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 Investigation Results in Judge Ordering New Jersey Farm to Pay Back Wages and Penalties
An ALJ ordered Sun Valley Orchards, LLC, of Swedesboro, NJ, to pay back wages to 147 farmworkers, including 96 H-2A workers, after DOL WHD found it had violated H-2A provisions, including failing to provide sanitary housing, terminating workers without cause, and charging workers for meals.
DOL Finds Florida Farm Labor Contractor Violated H-2A Visa Program Requirements
Red Harvesting Inc., a farm labor contractor in Lake Placid, Florida, has paid $39,527 in wages to 119 employees after a DOL WHD investigation found it violated H-2A visa program requirements, including failing to provide meals or kitchen facilities and meet safety and health requirements.
USCIS Issues Policy Memorandum on H-2A Petitions for Sheep/Goat Herders
USCIS issued policy guidance noting that H-2A petitions seeking workers for range sheep or goat herding or production will be subject to the same temporary or seasonal need analysis that applies to other H-2A petitions. The guidance takes effect 6/1/20. USCIS is accepting comments until 12/14/19.
H.R. 5038: Farm Workforce Modernization Act of 2019
On 11/12/19, Representative Zoe Lofgren (D-CA), introduced the Farm Workforce Modernization Act of 2019 (H.R.5038) to amend the Immigration and Nationality Act to provide for terms and conditions for nonimmigrant workers performing agricultural labor or services. AILA endorses this bill.
DOL Final Rule Authorizing Electronic Payment for Penalties for H-2A Violations
DOL final rule authorizing electronic payment for certain civil penalties, including penalties for H-2A program violations. The rule is effective 11/7/19. (84 FR 59928, 11/7/19)
Updates from the DOL OFLC Stakeholder H-2 Session (11/5/19)
AILA’s DOL Liaison Committee shares updates from the 11/5/19 OFLC Stakeholder meeting’s H-2 session. Topics include: use of SeasonalJobs.dol.gov, the H-2A AEWR, H-2 filing tips from certifying officers, and an update from DOL Wage and Hour division on H-2 compliance.
OFLC Announces Updates to the FLAG System for the Prevailing Wage, H-2A and LCA Programs
OFLC released new features and enhancements for the Foreign Labor Application Gateway (FLAG) System regarding the ability for users to take actions on submitted applications for the Prevailing Wage, H-2A and LCA (H-1B, H-1B1, E-3) programs.
OFLC Releases Presentation on H-2 Labor Certification Programs Filing Tips
OFLC released a presentation on H-2 Labor Certification Programs Filing Tips from the Chicago National Processing Center. The presentation provides H-2A filing tips, H-2B filing tips, H-2A/B tips for responding to audits, and information on workload trends.
OFLC Releases FAQs on H-2A Definition of Agricultural Labor or Services
OFLC released a set of FAQs, Round 14, related to H-2A Applications for Temporary Employment Certification under the 2010 H-2A Final Rule. These FAQs address questions related to the definition of agricultural labor or services for H-2A program purposes.
AILA Notes from DOL Wage and Hour Division (WHD) Meeting (10/10/19)
AILA’s DOL Liaison Committee provides its notes from the 10/10/19 meeting with DOL WHD. These notes have not been reviewed by DOL. Topics include WHD leadership and outreach, enforcement actions, compliance with H-1B and H-2 programs, and more.
USCIS 30-Day Extension of Comment Period on Proposed Revisions to Form I-129
USCIS 30-day extension of a comment period originally announced at 84 FR 30758 on proposed revisions to Form I-129, Petition for Nonimmigrant Worker. Comments are now due 11/8/19. (84 FR 54161, 10/9/19)
OFLC Announces New Features to the FLAG System for H-2A and LCA Programs
On 10/1/19, OFLC released enhancements in the FLAG system for preparing and submitting applications in the H-2A and LCA programs. Customers will be able to take certain actions on H-2A applications while under review by OFLC, and be able to use a wage calculator to auto-calculate prevailing wages.
H-2A Petitioners Must Include Temporary Labor Certification Final Determination with Form I-129
USCIS announced that starting October 1, 2019, employers who file H-2A applications in FLAG must include a printed copy of the electronic one-page final determination of the H-2A temporary labor certification approval when submitting Form I-129, Petition for a Nonimmigrant Worker, to USCIS.
DOL Statistics on H-2As from Fourth Quarter of FY2019
The DOL OFLC provides statistics on H-2As as of 9/30/19, including number of applications received; statistics on top states, employers, and occupations; as well as the status of applications processed.
U.S. and Honduras Sign Agreements on Immigration Enforcement and H-2 Visa Programs
U.S. and Honduras signed several agreements on immigration enforcement, data sharing, and H-2 nonimmigrant visa programs. The agreements are geared toward reducing border migration from and through Central America.
DOL Final Rule on Recruitment Requirements for H-2A Workers
DOL final rule amending the regulations governing the recruitment of H-2A workers, including rescinding the requirement that an employer advertise its job opportunity in a print newspaper and expanding DOL’s electronic job registry. The rule is effective 10/21/19. (84 FR 49439, 9/20/19)
DOL Announces Final Rule on H-2A Worker Recruitment
DOL announced issuance of a final rule today that changes the labor market test for H-2A labor certification by rescinding the requirement to advertise in a print newspaper of general circulation. Instead DOL will advertise all H-2A job opportunities electronically on SeasonalJobs.dol.gov.
Practice Alert: Update on Electronic Filing of H-2A Applications in FLAG System
The DOL Liaison Committee reminds members that as of September 16, 2019, stakeholders may begin preparing H-2A applications (ETA-9142A) and job orders (ETA-790/ETA-790A) in the DOL FLAG system. The committee also shares the DOL transition schedule for H-2A forms in FLAG.
Practice Alert: KCC Confirms Progress on Implementation of Digital Record Transfer System
On August 15, 2019, the Kentucky Consular Center (KCC) provided AILA’s Department of State Liaison Committee with an update on its development of a system to digitally transfer nonimmigrant petition copies from USCIS service centers to the KCC.
OFLC Announces New H-2A Application Forms and Schedule for Electronic Filing in FLAG System
OFLC announced changes to H-2A application forms and online filing process. OFLC also announced electronic filing schedules for when the new forms will be used, as well as the migration from iCERT to FLAG.
Florida Agricultural Employer Pays Wages and Damages After DOL Uncovers FLSA and H-2A Program Violations
After a DOL WHD investigation, AG Labor LLC paid back wages and damages to 44 employees for FLSA and H-2A program violations. The employer failed to meet safety and health requirements, failed to list all job sites, and failed to pay some employees required wages for compensable time.
Federal Court Sentences Kentucky Landscape Owner for H-2A Program Violations
After a DOL WHD investigation, the U.S. District Court for the Eastern District of Kentucky sentenced Michael Anthony Wheeler, owner of Tri-State Lawn Care Inc., for FLSA and H-2A program violations. Wheeler falsified his H-2A application and knowingly hired workers to perform non-agricultural work.
Key Takeaways Related to H-2 Petitions from the May 16, 2019, OFLC Stakeholder Meeting
AILA’s DOL Liaison H-2 Subcommittee provides updates from the 5/16/19 OFLC Stakeholder meeting. Updates include general highlights, responses to NODs, new H-2B filing procedures, the FLAG system, and updates from the DOL Wage and Hour Division.
USCIS Issues Reminder of Form I-129 Rejection Criteria
Starting 8/5/19, USCIS will reject Form I-129 petitions that don’t include petitioner’s or applicant’s name and primary U.S. office address in Part 1 of the form. USCIS will apply the criteria to all requests for nonimmigrant classifications filed on the form, including the H-2A visa classification.
US DOL and Guatemala Sign Agreement on H-2A Visa Program Operations
DOL announced that it has signed a bi-lateral cooperative agreement with Guatemala regarding the H-2A nonimmigrant visa program for temporary agricultural workers. Under the agreement, Guatemala will certify that labor recruiters are vetted and registered with the Guatemalan government.