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
DHS Announces Temporary Changes to H-2A Requirements
DHS announced that it is publishing a temporary final rule to allow H-2A petitioners with a valid TLC to employ workers currently in H-2A status immediately after USCIS receives the H-2A petition. USCIS is also allowing H-2A workers to stay beyond the three-year maximum allowable period of stay.
DOL OFLC Releases Round Three of Frequently Asked Questions Regarding COVID-19
DOL OFLC released round three of frequently asked questions regarding COVID-19. The round three FAQs address potential issues regarding the H-1B temporary specialty occupation programs and H-2A temporary agricultural labor certification program.
AILA and Council Submit Joint Comments on DOL Rules Establishing a System of Secretarial Review for BALCA and ARB Cases
AILA and the Council submitted joint comments on DOL direct final rule and proposed rule establishing secretarial review for BALCA and ARB cases. The comments include a request that DOL withdraw the rules and allow the public greater opportunity to comment on the significant changes proposed.
DOL OFLC Releases Round Two of Frequently Asked Questions Regarding COVID-19
DOL OFLC released another set of FAQs regarding its operations during the COVID-19 pandemic. The new FAQs address potential issues regarding the H-2A temporary agricultural labor certification program.
DOL OFLC Temporarily Suspends Daily Mail Processing at Atlanta and Chicago National Processing Centers
OFLC announced temporary suspension of daily mail processing at the Atlanta and Chicago National Processing Centers (NPCs) due to the COVID-19 pandemic. OFLC will monitor mail once a week and encourages use of FLAG and PERM electronic filing systems to file new applications or upload documents.
Practice Alert: Three-Fourths Wage Guarantee for H-2 Workers During COVID-19 Outbreak
AILA’s DOL Liaison Committee provides information concerning the three-fourths wage requirement under H-2A and H-2B regulations and the guidance currently available on the application of this requirement. The Committee continues to monitor the impact of COVID-19 on DOL operations and on employers.
DOS Says It Intends to Continue Processing H-2 Visas as Much as Possible
DOS announced that it intends to continue processing H-2 cases as much as possible, post resources and local government restrictions permitting. DOS has authorized consular officers to expand the categories of H-2 visa applicants whose applications can be adjudicated without an in-person interview.
DOL Notice on Allowable Charges for H-2A Workers and Meal Reimbursements for H-2A and H-2B Workers
DOL notice for 2020 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. (85 FR 16133, 3/20/20)
DOL OFLC Releases Frequently Asked Questions Regarding COVID-19
OFLC released FAQs regarding its operations during the pandemic. OFLC remains fully operational and continues to process and issue PWDs and labor certifications. If employers are unable to meet all statutory and regulatory requirements, OFLC will not grant labor certifications for the application.
USDA and DOL Announce Partnership to Identify H-2A and H-2B Workers Who May Be Eligible to Transfer to Other Employers
USDA and DOL announced a partnership to help identify H-2A and H-2B certified positions that have expiring contracts in the coming weeks and who could be available to transfer to a different employer’s labor certification. The agencies have identified nearly 20,000 such positions.
Practice Alert: DOL Liaison Committee Raises Questions with DOL OFLC and WHD Concerning Compliance During COVID-19 Outbreak
AILA’s DOL Liaison Committee provides a summary of issues raised for clarification with DOL Office of Foreign Labor Certification (OFLC) and DOL Wage and Hour Division (WHD) concerning compliance with H-1B/PERM and H-2 requirements during the COVID-19 global pandemic.
U.S. Consulate in Monterrey Addresses H-2 Processing During COVID-19 Outbreak
The U.S. Consulate in Monterrey, Mexico, provides stakeholders with an update on its processing of H-2 cases during the COVID-19 global pandemic.
Cato Institute Report on H-2A Visas
The Cato Institute published a policy brief explaining how the H-2A visa program for temporary agricultural workers functions. The brief examines the program's bureaucratic complexity, H-2A minimum wages vs. state minimum wages, Americans' acceptance of H-2A job offers, H-2A violations, and more.
USCIS Notice of Requirement of the Temporary Labor Certification Final Determination Under the H-2A Program
USCIS notice that a printed copy of the electronic final determination form granting temporary labor certification under the H-2A program through DOL’s new FLAG system must be submitted with an H-2A petition as evidence of an original and valid temporary labor certification. (85 FR 13176, 3/6/20)
DOL Finds Florida-Based Farm Labor Contractor Violated H-2A Visa Provisions
Following a DOL WHD investigation, SBHLP Inc., a Florida-based H-2A labor contractor that supplied workers to five North Carolina farms, is required to pay wages to 194 employees for violating H-2A program requirements. DOL also assessed a civil penalty and debarred the contractor for three years.
USCIS Announces H-2A and H-2B Petitions Must Include Printed Copy of Electronic Final Determination Form
USCIS published two Federal Register notices announcing that petitioners must submit a printed copy of the electronic final determination form granting temporary labor certification under the H-2A and H-2B programs through the DOL FLAG system with the corresponding H-2A or H-2B petition.
USCIS Publishes Updated Guidance on H-2A Petitions for Sheep/Goat Herders
USCIS published an updated policy memo requiring requests for H-2A workers for sheep/goat herding or production to be subject to the same requirements as other temporary agricultural workers. USCIS will adjudicate all Forms I-129 for H-2A sheep/goat herders with this updated PM effective 6/1/20.
DOS Releases Statistics on Nonimmigrant Visas Issued by Classification
DOS released statistics on nonimmigrant visas issued by classification, including border crossing cards, for FY2015 through FY2019.
Practice Alert: Issues with Generating the PDF Format of ETA Form 9142
AILA’s DOL Liaison Committee has contacted OFLC regarding ongoing reports from members on issues viewing the PDF of submitted, pending, and certified versions of ETA Form 9142 in the DOL’s FLAG System. OFLC confirmed it is working to find a fix or software patch to address this specific concern.
OFLC Announces Decommissioning Schedule for the iCERT System Labor Certification Registry
OFLC announced that effect February 28, 2020, iCERT System account users will no longer be able to take any actions on their applications within the Prevailing Wage, LCA, H-2A, or H-2B areas. Users will retain the ability to access their accounts and view, download, or copy information.
OFLC Implements Technical Fixes and Enhancements to the FLAG System
OFLC implemented technical fixes and new enhancements to the FLAG System related to the submission of applications. OFLC made updates for users preparing applications for H-2B, H-2A, LCA (H-1B, H-1B1, E-3), and the prevailing wage program.
DHS Notice of Eligible H-2A and H-2B Countries for 2020
DHS notice of the 84 countries whose nationals are eligible to participate in the H-2A program and the 81 countries whose nationals are eligible to participate in the H-2B program. The designations are effective from 1/19/20 and shall be without effect after 1/18/21. (85 FR 3067, 1/17/20)
DOL Annual Adjustment of Penalties for D-1, H-1B, H-2A, and H-2B Visa Program Violations for 2020
DOL final rule effective 1/15/20 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. (85 FR 2292, 1/15/20)
Two Agricultural Employers in Idaho Pay Back Wages and Civil Penalties for H-2A Visa Violations
Following separate DOL WHD investigations, Alan Brown of Soda Springs, Idaho, and Forrest Arthur of Paul, Idaho, paid back wages and civil penalties for several H-2A violations. Among other violations, the employers failed to pay the required rates and reimburse workers for transportation expenses.
DOL Notice of 2020 Adverse Effect Wage Rate for Non-Range Occupations
DOL notice with the 2020 Adverse Effect Wage Rate for the employment of temporary or seasonal nonimmigrant foreign workers (H-2A workers) to perform agricultural labor or services other than the herding or production of livestock on the range. The rate is applicable 1/2/20. (84 FR 69774, 12/19/19)