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 Notes from DOL Wage and Hour Division (WHD) Meeting (5/23/18)
Unofficial notes from the AILA DOL Liaison Committee’s 5/23/18 meeting with DOL Wage and Hour Division. Topics include WHD staffing, LCA Fact Sheets, effectuating a bona fide termination, super penalty, H-2 compliance, U and T visa certifications, and more.
Practice Pointer: U.S. Department of Labor OFLC Help Desk Contact Information
AILA’s Department of Labor (DOL) Liaison Committee provides a compilation of the DOL Office of Foreign Labor Certification (OFLC) Help Desk contact information for the PERM, Temporary (LCA, H-2A, H-2B, D-1), and Prevailing Wage programs.
DOL Statistics on H-2As from Second Quarter of FY2018
DOL’s OFLC statistics on H-2As, as of 3/31/18, 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 FY2018
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 second quarter of FY2018 (1/1/18-3/31/18)
DOL Notice on Allowable Charges for H-2A Workers and Meal Reimbursements for H-2A and H-2B Workers
DOL notice for 2018 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. (83 FR 12410, 3/21/18)
AILA Notes from DOL H-2 Stakeholder Meeting (3/13/18)
Unofficial notes from the AILA DOL Liaison Committee’s 3/13/18 OFLC H-2 stakeholder meeting with DOL. Topics include: H-2B filings for the 2nd half of FY2018, recruitment reports, start date of need, UPS Ship Notifications, and Sunday newspaper ads, among others.
USCIS Will Email Notifications to H-2A Petitioners, Use Pre-Paid Mailers to Send RFEs
USCIS announced that it will email notifications of receipt and approval to H-2A petitioners who file Form I-129s. USCIS will use pre-paid mailers provided by H-2A petitioners to send requests for evidence (RFE) if issued and to send final decision notices under certain circumstances.
Practice Alert: Anticipated DOL Procedures Post-Government Shutdown
In light of the shutdown, members are reminded that, in December 2017, OFLC noted that it anticipated following the same procedures as it did in 2013 for the handling of applications/responses impacted by a shutdown. AILA provides the procedures posted by OFLC in 2013 for reference.
DHS Notice of Eligible H-2A and H-2B Countries for 2018
DHS notice of the 83 countries whose nationals are eligible to participate in the H-2A program and the 82 countries whose nationals are eligible to participate in the H-2B program. The notice is effective 1/18/18 and shall be without effect after 1/18/19. (83 FR 2646, 1/18/18)
USCIS Announces Countries Eligible for the H-2A and H-2B Visa Programs
USCIS and DHS, in consultation with DOS, have published the list of countries whose nationals are eligible to receive H-2A and H-2B visas in 2018. Mongolia has been added to the list and Belize, Haiti, and Samoa are no longer designated. The notice was published on 1/18/18 in the Federal Register.
DOL Notice Correcting Error in Previous Notice on Adverse Effect Wage Rate for Range Occupations in 2018
DOL notice correcting an error in a previous notice published at 82 FR 60767 on 12/22/17 announcing the 2018 Adverse Effect Wage Rate for H-2A range occupations. The correct figure is $1,584.22/month. (83 FR 152, 1/2/18)
DOL Annual Adjustment of Penalties for D-1, H-1B, H-2A, and H-2B Visa Program Violations for 2018
DOL final rule effective 1/2/18 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. (83 FR 7, 1/2/18)
DOL Statistics on H-2As from First Quarter of FY2018
DOL’s OFLC statistics on H-2As, as of 12/31/17, 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 First Quarter of FY2018
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 FY2018 (10/1/17-12/31/17)
DOL Notice with Adverse Effect Wage Rate for Range Occupations in 2018
DOL notice announcing the Adverse Effect Wage Rate for 2018 for the employment of temporary or seasonal nonimmigrant workers (H-2A workers) to perform herding or production of livestock on the range. The notice is effective 1/1/18. (82 FR 60767, 12/22/17)
DOL Notice with Adverse Effect Wage Rate for Non-Range Occupations in 2018
DOL notice with the Adverse Effect Wage Rate for 2018 for the employment of temporary or seasonal nonimmigrant workers (H-2A workers) to perform agricultural labor or services other than the herding or production of livestock on the range. The notice is effective 1/4/18. (82 FR 60628, 12/21/17)
Minutes from DOL H-2 Stakeholder Meeting (12/5/17)
AILA’s DOL Liaison Committee’s minutes from the 12/5/17 OFLC H-2 stakeholder meeting with DOL. Some topics include: H-2B filings for 2nd half of FY, raises/bonuses, recruitment reports and contact with former U.S. workers, improvements to iCERT system, and explaining changes in start/end date.
AILA Section-by-Section Analysis of the Agricultural Guestworker Act
AILA provides a section-by-section analysis of the Agricultural Guestworker Act (H.R. 4092), introduced on 10/23/17 by Representative Bob Goodlatte (R-VA).
DOL Provides PowerPoint from Webinar on H-2A Applications
DOL provided the PowerPoint presentation from the 10/31/17 webinar with information on recent program workload trends, common deficiencies, and best practices associated with the H-2A Labor Certification program. Webinar provided technical assistance and practice tips as well.
DOL Announces Enhancement of iCERT System to Streamline Processing in H-2A and H-2B Programs
DOL announced an update to its iCERT system to allow SWA staff to electronically upload supporting documentation directly to the employer’s pending application for immediate review by the assigned CNPC analyst. Update applies initially to 33 states, with a goal of full implementation by 9/30/18.
USCIS Updates Policy Guidance to Apply Same Level of Scrutiny to Both Initial Petitions and Extensions
USCIS updated policy guidance to instruct its officers to apply the same level of scrutiny to both initial petitions and extension requests for nearly all nonimmigrant classifications filed using Form I-129, Petition for a Nonimmigrant Worker.
USCIS Will No Longer Provide Deference to Prior Adjudications for Nonimmigrant Petitions
USCIS issued a policy memorandum that supersedes and rescinds prior guidance on providing deference to prior determinations of eligibility in the adjudication of petitions for extension of nonimmigrant status, including rescinding guidance from 2004 and 2015. Guidance is effective immediately.
H.R. 4092: Agricultural Guestworker Act (AG Act)
On 10/23/17, Representative Bob Goodlatte (R-VA) introduced the Agricultural Guestworker Act (H.R. 4092) which seeks to create a new temporary agricultural guestworker program by replacing the current H-2A program with an H-2C visa for temporary agricultural workers.
Minutes from DOL Wage and Hour Division (WHD) Meeting (10/13/17)
AILA’s DOL Liaison Committee’s minutes from a 10/13/17 meeting with DOL Wage and Hour Division. Some topics include: role of regional and local offices in LCA investigations, updates to WHD fact sheets, bonus payments and per-diems/housing towards required wage, and H-2A corresponding employment.
DOL Issues Round 13 H-2A FAQs on Newspaper Advertisements
DOL’s Office of Foreign Labor Certification (OFLC) published Round 13 of FAQs related to H-2A Applications for Temporary Employment Certification under the 2010 Rule. This round covers questions related to H-2A newspaper advertisements.