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 Performance Data on H-2A Petitions for First Quarter of FY2018
USCIS statistics on I-129 H-2A petitions, broken down by case status (received, approved, denied, or pending) and petitioner location (by state and company) for the first quarter of FY2018 (10/1/17-12/31/17)
DOL Notice with Adverse Effect Wage Rate for Range Occupations in 2018
DOL notice announcing the Adverse Effect Wage Rate for 2018 for the employment of temporary or seasonal nonimmigrant workers (H-2A workers) to perform herding or production of livestock on the range. The notice is effective 1/1/18. (82 FR 60767, 12/22/17)
DOL Notice with Adverse Effect Wage Rate for Non-Range Occupations in 2018
DOL notice with the Adverse Effect Wage Rate for 2018 for the employment of temporary or seasonal nonimmigrant workers (H-2A workers) to perform agricultural labor or services other than the herding or production of livestock on the range. The notice is effective 1/4/18. (82 FR 60628, 12/21/17)
Minutes from DOL H-2 Stakeholder Meeting (12/5/17)
AILA’s DOL Liaison Committee’s minutes from the 12/5/17 OFLC H-2 stakeholder meeting with DOL. Some topics include: H-2B filings for 2nd half of FY, raises/bonuses, recruitment reports and contact with former U.S. workers, improvements to iCERT system, and explaining changes in start/end date.
AILA Section-by-Section Analysis of the Agricultural Guestworker Act
AILA provides a section-by-section analysis of the Agricultural Guestworker Act (H.R. 4092), introduced on 10/23/17 by Representative Bob Goodlatte (R-VA).
DOL Provides PowerPoint from Webinar on H-2A Applications
DOL provided the PowerPoint presentation from the 10/31/17 webinar with information on recent program workload trends, common deficiencies, and best practices associated with the H-2A Labor Certification program. Webinar provided technical assistance and practice tips as well.
DOL Announces Enhancement of iCERT System to Streamline Processing in H-2A and H-2B Programs
DOL announced an update to its iCERT system to allow SWA staff to electronically upload supporting documentation directly to the employer’s pending application for immediate review by the assigned CNPC analyst. Update applies initially to 33 states, with a goal of full implementation by 9/30/18.
USCIS Updates Policy Guidance to Apply Same Level of Scrutiny to Both Initial Petitions and Extensions
USCIS updated policy guidance to instruct its officers to apply the same level of scrutiny to both initial petitions and extension requests for nearly all nonimmigrant classifications filed using Form I-129, Petition for a Nonimmigrant Worker.
USCIS Will No Longer Provide Deference to Prior Adjudications for Nonimmigrant Petitions
USCIS issued a policy memorandum that supersedes and rescinds prior guidance on providing deference to prior determinations of eligibility in the adjudication of petitions for extension of nonimmigrant status, including rescinding guidance from 2004 and 2015. Guidance is effective immediately.
H.R. 4092: Agricultural Guestworker Act (AG Act)
On 10/23/17, Representative Bob Goodlatte (R-VA) introduced the Agricultural Guestworker Act (H.R. 4092) which seeks to create a new temporary agricultural guestworker program by replacing the current H-2A program with an H-2C visa for temporary agricultural workers.
Minutes from DOL Wage and Hour Division (WHD) Meeting (10/13/17)
AILA’s DOL Liaison Committee’s minutes from a 10/13/17 meeting with DOL Wage and Hour Division. Some topics include: role of regional and local offices in LCA investigations, updates to WHD fact sheets, bonus payments and per-diems/housing towards required wage, and H-2A corresponding employment.
DOL Issues Round 13 H-2A FAQs on Newspaper Advertisements
DOL’s Office of Foreign Labor Certification (OFLC) published Round 13 of FAQs related to H-2A Applications for Temporary Employment Certification under the 2010 Rule. This round covers questions related to H-2A newspaper advertisements.
USCIS Changes to Direct Filing Addresses for Form I-129 Petitions
USCIS changed direct filing addresses for certain petitioners of Form I-129, Petition for Nonimmigrant Worker, with petitioners now filing according to the state where the company or organization’s primary office is located. Starting 11/11/17, USCIS may reject forms filed at wrong service centers.
DOJ and DOS Partner to Protect U.S. Workers from Discrimination and Combat Fraud
DOJ and DOS signed an MOU for the Civil Rights Division and the Bureau of Consular Affairs to share information about employers that may be unlawfully discriminating, committing fraud, or making other misrepresentations in their use of employment-based visas, such as H-1B, H-2A, and H-2B visas.
iCERT Visa Portal System Quick Start Guide for H-2A Mandatory Documents Upload
DOL issued a Quick Start Guide to help employers, or if applicable, their authorized attorneys or agents, understand how to navigate the new mandatory documents upload function for preparing H-2A applications.
DOL Announces Changes to its iCERT System for H-2A and H-2B Programs
DOL’s OFLC announced that it updated the iCERT system's application filing module that will help employers or, if applicable, their authorized attorneys or agents, identify and upload required documentation supporting their applications. Guides for both H-2A and H-2B applications area available.
DOL Statistics on PWDs from Fourth Quarter of FY2017
DOL’s OFLC statistics from the National Prevailing Wage Center on prevailing wage determinations (PWD) as of 9/30/17, including number of applications received, top employers and occupations for PERM, H-1B, and H-2B, as well as number of determined, withdrawn, and pending prevailing wage actions.
DOL Statistics on H-2As from Fourth Quarter of FY2017
DOL’s OFLC statistics on H-2As, as of 9/30/17, including number of applications received; statistics on top states, employers, and occupations; as well as the status of applications processed.
USCIS Performance Data on H-2A Petitions for Fourth Quarter of FY2017
USCIS statistics on I-129 H-2A petitions, broken down by case status (received, approved, denied, or pending) and petitioner location (by state and company) for the fourth quarter of FY2017.
Justice Department Files Lawsuit Against Crop Production Services Alleging Discrimination Against U.S. Workers
The DOJ filed a lawsuit again Crop Production Services Inc., headquartered in Loveland, CO, alleging that in 2016, it discriminated against at least three United States citizens by refusing to employ them as seasonal technicians in El Campo, Texas, because it preferred to hire H-2A workers.
DOL Issues OFLC Accommodations for Those Impacted by Hurricane Harvey and Irma
DOL provided guidance in light of damage done by Hurricane Harvey and Hurricane Irma, including information on extensions of response deadlines and other reasonable case-accommodations, mail delivery to zip codes in the affected regions, advising OFLC of new contact information, and due dates.
DOL Practice Alert: OFLC Accommodations for Those Impacted by Hurricane Irma
AILA's DOL Liaison Committee provides a practice alert that OFLC has confirmed it is working on releasing guidance for attorneys and employers impacted by Hurricane Irma.
Minutes from DOL H-2 Stakeholder Meeting (9/12/17)
AILA’s DOL Liaison Committee’s minutes from the 9/12/17 OFLC H-2 stakeholder meeting with DOL. Some topics include: productivity standards and NODs, anticipated hours per week, piece rate wages, sensitive documents uploaded on iCERT, top dos and don’ts for H-2B filings, and NOAE responses by email.
DOL Provides Guidance In Light of Hurricane Harvey
DOL provided guidance in light of damage done by Hurricane Harvey, including information on extensions of response deadlines and other reasonable case-accommodations, mail delivery to zip codes in the affected regions, email delivery, advising OFLC of new contact information, and due dates.
DOL Provides OFLC Annual Report for FY2016
DOL provides an annual report from the Office of Foreign Labor Certification (OFLC) for FY2016, that presents employment-based foreign labor certification program data drawn from applications submitted to and adjudicated by DOL from employers who sought labor certifications in FY2016.