). 

(d) If the employer timely requests an 

expedited administrative-judicial 

review before an Administrative Law 

Judge, the procedures in § 655.212 shall 

be followed. 

§ 655.206 Determinations of U.S. worker 

availability and adverse effect on U.S. 

workers. 

(a) If the OFLC Administrator, in 

accordance with § 655.205 has 

determined that the employer has 

complied with the recruitment 

assurances, the OFLC Administrator, by 

60th day of the recruitment period, or 

20 days before the date of need specified 

in the application, whichever is later, 

shall grant the temporary labor 

certification for enough aliens to fill the 

employer’s job opportunities for which 

U.S. workers are not available. In 

making this determination the OFLC 

Administrator shall consider as 

available for a job opportunity any U.S. 

worker who has made a firm 

commitment to work for the employer, 

including those workers committed by 

other authorized persons such as farm 

labor contractors and family heads; such 

a firm commitment shall be considered 

to have been made not only by workers 

who have signed work contracts with 

the employer, but also by those whom 

the OFLC Administrator determines are 

very likely to sign such a work contract. 

The OFLC Administrator shall also 

count as available any U.S. worker who 

has applied to the employer (or on 

whose behalf an application has been 

made), but who was rejected by the 

employer for other than lawful jobrelated related reasons unless the OFLC 

Administrator determines that: 

(1) Enough qualified U.S. workers 

have been found to fill all the 

employer’s job opportunities; or 

(2) The employer, since the time of 

the initial determination under 

§ 655.204, has adversely affected U.S. 

workers by offering to, or agreeing to 

provide to, alien workers better wages, 

working conditions, or benefits (or by 

offering or agreeing to impose on alien 

workers less obligations and 

restrictions) than that offered to U.S. 

workers. 

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(b)(1) Temporary labor certifications 

shall be considered subject to the 

conditions and assurances made during 

the application process. Temporary 

labor certifications shall be for a limited 

duration such as for ‘‘the 1978 apple 

harvest season’’ or ‘‘until November 1, 

1978’’, and they shall never be for more 

than eleven months. They shall be 

limited to the employer’s specific job 

opportunities; therefore, they may not 

be transferred from one employer to 

another. 

(2) If an association of employers is 

itself the employer, as defined in 

§ 655.200, certifications shall be made to 

the association and may be used for any 

of the job opportunities of its employer 

members and workers may be 

transferred among employer members. 

(3) If an association of employers is a 

joint employer with its employer 

members, as defined in § 655.200, the 

certification shall be made jointly to the 

association and the employer members. 

In such cases workers may be 

transferred among the employer 

members provided the employer 

members and the association agree in 

writing to be jointly and severally liable 

for compliance with the temporary labor 

certification obligations set forth in this 

subpart. 

(c) If the OFLC Administrator denies 

the temporary labor certification in 

whole or part, the OFLC Administrator 

shall notify the employer in writing by 

means normally assuring next-day 

delivery. The notice shall contain all of 

the statements required in § 655.204(d). 

If a timely request is made for an 

administrative-judicial review by an 

Administrative Law Judge, the 

procedures of § 655.212 shall be 

followed. 

(d)(1) After a temporary labor 

certification has been granted, the 

employer shall continue its efforts to 

actively recruit U.S. workers until the 

foreign workers have departed for the 

employer’s place of employment. The 

employer, however, must keep an active 

job order on file until the assurance at 

§ 655.203(e) is met. 

(2) The State Workforce Agency 

(SWA) system shall continue to actively 

recruit and refer U.S. workers as long as 

there is an active job order on file. 

§ 655.207 Adverse effect rates. 

(a) Except as otherwise provided in 

this section, the adverse effect rates for 

all agricultural and logging employment 

shall be the prevailing wage rates in the 

area of intended employment. 

(b)(1) For agricultural employment 

(except sheepherding) in the States 

listed in paragraph (b)(2) of this section, 

and for Florida sugarcane work, the 

adverse effect rate for each year shall be 

computed by adjusting the prior year’s 

adverse effect rate by the percentage 

change (from the second year previous 

to the prior year) in the U.S. Department 

of Agriculture’s (USDA’s) average 

hourly wage rates for field and livestock 

workers (combined) based on the USDA 

Quarterly Wage Survey. The OFLC 

Administrator shall publish, at least 

once in each calendar year, on a date or 

dates he shall determine, adverse effect 

rates calculated pursuant to this 

paragraph (b) as a notice or notices in 

the Federal Register. 

(2) List of States. Arizona, Colorado, 

Connecticut, Florida (other than sugar 

cane work), Maine, Maryland, 

Massachusetts, New Hamsphire, New 

York, Rhode Island, Texas, Vermont, 

Virginia, and West Virginia. Other 

States may be added as appropriate. 

(3) Transition. Notwithstanding 

paragraphs (b)(1) and (2) of this section, 

the 1986 adverse effect rate for 

agricultural employment (except 

sheepherding) in the following States, 

and for Florida sugarcane work, shall be 

computed by adjusting the 1981 adverse 

effect rate (computed pursuant to 20 

CFR 655.207(b)(1), 43 FR 10317; March 

10, 1978) by the percentage change 

between 1980 and 1985 in the U.S. 

Department of Agriculture annual 

average hourly wage rates for field and 

livestock workers (combined) based on 

the USDA Quarterly survey: The States 

listed at 20 CFR 655.207(b)(2) (1985). 

(c) In no event shall an adverse effect 

rate for any year be lower than the 

hourly wage rate published in 29 U.S.C. 

206(a)(1) and currently in effect. 

§ 655.208 Temporary labor certification 

applications involving fraud or willful 

misrepresentation. 

(a) If possible fraud or willful 

misrepresentation involving a 

temporary labor certification application 

is discovered prior to a final temporary 

labor certification determination, or if it 

is learned that the employer or agent 

(with respect to an application) is the 

subject of a criminal indictment or 

information filed in a court, the OFLC 

Administrator shall refer the matter to 

the DHS for investigation and shall 

notify the employer or agent in writing 

of this referral. The OFLC Administrator 

shall continue to process the application 

and may issue a qualified temporary 

labor certification. 

(b) If a court finds an employer or 

agent innocent of fraud or willful 

misrepresentation, or if the Department 

of Justice decides not to prosecute an 

employer or agent, the OFLC 

Administrator shall not deny the 

temporary labor certification application 

on the grounds of fraud or willful 

misrepresentation. The application, of 

course, may be denied for other reasons 

pursuant to this subpart. 

(c) If a court or the DHS determines 

that there was fraud or willful 

misrepresentation involving a 

temporary labor certification 

application, the application shall be 

deemed invalidated, processing shall be 

terminated, and the application shall be 

returned to the employer or agent with 

the reasons therefor stated in writing. 

§ 655.209 Invalidation of temporary labor 

certifications. 

After issuance, temporary labor 

certifications are subject to invalidation 

by the DHS upon a determination, made 

in accordance with that agency’s 

procedures or by a Court, of fraud or 

willful misrepresentation of a material 

fact involving the temporary labor 

certification application. If evidence of 

such fraud or willful misrepresentation 

becomes known to the OFLC 

Administrator, the OFLC Administrator 

shall notify the DHS in writing. 

§ 655.210 Failure of employers to comply 

with the terms of a temporary labor 

certification. 

(a) If, after the granting of a temporary 

labor certification, the OFLC 

Administrator has probable cause to 

believe that an employer has not lived 

up to the terms of the temporary labor 

certification, the OFLC Administrator 

shall investigate the matter. If the OFLC 

Administrator concludes that the 

employer has not complied with the 

terms of the labor certification, the 

OFLC Administrator may notify the 

employer that it will not be eligible to 

apply for a temporary labor certification 

in the coming year. The notice shall be 

in writing, shall state the reasons for the 

determination, and shall offer the 

employer an opportunity to request a 

hearing within 30 days of the date of the 

notice. If the employer requests a 

hearing within the 30-day period, the 

OFLC Administrator shall follow the 

procedures set forth at § 658.421(i)(1), 

(2) and (3) of this chapter. The 

procedures contained in §§ 658.421(j), 

658.422 and 658.423 of this chapter 

shall apply to such hearings. 

(b) No other penalty shall be imposed 

by the employment service on such an 

employer other than as set forth in 

paragraph (a) of this section. 

§ 655.211 Petition for higher meal charges. 

(a) Until a new amount is set pursuant 

to this paragraph (a), the OFLC 

Administrator may permit an employer 

to charge workers up to $6.17 for 

providing them with three meals per 

day, if the employer justifies the charge 

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26008 Federal Register / Vol. 74, No. 102 / Friday, May 29, 2009 / Rules and Regulations 

and submits to the OFLC Administrator 

the documentary evidence required by 

paragraph (b) of this section. A denial in 

whole or in part shall be reviewable as 

provided in § 655.212 of this part. Each 

year the maximum charge allowed by 

this paragraph (a) will be changed by 

the 12-month percent change for the 

Consumer Price Index for All Urban 

Consumers for Food between December 

of the year just concluded and 

December of the year prior to that. The 

annual adjustments shall be effective on 

their publication by the OFLC 

Administrator in the Federal Register. 

(b) Evidence submitted shall include 

the cost of goods and services directly 

related to the preparation and serving of 

meals, the number of workers fed, the 

number of meals served and the number 

of days meals were provided. The cost 

of the following items may be included: 

Food; kitchen supplies other than food, 

such as lunch bags and soap; labor costs 

which have a direct relation to food 

service operations, such as wages of 

cooks and restaurant supervisors; fuel, 

water, electricity, and other utilities 

used for the food service operations; 

other costs directly related to the food 

service operation. Charges for 

transportation, depreciation, overhead, 

and similar charges may not be 

included. Receipts and other cost 

records for a representative pay period 

shall be available for inspection by the 

Secretary’s representatives for a period 

of one year. 

§ 655.212 Administrative-judicial reviews. 

(a) Whenever an employer has 

requested an administrative-judicial 

review of a denial of an application or 

a petition in accordance with 

§§ 655.204(d), 655.205(d), 655.206(c), or 

655.211, the Chief Administrative Law 

Judge shall immediately assign an 

Administrative Law Judge to review the 

record for legal sufficiency, and the 

OFLC Administrator shall send a 

certified copy of the case file to the 

Chief Administrative Law Judge by 

means normally assuring next day 

delivery. The Administrative Law Judge 

shall not have authority to remand the 

case and shall not receive additional 

evidence. Any countervailing evidence 

advanced after decision by the OFLC 

Administrator shall be subject to 

provisions of 8 CFR 214.2(h)(3)(i). 

(b) The Administrative Law Judge, 

within five working days after receipt of 

the case file shall, on the basis of the 

written record and due consideration of 

any written memorandums of law 

submitted, either affirm, reverse or 

modify the OFLC Administrator’s denial 

by written decision. The decision of the 

Administrative Law Judge shall specify 

the reasons for the action taken and 

shall be immediately provided to the 

employer, OFLC Administrator, and 

DHS by means normally assuring nextday delivery. The Administrative Law 

Judge’s decision shall be the final 

decision of the Department of Labor and 

no further review shall be given to the 

temporary labor certification 

determination by any Department of 

Labor official. 

§ 655.215 Territory of Guam. 

Subpart C of this part does not apply 

to temporary employment in the 

Territory of Guam, and the Department 

of Labor does not certify to the United 

States Citizenship and Immigration 

Services of the Department of Homeland 

Security (DHS) the temporary 

employment of nonimmigrant aliens 

under H–2B visas in the Territory of 

Guam. Pursuant to DHS regulations, that 

function is performed by the Governor 

of Guam, or the Governor’s designated 

representative within the Territorial 

Government. 

Title 29—Labor 

■ 8. Redesignate part 501 as part 502 

and suspend newly designated Part 502. 

■ 9. Add part 501 to read as follows: 

PART 501—ENFORCEMENT OF 

CONTRACTUAL OBLIGATIONS FOR 

TEMPORARY ALIEN AGRICULTURAL 

WORKERS ADMITTED UNDER 

SECTION 216 OF THE IMMIGRATION 

AND NATIONALITY ACT 

Subpart A—General Provisions 

Sec. 

501.0 Introduction. 

501.1 Purpose and scope. 

501.2 Coordination of intake between DOL 

agencies. 

501.3 Discrimination prohibited. 

501.4 Waiver of rights prohibited. 

501.5 Investigation authority of Secretary. 

501.6 Prohibition on interference with 

Department of Labor officials. 

501.7 Accuracy of information, statements, 

data. 

501.10 Definitions. 

Subpart B—Enforcement of Work Contracts 

501.15 Enforcement. 

501.16 General. 

501.17 Concurrent actions. 

501.18 Representation of the Secretary. 

501.19 Civil money penalty assessment. 

501.20 Enforcement of Wage and Hour 

investigative authority. 

501.21 Referral of findings to ETA. 

501.22 Civil money penalties—payment 

and collection. 

Subpart C—Administrative Proceedings 

501.30 Applicability of procedures and 

rules. 

Procedures Relating to Hearing 

501.31 Written notice of determination 

required. 

501.32 Contents of notice. 

501.33 Request for hearing. 

Rules of Practice 

501.34 General. 

501.35 Commencement of proceeding. 

501.36 Caption of proceeding. 

Referral for Hearing 

501.37 Referral to Administrative Law 

Judge. 

501.38 Notice of docketing. 

501.39 Service upon attorneys for the 

Department of Labor—number of copies. 

Procedures Before Administrative Law Judge 

501.40 Consent findings and order. 

Post-Hearing Procedures 

501.41 Decision and order of 

Administrative Law Judge. 

Review of Administrative Law Judge’s 

Decision 

501.42 Procedures for initiating and 

undertaking review. 

501.43 Responsibility of the Office of 

Administrative Law Judges. 

501.44 Additional information, if required. 

501.45 Final decision of the Secretary. 

Record 

501.46 Retention of official record. 

501.47 Certification. 

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

1184(c), and 1188. 

Subpart A—General Provisions 

§ 501.0 Introduction. 

These regulations cover the 

enforcement of all contractual 

obligations provisions applicable to the 

employment of H–2A workers under 

section 216 of the Immigration and 

Nationality Act (INA), as amended by 

the Immigration Reform and Control Act 

of 1986 (IRCA). These regulations are 

also 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 H–2A certification, 

including any extension thereof. Such 

other workers hired by H–2A employers 

are hereafter referred to as engaged in 

corresponding employment. 

§ 501.1 Purpose and scope. 

(a) Statutory standard. Section 216(a) 

of the INA provides that— 

(1) A petition to import an alien as an H– 

2A worker (as defined in subsection (i)(2) 

may not be approved by the Attorney General 

unless the petitioner has applied to the 

Secretary of Labor for a certification that— 

(A) There are not sufficient workers who 

are able, willing, and qualified, and who will 

be available at the time and place needed, to 

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Federal Register / Vol. 74, No. 102 / Friday, May 29, 2009 / Rules and Regulations 26009 

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. 

(b) Role of the ETA, USES. The 

issuance and denial of labor 

certification under section 216 of the 

INA has been delegated by the Secretary 

of Labor to the Employment and 

Training Administration (ETA). In 

general, matters concerning the 

obligations of an employer of H–2A 

workers related to the labor certification 

process are administered and enforced 

by ETA. Included within ETA’s 

jurisdiction are such issues as whether 

U.S. workers were available, whether 

positive recruitment was conducted, 

whether there was a strike or lockout, 

the methodology for establishing 

adverse effect wage rates, whether 

workers’ compensation insurance was 

provided, whether employment was 

offered to U.S. workers for up to 50 

percent of the contract period and other 

similar matters. The regulations 

pertaining to the issuance and denial of 

labor certification for temporary alien 

workers by the Employment and 

Training Administration are found in 

title 20 CFR part 655. 

(c) Role of ESA, Wage and Hour 

Division. Section 216(g)(2) of the INA 

provides that— 

[T]he Secretary of Labor is authorized to 

take such actions including imposing 

appropriate penalties and seeking 

appropriate injunctive relief and specific 

performance of contractual obligations, as 

may be necessary to assure employer 

compliance with terms and conditions of 

employment under this section. 

Certain investigation, inspection and 

law enforcement functions to carry out 

the provisions of section 216 of the INA 

have been delegated by the Secretary of 

Labor to the Employment Standards 

Administration (ESA), Wage and Hour 

Division. In general, matters concerning 

the obligations of the work contract 

between an employer of H–2A workers 

and the H–2A workers and other 

workers in corresponding employment 

hired by H–2A employers are enforced 

by ESA. Included within the 

enforcement responsibility of ESA, 

Wage and Hour Division are such 

matters as the payment of required 

wages, transportation, meals and 

housing provided during the 

employment. The Wage and Hour 

Division has the responsibility to carry 

out investigations, inspections and law 

enforcement functions and in 

appropriate instances impose penalties, 

seek injunctive relief and specific 

performance of contractual obligations, 

including recovery of unpaid wages. 

(d) Effect of regulations. The 

amendments to the INA made by title III 

of the IRCA apply to petitions and 

applications filed on and after June 1, 

1987. Accordingly, the enforcement 

functions carried out by the Wage and 

Hour Division under the INA and these 

regulations apply to the employment of 

any H–2A worker and any other workers 

hired by H–2A employers in 

corresponding employment as the result 

of any petition or application filed with 

the Department on and after June 1, 

1987. 

§ 501.2 Coordination of intake between 

DOL agencies. 

Complaints received by ETA, or any 

State Employment Service Agency 

regarding contractual H–2A labor 

standards between the employer and the 

employee will be immediately 

forwarded to the appropriate Wage and 

Hour office for appropriate action under 

these regulations. 

§ 501.3 Discrimination prohibited. 

No person shall intimidate, threaten, 

restrain, coerce, blacklist, discharge, or 

in any manner discriminate against any 

person who has: 

(a) Filed a complaint under or related 

to section 216 of the INA or these 

regulations; 

(b) Instituted or caused to be 

instituted any proceedings related to 

section 216 of the INA or these 

regulations; 

(c) Testified or is about to testify in 

any proceeding under or related to 

section 216 of the INA or these 

regulations; 

(d) Exercised or asserted on behalf of 

himself or others any right or protection 

afforded by section 216 of the INA or 

these regulations. 

(e) Consulted with an employee of a 

legal assistance program or an attorney 

on matters related to section 216 of the 

INA (8 U.S.C. 1186), or to this subpart 

or any other DOL regulation 

promulgated pursuant to section 216 of 

the INA. 

Allegations of discrimination in 

employment against any person will be 

investigated by Wage and Hour. Where 

Wage and Hour has determined through 

investigation that such allegations have 

been substantiated appropriate remedies 

may be sought. Wage and Hour may 

assess civil money penalties, seek 

injunctive relief, and/or seek additional 

remedies necessary to make the 

employee whole as a result of the 

discrimination, as appropriate, and may 

recommend to ETA that labor 

certification of any violator be denied in 

the future. 

§ 501.4 Waiver of rights prohibited. 

No person shall seek to have an H–2A 

worker, or other worker employed in 

corresponding employment by an H–2A 

employer, waive rights conferred under 

section 216 of the INA or under these 

regulations. Such waiver is against 

public policy. Any agreement by an 

employee purporting to waive or modify 

any rights inuring to said person under 

the Act or these regulations shall be 

void as contrary to public policy, except 

that a waiver or modification of rights 

or obligations hereunder in favor of the 

Secretary shall be valid for purposes of 

enforcement of the provisions of the Act 

or these regulations. This does not 

prevent agreements to settle private 

litigation. 

§ 501.5 Investigation authority of 

Secretary. 

(a) General. The Secretary, either 

pursuant to a complaint or otherwise, 

shall, as may be appropriate, investigate 

and, in connection therewith, enter and 

inspect such places and vehicles 

(including housing) and such records 

(and make transcriptions thereof), 

question such persons and gather such 

information as deemed necessary by the 

Secretary to determine compliance with 

contractual obligations under section 

216 of the INA or these regulations. 

(b) Failure to permit investigation. 

Where any person using the services of 

an H–2A worker does not permit an 

investigation concerning the 

employment of his or her workers the 

Wage and Hour Division shall report 

such occurrence to ETA and may 

recommend denial of future labor 

certifications to such person. In 

addition, Wage and Hour may take such 

action as may be appropriate, including 

the seeking of an injunction or assessing 

civil money penalties, against any 

person who has failed to permit Wage 

and Hour to make an investigation. 

(c) Confidential investigation. The 

Secretary shall conduct investigations in 

a manner which protects the 

confidentiality of any complainant or 

other person who provides information 

to the Secretary in good faith. 

(d) Report of violations. Any person 

may report a violation of the work 

contract obligations of section 216 of the 

INA or these regulations to the Secretary 

by advising any local office of the 

Employment Service of the various 

States, any office of ETA, any office of 

the Wage and Hour Division, ESA, U.S. 

Department of Labor, or any other 

authorized representative of the 

Secretary. The office or person receiving 

such a report shall refer it to the 

appropriate office of the Wage and Hour 

Division, ESA, for the area in which the 

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reported violation is alleged to have 

occurred. 

§ 501.6 Prohibition on interference with 

Department of Labor officials. 

No person shall interfere with any 

official of the Department of Labor 

assigned to perform an investigation, 

inspection or law enforcement function 

pursuant to the INA and these 

regulations during the performance of 

such duties. Wage and Hour will seek 

such action as it deems appropriate, 

including an injunction to bar any such 

interference with an investigation and/ 

or assess a civil money penalty therefor. 

In addition Wage and Hour may refer a 

report of the matter to ETA with a 

recommendation that the person’s labor 

certification be denied in the future. 

(Federal statutes which prohibit persons 

from interfering with a Federal officer in 

the course of official duties are found at 

18 U.S.C. 111 and 18 U.S.C. 1114.) 

§ 501.7 Accuracy of information, 

statements, data. 

Information, statements and data 

submitted in compliance with 

provisions of the Act or these 

regulations are subject to title 18, 

section 1001, of the U.S. Code, which 

provides: 

Section 1001. Statements or entries 

generally. 

Whoever, in any matter within the 

jurisdiction of any department or agency of 

the United States knowingly and willfully 

falsifies, conceals or covers up by any trick, 

scheme, or device a material fact, or makes 

any false, fictitious or fraudulent statements 

or representations, or makes or uses any false 

writing or document knowing the same to 

contain any false, fictitious or fraudulent 

statement or entry, shall be fined not more 

than $10,000 or imprisoned not more than 

five years, or both. 

§ 501.10 Definitions. 

The definitions in paragraphs (a) 

through (d) are set forth for purposes of 

this part. In addition, the definitions in 

paragraphs (e) through (v) are 

promulgated at 20 CFR 655.100(b), are 

utilized herein, and are incorporated 

and set forth for information purposes. 

(a) Act and INA mean the Immigration 

and Nationality Act, as amended (8 

U.S.C. 1101 et seq.), with reference 

particularly to section 216. 

(b) Administrative Law Judge (ALJ) 

means a person within the Department 

of Labor Office of Administrative Law 

Judges appointed pursuant to 5 U.S.C. 

3105. 

(c) Administrator means the 

Administrator of the Wage and Hour 

Division, Employment Standards 

Administration, U.S. Department of 

Labor, and such authorized 

representatives as may be designated to 

perform any of the functions of the 

Administrator under this part. 

(d) Work contract means all the 

material terms and conditions of 

employment relating to wages, hours, 

working conditions, and other benefits, 

including those terms and conditions 

required by the applicable regulations in 

subpart B of 20 CFR part 655, Labor 

Certification Process for Temporary 

Agricultural Employment in the United 

States, and those contained in the 

Application for Alien Employment 

Certification and job offer under that 

subpart, which contract between the 

employer and the worker may be in the 

form of a separate written document. In 

the absence of a separate written work 

contract incorporating the required 

terms and conditions of employment, 

entered into between the employer and 

the worker, the work contract at a 

minimum shall be the terms of the job 

order included in the application for 

temporary labor certification, and shall 

be enforced in accordance with these 

regulations. 

(e) Adverse effect wage rate (AEWR) 

means the wage rate which the Director 

has determined must be offered and 

paid, as a minimum, to every H–2A 

worker and every U.S. worker for a 

particular occupation and/or area in 

which an employer employs or seeks to 

employ an H–2A worker so that the 

wages of similarly employed U.S. 

workers will not be adversely affected. 

(f) Agricultural labor or services. 

Pursuant to section 101(a)(15)(ii)(a) of 

the INA (8 U.S.C. 1101(a)(15)(H)(ii)(a)), 

‘‘agricultural labor or services’’ is 

defined for the purposes of this subpart 

as either ‘‘agricultural labor’’ as defined 

and applied in section 3121(g) of the 

Internal Revenue Code of 1954 (26 

U.S.C. 3121(g)) or ‘‘agriculture’’ as 

defined and applied in section 3(f) of 

the Fair Labor Standards Act of 1938 (29 

U.S.C. 203(f)). An occupation included 

in either statutory definition shall be 

‘‘agricultural labor or services’’, 

notwithstanding the exclusion of that 

occupation from the other statutory 

definition. For informational purposes, 

the statutory provisions are quoted 

below. 

(1) Agricultural labor. Section 3121(g) 

of the Internal Revenue Code of 1954 

(26 U.S.C. 3121(g)) quoted as follows, 

defines the term ‘‘agricultural labor’’ to 

include all service performed: 

(1) On a farm, in the employ of any person, 

in connection with cultivating the soil, or in 

connection with raising or harvesting any 

agricultural or horticultural commodity, 

including the raising, shearing, feeding, 

caring for, training, and management of 

livestock, bees, poultry, and furbearing 

animals and wildlife; 

(2) Services performed in the employ of the 

owner or tenant or other operator of a farm, 

in connection with the operation, or 

maintenance of such farm and its tools and 

equipment, or in salvaging timber or clearing 

land of brush and other debris left by a 

hurricane, if the major part of such service 

is performed on a farm; 

(3) In connection with the production or 

harvesting of any commodity defined as an 

agricultural commodity in section 15(g) of 

the Agricultural Marketing Act, as amended 

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

ginning of cotton, or in connection with the 

operation or maintenance of ditches, canals, 

reservoirs, or waterways, not owned or 

operated for profit, used exclusively for 

supplying and storing water for farming 

purposes; 

(4)(A) In the employ of the operator of a 

farm in handling, planting, drying, packing, 

packaging, processing, freezing, grading, 

storing, or delivering to storage or to market 

or to a carrier for transportation to market, in 

its unmanufactured state, any agricultural or 

horticultural commodity; but only if such 

operator produced more than one-half of the 

commodity with respect to which such 

service is performed; 

(B) In the employ of a group of operators 

of farms (other than a cooperative 

organization) in the performance of service 

described in subparagraph (A), but only if 

such operators produced all of the 

commodity with respect to which such 

service is performed. For purposes of this 

subparagraph, any unincorporated group of 

operators shall be deemed a cooperative 

organization if the number of operators 

comprising such group is more than 20 at any 

time during the calendar quarter in which 

such service is performed; 

(C) The provisions of subparagraphs (A) 

and (B) shall not be deemed to be applicable 

with respect to service performed in 

connection with commercial canning or 

commercial freezing or in connection with 

any agricultural or horticultural commodity 

after its delivery to a terminal market for 

distribution for consumption; or 

(5) On a farm operated for profit if such 

service is not in the course of the employer’s 

trade or business or is domestic service in a 

private home of the employer. 

As used in this subsection, the term farm 

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

ranches, nurseries, ranges, greenhouses or 

other similar structures used primarily for 

the raising of agricultural or horticultural 

commodities, and orchards. 

(2) Agriculture. Section 203(f) of title 

29, United States Code, (section 3(f) of 

the Fair Labor Standards Act of 1938), 

quoted as follows, defines agriculture to 

include: 

(f) * * * farming in all its branches and 

among other things includes the cultivation 

and tillage of the soil, dairying, the 

production, cultivation, growing, and 

harvesting of any agricultural or horticultural 

commodities (including commodities defined 

as agricultural commodities in section 15(g) 

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of the Agricultural Marketing Act, as 

amended), the raising of livestock, bees, fur 

bearing animals, or poultry, and any 

practices (including any forestry or 

lumbering operations) performed by a farmer 

or on a farm as an incident to or in 

conjunction with such farming operations, 

including preparation for market, delivery to 

storage or to market or to carriers for 

transportation to market. 

(3) Agricultural commodity. Section 

1141j(g) of title 12, United States Code, 

(section 15(g) of the Agricultural 

Marketing Act, as amended) quoted as 

follows, defines agricultural commodity 

to include: 

(g) * * * in addition to other agricultural 

commodities, crude gum (oleoresin) from a 

living tree, and the following products as 

processed by the original producer of the 

crude gum (oleoresin) from which derived: 

Gum spirits of turpentine, and gum rosin, as 

defined in section 92 of title 7. 

(iv) Gum rosin. Section 92 of title 7, 

United States Code, quoted as follows, 

defines gum spirits of turpentine and 

gum rosin as— 

(c) Gum spirits of turpentine means spirits 

of turpentine made from gum (oleoresin) 

from a living tree. 

(g) Gum rosin means rosin remaining after 

the distillation of gum spirits of turpentine. 

(g) Of a temporary or seasonal 

nature—(1) On a seasonal or other 

temporary basis. For the purposes of 

this subpart of a temporary or seasonal 

nature means on a seasonal or other 

temporary basis, as defined in the 

Employment Standards 

Administration’s Wage and Hour 

Division’s regulation at 29 CFR 500.20 

under the Migrant and Seasonal 

Agricultural Worker Protection Act 

(MSPA). For informational purposes 

§ 500.20 as it pertains to seasonal or 

temporary basis is quoted below. 

(2) MSPA definition. For information 

purposes, the definition of on a seasonal 

or other temporary basis, as set forth at 

§ 500.20 of this title, is provided below: 

On a seasonal or other temporary basis 

means: 

Labor is performed on a seasonal basis, 

where, ordinarily, the employment pertains 

to or is of the kind exclusively performed at 

certain seasons or periods of the year and 

which, from its nature, may not be 

continuous or carried on throughout the year. 

A worker who moves from one seasonal 

activity to another, while employed in 

agriculture or performing agricultural labor, 

is employed on a seasonal basis even though 

he may continue to be employed during a 

major portion of the year. 

A worker is employed on other temporary 

basis where he is employed for a limited time 

only or the performance is contemplated for 

a particular piece of work, usually of short 

duration. Generally, employment, which is 

contemplated to continue indefinitely, is not 

temporary. 

On a seasonal or other temporary basis 

does not include the employment of any 

foreman or other supervisory employee who 

is employed by a specific agricultural 

employer or agricultural association 

essentially on a year round basis. 

On a seasonal or other temporary basis 

does not include the employment of any 

worker who is living at his permanent place 

of residence, when that worker is employed 

by a specific agricultural employer or 

agricultural association on essentially a year 

round basis to perform a variety of tasks for 

his employer and is not primarily employed 

to do field work. 

(3) Temporary. For the purpose of this 

subpart, the definition of ‘‘temporary’’ 

in paragraph (c)(2)(ii) of this section 

refers to any job opportunity covered by 

this subpart where the employer needs 

a worker for a position, either temporary 

or permanent, for a limited period of 

time, which shall be for less than one 

year, unless the original temporary alien 

agricultural labor certification is 

extended based on unforeseen 

circumstances, pursuant to 

§ 655.106(c)(3) of this title. 

(h) DOL means the U.S. Department of 

Labor. 

(i) Employer means a person, firm, 

corporation or other association or 

organization which suffers or permits a 

person to work and (1) which has a 

location within the United States to 

which U.S. workers may be referred for 

employment, and which proposes to 

employ workers at a place within the 

United States and (2) which has an 

employer relationship with respect to 

employees under this subpart as 

indicated by the fact that it may hire, 

pay, fire, supervise or otherwise control 

the work of any such employee. An 

association of employers shall be 

considered the sole employer if it alone 

has the indicia of an employer set forth 

in this definition. Such an association, 

however, shall be considered as a joint 

employer with an employer member if 

it shares with the employer member one 

or more of the definitional indicia. 

(j) Employment Service (ES) and 

Employment Service (ES) System mean, 

collectively, the USES, the State 

agencies, the local offices, and the ETA 

regional offices. 

(k) Employment Standards 

Administration means the agency 

within the Department of Labor (DOL), 

which includes the Wage and Hour 

Division, and which is charged with the 

carrying out certain functions of the 

Secretary under the INA. 

(l) Employment and Training 

Administration (ETA) means the agency 

within the Department of Labor (DOL) 

which includes the U.S. Employment 

Service (USES). 

(m) H–2A worker means any 

nonimmigrant alien admitted to the 

United States for agricultural labor or 

services of a temporary or seasonal 

nature under section 101(a)(15)(H)(ii)(a) 

of the INA (8 U.S.C. 

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

(n) Immigration and Naturalization 

Service (INS) means the component of 

the U.S. Department of Justice which 

makes the determination under the INA 

on whether or not to grant visa petitions 

to employers seeking H–2A workers to 

perform temporary agricultural work in 

the United States. 

(o) Job offer means the offer made by 

an employer or potential employer of 

H–2A workers to both U.S. and H–2A 

workers describing all the material 

terms and conditions of employment, 

including those relating to wages, 

working conditions, and other benefits. 

(p) Secretary means the Secretary of 

Labor or the Secretary’s designee. 

(q) State agency means the State 

employment service agency designated 

under section 4 of the Wagner-Peyser 

Act to cooperate with the USES in the 

operation of the ES System. 

(r) Solicitor of Labor means the 

Solicitor, U.S. Department of Labor, and 

includes employees of the Office of the 

Solicitor of Labor designated by the 

Solicitor to perform functions of the 

Solicitor under this subpart. 

(s) Temporary alien agricultural labor 

certification means the certification 

made by the Secretary of Labor with 

respect to an employer seeking to file 

with INS a visa petition to import an 

alien as an H–2A worker, pursuant to 

sections 101(a)(15)(H)(ii)(a), 214 (a) and 

(c), and 216 of the INA that (1) there are 

not sufficient workers who are able, 

willing, and qualified, and who will be 

available at the time and place needed, 

to perform the agricultural labor or 

services involved in the petition, and (2) 

the employment of the alien in such 

agricultural labor or services will not 

adversely affect the wages and working 

conditions of workers in the United 

States similarly employed (8 U.S.C. 

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

and 1186). 

(t) United States Employment Service 

(USES) means the agency of the U.S. 

Department of Labor, established under 

the Wagner-Peyser Act, which is 

charged with administering the national 

system of public employment offices 

and carrying out certain functions of the 

Secretary under the INA. 

(u) United States (U.S.) worker means 

any worker who, whether a U.S. 

national, a U.S. citizen, or an alien, is 

legally permitted to work in the job 

opportunity within the United States (as 

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defined at section 101(a)(38) of the INA 

(8 U.S.C. 1101(a)(38)). 

(v) Wages means all forms of cash 

remuneration to a worker by an 

employer in payment for personal 

services. 

Subpart B—Enforcement of Work 

Contracts 

§ 501.15 Enforcement. 

The investigations, inspections and 

law enforcement functions to carry out 

the provisions of section 216 of the INA, 

as provided in these regulations for 

enforcement by the Wage and Hour 

Division, pertain to the employment of 

any H–2A worker and any other worker 

employed in corresponding 

employment by an H–2A employer. 

Such enforcement includes those work 

contract provisions as defined in 

§ 501.10(d). The work contract enforced 

includes the employment benefits 

which must be stated in the job offer, as 

prescribed in 20 CFR 655.102. 

§ 501.16 General. 

Whenever the Secretary believes that 

the H–2A provisions of the INA or these 

regulations have been violated such 

action shall be taken and such 

proceedings instituted as deemed 

appropriate, including (but not limited 

to) the following: 

(a) Impose denial of labor certification 

against any person for a violation of the 

H–2A obligations of the INA or the 

regulations. ETA shall make all 

determinations regarding the issuance 

or denial of labor certification. ESA 

shall make all determinations regarding 

the enforcement functions listed in 

paragraphs (b) through (d) of this 

section. 

(b) Institute appropriate 

administrative proceedings, including 

the recovery of unpaid wages, the 

enforcement of any other contractual 

obligations and the assessment of a civil 

money penalty against any person for a 

violation of the H–2A work contract 

obligations of the Act or these 

regulations. 

(c) Petition any appropriate District 

Court of the United States for temporary 

or permanent injunctive relief, 

including the withholding of unpaid 

wages, to restrain violation of the H–2A 

provisions of the Act or these 

regulations by any person. 

(d) Petition any appropriate District 

Court of the United States for specific 

performance of contractual obligations. 

§ 501.17 Concurrent actions. 

The taking of any one of the actions 

referred to above shall not be a bar to 

the concurrent taking of any other 

action authorized by the H–2A 

provisions of the Act and these 

regulations, or the regulations of 20 CFR 

part 655. 

§ 501.18 Representation of the Secretary. 

(a) Except as provided in section 

518(a) of title 28, United States Code, 

relating to litigation before the Supreme 

Court, the Solicitor of Labor may appear 

for and represent the Secretary in any 

civil litigation brought under the Act. 

(b) The Solicitor of Labor, through the 

authorized representatives shall 

represent the Administrator and the 

Secretary in all administrative hearings 

under the H–2A provisions of the Act 

and these regulations. 

§ 501.19 Civil money penalty assessment. 

(a) A civil money penalty may be 

assessed by the Administrator for each 

violation of the work contract or these 

regulations. 

(b) In determining the amount of 

penalty to be assessed for any violation 

of the work contract as provided in the 

H–2A provisions of the Act or these 

regulations the Administrator shall 

consider the type of violation 

committed and other relevant factors. 

The matters which may be considered 

include, but are not limited to, the 

following: 

(1) Previous history of violation, or 

violations of the H–2A provisions of the 

Act and these regulations; 

(2) The number of workers affected by 

the violation or violations; 

(3) The gravity of the violation or 

violations; 

(4) Efforts made in good faith to 

comply with the H–2A provisions of the 

Act and these regulations; 

(5) Explanation of person charged 

with the violation or violations; 

(6) Commitment to future compliance, 

taking into account the public health, 

interest or safety, and whether the 

person has previously violated the H– 

2A provisions of the Act; 

(7) The extent to which the violator 

achieved a financial gain due to the 

violation, or the potential financial loss 

or potential injury to the workers. 

(c) A civil money penalty for violation 

of the work contract will not exceed 

$1,000 for each violation committed 

against each worker. A civil money 

penalty for discrimination or 

interference with Wage and Hour 

investigative authority will not exceed 

$1,000 for each such act of 

discrimination or interference. 

§ 501.20 Enforcement of Wage and Hour 

investigative authority. 

Sections 501.5 through 501.7 of this 

part prescribe the investigation 

authority conferred upon the Wage and 

Hour Division for the purpose of 

enforcing the contractual obligations. 

These sections indicate the actions 

which may be taken upon failure to 

permit or interference with an 

investigation. No person shall interfere 

with any employee of the Secretary who 

is exercising or attempting to exercise 

this investigative or enforcement 

authority. As stated in §§ 501.5, 501.6 

and in 501.19 of this part, a civil money 

penalty may be assessed for each failure 

to permit an investigation or 

interference therewith, and other 

appropriate relief may be sought. In 

addition Wage and Hour shall report 

each such occurrence to ETA and may 

recommend to ETA denial of future 

labor certifications. The taking of any 

one action shall not bar the taking of 

any additional action. 

§ 501.21 Referral of findings to ETA. 

Where Wage and Hour finds 

violations Wage and Hour shall so 

notify the appropriate representative of 

ETA and shall forward appropriate 

information, including investigative 

information to such representative for 

review and consideration. 

§ 501.22 Civil money penalties—payment 

and collection. 

Where the assessment is directed in a 

final order by the Administrator, by an 

Administrative Law Judge, or by the 

Secretary, the amount of the penalty is 

immediately due and payable to the 

U.S. Department of Labor. The person 

assessed such penalty shall remit 

promptly the amount thereof as finally 

determined, to the Administrator by 

certified check or by money order, made 

payable to the order of ‘‘Wage and Hour 

Division, Labor.’’ The remittance shall 

be delivered or mailed to the Wage and 

Hour Division Regional Office for the 

area in which the violations occurred. 

Subpart C—Administrative 

Proceedings 

§ 501.30 Applicability of procedures and 

rules. 

The procedures and rules contained 

herein prescribe the administrative 

process which will be applied with 

respect to a determination to impose an 

assessment of civil money penalties and 

which may be applied to the 

enforcement of contractual obligations, 

including the collection of unpaid 

wages due as a result of any violation of 

the H–2A provisions of the Act or of 

these regulations. Except with respect to 

the imposition of civil money penalties, 

the Secretary may, in his discretion, 

seek enforcement action in Federal 

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court without resort to any 

administrative proceedings. 

Procedures Relating to Hearing 

§ 501.31 Written notice of determination 

required. 

Whenever the Administrator 

determines to assess a civil money 

penalty or to proceed administratively 

to enforce contractual obligations, 

including the recovery of unpaid wages, 

the person against whom such action is 

taken shall be notified in writing of such 

determination. 

§ 501.32 Contents of notice. 

The notice required by § 501.31 shall: 

(a) Set forth the determination of the 

Administrator including the amount of 

any unpaid wages due or contractual 

obligations required and the amount of 

any civil money penalty assessment and 

the reason or reasons therefor. 

(b) Set forth the right to request a 

hearing on such determination. 

(c) Inform any affected person or 

persons that in the absence of a timely 

request for a hearing, the determination 

of the Administrator shall become final 

and unappealable. 

(d) Set forth the time and method for 

requesting a hearing, and the procedures 

relating thereto, as set forth in § 501.33. 

§ 501.33 Request for hearing. 

(a) Any person desiring to request an 

administrative hearing on a 

determination referred to in § 501.32 

shall make such request in writing to 

the official who issued the 

determination, at the Wage and Hour 

Division address appearing on the 

determination notice, no later than 

thirty (30) days after issuance of the 

notice referred to in § 501.32. 

(b) No particular form is prescribed 

for any request for hearing permitted by 

this part. However, any such request 

shall: 

(1) Be typewritten or legibly written; 

(2) Specify the issue or issues stated 

in the notice of determination giving 

rise to such request; 

(3) State the specific reason or reasons 

why the person requesting the hearing 

believes such determination is in error; 

(4) Be signed by the person making 

the request or by an authorized 

representative of such person; and 

(5) Include the address at which such 

person or authorized representative 

desires to receive further 

communications relating thereto. 

(c) The request for such hearing must 

be received by the official who issued 

the determination, at the Wage and 

Hour Division address appearing on the 

determination notice, within the time 

set forth in paragraph (a) of this section. 

For the affected person’s protection, if 

the request is by mail, it should be by 

certified mail. 

Rules of Practice 

§ 501.34 General. 

Except as specifically provided in 

these regulations, the ‘‘Rules of Practice 

and Procedure for Administrative 

Hearings Before the Office of 

Administrative Law Judges’’ established 

by the Secretary at 29 CFR part 18 shall 

apply to administrative proceedings 

described in this part. 

§ 501.35 Commencement of proceeding. 

Each administrative proceeding 

permitted under the Act and these 

regulations shall be commenced upon 

receipt of a timely request for hearing 

filed in accordance with § 501.33. 

§ 501.36 Caption of proceeding. 

(a) Each administrative proceeding 

instituted under the Act and these 

regulations shall be captioned in the 

name of the person requesting such 

hearing, and shall be styled as follows: 

In the Matter of l, Respondent. 

(b) For the purposes of such 

administrative proceedings the 

Administrator shall be identified as 

plaintiff and the person requesting such 

hearing shall be named as respondent. 

Referral for Hearing 

§ 501.37 Referral to Administrative Law 

Judge. 

(a) Upon receipt of a timely request 

for a hearing filed pursuant to and in 

accordance with § 501.33 the 

Administrator, by the Associate 

Solicitor for the Division of Fair Labor 

Standards or by the Regional Solicitor 

for the Region in which the action arose, 

shall, by Order of Reference, promptly 

refer a copy of the notice of 

administrative determination 

complained of, and the original or a 

duplicate copy of the request for hearing 

signed by the person requesting such 

hearing or by the authorized 

representative of such person, to the 

Chief Administrative Law Judge, for a 

determination in an administrative 

proceeding as provided herein. The 

notice of administrative determination 

and request for hearing shall be filed of 

record in the Office of the Chief 

Administrative Law Judge and shall, 

respectively, be given the effect of a 

complaint and answer thereto for 

purposes of the administrative 

proceeding, subject to any amendment 

that may be permitted under these 

regulations or 29 CFR part 18. 

(b) A copy of the Order of Reference, 

together with a copy of these 

regulations, shall be served by counsel 

for the Administrator upon the person 

requesting the hearing, in the manner 

provided in 29 CFR 18.3. 

§ 501.38 Notice of docketing. 

Upon receipt of an Order of 

Reference, the Chief Administrative Law 

Judge shall appoint an Administrative 

Law Judge to hear the case. The 

Administrative Law Judge shall 

promptly notify all interested parties of 

the docketing of the matter and shall set 

the time and place of the hearing. The 

date of the hearing shall be not more 

than 60 days from the date on which the 

Order of Reference was filed. 

§ 501.39 Service upon attorneys for the 

Department of Labor—number of copies. 

Two copies of all pleadings and other 

documents required for any 

administrative proceeding provided 

herein shall be served on the attorneys 

for the Department of Labor. One copy 

shall be served on the Associate 

Solicitor, Division of Fair Labor 

Standards, Office of the Solicitor, U.S. 

Department of Labor, 200 Constitution 

Avenue, NW., Washington, DC 20210, 

and one copy on the Attorney 

representing the Department in the 

proceeding. 

Procedures Before Administrative Law 

Judge 

§ 501.40 Consent findings and order. 

(a) General. At any time after the 

commencement of a proceeding under 

this part, but prior to the reception of 

evidence in any such proceeding, a 

party may move to defer the receipt of 

any evidence for a reasonable time to 

permit negotiation of an agreement 

containing consent findings and an 

order disposing of the whole or any part 

of the proceeding. The allowance of 

such deferment and the duration thereof 

shall be at the discretion of the 

Administrative Law Judge, after 

consideration of the nature of the 

proceeding, the requirements of the 

public interest, the representations of 

the parties, and the probability of an 

agreement being reached which will 

result in a just disposition of the issues 

involved. 

(b) Content. Any agreement 

containing consent findings and an 

order disposing of a proceeding or any 

part thereof shall also provide: 

(1) That the order shall have the same 

force and effect as an order made after 

full hearing; 

(2) That the entire record on which 

any order may be based shall consist 

solely of the notice of administrative 

determination (or amended notice, if 

one is filed), and the agreement; 

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(3) A waiver of any further procedural 

steps before the Administrative Law 

Judge; and 

(4) A waiver of any right to challenge 

or contest the validity of the findings 

and order entered into in accordance 

with the agreement. 

(c) Submission. On or before the 

expiration of the time granted for 

negotiations, the parties or their 

authorized representatives or their 

counsel may: 

(1) Submit the proposed agreement for 

consideration by the Administrative 

Law Judge; or 

(2) Inform the Administrative Law 

Judge that agreement cannot be reached. 

(d) Disposition. In the event an 

agreement containing consent findings 

and an order is submitted within the 

time allowed therefor, the 

Administrative Law Judge, within thirty 

(30) days thereafter, shall, if satisfied 

with its form and substance, accept such 

agreement by issuing a decision based 

upon the agreed findings. 

Post-Hearing Procedures 

§ 501.41 Decision and order of 

Administrative Law Judge. 

(a) The Administrative Law Judge 

shall prepare, within 60 days after 

completion of the hearing and closing of 

the record, a decision on the issues 

referred by the Administrator. 

(b) The decision of the Administrative 

Law Judge shall include a statement of 

findings and conclusions, with reasons 

and basis therefor, upon each material 

issue presented on the record. The 

decision shall also include an 

appropriate order which may affirm, 

deny, reverse, or modify, in whole or in 

part, the determination of the 

Administrator. The reason or reasons for 

such order shall be stated in the 

decision. 

(c) The decision shall be served on all 

parties and the Secretary in person or by 

certified mail. The decision when 

served by the Administrative Law Judge 

shall constitute the final order of the 

Administrator unless the Secretary, as 

provided for in § 501.42 below 

determines to review the decision. 

Review of Administrative Law Judge’s 

Decision 

§ 501.42 Procedures for initiating and 

undertaking review. 

(a) A respondent, the Administrator or 

any other party wishing review of the 

decision of an Administrative Law 

Judge shall, within 30 days of the 

decision of the Administrative Law 

Judge, petition the Secretary to review 

the decision. Copies of the petition shall 

be served on all parties and on the 

Administrative Law Judge. If the 

Secretary does not issue a notice 

accepting a petition for review within 

30 days after receipt of a timely filing of 

the petition, or within 30 days of the 

date of the decision if no petition has 

been received, the decision of the 

Administrative Law Judge shall be 

deemed the final agency action. 

(b) Whenever the Secretary either on 

the Secretary’s own motion or by 

acceptance of a party’s petition, 

determines to review the decision of an 

Administrative Law Judge, a notice of 

the same shall be served upon the 

Administrative Law Judge and upon all 

parties to the proceeding in person or by 

certified mail. 

§ 501.43 Responsibility of the Office of 

Administrative Law Judges. 

Upon receipt of the Secretary’s Notice 

pursuant to § 501.42 of these 

regulations, the Office of Administrative 

Law Judges shall, promptly forward a 

copy of the complete hearing record to 

the Secretary. 

§ 501.44 Additional information, if 

required. 

Where the Secretary has determined 

to review such decision and order, the 

Secretary shall notify each party of: 

(a) The issue or issues raised; 

(b) The form in which submission 

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

etc.); and the time within which such 

presentation shall be submitted. 

§ 501.45 Final decision of the Secretary. 

The Secretary’s final decision shall be 

issued within 90 days from the notice 

granting the petition and served upon 

all parties and the administrative law 

judge, in person or by certified mail. 

Record 

§ 501.46 Retention of official record. 

The official record of every completed 

administrative hearing provided by 

these regulations shall be maintained 

and filed under the custody and control 

of the Chief Administrative Law Judge. 

§ 501.47 Certification. 

Upon receipt of a complaint seeking 

review of a decision issued pursuant to 

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

after the administrative remedies have 

been exhausted, the Chief 

Administrative Law Judge shall 

promptly index, certify and file with the 

appropriate U.S. District Court, a full, 

true, and correct copy of the entire 

record, including the transcript of 

proceedings. 

PART 780—EXEMPTIONS 

APPLICABLE TO AGRICULTURE, 

PROCESSING OF AGRICULTURAL 

COMMODITIES, AND RELATED 

SUBJECTS UNDER THE FAIR LABOR 

STANDARDS ACT 

■ 10. The authority citation for part 780 

is revised to read as follows: 

Authority: Secs. 1–19, 52 Stat. 1060, as 

amended; 75 Stat. 65; 29 U.S.C. 201–219. 

§ 780.115 [Redesignated as § 780.159 and 

Suspended] 

■ 11. Redesignate § 780.115 as § 780.159 

and suspend newly designated 

§ 780.159. 

■ 12. Add § 780.115 to read as follows: 

§ 780.115 Forest products. 

Trees grown in forests and the lumber 

derived therefrom are not ‘‘agricultural 

or horticultural commodities.’’ 

Christmas trees, whether wild or 

planted, are also not so considered. It 

follows that employment in the 

production, cultivation, growing, and 

harvesting of such trees or timber 

products is not sufficient to bring an 

employee within section 3(f) unless the 

operation is performed by a farmer or on 

a farm as an incident to or in 

conjunction with his or its farming 

operations. On the latter point, see 

§§ 780.160 through 780.164 which 

discuss the question of when forestry or 

lumbering operations are incident to or 

in conjunction with farming operations 

so as to constitute ‘‘agriculture.’’ For a 

discussion of the exemption in section 

13(a)(13) of the Act for certain forestry 

and logging operations in which not 

more than eight employees are 

employed, see part 788 of this chapter. 

§ 780.201 [Redesignated as § 780.215 and 

Suspended] 

■ 13. Redesignate § 780.201 as § 780.215 

and suspend newly designated 

§ 780.215. 

■ 14. Add § 780.201 to read as follows: 

§ 780.201 Meaning of ‘‘forestry or 

lumbering operations.’’ 

The term ‘‘forestry or lumbering 

operations’’ refers to the cultivation and 

management of forests, the felling and 

trimming of timber, the cutting, hauling, 

and transportation of timber, logs, 

pulpwood, cordwood, lumber, and like 

products, the sawing of logs into lumber 

or the conversion of logs into ties, posts, 

and similar products, and similar 

operations. It also includes the piling, 

stacking, and storing of all such 

products. The gathering of wild plants 

and of wild or planted Christmas trees 

are included. (See the related discussion 

in §§ 780.205 through 780.209 and in 

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Federal Register / Vol. 74, No. 102 / Friday, May 29, 2009 / Rules and Regulations 26015 

part 788 of this chapter which considers 

the section 13(a)(13) exemption for 

forestry or logging operations in which 

not more than eight employees are 

employed.) ‘‘Wood working’’ as such is 

not included in ‘‘forestry’’ or 

‘‘lumbering’’ operations. The 

manufacture of charcoal under modern 

methods is neither a ‘‘forestry’’ nor 

‘‘lumbering’’ operation and cannot be 

regarded as ‘‘agriculture.’’ 

§ 780.205 [Redesignated as § 780.216 and 

Suspended] 

■ 15. Redesignate § 780.205 as § 780.216 

and suspend newly designated 

§ 780.216. 

■ 16. Add § 780.205 to read as follows: 

§ 780.205 Nursery activities generally. 

The employees of a nursery who are 

engaged in the following activities are 

employed in ‘‘agriculture’’: 

(a) Sowing seeds and otherwise 

propagating fruit, nut, shade, vegetable, 

and ornamental plants or trees (but not 

Christmas trees), and shrubs, vines, and 

flowers; 

(b) Handling such plants from 

propagating frames to the field; 

(c) Planting, cultivating, watering, 

spraying, fertilizing, pruning, bracing, 

and feeding the growing crop. 

§ 780.208 [Redesignated as § 780.217 and 

Suspended] 

■ 17. Redesignate § 780.208 as § 780.217 

and suspend newly designated 

§ 780.217. 

■ 18a. Add § 780.208 to read as follows: 

§ 780.208 Forest and Christmas tree 

activities. 

Operations in a forest tree nursery 

such as seeding new beds and growing 

and transplanting forest seedlings are 

not farming operations. The planting, 

tending, and cutting of Christmas trees 

do not constitute farming operations. If 

such operations on forest products are 

within section 3(f), they must qualify 

under the second part of the definition 

dealing with incidental practices. (See 

§ 780.201.) 

PART 788—FORESTRY OR LOGGING 

OPERATIONS IN WHICH NOT MORE 

THAN EIGHT EMPLOYEES ARE 

EMPLOYED 

■ 18b. The authority citation for part 

788 continues to read as follows: 

Authority: Secs. 1–19, 52 Stat. 1060, as 

amended; 29 U.S.C. 201–219. 

§ 788.10 [Redesignated as § 788.18 and 

Suspended] 

■ 19. Redesignate § 788.10 as § 788.18 

and suspend newly designated § 788.18. 

■ 20. Add § 788.10 to read as follows: 

§ 788.10 ‘‘Preparing * * * other forestry 

products.’’ 

As used in the exemption, ‘‘other 

forestry products’’ mean plants of the 

forest and the natural properties or 

substances of such plants and trees. 

Included among these are decorative 

greens such as holly, ferns and 

Christmas trees, roots, stems, leaves, 

Spanish moss, wild fruit, and brush. 

Gathering and preparing such forestry 

products as well as transporting them to 

the mill, processing plant, railroad, or 

other transportation terminal are among 

the described operations. Preparing 

such forestry products does not include 

operations which change the natural 

physical or chemical condition of the 

products or which amount to extracting 

as distinguished from gathering, such as 

shelling nuts, or mashing berries to 

obtain juices. 

Signed in Washington, DC, this 20th day of 

May, 2009. 

Douglas F. Small, 

Deputy Assistant Secretary, Employment and 

Training Administration. 

Shelby Hallmark, 

Acting Assistant Secretary, Employment 

Standards Administration. 

[FR Doc. E9–12436 Filed 5–28–09; 8:45 am] 

BILLING CODE 4510–FP–P 

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