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 Debars Florida H-2A Labor Contractors for Violating Visa Program Requirements
DOL WHD debarred Flo-Ag LLC, a farm labor contracting company based in Labelle, Florida, and its principals, from applying for certification to request H-2A workers for two years. WHD also assessed a civil penalty for H-2A program violations and found that the employer owed back wages to employees.
Idaho Grower, Transporter Pay Back Wages Following DOL Investigation into H-2A Visa Program Violations
Following a DOL WHD investigation, Lance Funk Farms and Great Rift Transportation will pay back wages and civil penalties for H-2A violations. Great Rift Transportation failed to pay overtime, while Lance Funk Farms, among other things, failed to pay U.S. workers the same rate as H-2A workers.
Mississippi Fish Farm Pays Back Wages Following DOL Investigation into H-2A Visa Program Violations
Following a DOL WHD investigation, Tackett Fish Farms LLC, of Schlater, MS, paid back wages for H-2A visa program violations. WHD found that, among other things, the fish farm failed to reimburse H-2A workers for expenses incurred while traveling to the employer’s location from their home countries.
OFLC Creates New Webpage Consolidating Adverse Effect Wage Rate Information for the H-2A Visa Program
OFLC has created a new webpage consolidating Adverse Effect Wage Rate (AEWR) information for the H-2A program, including the monthly AEWR for range occupations, and the hourly AEWRs for non-range occupations. The latter will apply to H-2A job orders submitted on or after December 21, 2020.
DOL OIG Issues Report on Vulnerabilities and Challenges in Foreign Labor Certification Programs
DOL OIG issued a report on known vulnerabilities in the PERM, H-1B, H-2A, and H-2B foreign labor certification programs. Identifying vulnerabilities based on the programs’ pre-filing, application filing, and post-adjudication phases, DOL OIG found that the programs are “highly susceptible to fraud.”
DOL Final Rule on Adverse Effect Wage Rate Methodology for Non-Range H-2As
DOL final rule revising the methodology for determining the Adverse Effect Wage Rate for H-2A workers in non-range agricultural occupations. The final rule is effective 12/21/20. (85 FR 70445, 11/5/20)
DOL Implementation FAQs: Final Rule, Adverse Effect Wage Rate Methodology for the Temporary Employment of H-2A Nonimmigrants in Non-Range Occupations
DOL’s Employment and Training Administration issued implementation FAQs on the DOL H-2A final rule to be published in the November 5, 2020, Federal Register.
Practice Pointer: DOL Liaison Committee’s Top DOL OFLC Updates from Q4 of FY2020
AILA’s DOL Liaison Committee provides top takeaways from the Department of Labor Office of Foreign Labor Certification’s updates in the fourth quarter of FY2020.
DOL OIG Says DOL Needs to Improve Debarment Processes to Ensure Foreign Labor Program Violators Are Held Accountable
DOL OIG released a report saying that DOL needs to improve its debarment process to hold foreign labor program violators accountable. The OIG found that DOL has not fully used its H-1B investigation process, and has not established a process to determine how many H-2A and H-2B applications to audit.
OFLC Releases FY2020 Statistics on H-2A Temporary Agricultural Program
DOL OFLC provided statistics on H-2As for all quarters of FY2020, including the number of applications received and processed (certified, denied, or withdrawn); top states of employment; top employers; and top occupations.
AILA Comments on Proposed Revisions to H-2A Regulations
AILA submitted comments on the proposed revisions to regulations concerning the certification of H-2A workers and obligations relevant to employers, including mandatory electronic filing and electronic signatures, revisions to AEWR methodology, staggered entry of workers, the 30-day rule, and more.
U.S. and Guatemala Sign Joint Agreement on H-2 Visa Program Operations
DOL announced that it has signed a bilateral cooperative agreement with Guatemala regarding the H-2A and H-2B visa programs. Under the agreement, Guatemala will register Guatemalan workers for possible employment in the U.S. and offer free recruitment and selection services for U.S. employers.
Judge Orders New Jersey Farm to Pay Back Wages and Penalties Following DOL Investigation into H-2A Visa Program Violations
A judge ordered Bald Eagle Farms of Harrisonville, NJ, to pay back wages to 62 farmworkers that included H-2A workers from Mexico. A DOL WHD investigation found several H-2A violations, including failure to provide workers with a copy of their work contracts before they applied for their visas.
Los Angeles Area-Recruitment Firm Owner Sentenced to Prison for Immigration Fraud Scheme Involving H-2A Work Visas
Jorge Vasquez, owner of J&D Harvesting, a firm that contracted workers to farms in California, was sentenced to 12 months in prison for his role in an immigration fraud scheme that charged Mexican nationals money to obtain H-2A work visas. The case was investigated by ICE HSI, DOL OIG, and DOS DSS.
USCIS Provides Instructions for Form I-9 Completion by Non-E-Verify Agricultural Employers of Certain H-2A Nonimmigrants
USCIS provided instructions for Form I-9 completion by non-E-Verify employers who are employing H-2A workers under USCIS’s new temporary final rule (85 FR 51304, 8/20/20) that partially extends the 4/20/20 rule on H-2A requirement changes due to COVID-19.
USCIS Temporary Final Rule Partially Extending Rule on 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 temporary labor certifications to begin work with a new employer immediately after the extension of stay petition is received by USCIS. (85 FR 51304, 8/20/20)
Practice Alert: DOL OFLC Provides Updates and Tips for PERM and LCA Issues
AILA’s DOL Liaison Committee provides updates, tips, and best practices from DOL OFLC relevant for PERM and LCA issues.
OFLC Announces Migration of Website to New Domain
OFLC announced that it will migrate its website from foreignlaborcert.doleta.gov to dol.gov/agencies/eta/foreign-labor-certification on August 3, 2020. Old URLs for webpages and files will be redirected to corresponding links on the new site.
USCIS Releases Data on Petition for Nonimmigrant Worker Receipts, Completions, and RFEs
USCIS released data on receipts, completions, and Requests for Evidence (RFE) sent from FY2015 to FY2020 (through 6/30/20) for various employment-based nonimmigrant visa categories, including H-1B, L-1A, L-1B, O, R-1, TN, H-2A, and H-2B.
Notes from DOL OFLC Virtual Meeting with AILA and NAFSA (5/20/20)
AILA’s DOL Liaison Committee shares updates from a 5/20/20 virtual meeting between AILA, NAFSA, and DOL OFLC on current issues impacting H-1B/PERM, H-2, and prevailing wage cases. OFLC provided updates on all of these issues and addressed questions posed by AILA and NAFSA.
DOL Debars Georgia Berry Company for Violating H-2A Visa Provisions
DOL WHD debarred Reyes Quality Berry Farm LLC, of Poulan, Georgia, from applying for certification to request workers under the H-2A visa program for three years. WHD found that the farm and owner failed to provide employees with work hours guaranteed on their contracts and to pay required wages.
DOL Finds South Dakota Bee Company Violated H-2A Visa Provisions
A DOL WHD investigation found that Strehlow Bees Inc., based in Kadoka, South Dakota, violated the H-2A visa program by paying employees less than the hourly rate advertised; failing to include other work locations on its visa applications; and failing to have housing inspected prior to occupancy.
CRS Releases Report on Policy and Related Issues Concerning H-2A and H-2B Visas
CRS released a report on H-2A and H-2B visas, including the regulations and processes governing visa issuance; data concerning these visa programs; legislative activity since 2015 concerning the workers; and policy considerations including the labor market test, required wages, and enforcement.
OFLC Decommissions the iCERT System
As of May 1, 2020, the legacy iCERT System has been fully decommissioned and is no longer accessible to account holders and the general public. Users will be redirected to the FLAG System.
USCIS Temporary Final Rule on Changes to H-2A Requirements Due to COVID-19 Emergency
USCIS temporary final rule temporarily removing certain limitations on H-2A employers and workers due to the COVID-19 emergency. The rule is effective from 4/20/20 through 8/18/20. (85 FR 21739, 4/20/20)