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
DOL Practice Alert: OFLC Accommodations for Those Impacted by Hurricane Harvey
The DOL Liaison Committee provides a practice alert that OFLC has confirmed it is looking into the possibility of making accommodations for attorneys and employers impacted by Hurricane Harvey.
DOL Statistics on H-2As from Third Quarter of FY2017
DOL’s OFLC statistics on H-2As, as of 6/30/17, 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 Third 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 third quarter of FY2017 (4/1/17-6/30/17)
Minutes from DOL Wage and Hour Division Meeting (6/16/17)
AILA’s DOL Liaison Committee minutes from a meeting with DOL’s Wage and Hour Division (WHD) on 6/16/17. Topics include: WHD LCA Field Operations Handbook, electronic document storage, H-1B portability, H-1B return transportation, voluntary loans, H-2B deductions and fees, and H-2B worksites.
DOL FAQs on Job Offers, Assurances, and Obligations for the H-2A Program
DOL Round 12 FAQs to help H-2A employers understand the filing and documentation requirements that are necessary for an employer to demonstrate that the housing being offered to accommodate H-2A foreign workers complies with applicable housing standards for rental housing and public accommodations.
Minutes from OFLC H-2 Stakeholder Meeting (6/6/17)
AILA’s DOL Liaison Committee minutes from the 6/6/17 OFLC H-2 stakeholder meeting. Topics discussed focused primarily on prevailing wage determinations and the H-2B and H-2A programs.
Secretary of Labor Directs Agencies to Aggressively Confront Visa Program Fraud and Abuse
The Secretary of Labor determined that it is now the policy of DOL to “enforce vigorously all laws within its jurisdiction governing the administration and enforcement of nonimmigrant visa programs.” Notice outlines steps that DOL will take to investigate and detect visa program fraud and abuse.
OSC Announced Settlement Agreement with New Mexico Farm
OSC reached a settlement agreement with Carrillo Farm Labor, LLC, an onion farm in New Mexico. The settlement resolves the department’s investigation of complaints that Carrillo Farm discriminated against U.S. citizens due to a hiring preference for H-2A foreign visa workers.
DOL Notice on Allowable Charges for H-2A Workers and Meal Reimbursements for H-2A and H-2B Workers
DOL notice for 2017 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. (82 FR 17881, 4/13/17)
DOL Statistics on H-2As from Second Quarter of FY2017
DOL’s OFLC statistics on H-2As, as of 3/31/17, 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 Second Quarter of FY2017
USCIS statistics on Form I-129, Petition for Nonimmigrant Temporary Agricultural Worker (H-2A), broken down by status (received, approved, denied, or pending) and petitioner location (by state and company) for the second quarter of FY2017.
Minutes from DOL H-2 Stakeholder Meeting (3/7/17)
The AILA DOL Liaison Committee’s minutes from the OFLC H-2 stakeholder meeting with DOL on 3/7/17. Some topics include: processing of H-2B filings, Notices of Deficiency, minor start date of need changes, H-2A post certification amendments, and staggered dates of need.
DHS OIG Report on H-2 Petition Fee Structure
DHS’s Office of Inspector General (OIG) provides a report finding that the USCIS H-2 petition fee structure of a flat fee is inequitable and contributes to processing errors. The OIG made three recommendations to USCIS and USCIS concurred.
USCIS Performance Data on H-2A Petitions for First 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 first quarter of FY2017.
DOL Statistics on H-2As from First Quarter of FY2017
DOL’s OFLC statistics on H-2As, as of 12/31/16, including number of applications received; statistics on top states, employers, and occupations; as well as the status of applications processed.
DOL Notice with Adverse Effect Wage Rate for Range Occupations in 2017
DOL notice announcing the Adverse Effect Wage Rate for 2017 for the employment of temporary or seasonal nonimmigrant foreign workers (H-2A workers) to perform herding or production of livestock on the range. Notice is effective 1/1/17. (81 FR 94421, 12/23/16)
DOL Notice with Adverse Effect Wage Rate for 2017
DOL notice announcing the Adverse Effect Wage Rate for 2017 for the employment of temporary or seasonal nonimmigrant foreign workers (H-2A workers) to perform agricultural labor or services. Notice is effective 12/23/16. (81 FR 94422, 12/23/16)
Minutes from DOL H-2 Stakeholder Meeting (12/6/16)
AILA’s DOL Liaison Committee minutes from the OFLC H-2 stakeholder meeting with DOL on 12/6/16. Some topics include: Help Desk issues, peak filing season, deductions for SWA referrals, PWs based on combination of occupations, temporary need statements, and draft job orders.
ALJ Finds Employer’s Two H-2A Applications Are for Distinct and Separate Positions
Where the CO had found that employer had a single, year-round permanent need for workers, the ALJ reversed the denial, finding that employer had met its burden of showing a seasonal need for two separate and distinct positions. Courtesy of Leonard D’Arrigo. (Matter of – Farms, Inc., 11/22/16)
USCIS Publishes Final Rule for Certain Employment-Based Visa Programs with Provision That Automatically Extends Certain EADs
USCIS published a final rule to modernize and improve several aspects of certain employment-based nonimmigrant and immigrant visa programs. One of the provisions in the rule will automatically extend the employment authorization and validity of EADs for certain individuals.
DOS Cable with Revised Reciprocity Schedule for South Africa
DOS released a cable stating that effective 11/21/16, the reciprocity fee schedule for South Africa was revised for several nonimmigrant visa categories.
DHS Final Rule on Retention of Immigrant Workers and Improvements Affecting High-Skilled Nonimmigrant Workers
DHS final rule on the retention of EB-1, EB-2, and EB-3 immigrant workers and program improvements affecting high-skilled nonimmigrant workers. Final rule is effective 1/17/17. (81 FR 82398, 11/18/16)
USDA Releases 2016 Farm Labor Survey
The USDA issued the Farm Labor Survey (FLS) report in which it established the average annual wage rates, by region and the United States, for field and livestock workers. The DOL relies on the average annual to establish the Adverse Effect Wage Rates (AEWRs) in the H-2A program.
USCIS Publishes Final Rule for Certain Employment-Based Immigrant and Nonimmigrant Visa Programs
USCIS published a final rule to improve aspects of certain employment-based visa programs. USCIS also amended regulations to better enable employers to hire and retain employees who are beneficiaries of approved employment-based immigrant visa petitions. Rule is effective 1/17/17.
USCIS Announces Addition of St. Vincent and the Grenadines to Eligible Countries for the H-2A and H-2B Visa Programs
USCIS and DHS, in consultation with DOS added St. Vincent and the Grenadines to the list of countries whose nationals are eligible to participate in the H-2A and H-2B programs for 2017. The notice with the eligible countries was published on 10/26/16 in the Federal Register and is effective 1/18/17.