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
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.
DOL Annual Adjustment of Penalties for D-1, H-1B, H-2A, and H-2B Visa Program Violations for 2019
DOL final rule effective 1/23/19 implementing the annual adjustment of certain penalties for inflation required by the Inflation Adjustment Act. Among the penalties affected are penalties for employer violations of the D-1, H-1B, H-2A, and H-2B visa programs. (84 FR 213, 1/23/19)
DHS Notice of Eligible H-2A and H-2B Countries for 2019
DHS notice of the 84 countries whose nationals are eligible to participate in the H-2A program and the 81 countries whose nationals are eligible to participate in the H-2B program. The designations are effective from 1/19/19 and shall be without effect after 1/18/20. (84 FR 133, 1/18/19)
Practice Pointer: Resolving PIMS Issues and Understanding KCC’s Role
AILA’s Department of State Liaison Committee provides assistance in resolving common issues with the Petition Information Management Service (PIMS) and understanding the Kentucky Consular Center’s (KCC’s) role in fraud review and consular returns.
DOL Posts FAQs Regarding H-2As Impacted by iCERT Outage
DOL posted a FAQ regarding H-2A applications impacted by the iCERT system failure on January 1, 2019, and unable to file the application 45 days before the start date of work.
AILA Submits Comments on Proposed Modernization of Recruitment Requirements for H-2A Foreign Workers
On 12/28/18, AILA submitted comments in response to DOL notice and request for comments on proposed regulatory revisions that would modernize the recruitment an employer seeking H-2A nonimmigrant agricultural workers must conduct when applying for temporary labor certification.
DOL Releases Notice of 2019 Adverse Effect Wage Rates for Non-Range Occupations
DOL notice with the 2019 Adverse Effect Wage Rates for the employment of temporary or seasonal nonimmigrant foreign workers (H-2A workers) to perform agricultural labor or services other than the herding or production of livestock on the range. Rates applicable as of 1/9/19. (83 FR 66306, 12/26/18)
DOL Releases Notice of 2019 Adverse Effect Wage Rates for Range Occupations
DOL notice with the 2019 Adverse Effect Wage Rates for the employment of temporary or seasonal nonimmigrant foreign workers (H-2A workers) to perform herding or production of livestock on the range. Rates applicable as of 1/1/19. (83 FR 66307, 12/26/18)
DOL Issues Clarifications to Non-Substantive Application Form Changes in the H-2A and H-2B Programs
DOL’s Employment and Training Administration's Office of Foreign Labor Certification (OFLC) issued clarifications and FAQs to the non-substantive changes to application forms for temporary labor certification under the H-2A and H-2B programs.
Practice Alert: H-2A and H-2B Form Changes Slated for December 20, 2018
DOL updated its website to notify stakeholders of changes to the H-2A and H-2B forms slated to be implemented on 12/20/18. Employers that have not yet submitted cases in iCERT will need to login and complete at least two of the three new items in Section H, before the application can be submitted.
DOL Posts Notice Regarding Non-Substantive Form Changes to iCERT Data Collection in H-2A/H-2B Programs
DOL posted a notice that employers with prepared cases in iCERT that are not yet submitted, will need to login to iCERT and complete Section H, items H.6a, H.6b, and/or H.6c, before the application can be submitted. If two of the three items are not completed, employers will not be able to submit.
DOL Announces Extension of Comment Periods for Proposed Changes to H-2A and H-2B Recruitment Requirements
DOL announced that in response to requests to extend the comment periods through 12/28/18 for both the DOL proposed rule on H-2A recruitment requirements and the joint DOL and DHS rule on H-2B recruitment requirements.
Extension of Comment Period for DOL Proposed Rule on Modernizing Recruitment Requirements for H-2A Workers
DOL extension of the comment period on a proposed rule on modernizing recruitment requirements for H-2A workers by replacing the currently required print newspaper advertisements with electronic advertisements. Comments are now due 12/28/18. (83 FR 63456, 12/10/18)
DOL Announces iCERT Enhancements in the H-2A and H-2B Programs
DOL announced changes to the iCERT system related to the submission of applications for temporary labor certification under the H-2A/H-2B programs. These changes include data validation checks designed to assist employers in preparing applications with the required form fields and instructions.
DOL Proposed Rule on Modernizing Recruitment Requirements for H-2A Workers
DOL proposed rule on modernizing recruitment requirements for H-2A workers by replacing the currently required print newspaper advertisements with electronic advertisements. Comments are due 12/10/18. (83 FR 55985, 11/9/18)
DOL Notice of Availability and Request for Comments on Form ETA-9127
DOL notice of availability and request for comments on revisions to Form ETA-9127, which solicits information from State Workforce Agencies (SWAs) who are recipients of foreign labor certification grants. Comments are due 12/3/18. (83 FR 54942, 11/1/18)
DOL Notice and Request for Comments on Proposed Revisions to Form ETA-9142A and Related Forms
DOL 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 12/24/18. (83 FR 53911, 10/25/18)
DOL Announces Publication of 60-Day Notice for Information Collection Related to the H-2A Program
DOL announced that it published a 60-day notice in the Federal Register announcing its intent to revise application forms, instructions, and other information collected under the H-2A visa program, and provides the proposed new forms. Comments are due 12/24/18.