Featured Issue: Resources for H-2A Practice at DOL, USCIS, and DOS
The AILA Department of Labor (DOL) Liaison Committee provides a resource page with links to legal authorities, agency guidance and publications, and AILA resources and publications helpful for H-2A practice.
Legal Authorities
- INA 101(a)(15)(H) Noncitizens coming temporarily to the United States to perform services
- 8 CFR 214.2(h) Temporary employees
DOL-OFLC Guidance
- H-2A Temporary Agricultural Program
- H-2A Program Flow Chart
- H-2A Application and Appendix Forms (most current versions including parties subject to Kansas litigation)
- H-2A Temporary Certification for Agriculture Workers
- H-2A Adverse Effect Wage Rates (AEWR)
- Agricultural Online Wage Library
- H-2A Meals & H-2A and H-2B Subsistence Rates
- H-2A Frequently Asked Questions (FAQs)
- OFLC Searchable Database of FAQs
- Processing Times for Prevailing Wage Determinations and H-2A, H-2B Applications
- State Workforce Agency (SWA) and National Processing Center Contacts
- H-2A Labor Supply State Determinations
- Prevailing Wage Surveys 2022 H-2A Final Rule
Farmworker Protection Rule
- DOL Final Rule
- FAQs on the Farmworker Protection Rule
- H-2A Employers Guide to the Farmworker Protection Rule
- Materials from DOL Webinar on Farmworker Protection Rule
Litigation To Block Farmworker Protection Rule
- U.S. District Court (GA) ruling blocking enforcing Farmworker Protection Rule in 17 states “Kansas Litigation”
- North Carolina Farm Bureau Federation complaint to block Farmworker Protection Rule
- DOL General Notice for Emergency Request to Reinstate H-2A Forms
DOL-WHD
- Wage and Hour Regulatory Library: H-2 (Temporary Nonagricultural Labor or Services) Program and Guidance Documents
- Section 1188 — Admission of Temporary H2A Workers
- H-2A WHD Fact Sheets
- H-2A Workers Rights Card for U.S. Workers
- Workplace Poster: Employee Rights Under the H-2A Program (English)
- Agricultural Transportation Safety
- Transportation Safety Checklist
- ETA Housing Safety and Health Checklist
- Wage and Hour Fact Sheets
- H-2A Employee Rights Poster
USCIS/DHS Guidance
US DOS Guidance
- Foreign Affairs Manual
9 FAM 402.10-4(D) H-2A Nonimmigrants
9 FAM 402.10-8(D) Effect of DOL Revocation for H-2A Beneficiaries
9 FAM 402.10-12 Length and Extension of Stay
9 FAM 402.10-13(B) H-2A, H-2B Nonimmigrants Maximum Allowable Time
AILA Publications:
- The Seasonal Visas: H-2A and H-2B: Temporary Yet Essential Workers Immigration Practice Pointers, 2024-25 Ed. (AILA 2024) by Loan T. Huynh, L.J. D’Arrigo, Ashley Foret Dees, and Ed White (AILA 2024)
- H-2A and H-2B Practice: What Are We So Afraid Of? Immigration Practice Pointers, 2021-22 Ed. (AILA 2021), by Loan T. Huynh, L.J. D’Arrigo, Ashley Foret Dees, and Sujata Ajmera
Alerts
- DOL Announces Delay in Transition Schedule for Implementing the 2024 H-2A Final Rule
- DOL Alert on the Implementation of the Worker Protection Rule
- DOL Notice of Updates to the Adverse Effect Wage Rates for H-2A Workers
- Practice Pointer: Implementation of DOL’s H-2A Final Rule Improving Worker Protections
Browse the Featured Issue: Resources for H-2A Practice at DOL, USCIS, and DOS collection
Federal Court Sentences Kentucky Landscape Owner for H-2A Program Violations
After a DOL WHD investigation, the U.S. District Court for the Eastern District of Kentucky sentenced Michael Anthony Wheeler, owner of Tri-State Lawn Care Inc., for FLSA and H-2A program violations. Wheeler falsified his H-2A application and knowingly hired workers to perform non-agricultural work.
Key Takeaways Related to H-2 Petitions from the May 16, 2019, OFLC Stakeholder Meeting
AILA’s DOL Liaison H-2 Subcommittee provides updates from the 5/16/19 OFLC Stakeholder meeting. Updates include general highlights, responses to NODs, new H-2B filing procedures, the FLAG system, and updates from the DOL Wage and Hour Division.
USCIS Issues Reminder of Form I-129 Rejection Criteria
Starting 8/5/19, USCIS will reject Form I-129 petitions that don’t include petitioner’s or applicant’s name and primary U.S. office address in Part 1 of the form. USCIS will apply the criteria to all requests for nonimmigrant classifications filed on the form, including the H-2A visa classification.
US DOL and Guatemala Sign Agreement on H-2A Visa Program Operations
DOL announced that it has signed a bi-lateral cooperative agreement with Guatemala regarding the H-2A nonimmigrant visa program for temporary agricultural workers. Under the agreement, Guatemala will certify that labor recruiters are vetted and registered with the Guatemalan government.
DOL Proposed Rule to Revise H-2A Regulations
DOL notice of proposed rulemaking substantially revising the H-2A regulations. Proposed changes include, among other things, requiring electronic filing and permitting the staggered entry of H-2A workers into the United States. Comments are due 9/24/19. (84 FR 36168, 7/26/19)
U.S. and Guatemala Issue Joint Statement on Efforts to Reduce Border Migration
The U.S. and Guatemala issued a statement on initiatives aimed at reducing border migration, including expanding capacity of “migrant reception” and an agreement to develop a Foreign Labor Recruiter program for Guatemalan H-2A workers.
DOL Proposes Changes to H-2A Temporary Agricultural Labor Certification Program
DOL announced that it’s posting a Notice of Proposed Rulemaking (NPRM) in advance of its publication in the Federal Register to solicit public comment on proposed changes to the H-2A temporary agricultural labor certification program.
USCIS 60-Day Notice and Request for Comments on Proposed Revisions to Form I-129
USCIS 60-day notice and request for comments on proposed revisions to Form I-129, Petition for Nonimmigrant Worker. Comments are due 8/26/19. (84 FR 30758, 6/27/19)
DOJ Settles Discrimination Claim Against Florida Strawberry Farm
The DOJ announced a settlement agreement with Sam Williamson Farms Inc., a strawberry farm in Dover, FL. The settlement resolved an investigation into whether the farm violated the anti-discrimination provision of the INA by preferring to recruit and hire H-2A workers instead of U.S. workers.
Highlights from Spring Liaison Meeting Between AILA and DOS (4/11/19)
Unofficial notes and highlights from the DOS Liaison Committee’s meeting with the Department of State Visa Office on 4/11/19.
USCIS Updates Rejection Criteria for Form I-129
USCIS announced that it will begin rejecting petitions where Form I-129, Petition for a Nonimmigrant Worker, does not include the petitioner’s or applicant’s name and primary U.S. office address in Part 1 of Form I-129.
DOL 30-Day Notice and Request for Comment on Proposed Revisions to Form ETA-9142A and Related Forms
DOL 30-day notice and request for comments on proposed revisions to Form ETA-9142A, H-2A Application for Temporary Employment Certification, and related forms. Comments are due 7/1/19. (84 FR 25074, 5/30/19)
DOL Posts Alert on Acceptance of H-2A and Prevailing Wage Applications Starting June 2019
DOL posted an alert that the H-2A Application for Temporary Employment Certification, Form ETA-9142A and Appendix A, and the Application for Prevailing Wage Determination, Form ETA-9141, are set to expire on 5/31/19. Employers are permitted to continue filing using these forms starting 6/1/19.
ALJ Affirms CO’s Denial of Employer’s H-2A Applications for Tractor-Trailer Truck Drivers
Administrative Law Judge (ALJ) affirmed the CO’s H-2A denial, finding that the employer’s job opportunity of hauling harvested crops did not come within any of the definitions of “agricultural labor or services” included in the H-2A program. (Matter of ATP Agri-Services Inc., 5/17/19)
DOL Provides Presentation on Foreign Labor Application Gateway (FLAG) System
DOL shared a PowerPoint presentation concerning the Foreign Labor Application Gateway (FLAG) system, OFLC’s new IT modernization initiative, presented during the 5/16/19 stakeholder meeting in Washington, D.C.
DOL Provides Presentation on H-2 Visa Programs
DOL shared a PowerPoint presentation from the Chicago National Processing Center concerning the H-2 visa programs presented during the 5/16/19 stakeholder meeting in Washington, D.C., including workload trends, filing times, and tips for responding to audits.
Top 10 Updates from the May 16, 2019, DOL OFLC Stakeholder Meeting
AILA’s DOL Liaison Committee provides updates from the 5/16/19 OFLC Stakeholder meeting. Updates include tips for prevailing wage applications, information on the FLAG system, information on the PERM portal and PERM audit issues, an update on special handling cases, case withdrawals, and more.
USCIS Provides PowerPoint Presentation on H-2A Nonagricultural Workers
USCIS provided a PowerPoint presentation with information on H-2A petitions, E-Verify, the VIBE System, processing enhancements, and filing tips.
Unofficial Notes from AILA DOS Liaison Committee Meeting with the DOS KCC
AILA’s DOS Liaison Committee provides unofficial notes with follow ups and takeaways from the committee’s meeting with the DOS Kentucky Consular Center (KCC) on 4/25/19. The information provided below should be read in conjunction with the detailed, official responses provided by KCC.
Practice Alert: New I-129 Edition
AILA alerts members that USCIS has released a new version for Form I-129, Petition for a Nonimmigrant Worker. The new edition is dated 1/31/19 and starting 5/20/19, USCIS will only accept this edition.
AILA Provides Notes from DOL WHD Meeting (4/12/19)
Unofficial notes/highlights from the DOL Liaison Committee’s 4/12/19 meeting with DOL Wage and Hour Division (WHD). Topics include FAB No. 2019-3, enforcement actions, the opinion letter process, bona fide terminations, J-1 workers, employer payment obligations, and other H-1B and H-2 issues.
DOL’s WHD Issues Opinion Regarding “Primary or Secondary Agriculture”
DOL’s WHD issued a fact-specific opinion regarding whether a farm’s “light processing” activities are primary or secondary agriculture for purposes of the Fair Labor Standards Act § 13(b)(12) exemption from overtime pay.
AILA DOS Liaison Q&As (4/11/19)
Official DOS responses and follow-up notes from DOS to AILA/DOS liaison Q&As from a 4/11/19 meeting. Topics include public charge issues, PP 9645 waivers, J-1 exchange visitors, prudential revocation, DS-160/DS-260 issues, processing at various consular posts, LegalNet scope of review, and more.
DOL Notice on Allowable Charges for H-2A Workers and Meal Reimbursements for H-2A and H-2B Workers
DOL notice for 2019 on the allowable charges that employers may charge H-2A agricultural workers when the employer provides three meals a day, as well as the maximum travel subsistence meal reimbursement that an H-2A or H-2B worker may claim. (84 FR 10838, 3/22/19)
USCIS Announces Countries Eligible for H-2A and H-2B Visa Programs
USCIS released a list of countries eligible to receive H-2A and H-2B visas after a notice was published in the Federal Register on 1/18/19.