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
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)
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.