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
OFLC Announces Updates to FLAG System
DOL’s OFLC updated the FLAG system, providing new functions such as “the ability to receive and respond to notifications quickly through a new messaging center, reassign cases more easily within a network, and reuse data from the Form ETA-9141.”
Liaison Update: AILA 2021 Annual Conference DOL Open Forum Key Takeaways
AILA’s DOL Liaison Committee provides takeaways from the DOL Open Forum at AILA’s 2021 Virtual Annual Conference.
OFLC Announces Implementation of District Court Order Granting Backpay to Qualifying H-2A Workers
DOL’s OFLC issued background information and guidance related to United Farm Workers, et al. v. DOL, et. al., which enjoined DOL from implementing an H-2A final rule and required DOL to pay the wage difference.
District Court Grants Backpay to Qualifying H-2A Workers Who Received Hourly Wage Below 2021 Adverse Effect Wage Rate
The district court issued an order stating that H-2A employers who submitted job orders or applications for H-2A labor certification between 12/21/20 and 2/23/21 are required to make wage adjustment payments to qualifying H-2A workers. (United Farm Workers, et al. v. DOL, et al., 6/11/21)
DOL WHD Cases on H-2A Visa Program Violations
AILA provides a continuously updated page providing a listing and summary of DOL WHD cases investigating and penalizing employers for H-2A visa program violations.
DOL Proposed Rule on Adjudication of Temporary and Seasonal Need for Herding and Production of Livestock on the Range H-2A Applications
DOL proposed rule which would rescind the regulation that governs the period of need for herding or production of livestock on the range job opportunities under the H-2A program. Comments are due 6/7/21. (86 FR 24368, 5/6/21)
USCIS Issues H-2A Trends Report, FY2017-2020
USCIS issued a report analyzing trends in H-2A petitions received, approved, and denied for fiscal years 2017 through 2020. The report finds that there is a cyclical trend in received and approved petitions, but not with denied petitions. The report also analyzes COVID-related trends.
Liaison Update: DOL Liaison Committee Takeaways from DOL Panels at AILA 2021 Spring Conference
AILA’s DOL Liaison Committee provides takeaways from the DOL panels at AILA’s 2021 virtual Spring Conference.
OFLC Releases Selected Program Statistics for Second Quarter of FY2021
OFLC released factsheets displaying selected statistics for the first and second quarters of FY2021 for the PERM, H-1B, H-1B1, E-3, H-2A, H-2B, CW-1, and prevailing wage programs. The factsheets include cumulative information and are updated on a quarterly basis.
Maine Tomato Grower Pays Back Wages, Penalties for H-2A Visa Program Violations
Following a DOL WHD investigation, Backyard Farms LLC of Madison, Maine, paid back wages and civil penalties for H-2A visa program violations, including dismissing U.S. workers to make room for H-2A workers and paying workers in corresponding employment lower wages than H-2A workers.
DOL ALJ Debars North Carolina Farm Labor Contractor for H-2A Visa Program Violations
Following a DOL WHD investigation, ALJ Dana Rosen debarred Francisco Valdez Jr. LLC, a farm labor contractor based in Smithfield, NC, from applying for certification to request H-2A workers for two years. The order also assessed a civil penalty for violation of the H-2A program’s labor provisions.
DOL Notice on Allowable Charges for H-2A Workers and Meal Reimbursements for H-2A and H-2B Workers
DOL notice for 2021 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. (86 FR 13756, 3/10/21)
OFLC Provides Texas and Oklahoma Severe Weather Guidance Regarding Reasonable Case Accommodations
OFLC provided guidance regarding reasonable case accommodations in light of the damage done by severe weather in Texas and Oklahoma. Issues addressed include how to contact OFLC; deadline/timeframe flexibility; extension of time related to appeals; unintended and new worksites; and more.
DOL Notice of 2021 Adverse Effect Wage Rates for Non-Range Occupations
DOL notice of the 2021 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 2/23/21. (86 FR 10996, 2/23/21)
OFLC Announces Updates to the FLAG System for Case Management
OFLC announced that it has released updates and new features in the FLAG System, including the ability to filter for cases using one or more criteria based on form type and submission status; ability to access case PDFs directly from the case tables; and more.
DOL Foreign Labor Application Gateway (FLAG) System Updates
In 2019, OFLC rolled out the FLAG system to replace iCERT. FLAG will serve as the new application filing and case management solution for all foreign labor certification programs, including H-2A, H-2B, LCA, CW-1, Prevailing Wage and PERM applications. Use this page to find all FLAG-related updates.
DOS Announces National Interest Exceptions for Certain H-2 Travelers from South Africa
DOS announced that H-2A and certain H-2B travelers covered by the Presidential Proclamation of January 25, 2021, which relates to travelers who have been present in South Africa, may qualify for national interest exceptions. Applicants will be considered for an exception at the time of interview.
DOL Withdraws Forthcoming H-2A Temporary Agricultural Program Rule for Review
DOL announced that it has withdrawn the forthcoming final rule, Temporary Agricultural Employment of H-2A Nonimmigrants in the United States, from the Office of the Federal Register to review issues of law, fact, and policy raised by the rule. Therefore, the rule will not take effect.
Advance Copy of DOL Final Rule Amending H-2A Regulations
DOL posted an advance copy of a final rule amending the regulations governing the certification of agricultural labor or services to be performed by H-2A workers and enforcement of the contractual obligations applicable to employers of H-2A workers.
DOL Annual Adjustment of Penalties for D-1, H-1B, H-2A, and H-2B Visa Program Violations for 2021
DOL final rule effective 1/15/21 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. (86 FR 2964, 1/14/21)
AILA Notes from DOL Wage and Hour Division (WHD) Meeting (1/14/21)
AILA’s DOL Liaison Committee provides its notes from the 1/14/21 meeting with DOL WHD. These notes have not been reviewed by DOL. Topics include WHD staffing, fact sheets, opinion letters, the policy on posting LCA notices at home residences while working from home, H-2A/H-2B questions, and more.
DHS Notice of Eligible H-2A and H-2B Countries for 2021
DHS notice of the 81 countries whose nationals are eligible to participate in the H-2A program and the 80 countries whose nationals are eligible to participate in the H-2B program. The designations are effective from 1/19/21 and shall be without effect after 1/18/22. (86 FR 2689, 1/13/21)
Florida Beekeeper Pays Back Wages and Penalties After DOL Finds H-2A Violations
Following a DOL WHD investigation, S&S Apiaries LLC, a Florida-based beekeeper, paid civil penalties and back wages for violating the labor provisions of the H-2A program. Among other things, the employer failed to disclose the full terms and conditions of the job when applying to employ workers.
USCIS Temporary Final Rule Extending H-2A Requirement Changes Due to COVID-19
USCIS temporary final rule which continues to allow H-2A employees whose extension of stay H-2A petitions are supported by valid DOL temporary labor certifications to begin work with a new employer immediately after the extension of stay petition is received by USCIS. (85 FR 82291, 12/18/20)
DOL Notice of 2021 Adverse Effect Wage Rate for Range Occupations
DOL notice with the 2021 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 1/1/21. (85 FR 81221, 12/15/20)