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 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)
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.