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
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)
DOL Notice of 2020 Adverse Effect Wage Rate for 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 herding or production of livestock on the range. The rate is applicable on 1/1/20. (84 FR 69768, 12/19/19)
Practice Pointer: Modernizing Requirements for the Temporary Employment of H-2A Foreign Workers
The DOL Liaison Committee provides a summary of the September 20, 2019, final rule modernizing recruitment requirements for the H-2A program. The rule took effect on October 21, 2019.
DOL Finds Florida Agricultural Employer Violated H-2A Visa Program Requirements
Following a DOL WHD investigation, Coco Sod Farms Inc., of Okeechobee, Florida, has paid a civil penalty for violating H-2A visa program requirements. Among other things, the employer housed its H-2A workers at a location different than what was listed on the job order used to secure the workers.
DOL Finds Mississippi-Based Agricultural Employer Violated H-2A Program Requirements
Following a DOL WHD investigation, H-2A Complete II Inc., a Mississippi-based H-2A staffing company providing workers in Florida, paid wages to 66 employees for violating requirements of the H-2A visa program. WHD found that the company provided only dinner to workers instead of three meals per day.
OFLC Announces Updates to the FLAG System
On December 11, 2019, OFLC released new features and updates to the FLAG System, including changes to the submitted cases table, the ability to receive an immediate notification when a document uploaded to a case or case action failed to be saved in FLAG, and more.
Bipartisan Bill Brings Needs of Farmworkers and Farmers to the Forefront
AILA President Marketa Lindt and AILA Executive Director Ben Johnson respond to the passage of the Farm Workforce Modernization Act (H.R. 5038) in the U.S. House of Representatives.
AILA Issues Vote Recommendation on H.R. 5038
AILA urged Congress to vote YES on Zoe Lofgren (D-CA) and Dan Newhouse's (R-WA) Farm Workforce Modernization Act of 2019, which would create a new temporary, renewable worker visa program requiring agricultural employers to implement the “E-Verify” program to ensure workers are authorized.
Practice Alert: OFLC Announces Transition Schedule for Temporary and Seasonal Job Opportunities from the iCERT System Public Job Registry to SeasonalJ
The DOL Liaison Committee reminds members of the OFLC’s move to SeasonalJobs.dol.gov for temporary and seasonal job opportunities. OFLC confirmed on December 6, 2019, that the Public Jobs Registry maintained through iCERT will be decommissioned on December 27, 2019.
Federal Court Orders California-Based Blueberry Grower to Pay Back Wages and Penalties for H-2A Program Violations
Following a DOL WHD investigation, the U.S. District Court for the Eastern District of California enjoined Munger Bros. and two related companies from participating in the H-2A visa program for three years. The companies will also pay back wages to workers to resolve H-2A and MSPA violations.
OFLC Announces Transition Schedule for iCERT System Public Job Registry
OFLC announced that starting December 27, 2019, the Public Job Registry containing information on temporary and seasonal jobs approved under the H-2A and H-2B visa programs maintained through the iCERT System will be decommissioned and transitioned to SeasonalJobs.dol.gov.
USCIS Provides Statistics on Premium Processing for Form I-129 and Form I-140
Obtained via FOIA, USCIS provided statistics on premium processing for Form I-129, Petition for a Nonimmigrant Worker, and Form I-140, Immigrant Petition for Alien Workers, by fiscal year and visa class for FY2014 to FY2019. Special thanks to Jonathan Wasden.
DOL Investigation Results in California Farm Labor Contractor Paying Back Wages and Penalties
Empire Farm Labor Contractor, of Salinas, CA, paid back wages to 79 employees for violations under the H-2A visa program and the MSPA. WHD investigators found it rejected a qualified U.S. worker for a job, failed to pay H-2A workers’ transportation expenses, and retained their passports and visas.