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
AILA Submits Comments on DHS and USCIS Proposed Rule Seeking to Modernize the H-2 Programs
AILA submits comments on the DHS and USCIS notice of proposed rulemaking seeking to modernize the H-2A and H-2B program requirements, oversight, and worker protections as published on 9/20/23.
AILA Submits Comments on the DOL Notice of Proposed Rulemaking on Protections for H-2A Workers
AILA submits comments on the DOL notice of proposed rulemaking on proposed regulatory revisions on protections for H-2A workers in temporary agricultural employment in the United States.
DHS Notice of Eligible H-2A and H-2B Countries
DHS notice of the 87 countries whose nationals are eligible to participate in the H-2A program and 88 countries whose nationals are eligible to participate in the H-2B program for the coming year. Bolivia is newly designated for both the H-2A and H-2B programs. (88 FR 77343, 11/9/23)
Practice Alert: Revised Edition for Form I-129 (05/31/2023) Effective November 1, 2023
Effective 11/1/23, USCIS will only accept edition date 05/31/2023, for Form I-129. Be sure to check the edition date on all pages prior to filing.
USCIS Announces Filing Location Change for Certain Temporary Nonimmigrant Petitions
USCIS announced that beginning 11/1/23, all H-2A, H-2B, CNMI-related Form I-129 petitions, Form I-129CW petitions, and CNMI-related Form I-539 applications must be filed directly at the Texas Service Center. There will be a 60-day grace period during which misfiled applications will not be rejected.
Practice Pointer: Top Five Practice Tips for H-2A 2023-2024 Filing Season
The DOL Liaison Committee H-2 Subcommittee provides its top five practice tips for attorneys venturing into the H-2A practice or navigating the October 2022 H-2A Final Rule and 2023 AEWR Final Rule.
DHS Notice of Proposed Rulemaking on Modernizing H-2 Program Requirements and Worker Protections
DHS notice of proposed rulemaking (NPRM) on modernizing H-2 program requirements and worker protections. Comments are due 11/20/23. (88 FR 65040, 9/20/23)
DOL Notice of Proposed Rulemaking on Protections for H-2A Workers
DOL notice of proposed rulemaking (NPRM) to amend the regulations governing the certification of H-2A workers and the enforcement of the contractual obligations applicable to employers of H-2A workers. Comments are due 11/14/23. (88 FR 63750, 9/15/23)
OFLC Shares FAQs for Those Affected by Hawaii Wildfires
The DOL Office of Foreign Labor Certification (OFLC) provides answers to frequently asked questions related to the Hawaii wildfires.
DOL Publishes Round 2 FAQs on 2023 H-2A Adverse Effect Wage Rate Final Rule
DOL’s Office of Foreign Labor Certification (OFLC) published Round 2 FAQs regarding the final rule promulgating regulations establishing a new methodology for determining hourly Adverse Effect Wage Rates (AEWRs) for non-range occupations for temporary labor certifications in the H-2A program.
Key Takeaways from the DOL Open Forum at 2023 AILA Annual Conference
AILA’s DOL Liaison Committee provides key takeaways from the DOL Open Forum at 2023 AILA Annual Conference in Orlando, FL.
DOL Notice of Updates to the Adverse Effect Wage Rates for Non-Range Occupations
DOL notice announcing updates to the Adverse Effect Wage Rates (AEWR) for the employment of H–2A workers to perform agricultural labor or services other than the herding or production of livestock on the range. The rates are effective 7/1/23. (88 FR 39482, 6/16/23)
DOL Seeks Input for Annual Determination of Labor Supply States to Enhance U.S. Worker Recruitment
As part of the 2022 H-2A Final Rule, DOL implemented a new process for determining labor supply. OFLC seeks information from the public regarding the availability of qualified workers, and the appropriate, effective means of recruiting those workers. OFLC seeks information on or before 7/31/23.
AILA DOL Liaison Committee Meeting with WHD (3/15/23)
The AILA DOL Liaison Committee shared the unofficial minutes from its 3/15/23 meeting with the Wage and Hour Division (WHD).
DOL FAQs on the Implementation of 2022 H-2A Final Rule
DOL provided FAQs on the H-2A final rule, which went into effect on 11/14/22. FAQs include questions on implementation, job order filing and processing, prevailing wage surveys, wages, application filing and processing, and joint employers.
DOL Provides FAQs on Implementation of 2023 H-2A Adverse Effect Wage Rate Final Rule
DOL published a final rule promulgating regulations establishing a new methodology for determining hourly AEWRs for non-range occupations for temporary labor certifications in the H-2A program. DOL provides FAQs as the final rule goes into effect on 3/30/23.
DOL Final Rule on Adverse Effect Wage Rate Methodology for H-2A Non-Range Occupations
DOL final rule revising the methodology for determining the Adverse Effect Wage Rates (AEWRs) for H-2A non-range occupations. The rule is effective 3/30/23. (88 FR 12760, 2/28/23)
DOL Notice on Allowable Charges for H-2A Workers and Meal Reimbursements for H-2A and H-2B Workers
DOL notice for 2023 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. (88 FR 8478, 2/9/23)
Practice Alert: Issues with Kentucky’s SWA
The DOL Liaison Committee provides an alert concerning member reports of issues creating an account or posting job postings on the Kentucky SWA.
DOL Annual Adjustment of Penalties for D-1, H-1B, H-2A, and H-2B Visa Program Violations for 2023
DOL final rule effective 1/15/23, 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. (88 FR 2210, 1/13/23)
DOL Notice of 2023 Adverse Effect Wage Rate for Range Occupations
DOL notice of the 2023 Adverse Effect Wage Rate for the employment of H-2A workers to perform herding or production of livestock on the range. The rate is effective 1/1/23. (87 FR 77141, 12/16/22)
DOL Notice of 2023 Adverse Effect Wage Rates for Non-Range Occupations
DOL notice of the 2023 Adverse Effect Wage Rates for the employment of H-2A workers to perform agricultural labor or services other than the herding or production of livestock on the range. The rates are applicable 1/1/23. (87 FR 77142, 12/16/22)
Practice Alert: OFLC’s Response to AILA’s Concerns over Increased PWD Processing Times
AILA’s DOL Liaison Committee provides an alert with details from DOL OFLC about increased processing times for prevailing age determinations, as well as recommendations for minimizing delays.
DHS Notice of Eligible H-2A and H-2B Countries
DHS notice of the 86 countries whose nationals are eligible to participate in the H-2A program and the 87 countries whose nationals are eligible to participate in the H-2B program for the coming year. (87 FR 67930, 11/10/22)
Practice Pointer: Lessons Learned from BALCA Decisions Affirming Denials of Forms ETA-9142B
AILA’s DOL Liaison Committee provides a resource with recommendations in advance of the H-2B filing season based on lessons learned from BALCA decisions affirming denials of Forms ETA-9142B.