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 Notice on Allowable Charges for H-2A Workers and Meal Reimbursements for H-2A and H-2B Workers
DOL notice for 2022 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. (87 FR 10246, 2/23/22)
USCIS 30-Day Notice and Request for Comments on Proposed New Forms I-129H2A and I-129H2B
USCIS 30-day notice and request for comments on proposed new Form I-129H2A and proposed new Form I-129H2B. USCIS is separating Form I-129 into several individual forms, including these two proposed new forms. Comments are due 3/17/22. (87 FR 8601, 2/15/22)
DOL Notice of Modification of “Foreign Labor Certification System and Employer Application Case Files” System of Records
DOL notice of the modification of the “DOL/ETA-7 Foreign Labor Certification System and Employer Application Case Files” system of records. The notice is effective upon publication, with comments on routine uses accepted until 3/16/22. (87 FR 8292, 2/14/22)
Practice Pointer: Filing Extensions of Stay for H-2A Temporary Agricultural Workers
The DOL Liaison Committee provides a practice pointer on filing extensions of stay for H-2A temporary agricultural workers.
Practice Alert: AILA DOL Liaison Committee Provides Update from DOL OFLC on “Regenerated” Prevailing Wage Determinations Notifications
The DOL Liaison Committee provides a brief alert with recommendations from DOL OFLC concerning how to confirm which prevailing wage determination has been regenerated after receiving a notification from DOL.
Practice Alert: DOL National Prevailing Wage Center Confirms It Continues to Follow First-In First-Out
The DOL Liaison Committee provides a brief alert confirming that the DOL National Prevailing Wage Center continues to process applications on a first-in, first-out basis.
DOL Annual Adjustment of Penalties for D-1, H-1B, H-2A, and H-2B Visa Program Violations for 2022
DOL final rule effective 1/15/22, 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. (87 FR 2328, 1/14/22)
DOL Provides H-2A Program FAQs
The DOL Employment and Training Administration (ETA) provided FAQs on wage disclosure and calculation requirements for agricultural clearance orders, including for H-2A temporary labor certification. Topics include calculation requirements on Forms ETA-790/790A, hourly wage rates, and more.
DOL Final Rule on Adjudication of Temporary and Seasonal Need for Range H-2A Applications
DOL final rule rescinding 20 CFR §655.215(b)(2), which governed the period of need for H-2A job opportunities covering the herding or production of livestock on the range. The rule is effective 1/18/22. (86 FR 71373, 12/16/21)
DOL Notice of 2022 Adverse Effect Wage Rate for Range Occupations
DOL notice with the 2022 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 1/1/22. (86 FR 71283, 12/15/21)
DOL Notice of 2022 Adverse Effect Wage Rate for Non-Range Occupations
DOL notice with the 2022 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 12/29/21. (86 FR 71282, 12/15/21)
Practice Alert: DOL OFLC Prevailing Wage Processing Times and Tips to Avoid Further Delays
AILA’s DOL Liaison Committee provides an update on prevailing wage processing times after a discussion with the NPWC Director, as well as tips to avoid further delays.
DOL Notice of Proposed Rulemaking on Adverse Effect Wage Rate Methodology for Non-Range H-2As
DOL notice of proposed rulemaking to revise the methodology to determine the hourly Adverse Effect Wage Rates for H-2A workers in non-range occupations. Comments are due 1/31/22. (86 FR 68174, 12/1/21)
DHS Notice of Eligible H-2A and H-2B Countries
DHS notice of the 85 countries whose nationals are eligible to participate in the H-2A program and the 86 countries whose nationals are eligible to participate in the H-2B program for the coming year. (86 FR 62559, 11/10/21)
AILA Submits Comments on Proposed New Forms I-129H2A and I-129H2B
In response to a 60-day notice and request for comments, AILA submitted comments on proposed new Forms I-129H2A and I-129H2B. These forms will collect information for the H-2A and H-2B programs.
OFLC Releases FAQs on H-2A Labor Contractor Filing Requirements
OFLC released guidance on H-2A labor contractor filing requirements, including FAQs on obtaining a farm labor contractor or farm labor contractor employee certificate of registration and submitting evidence to the certifying officer of authorization to perform all farm labor contracting activities.
Practice Alert: Deadline for H-2A Employers to Comply with AEWR Backpay District Court Decision
AILA’s DOL Liaison Committee provides a reminder concerning the 9/4/21 deadline for H-2A employers to comply with the 6/11/21 court order issued in United Farm Workers, et al. v. DOL, et al. for back wages and a statement of compliance.
USCIS 60-Day Notice and Request for Comments on Proposed New Forms I-129H2A and I-129H2B
USCIS 60-day notice and request for comments on proposed new Form I-129H2A and proposed new Form I-129H2B. USCIS is separating Form I-129 into several individual forms, including these two proposed new forms. Comments are due 10/18/21. (86 FR 46260, 8/18/21)
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.