# Temporary Agricultural Employment of H-2A Aliens in the United States; Modernizing the Labor Certification Process and Enforcement

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## Record

- **Collection:** Federal Register
- **Document type:** Proposed Rule
- **Published:** February 13, 2008
- **Citation:** 73 FR 8538

## Text

DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Part 655
Wage and Hour Division
29 CFR Parts 501, 780, and 788
RIN 1205-AB55
Temporary Agricultural Employment of H-2A Aliens in the United States; Modernizing the Labor Certification Process and Enforcement

AGENCY:

Employment and Training Administration, and Wage and Hour Division, Employment Standards Administration, Labor.

ACTION:

Proposed rule; request for comments.

SUMMARY:

The Department of Labor (the Department or DOL) is proposing to amend its regulations regarding the certification of temporary employment of nonimmigrant workers employed in temporary or seasonal agricultural employment and the enforcement of the contractual obligations applicable to employers of such nonimmigrant workers. This notice of proposed rulemaking (NPRM or proposed rule) would re-engineer the process by which employers may obtain a temporary labor certification from the Department for use in petitioning the Department of Homeland Security (DHS) to employ a nonimmigrant worker in H-2A (agricultural temporary worker) status. Re-engineering measures focus on the utilization of an attestation-based application process after an employer conducts pre-filing recruitment and the elimination of duplicative activities currently performed by the State Workforce Agencies (SWAs). In concert with these changes, the Department proposes to amend the wage and hour regulations to provide for enhanced enforcement, including more rigorous penalties, under the H-2A program to complement the modernized certification process so that workers are appropriately protected should an employer fail to meet the requirements of the H-2A program.

DATE:

Interested persons are invited to submit written comments on the proposed rule on or before March 31, 2008.

ADDRESSES:

You may submit comments, identified by Regulatory Information Number (RIN) 1205-AB55, by any one of the following methods:

•
Federal e-Rulemaking Portal www.regulations.gov:
Follow the Web site instructions for submitting comments.

•
Mail:
Please submit all written comments (including disk and CD-ROM submissions) to Thomas Dowd, Administrator, Office of Policy Development and Research, Employment and Training Administration, U.S. Department of Labor, 200 Constitution Avenue, NW., Room N-5641, Washington, DC 20210.

•
Hand Delivery/Courier:
Please submit all comments to Thomas Dowd, Administrator, Office of Policy Development and Research, Employment and Training Administration, U.S. Department of Labor, 200 Constitution Avenue, NW., Room N-5641, Washington, DC 20210.

Please submit your comments by only one method. The Department will post all comments received on
http://www.regulations.gov
without making any change to the comments, including any personal information provided. The
http://www.regulations.gov
Web site is the Federal e-rulemaking portal and all comments posted there are available and accessible to the public. The Department cautions commenters not to include their personal information such as Social Security numbers, personal addresses, telephone numbers, and e-mail addresses in their comments as such submitted information will become viewable by the public via the
http://www.regulations.gov
Web site. It is the responsibility of the commenter to safeguard his or her information. Comments submitted through
http://www.regulations.gov
will not include the commenter's e-mail address unless the commenter chooses to include that information as part of his or her comment.

Postal delivery in Washington, DC, may be delayed due to security concerns. Therefore, the Department encourages the public to submit comments via the Web site indicated above.

Docket:
For access to the docket to read background documents or comments received, go to the Federal eRulemaking portal at
http://www.regulations.gov.
The Department will also make all the comments it receives available for public inspection during normal business hours at the ETA Office of Policy Development and Research at the above address. If you need assistance to review the comments, the Department will provide you with appropriate aids such as readers or print magnifiers. The Department will make copies of the rule available, upon request, in large print and as an electronic file on a computer disk. The Department will consider providing the proposed rule in other formats upon request. To schedule an appointment to review the comments and/or obtain the rule in an alternate format, contact the Office of Policy Development and Research at (202) 693-3700 (VOICE) (this is not a toll-free number) or 1-877-889-5627 (TTY/TDD).

FOR FURTHER INFORMATION CONTACT:

For further information regarding 20 CFR part 655, contact Sherril Hurd, Acting Team Leader, Regulations Unit, Employment and Training Administration (ETA), U.S. Department of Labor, 200 Constitution Avenue, NW., Room N-5641, Washington, DC 20210; Telephone (202) 693-3700 (this is not a toll-free number). Individuals with hearing or speech impairments may access the telephone number above via TTY by calling the toll-free Federal Information Relay Service at 1-800-877-8339. For further information regarding 29 CFR parts 501, 780 and 788, contact James Kessler, Farm Labor Team Leader, Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor, 200 Constitution Avenue, NW., Room S-3510, Washington, DC 20210; Telephone (202) 693-0070 (this is not a toll-free number). Individuals with hearing or speech impairments may access the telephone number above via TTY by calling the toll-free Federal Information Relay Service at 1-800-877-8339.

SUPPLEMENTARY INFORMATION:

I. Revisions to 20 CFR Part 655 Subpart B

A. Background

1. Statutory Standard and Current Department of Labor Regulations

The H-2A worker visa program provides a means for U.S. agricultural employers to employ foreign workers on a temporary basis to perform agricultural labor or services when U.S. labor is in short supply. Section 101(a)(15)(H)(ii)(a) of the Immigration and Nationality Act (INA or the Act) defines an H-2A worker as a nonimmigrant admitted to the U.S. on a temporary or seasonal basis to perform agricultural labor or services. 8 U.S.C. 1101(a)(15)(H)(ii)(a), see also 8 U.S.C. 1184(c)(1) and 1188. Although foreign agricultural labor has contributed to the growth and success of America's agricultural sector since the 19th century, the modern-day agricultural worker visa program originated with the creation, in the Immigration and Nationality Act of 1952, of the “H-2 program”—a reference to the INA section that established it. The H-2

program established mechanisms for the use of temporary foreign labor but did not distinguish between agricultural and other types of work.

More than 30 years later, the Immigration Reform and Control Act of 1986 (IRCA) amended the INA to establish a separate H-2A visa classification for agricultural labor under INA Section 101(a)(15)(H)(ii)(A). Public Law 99-603, Title III, 100 Stat. 3359, November 6, 1986. Today, the H-2A nonimmigrant visa program authorizes the Secretary of Homeland Security to permit employers to hire foreign workers to come temporarily to the U.S. and perform agricultural services or labor of a seasonal or temporary nature, if such employment is first certified by the Secretary of Labor (the Secretary).

Section 214(c)(1) of the INA, as amended, requires the Secretary of Homeland Security to consult with appropriate agencies of the Government—in particular, the Department of Labor—before approving a petition from an employer for employment of H-2A nonimmigrant agricultural workers. 8 U.S.C. 1184(c)(1). Section 218 of the Act, together with section 214, establishes the statutory structure for the program and provides that a petition to import H-2A workers may not be approved unless the petitioner has applied to the Secretary of Labor for a certification. Section 218 sets out the explicit obligation for the Department to certify that:

(A) There are not sufficient U.S. workers who are able, willing, and qualified, and who will be available at the time and place needed to perform the labor or services involved in the petition; and

(B) The employment of the alien in such labor or services will not adversely affect the wages and working conditions of workers in the United States similarly employed.

8 U.S.C. 1188(a)(1).

The INA specifies conditions under which the Secretary must deny certification, and establishes specific timeframes within which employers must file—and the Department must process and either reject or certify—applications for H-2A labor certification. In addition, the statute institutes certain employment-related protections, including workers' compensation insurance, recruitment, and housing, to which H-2A employers must adhere. 8 U.S.C. 1188(c). The H-2A program does not limit the number of aliens who may be accorded H-2A status each year or the number of labor certification applications the Department may process.

The Department has published regulations at 20 CFR part 655, subpart B—“Labor Certification Process for Temporary Agricultural Employment Occupations in the United States (H-2A Workers),” governing the H-2A labor certification process; and at 29 CFR part 501 to implement its enforcement responsibilities under the H-2A program. Regulations impacting employer-provided housing for agricultural workers appear at 20 CFR part 654, subpart E (Housing for Agricultural Workers), and 29 CFR 1910.42 (standards set by the Occupational Safety and Health Administration); see also 20 CFR 651.10, and part 653, subparts B and F.

The INA also sets out the conditions under which a certification may not be granted, including:

(1) There is a strike or lockout in the course of a labor dispute which, under the regulations, precludes such certification.

(2)(A) The employer during the previous two-year period employed H-2A workers and the Secretary of Labor has determined, after notice and opportunity for a hearing, that the employer at any time during that period substantially violated a material term or condition of the labor certification with respect to the employment of domestic or nonimmigrant workers.

(B) No employer may be denied certification under subparagraph (A) for more than three years for any violation described in such subparagraph.

(3) The employer has not provided the Secretary with satisfactory assurances that if the employment for which the certification is sought is not covered by State workers' compensation law, the employer will provide, at no cost to the worker, insurance covering injury and disease arising out of and in the course of the worker's employment which will provide benefits at least equal to those provided under the State workers' compensation law for comparable employment.

(4) The Secretary determines that the employer has not made positive recruitment efforts within a multi-state region of traditional or expected labor supply where the Secretary finds that there are a significant number of qualified United States workers who, if recruited, would be willing to make themselves available for work at the time and place needed. Positive recruitment under this paragraph is in addition to, and shall be conducted within the same time period as, the circulation through the interstate employment service system of the employer's job offer. The obligation to engage in positive recruitment under this paragraph shall terminate on the date the H-2A workers depart for the employer's place of employment.

8 U.S.C. 1188(b).

The statute further sets out strict timelines for the processing of certifications: The Secretary may not require that an application be filed more than 45 days before the employer's date of need, and certification must occur no later than 30 days prior to the date of need, provided that all the criteria for certification are met. 8 U.S.C. 1188(c). If the application fails to meet threshold requirements for certification, notice must be provided to the employer within 7 days of the date of filing, and a timely opportunity to cure deficiencies must be provided to the employer. The Act does not explicitly provide a timeframe for certification in cases where an application as originally filed failed to meet the criteria for certification and the employer is, upon the date that is 30 days prior to the date of need, still coordinating with the Department and making a good faith effort to cure deficiencies.

The Secretary has delegated her statutory responsibilities under the H-2A program, through the Assistant Secretary, Employment and Training Administration (ETA), to ETA's Office of Foreign Labor Certification (OFLC). Under the current regulations in 20 CFR part 655, subpart B, H-2A labor certification applications are processed concurrently through the State Workforce Agency (SWA) having jurisdiction over the area of intended employment and the applicable National Processing Center (NPC) within the OFLC. The SWA and ETA—through the NPCs—receive the application and review the terms of the job offer concurrently.

Upon receipt of an employer's application, the SWA places in its job clearance system a job order initiating local recruitment, but does not place the job in broader circulation until it receives additional instructions from ETA. By law, ETA has 7 calendar days from the employer's date of filing within which to identify and notify the employer and SWA of deficiencies in the application and provide the employer an opportunity to submit an amended or modified application. Alternatively, in that same time period, ETA may accept the application for processing; acceptance reflects ETA's initial determination that the benefits, wages, and working conditions of the employer's job offer, for which temporary certification of foreign labor is sought, will not have an adverse effect on similarly employed U.S. workers. ETA then notifies the employer and SWA of this threshold determination and authorizes the SWA to place the employer's job order in intrastate/interstate clearance. See 20 CFR part 653, subpart F.

The SWA having jurisdiction over the State where the employer's work site is located is responsible for processing the

employer's request for H-2A labor certification, overseeing the recruitment and directing U.S. worker referrals to the employer. The NPC reviews whether the employers comply with advertising and recruitment requirements, and adjudicates the application—determining whether to approve or deny certification for some or all of the jobs requested.

To obtain a temporary labor certification, the employer must demonstrate that the need for the services or labor is of a temporary or seasonal nature. The employer must also establish that the job opportunity for the temporary position is full-time, and, absent extraordinary circumstances, the period of need is 1 year or less.

Historically, Departmental review and adjudication of applications took place through both the SWAs and ETA's Regional Offices. However, in December 2004, the Department opened two new NPCs, one located in Atlanta, Georgia, and the other in Chicago, Illinois, to consolidate processing of permanent and temporary foreign labor certification cases at the Federal level. In 2005, the Department published a notice in the
Federal Register
at 70 FR 41430, Jul. 19, 2005, clarifying that employers seeking H-2A certifications (with a few limited exceptions discussed below) must file two original copies of Form ETA 750, Part A, and Form ETA 790 directly with the NPC of jurisdiction and, concurrently, a copy with the SWA serving the area of intended employment. SWAs coordinate all activities regarding the processing of H-2A applications directly with the appropriate NPC for their jurisdiction, including transmittal to the NPC of housing inspection results, prevailing wage surveys, prevailing practice surveys, or any other material bearing on an application. Once the application is reviewed by the SWA and after the employer conducts its required recruitment, the SWA sends the complete application to the appropriate NPC. The NPC Certifying Officer (CO), on behalf of the Secretary, reviews the application for completeness and either certifies the application for temporary employment under the H-2A program, or denies the certification. Current Department regulations at 20 CFR part 655, subpart B, establish procedures by which an employer may appeal to an administrative law judge either an initial rejection of an application or a final determination denying the application.

Employers receiving approved labor certifications attach them in support of their I-129 petitions to DHS for authorization to employ foreign workers in H-2A status. For situations where prospective H-2A workers are outside of the U.S., the employer forwards the approved petition notice to its prospective employees who then apply for an H-2A visa at the appropriate U.S. consulate or port of entry. The Department of State then determines whether to issue visas to the foreign workers requested under the employer's petition, who can then be admitted through the appropriate port of entry. For H-2A workers already legally present in the U.S., DHS adjudicates an application to extend or change their current status to H-2A status as part of the petition approval process.

2. The Need for a Redesigned System

Modern agriculture is a tremendous benefit to the U.S.—to its culture, its health, and its economic prosperity. The value of U.S. agricultural production was estimated to be $276 billion in 2006.
1

Farm and farm-related industries employ an estimated 2.7 million workers every year.
2

This includes both wage earning workers and those working for no wages on family farms.

1
Bureau of Economic Analysis, National Income and Product Accounts, Table 7.3.5;
http://www.bea.gov/national/nipaweb/TableView.asp?SelectedTable=263&FirstYear=2005&LastYear=2006&Freq=Year.

2
Bureau of Economic Analysis, Regional Economic Accounts, Table SA25N,
http://www.bea.gov/regional/spi/default.cfm?satable=SA25N&series=NAICS.

One unfortunate reality of modern American agriculture is that the majority of the foreign workers assisting with the year's harvest are undocumented. In fact, the share of the agricultural workforce that is not work-authorized has increased dramatically in recent years while the number of U.S. workers engaged in agriculture has dropped steadily.
3

3
National Agricultural Workers Survey, Public Access Data, Fiscal Years 1989-2006. U.S. Department of Labor, Employment and Training Administration, Office of Policy Development and Research.
http://www.doleta.gov/agworker/naws.cfm.

Evidence of a shrinking domestic agricultural workforce is found in the U.S. Department of Agriculture's (USDA) Farm Labor Survey, a quarterly survey of employers. Comparing third-quarter totals over the 10 year period 1998-2007, there were 1,450,000 wage-earning workers on the Nation's farms and ranches in July 1998 but only 1,205,000 for the same quarter of 2007, for a decrease of 245,000 workers. The largest decrease occurred between 2005, when there were 1,344,000 wage-earning workers, and 2006, when 1,196,000 were reported.
4

The 1 year change between 2005 and 2006 represents an 11 percent decrease. While increases in productivity have contributed to an expanding agricultural output with fewer inputs, including labor, this sudden and dramatic decrease in the supply of workers cannot be entirely attributed to productivity, and poses severe economic consequences for growers, especially those of perishable crops. Indeed, the Department's program experience and survey data have consistently supported the proposition that the agricultural industry has many more jobs than available legal workers.

4
2006 USDA National Agricultural Survey.

Recent reports on the state of agriculture in the U.S. confirm the dependence of many agricultural employers on undocumented workers. The National Agricultural Worker Survey (NAWS)
5

conducted each year by the Department shows that in 1990, 17 percent of agricultural workers were illegally present in the U.S. By 2006, the number of agriculture workers who self-identify as being illegal had increased to 53 percent. Some worker advocates have suggested that the actual number of illegal workers is greater than 70 percent.
6

5
The National Agricultural Workers Survey (NAWS) is a Department-sponsored employment-based, random survey of the demographic, employment, and health characteristics of the U.S. crop labor force. The information is obtained directly from farm workers through face-to-face interviews.

6

See, e.g.
, Marcos Camacho, General Counsel, United Farm Workers, Testimony Before the Committee on the Judiciary, U.S. House of Representatives, May 24, 2007.

Data from NAWS further shows that in 2006, 19 percent of all agricultural workers were first time U.S. farm workers (new farm workers are those who have less than a year of U.S. farm work experience). Among the new workers, 85 percent were foreign-born; 15 percent were U.S. citizens. All of the foreign-born new workers were unauthorized (100 percent).

Authorized workers appear to be leaving farm jobs because of age or opportunities for more stable and higher paying employment outside of agriculture, and are being replaced almost exclusively by unauthorized foreign-born workers. In addition, enhanced enforcement of Federal immigration law appears to have also contributed to a reduction in the availability of agricultural workers, which has in turn had the unintended consequence of sparking a series of agricultural crises across a number of States in the past year. As increased border enforcement efforts have succeeded in limiting the number of border crossings by illegal workers, U.S.

employers, which all too often relied on such workers in the past, have had an increasingly difficult time finding enough workers to harvest their crops.

Numerous reports of shrinking or nonexistent farm seasonal labor, with attendant crop loss for lack of harvest help, have been prominent in recent months and reflect Department survey data.
See, e.g.
, “Pickers are Few, and Growers Blame Congress,”
The New York Times,
September 22, 2006; “Farmers to Congress: Crops are Rotting,”
Austin-American Statesman,
January 10, 2007. As stepped-up enforcement efforts have diminished the availability of agricultural workers, States and farmers have increasingly resorted to sometimes extreme means to address the resulting labor shortage. For example, the State of Colorado has initiated the use of inmate labor on farms where migrant labor was previously used. “Facing Illegal Immigrant Crackdown, Farms Look to Inmate Labor,”
ABC News,
July 25, 2007. In addition, an increasing number of farmers have been investigating alternatives such as raising crops across the Mexican border to secure needed workers that they cannot legally hire in the U.S. “Short on Labor, Farmers in U.S. Shift to Mexico,”
The New York Times,
September 5, 2007.

This critical need for legal workers in the U.S. agricultural industry has been recognized by many Members of Congress, including during recent deliberations over immigration reform. Senator Feinstein highlighted the unique labor needs of agriculture and the importance of foreign labor in a September 2006 floor statement:

We have 1 million people who usually work in agriculture. I must tell you they are dominantly undocumented. Senator Craig pointed out the reason they are undocumented is because American workers will not do the jobs.

When I started this I did not believe it, so we called all the welfare departments of the major agriculture counties in California and asked—can you provide agricultural workers? Not one worker came from the people who were on welfare who were willing to do this kind of work. That is because it is difficult work. The Sun is hot. The back has to be strong. You have to be stooped over. It is extraordinarily difficult work.

For a State as big as mine, there is an immigrant community which is professionally adept at this kind of work. They can pick, they can sort, they can prune, they can harvest—virtually better than anybody. This is what they do. This is what makes our agricultural community exist.

It is very hard for a farmer to hire a documented worker. It is very hard to find that documented worker. So if they are going to produce they have to find the labor somewhere.

My State produces one-half of the Nation's fruits, vegetables and nuts. One-half comes from California. We produce 350 different crops. We have an opportunity now, with this bill, to get adequate labor for this harvest season on this border security bill.

In my State of California, growers are reporting that their harvesting crews are 10 to 20 percent of what they were previously due to two things: Stepped up enforcement, a dwindling pool of workers, and the problem that ensues from both.
7

7
152 Cong. Rec. S9773 (2006).

In January 2007, Senator Craig summarized the problem facing U.S. agriculture in this way:

[T]his economic sector, more than any other, has become dependent for its existence on the labor of immigrants who are here without legal documentation. The only program currently in place to respond to a lack of legal domestic agricultural workers, the H-2A guest worker program, is profoundly broken. Outside of H-2A, farm employers have no effective, reliable assurance that their employees are legal.

We all want and need a stable, predictable, legal workforce in American agriculture. Willing American workers deserve a system that puts them first in line for available jobs with fair market wages. All workers should receive decent treatment and protection of fundamental legal rights. Consumers deserve a safe, stable, domestic food supply. American citizens and taxpayers deserve secure borders and a government that works.

Last year, we saw millions of dollars' worth of produce rot in the fields for lack of workers. We are beginning to hear talk of farms moving out of the country, moving to the foreign workforce. All Americans face the danger of losing more and more of our safe, domestic food supply to imports.

Time is running out for American agriculture, farm workers, and consumers. What was a problem years ago is a crisis today and will be a catastrophe if we do not act immediately.
8

8
153 Cong. Rec. S441-S442 (2007).

Facing a shortage of available U.S. workers, agricultural employers have been left with the untenable choice of either (a) attempting to legally employ temporary foreign workers through an H-2A program that is widely decried as dysfunctional, but risking losing crops if inefficient program administration results in the workers arriving too late for harvest; (b) using illegal workers, and incurring the risk that the workers, and consequently the crops, will be lost to immigration enforcement; or (c) not hiring any workers at all—in effect, ending U.S. farming operations.

It is entirely unacceptable, but perhaps unsurprising, that many agricultural employers have chosen in recent years to take their chances with undocumented workers—if for no other reason than a lack of viable alternatives. The willingness of agricultural employers to hire illegal workers has created a continuing economic magnet encouraging illegal workers to enter the U.S., resulting in attendant problems for national security and the rule of law, as well as additional costs associated with an underground economy, crime, and social services.

This increasing reliance on undocumented workers has left the agricultural workforce increasingly vulnerable to exploitation because illegal workers fear deportation if they complain about substandard wages or working conditions. As the U.S. Supreme Court has noted, “[A]cceptance by illegal aliens of jobs on substandard terms as to wages and working conditions can seriously depress wage scales and working conditions of citizens and legally admitted aliens.* * *”
Sure-Tan
v.
NLRB,
467 U.S. 883, 892 (1984) (citing
De Canas
v.
Bica,
424 U.S. 351, 356-57, 96 S.Ct. 933, 936-37 (1976). And it is not only wages that are depressed, as Senator Kennedy stated in May 2007:

[W]e have, unfortunately, employers who are prepared to exploit the current condition of undocumented workers in this country—potentially, close to 12 [and]
1/2
million are undocumented. Because they are undocumented, employers can have them in these kinds of conditions. If they don't like it, they tell them they will be reported to the immigration service and be deported. That is what is happening today.

I yield to no one in terms of my commitment to working conditions or for fairness and decency in the workplace. That is happening today. The fact that we have those undocumented workers and they are being exploited and paid low wages has what kind of impact in terms of American workers? It depresses their wages. That should not be too hard to grasp. Those are the facts.
9

9
153 Cong. Rec. S6590 (2007).

The U.S. has an estimated 3 million agricultural job opportunities filled by about 1.2 million hired agricultural workers each year.
10

As noted above, more than 50 percent and perhaps in excess of 70 percent of these workers are in the country illegally. This means there are at least 600,000 and perhaps more than 800,000 illegal workers employed on America's 2 million farms.

10
Dr. James S. Holt, Testimony Before the Committee on Education and Labor, U.S. House of Representatives, June 7, 2007.
http://edworkforce.house.gov/testimony/060707JamesHoltTestimony.pdf.

The H-2A program is woefully underutilized by agricultural employers. Unlike other temporary worker programs with annual visa caps that are routinely reached on the first day on

which visas are available, the H-2A program has no annual limit on the number of visas that can be issued. Yet despite the vast need for agricultural labor, and the availability of H-2A visas, only about 7,700 agriculture employers used the H-2A program last year, and only 75,000 workers were hired—less than 6 percent of the hired agricultural workforce. This situation clearly demonstrates that the vast majority of agricultural employers in the U.S. find the H-2A program so plagued with problems that they avoid using it altogether. The Department seeks to remedy this problem and render the H-2A program functional so that if and when agricultural employers are unable to locate sufficient numbers of U.S. workers, they will turn to the program to provide them with a fully legal workforce. A functional H-2A program will change the incentives for agricultural employers, thereby assisting in eradicating the underground economy created by the widespread use of unauthorized workers and better protecting the wages and working conditions of U.S. workers who are currently harmed by the employment of workers illegally present in the U.S.

On August 10, 2007, the Administration announced a series of actions the Administration would pursue to address border security and immigration-related processes. As part of that effort, the President directed the Department to review the H-2A program:

No sector of the American economy requires a legal flow of foreign workers more than agriculture, which has begun to experience severe labor shortages as our Southern border has tightened. The President has therefore directed DOL to review the regulations implementing the H-2A program and to institute changes that will provide farmers with an orderly and timely flow of legal workers, while protecting the rights of laborers.
11

11
Fact Sheet: Improving Border Security and Immigration Within Existing Law, Office of the Press Secretary, The White House (August 10, 2007); see also Statement on Improving Border Security and Immigration Within Existing Law, 43 Weekly Comp. Pres. Doc. 1067 (Aug. 13, 2007).

Pursuant to this directive, the Department conducted a “top to bottom” review of the H-2A program, its statutory basis, and current implementing regulations. This analysis identified a number of practices not required by the statute that have made administration of the program unwieldy and parts of the program difficult to use, particularly for an industry that needs its workforce at specific times and cannot afford delays. This NPRM enhances many protections for workers while seeking to eliminate unnecessarily cumbersome regulatory practices that interfere with or inhibit use of the program, provide little or no benefit for U.S workers, and indirectly contribute to the employment of illegal workers.

The process for obtaining a temporary labor certification for H-2A nonimmigrant agricultural temporary workers has been criticized as complicated, time-consuming, and requiring the considerable expenditure of resources by employers, SWAs, and the Federal Government. The current requirement that applications for temporary labor certifications be filed simultaneously at the SWA and the applicable ETA NPC has resulted in burdensome, costly, and unnecessarily duplicative Government review, with little associated benefit to workers. In addition, the compressed time frame for supervised recruitment has burdened employers and made it difficult for U.S. workers to access and pursue these opportunities. The supervised recruitment requirements and process have also been inconsistently applied, leading to further administrative burdens for both employers and workers. While the consolidation of the Regional Office oversight of applications into two NPCs has, to a certain extent, lessened the administrative burden and made application processing more consistent at the Federal level, it has not lessened the burden faced by employers, eliminated delays in application processing, or increased the Department's ability to ensure worker protections. Consequently, the program continues to be regarded with trepidation by many agricultural employers who continue to make the unacceptable choice to employ an undocumented workforce rather than face the program's many complexities.

3. Overview of the Proposed Redesign of the System

In light of its extensive experience in both the processing of applications and the enforcement of worker protections, the Department has re-examined its program administration and is consequently proposing several significant measures to re-engineer the H-2A program processing. These proposals will simplify the process by which employers obtain a labor certification while maintaining, and even enhancing, the Department's substantial role in ensuring that U.S. workers have access to agricultural job opportunities before H-2A workers are hired. These proposals will also increase employer accountability through newly applied penalties to further protect against violations of program and worker standards, including substantially increased civil monetary penalties for non-compliance with program requirements and enhanced provisions for denying non-compliant employers access to the program.

The Department expects that the resulting efficiencies in program administration will significantly encourage increased program participation, resulting in an increased legal farm worker labor supply with the attendant legal rights and protections for workers. The Department further expects that U.S. workers will be better protected from adverse effects when they are competing with workers who are legally present in the U.S. and who are subject to all of the requirements of the H-2A program.
See Sure-Tan
v.
NLRB,
467 U.S. at 883 (1984).

The Department is proposing to implement an attestation-based process by which employers, as part of their application, would attest, under threat of penalties, including perjury and debarment from the program, they have complied with all applicable program requirements. In addition, employers would be required to maintain all supporting documentation for their application for a period of 5 years in order to support the Department's enforcement of program requirements. The Department would also institute a new auditing process to verify that employers have, in fact, met their responsibilities under the H-2A program.

In the Department's experience, delays by SWAs in conducting housing inspections have frequently caused the Department to miss mandatory statutory deadlines for processing H-2A labor certification applications. By statute, the Department has only 15 days to process H-2A labor certifications; the Department cannot require that applications be filed more than 45 days before the first date of need, 8 U.S.C. 1188(c)(1), and is required to make a determination on applications no fewer than 30 days before the first date of need, 8 U.S.C. 1188(c)(3)(A). Housing determinations are similarly required by statute to be completed no fewer than 30 days before the first date of need—a mandate designed to ensure that housing inspections do not interfere with the specified timeframes for certifying labor applications. 8 U.S.C. 1188(c)(4). The Department's program experience indicates, however, that housing inspections are frequently delayed well past 30 days before the first date of need, causing the Department to make late certification

decisions thus violating the statutory timeframe specified. To bring the program back into compliance with the law and ensure that determinations are made no fewer than 30 days prior to the first date of need, the proposed rule would alter the current H-2A housing inspection procedures by adopting procedures that are currently used to inspect housing for U.S. workers under the Migrant and Seasonal Agricultural Worker Protection Act (MSPA). These procedures are explained in greater detail below.

Consistent with the Department's statutory obligations under the INA to process H-2A applications under strict time constraints, and the experience we have had in not being able on a regular basis to achieve these obligations with respect to employer-provided housing, it is necessary in this proposed rule to separate the INA procedure from the procedures for inspections not under the H-2A program in 20 CFR 654.400 and 654.403. While this INA rule would apply to H-2A related housing inspections in the future, the housing standards themselves, that is, 20 CFR 654.404-654.417 and 29 CFR 1910.142, whichever are applicable, continue to apply to such housing.

Employer applications would be submitted directly to an NPC, streamlining the intake process and reducing the time required to render a determination on the application. SWAs would continue to post job orders, circulate them through the Interstate Employment Service System, and refer potential U.S. workers to employers. SWAs would no longer directly oversee the employer's recruitment efforts. Instead, as described above, employers will attest to their compliance with the program requirements and those attestations will be audited by the Department to ensure compliance.

Upon submission of the application, the applicable NPC would review the job offer and the attestations to ensure compliance with all the criteria for certification relative to the date of need. As necessary, the NPC may issue a notice of application deficiency to enable the employer to amend or modify the application or job offer. The employer would also submit a preliminary recruitment report to the NPC as part of the filing process, documenting its recruitment efforts (and their outcome) for the period from the initiation of the recruitment efforts to the time of the submission of the application. In addition, the employer would be required to create and retain a supplemental written recruitment report for 5 years from the date of certification for use in a Department audit or other investigation.

Employers would be required to retain for 5 years all supporting documentation for their application including documents supporting recruitment efforts, a copy of the housing certification, any relevant certificate of occupancy used to demonstrate compliance, as well as any written requests submitted to a SWA or other State agency for preoccupancy inspection of housing, and any other documentation required to demonstrate compliance with a program obligation.

The introduction of audits serves as both a quality control measure and a means of evaluating applications. Audits would be conducted for quality control and fraud detection purposes on adjudicated applications as well as randomly-selected applications being processed. The criteria used for selecting applications for audits would be drawn from the Department's program experience and be based in part on information received from the Department's Employment Standards Administration (ESA), which is charged with enforcing the provisions of the H-2A program through its Wage and Hour Division (WHD). During an audit, employers would be required to provide information supporting the attestations in their application. Failure to meet the required program standards or to provide information in response to an audit would result in an adverse finding that could lead to penalties, such as revocation of an approved labor certification or debarment from the program. These penalties may be in addition to penalties separately assessed by ESA.

Finally, the Department's proposal creates an additional process for penalizing employers or their attorneys or agents who have failed to perform obligations required under the H-2A program. The Department will continue to debar employers who have engaged in prohibited activities or who have failed to comply with the obligations and assurances required by the program, and we have added a process to revoke an approved labor certification, which may in turn provide a basis for the DHS to revoke an approved visa petition.

The re-engineering of the H-2A program to include pre-filing recruitment, submission of applications directly to an NPC, modernized processing of applications, reduction of duplication in the application process, and focusing of SWAs on referral of U.S. workers should yield improvements in the time needed to process labor certification applications and help ensure the Department meets its obligation to protect U.S. workers and process applications within the statutory timeframe mandated by Congress.

B. Proposed Redesign To Achieve a Modernized Attestation-Based Program

1. Enhanced Recruitment Requirements

The recruitment process fulfills the Department's statutory mandate to certify that there are not sufficient U.S. workers who are available, able, willing, and qualified to perform the agricultural labor or services and that the employment of the temporary foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers. 8 U.S.C. 1188(a)(1). The Department currently ensures that these standards are met by requiring a combination of SWA-supervised recruitment by employers, the posting of job orders in the Interstate Employment Service System, and the independent contacting of other sources of potential labor. These activities must take place in a very narrow 15-day window, as under the statute the Department cannot require that applications be filed more than 45 days prior to date of need for the worker and the Department must approve or deny labor certifications no later than 30 days before the employer's date of need.

The Department is now proposing to require employers to conduct recruitment of U.S. workers for temporary agricultural job opportunities for a substantially longer period of time before the job begins by requiring that recruitment be started well in advance of the employer filing the application. The Department's experience in other programs, such as its permanent labor certification program, has demonstrated that recruitment in advance of filing an application benefits the potential U.S. worker population by providing a maximum opportunity for consideration of the job opportunity. Employers would continue to engage in so-called “positive recruitment” and post a job clearance order for both interstate and intrastate clearance with the SWA having jurisdiction over the place of employment in advance of the application being filed with the Department. The Department believes that advance recruitment in the H-2A program would help maximize the ability of employees and organizations representing their interests to identify available jobs with sufficient time to apprise all interested workers of the potential opportunity well in advance of the job's start date.

Under the new recruitment system, which is discussed in more detail below, U.S. workers' ability to identify job opportunities would be further enhanced by requiring employers to place three advertisements, instead of the currently required two, in a newspaper of general circulation most appropriate for the agricultural occupation and most likely to reach the U.S. workers who will apply for the job opportunity. In addition, the Department would require that one of the three newspaper advertisements appear in a Sunday edition. If a newspaper of general circulation with a Sunday edition is not available (as may be the case in many rural areas where such jobs are located), the employer would instead use the edition with the widest circulation in the area of intended employment that is most appropriate to the occupation and most likely to be read by the U.S. workers most likely to apply for the job opportunity. In addition, if the use of a professional, trade or ethnic publication is more appropriate to the occupation, and if that publication is the most likely source to bring responses from qualified and available U.S. workers, the employer may use such publication instead of a newspaper in place of the two required daily (but not Sunday) advertisements. This advertising option will allow recruitment for agricultural jobs to be appropriately tailored in those areas where such jobs are traditionally advertised in ethnic or trade publications. Employers would also be required to contact former employees to determine their willingness to accept the employer's job opportunity.

In addition to recruiting in the area of intended employment, employers would be required, based on an annual determination made by the Secretary, to recruit in any State designated as a State of traditional or expected labor supply for the place the employer's work is to be performed. This additional recruitment would consist of a single newspaper advertisement in the area or areas within the States that are outlined in the Secretary's designation, and must be placed at the same time as the three local newspaper advertisements discussed above. SWAs will also place job orders into those designated states as required.

As required by the current regulations, all advertising must include all of the details required in the job offer, including the name and geographic location of the employer. If the employer is an association, the advertisement may, as is current practice, list only the name of the association, but the Department proposes to require that the advertisement inform the reader that the SWA will have on file and will make available upon request the name and location of every member of the association seeking workers through the advertisement. Ads must identify in all cases the wage being offered. In the event an association is serving as the employer and the wage is a range throughout the area of intended employment, the range of wages must be included in the advertisement, and the advertisement must indicate that the SWA will have on file, and will make available upon request, the wage rate applicable to each member of the association. These requirements will help ensure that potential applicants are afforded the opportunity to make fully informed decisions about job opportunities.

Employers would begin advertising job opportunities no earlier than 120 calendar days and no later than 75 calendar days before the date on which the foreign worker would begin work (i.e., the date of need). This will permit sufficient time for an advertisement to be placed and responded to by potential U.S. workers most likely to apply for the job opportunities, and for workers who apply to be evaluated by the employer before the H-2A application is filed. The Department believes that the expanded recruitment window appropriately balances the need to maximize the notice of available job opportunities to U.S. workers with the need to ensure that recruitment is not conducted so far in advance of the growing season that employers do not yet know when or how many workers will be needed.

Employers filing the labor certification applications would be required to attest under penalty of perjury that (1) they did, in fact, attempt to recruit U.S. workers in the manner prescribed by the regulations, and (2) any potentially qualified U.S. workers that applied were rejected for lawful, job-related reasons. Employers would submit with their application a preliminary recruitment report, documenting their efforts to date in attempting to find eligible U.S. workers, including the outcome of the evaluation of U.S. worker applicants. Employers would also be required to prepare a supplemental report after filing that documents subsequent recruitment efforts and the results, including results from SWA recruitment and referrals, to be retained with the other documentation supporting the application.

The proposed rule expands the period in which the employer must conduct recruitment and consider potential U.S. workers, so that U.S. workers will be given notice well in advance of the actual openings. To account for the fact that the date and extent of need is always flexible in the agriculture industry, the Department has retained current provisions permitting employers to reasonably adjust the numbers of workers needed without engaging in additional recruitment.

The INA also requires employers to engage in recruitment through the Employment Service SWA job clearance system. See 8 U.S.C. 1188(b)(4); see also 29 U.S.C. 49,
et seq.
, and 20 CFR part 653, subpart F. The proposed recruitment model requires employers to submit job orders to the SWA having jurisdiction over the area of intended employment. When the job order is for a work opportunity in more than one State, the SWA to which the job order is submitted will in turn forward the job order to all States listed in the application as anticipated worksites. In circumstances where the employer's anticipated worksite location(s) is contained within the jurisdiction of a single State, the SWA must, to maximize the recruitment of eligible U.S. workers, transmit a copy of its job order to no fewer than three States, which must include any State designated by the Secretary as a State of traditional or expected labor supply for the area of intended employment. This recruitment takes place in tandem with the employer's own recruitment within a multi-state region of traditional labor or expected labor supply, as discussed above. INA § 218(b)(4).

The Department is proposing that SWA job orders also be posted until the time the H-2A worker departs for the place of employment (or 3 days prior to the start date of the employment, whichever is later). Because referrals of U.S. workers resulting from newspaper advertisements and intrastate/interstate job orders will all come from the SWA, this proposal will better synchronize efforts to recruit U.S. workers and ensure that such efforts operate in parallel.

Employers should retain several types of documents reflecting their compliance with the program's recruitment requirements. Documentation relating to newspaper advertisements will be satisfied by copies of pages from the newspapers (or other publication) in which the job opportunity appeared. Documentation of an SWA job order will be satisfied by maintaining copies of the job order printed from the SWA's Internet job listing Web site on the first day of posting, a copy of the job order provided

by the SWA with the start date of posting, or other proof of publication from the SWA containing the text of the job order on the first day of posting. Contact with previous employees, another required positive recruitment element, will be documented by maintaining copies of correspondence with such employees (or records of attempts to contact former employees). Such documentation should also contain a description of the outcome of those contacts, including the lawful, job-related reasons for not rehiring a former employee. In sum, these proposed changes in the recruitment process will increase the likelihood that U.S. workers will receive advance notice of available job opportunities, as well as provide them with additional information on available positions. In addition, the proposed changes will help avoid recruitment-related processing delays.

2. Use of Attestations of Compliance With Assurances and Obligations

The Department is proposing to require employers to submit their application directly to the NPC having jurisdiction over the employer's place of employment. The application under the re-engineered process will differ not only in the manner of its submission, but also in its form. Based on the Department's experience administering the attestation-based Permanent Labor Certification (PERM) program, the Department is proposing instituting an application that would require employers to attest to their adherence to the articulated obligations under the H-2A program. An employer would be required to attest, under penalty of perjury, that it will abide by all of the obligations imposed on employers under the statutory and regulatory framework. The employer would have to attest, for example, that it has begun to conduct and either completed or will complete the required recruitment (and document the recruitment efforts). The employer would also have to attest that it has provided or secured required housing and, where applicable, applied to the SWA and requested or received a satisfactory inspection. The employer would also need to attest its compliance with securing workers' compensation insurance; the so-called “three-fourths guarantee;” and the provision of tools and transportation. In addition, the employer would have to attest that it is in compliance with and will continue to comply with all applicable Federal, State and local employment-related laws. In short, all of the obligations of employers to comply with H-2A program requirements would continue and would be documented through these formal attestations.

As part of the application process, employers would attest that they have conducted expanded recruitment in advance of filing an application with the Department. Employers would attest to their compliance with the required elements of the H-2A job offer, including offering the applicable legally required wage, which would be obtained in advance through a request to the NPC. Employers would attest that they have provided the obligatory workers' compensation insurance and met the required working conditions. Employers would further attest to their adherence to requirements regarding the recruitment of qualified U.S. workers through both their own positive recruitment efforts and by requesting the posting of job orders through SWAs, as well as confirming that any U.S. workers who have applied or been referred and were not hired were rejected only for lawful, job-related reasons.

Employers would attest to having obtained worker housing comporting with all applicable safety and health standards. Employers would identify the housing to be provided by location and, if public or rental accommodation, by name, and attest that the housing meets the applicable standards. And, if the housing is of a sort that must by statute be inspected, the employer would attest that such housing has either satisfactorily passed a preoccupancy SWA inspection, or that the employer has made a timely request for such an inspection that has not occurred through no fault of the employer. As part of its recruitment prior to filing its application, the employer would be required to place a job order with the appropriate SWA, which would in turn post it through the interstate/intrastate job clearance system.

The Department anticipates the shift to an attestation-based process with pre-filing recruitment would help to bring the program into compliance with longstanding statutorily required processing timelines and better harmonize the program with the unique needs of the agricultural sector, thereby enabling more employers to utilize the program and better protecting U.S. workers from the adverse effects resulting from the employment of illegal workers. Employers would still be required to comply with all the requirements and obligations of the program, and indeed penalties for noncompliance would increase. Employers would retain supporting documentation evidencing their compliance with the program requirements, while the Department would retain for itself the right to request such documentation to ensure program integrity.

The revised attestation process will dramatically reduce the number of incomplete applications that currently consume valuable processing time only to then have to be returned to the applicant for the inclusion of missing information. The majority of the information on the application form would consist of attestations that will elicit information similar to that required by the current H-2A labor certification process reflecting that the employer has performed the necessary activities to establish eligibility for certification. These proposed attestations lend themselves to a more efficient processing of applications.

The Department anticipates that, with an expected increase in use of the program, it will see a marked increase in participants unfamiliar with the obligations that are integral to the H-2A program. The movement to an attestation system would be accompanied by outreach to potential users as well as those currently utilizing the program. Such education efforts will of necessity focus on employers' obligations and the mechanisms by which compliance will be judged. The Department invites comment on a timeline for its anticipated training and educational outreach initiatives.

3. Form Submission

The Department proposes initially to require employers to submit applications on paper, through an information collection form that will be modified significantly from the current form to reflect an attestation-based process. The use of a redesigned form would provide the necessary assurances of an expeditious paper application review process. The Department ultimately envisions implementing an electronic submission system similar to that employed in other programs administered by the Department's OFLC, such as the electronic submission system in the PERM program.

The Department is proposing to eventually require electronic submission in explicit recognition of the fact that such a process will significantly further improve the application process. An electronic submission process will also improve the collection of key program data and better allow the Department to anticipate trends, investigate areas of concern, and focus on areas of needed program improvement. Improved data collection will also enable the

Department to capture information regarding noncompliance and potential fraud that may lead to future administrative, civil, or criminal enforcement actions against unscrupulous or non-performing employers.

The Department recognizes that H-2A employers may be concerned about their ability to comply with the application requirements through use of an Internet-based submission process and is accordingly not requiring it at this time. The Department is committed to reviewing its ability to transition the H-2A filing process to such a method and is reviewing specifically its ability to provide, based upon its previous experience, user-friendly electronic registration and filing processes that would enable use by any employer with computer and Internet access. The Department's experience with agricultural employers in other contexts (program requirements under the Migrant and Seasonal Agricultural Worker Protection Act, for example) support its determination that such access is common enough among agricultural employers to justify eventually requiring its use in this context. The Department invites comments, in particular from H-2A employers, on the concept of an electronic filing process.

4. Elimination of Unnecessary Duplication in the SWAs' Role

The Department's focus on providing employers a more efficient process has taken into consideration the total time an employer must spend before all Federal agencies to obtain permission to employ an H-2A worker and ensure that workers are available when needed. Employers must by statute apply to DOL, DHS and DOS to obtain H-2A workers. Reducing the time it takes an employer to secure H-2A workers after filing their application, and after their unsuccessful search for U.S. workers, is critical to the program's success given the time sensitive nature of many agricultural employers' labor needs.

Congress has signaled its awareness of the incredible importance to the agricultural sector of timely application processing by building tight mandatory timeframes into the statutes governing the H-2A program. For example, the Secretary is required to make certification decisions “not later than 30 days before the date such labor or services are first required to be performed,” 8 U.S.C. 1188(c)(3)(A), and SWAs are required to complete housing inspections by that date as well, 8 U.S.C. 1188(c)(4). Actual practice has shown, however, that the procedures established by the current regulations are cumbersome, slow, unwieldy, and have resulted in both SWAs and the Department regularly failing to meet the required statutory timeframes.

Consequently, the Department's efforts have focused on how to develop a smoother and more expeditious H-2A process while ensuring protections for workers. Among our proposals in this rulemaking is the elimination of duplicate filing of applications with the SWA and the Department's NPC. By focusing the SWAs' role in the initial stages of the application process (placing job orders, managing referrals of eligible U.S. workers, and conducting housing inspections), the Department can more effectively oversee the adjudication and consistent processing of all applications. As a result of this modernized application review procedure, the Department can reduce and equalize the average processing time of applications regardless of the area of the country where the application originated.

We expect that the time savings gained by using a more efficient labor certification process will reduce the total time an employer spends obtaining permission from the Federal Government to employ an H-2A worker and getting that worker from his or her country of origin to the place of employment. Moreover, the Department's consolidation of the review of applications in its NPCs will permit greater consistency of adjudication. Two centers, as opposed to the fifty State agencies, will be charged with all major aspects of application adjudication, ensuring consistency in the application of program requirements and policy. Indeed, the Department is considering consolidating all H-2A applications into one NPC rather than two, to further enhance consistency of adjudication and processing.

The SWA will continue to play its traditional role in the recruitment process by posting and processing an appropriate job order to notify available and qualified U.S. workers of the opportunity. The employer would need to contact the SWA to initiate placement of the job order, rather than relying on the SWA to place it in the course of processing the H-2A application, as is the case now. The job order would be required to provide the same information as the newspaper advertisements contemplated by this proposal. This is an expansion of the information previously required to be included with the job order, and will significantly enhance the transparency of the recruitment process for prospective workers. Employers whose applications involve worksites in multiple SWA jurisdictions would place the job order with the SWA in which the majority of the proposed work assignment will take place. The SWA will arrange to have it posted with other SWAs, as appropriate.

To strengthen the integrity of the Secretary's determination of whether there are available U.S. workers for the position, and to help build employers' confidence in their local SWAs and the H-2A program, the proposed rule at § 655.102(j) clarifies the SWAs' obligation to verify the employment eligibility of prospective U.S. workers before referring them to an employer under a job order in support of a H-2A application. The failure of many SWAs to verify the employment eligibility of referred workers, despite existing statutory requirements that only eligible workers be counted as valid referrals and existing regulatory requirements that no ineligible workers be referred, has created a situation in which it is all too easy for illegal workers, rather than U.S. workers, to be referred to employers. For many years, agricultural employers have complained to this Department that SWA-referred workers are often undocumented, generating substantial additional legal risks and administrative burdens for employers. Collectively, agricultural employers appear to have little confidence in their local employment service or the H-2A program, and consequently rarely utilize either.

The INA provisions governing admission of foreign workers under the H-2A program make employment eligibility of U.S. workers a core element of a worker's “availability;” a U.S. worker has long been characterized as being “available” for employment when authorized to legally undertake that employment. An employer will not be penalized for turning away applicants who are not authorized to work, and referred workers who are refused employment on the basis of not having work authorization will not be counted as available for purposes of H-2A labor certification. By statute, the Secretary must certify the job opportunity if the employer: (1) “Has complied with the criteria for certification (including criteria for the recruitment of
eligible
individuals as prescribed by the Secretary),” and (2) “does not actually have, or has not been provided with referrals of, qualified
eligible
individuals who have indicated their availability to perform such labor or services on the terms and conditions of a job offer which meets the requirements of the Secretary.” 8 U.S.C.

1188(c)(3)(A) (emphasis added); see also definition of “agricultural worker,” 20 CFR 651.10 (applicable to referrals under the Employment Service System regulations at 20 CFR parts 651-658). For purposes of employment, the INA defines an “eligible individual” as one “who is not an unauthorized alien * * * with respect to that employment.” 8 U.S.C. 1188(i)(1).

SWAs receiving ETA Alien Labor Certification (ALC) grant funding to support H-2A activities are required to verify the employment eligibility of applicants seeking referral under a job order in support of an H-2A application pursuant to current regulations and agency guidance; this proposed regulation provides additional clarification of this requirement. The Department notes that DHS regulations at 8 CFR 274a.6 provide additional verification authority and procedures for SWAs. To confirm its continued eligibility to receive ALC grant funding, each State agency will be asked to submit proof of these procedures to the Department prior to the beginning of the 2009 fiscal year (FY). In the event a SWA refers a worker who is not eligible, current H-2A employer responsibilities will not change; an employer is not required to hire such worker and can include ineligibility as a reason for rejection in its recruitment report.

We strongly caution that the SWA's responsibility to perform threshold, pre-referral verification exists separate from each employer's independent obligation under Immigration Reform Control Act of 1986 (IRCA) to verify the employment eligibility of every worker to whom it has extended a job offer. The INA does provide, however, that employers who accept referrals from SWAs that verify employment eligibility in compliance with the DHS process and provide referred employees with appropriate documentation certifying that verification has taken place are entitled to “safe harbor” in the event it is later discovered a referred worker was not authorized to work in the U.S. 8 U.S.C. 1324a(a)(5). To simplify the recruiting process and avoid unnecessary duplication of functions, SWAs are directed to provide all referred employees with adequate documentation that verification of their employment eligibility has taken place. Employers can rely on INA § 274A(a)(5) only where the documentation complies with all statutory and regulatory requirements, including 8 CFR 274a.6. SWAs are strongly encouraged to provide this documentation to employers. The Department is not insensitive to the resource and time constraints facing SWAs in their administration of H-2A program requirements and the difficulties inherent in making informed referrals from a population of workers that is frequently itinerant and often difficult to contact. However, we do not believe that this requirement has resulted or will result in a significant workload increase or administrative burden. Further, the mechanisms available for verification, including the E-Verify Web-based system operated by DHS, allow SWA staff to perform this function relatively quickly after training.

E-Verify is a program administered by the United States Citizenship and Immigration Services (USCIS) within DHS. E-Verify electronically confirms a person's employment eligibility after the Employment Eligibility Verification Form (Form I-9) has been completed. SWAs that choose to use E-Verify refer a job seeker to an H-2A-related job opportunity only after completing a Form I-9 and submitting the required information via E-Verify. The SWA will be required to follow the terms and conditions in the Memorandum of Understanding that must be signed by the SWA and USCIS in order to gain access to E-Verify. The SWA may not refuse to make a referral and the employer may not refuse to accept a referral because of an E-Verify tentative nonconfirmation (TNC), unless the job seeker decides not to contest the TNC. SWAs and employers may not take any adverse action, such as delaying a referral or start date, against a job seeker or referred worker based on the fact that E-Verify may not have yet generated a final confirmation of employment eligibility. The SWA will be required to advise the employer when E-Verify generates a final confirmation or nonconfirmation.

The requirement that SWAs verify employment eligibility prior to referral is designed to strengthen the integrity of the temporary labor certification process, afford employers a legal pool of U.S. worker applicants, and improve confidence in and use of the H-2A labor certification program.

5. Retention of Supporting Documentation

Employers would be required to retain the documentation outlined in the proposed regulations in hard copy for 5 years from the date of adjudication, and to provide all documentation to demonstrate compliance with the requirements of the program in response to an audit or other investigative matter, whether conducted by the Department or another Federal agency, such as DHS. As described above, the documents to be retained include proof of recruitment efforts, including advertising, contact made with applicants and former employees, and a written recruitment report with results of efforts and reasons for not hiring U.S. workers.

Finally, the Department recognizes that there is always a risk that less-than-scrupulous H-2A program participants will try to secure workers through fraud or misrepresentation. Long-standing practice and coordination with SWAs in the H-2A program, as well as experience with the attestation-based PERM system, have provided us substantial insight regarding the mechanisms by which employers may seek to take advantage of the re-engineered attestation-based system. The Department proposes to employ various measures to address potential fraud or abuse in the attestation-based process and the H-2A program generally. These will include audits, a combination of increased deterrent penalties, including [0]fines, revocation of approved applications, and debarment from future participation in the H-2A program, all of which are discussed below, as well as other mechanisms for detecting fraud. In addition, employers and their agents and attorneys are reminded that submission of any materially false, fictitious, or fraudulent statements to any Federal Government agency constitutes a criminal violation (18 U.S.C. 1001 and 1546), subjecting anyone convicted of a violation to fines and/or imprisonment for not more than 5 years.

C. Maintaining and Enhancing Program Integrity

The shift to an attestation-based temporary H-2A agricultural labor certification system will be accompanied by the Department's vigorous enforcement of employer obligations under this program. Consequently, the Department is proposing certain actions in this rulemaking, consistent with its statutory authority, to examine and enforce compliance with the enumerated obligations and responsibilities of employers that seek approval of labor certifications pursuant to the H-2A program.

1. Prohibition on Cost-Shifting

Under proposed new § 655.105(n), an employer must attest that it has not shifted and will not shift to the H-2A worker the costs of preparing or filing the application, including the costs of recruitment or attorneys' fees, and that it has not utilized a foreign recruiter without contractually prohibiting that

foreign recruiter from passing on such costs. The recruitment, legal, and other costs associated with filing a temporary labor certification application are business expenses necessary for, or in the case of legal fees, desired by, the employer to complete the labor market test and to prepare and submit the labor certification application. The employer's responsibility to pay the costs of preparing an application exists separate and apart from any potential benefit that may accrue to the foreign worker as a result of the employer filing the application. Prohibiting the employer, including a Farm Labor Contractor (FLC), from passing these costs on to its H-2A worker(s) allows the Department to better protect the integrity of the process, as well as protect the wages of the H-2A worker from deterioration by disallowable deductions. Disallowable deductions taken from an H-2A worker's wages cause those workers to be paid less than the required wage, which results in an adverse effect on U.S. workers.

2. The Use of Audits

Pursuant to proposed new § 655.112, after a labor certification application has been adjudicated, the Department would, based upon various selection criteria, identify certain applications for audit review. Investigations performed by the Department's WHD and the Department of Justice's Office of Special Counsel for Unfair Immigration-Related Employment Practices (OSC) would provide another potential source of information triggering audits. In addition, some applications would be randomly selected for audit as part of the Department's quality control processes. This authority would enable the Department to perform its directed and random audits on any application that has been adjudicated, regardless of whether the application was approved or denied.

If an application is selected for an audit, the employer will be notified in writing of the selection. The employer would then be required to submit, within 30 days, the documentation specified in the audit request to verify the information stated in or attested to on the selected application. Upon timely receipt of an employer's audit documentation, and after any further investigation that may be warranted, the audit information would be reviewed by the Department's Certifying Officer (CO). The Department would then determine whether the employer complied with its obligations and would notify the employer in writing of its findings.

The Department will take firm action when it discovers non-compliance by employers. The Department is invoking all available statutory authorities to bolster its enforcement capabilities. If, at the conclusion of an audit, there is evidence of non-compliance with required attestations and/or other program requirements, or if an employer refuses to participate in the audit process, the proposed rule would enable the CO to order a variety of remedies. The CO may initiate debarment proceedings against the employer, agent and/or attorney in order to prohibit participation in the H-2A program for a period of up to 3 years at the Department's discretion and depending on the nature and severity of the violations. If the audit reveals that employer's documentation is incomplete, is inconsistent with the employer's statements and/or attestations contained in the application, or if the application and supporting documentation is otherwise deficient in some material respect, the employer may, in addition to debarment, also experience revocation of the approved H-2A certification, as described below. The proposed rule also adds a provision explaining that the Department of Justice's OSC will refer to the CO pertinent information gained in the course of OSC's investigations. Likewise, the proposed rule would require the Department and Department-funded entities to share pertinent information with OSC.

3. Revocation of Existing Labor Certifications

Section 218(e)(1) of the INA authorizes the Department to revoke a temporary agricultural labor certification in appropriate instances. When the Department initiated rulemaking in 1987 to implement IRCA, it considered implementing this provision, but determined that the SWA's supervision of the employer's activities during the labor certification application process, together with WHD's post-certification enforcement role, vitiated the need for such a sanction. 52 FR 20524, 20525, Jun. 1, 1987.

Along with the modernized approach to the application and certification processes proposed in this rule, we also include proposed measures, consistent with the provisions of INA § 218(e)(1), to ensure compliance. This includes the possibility of revocation of an approved certification if it is subsequently determined that an employer has not complied with a material term or condition of the certification, or upon recommendation of WHD for egregious program violations or interference with or failure to cooperate with an investigation. DHS, in a separate rulemaking, is proposing to revoke approved visa petitions that were approved on the basis of the revoked H-2A labor certifications.

4. Debarment

Proposed § 655.118 seeks to modernize and enhance the statutory process relating to the debarment of employers who substantially violate the terms of a labor certification. Over the past two decades, effective policing of the program has been hampered by an unnecessarily narrow definition of employer actions warranting debarment. In particular, the current regulation does not authorize debarment for actions that occurred during the recruitment process, including the rejection of domestic workers for other than lawful job-related reasons. Under the proposed rule, however, where certification would be granted based on employer attestations that recruitment of U.S. workers was unsuccessful, the availability of debarment as a sanction would be a powerful tool to encourage compliance.

Accordingly, if the OFLC Administrator finds that an employer or an employer's agent or attorney has misrepresented a material fact or made fraudulent statements in its attestations, materially failed to comply with the terms of the attestations, or committed an act(s) of commission or omission that reflects a willful failure to comply with an obligation, attestation or other activity listed in proposed § 656.118, the OFLC Administrator may order debarment of the employer, agent and/or attorney from the H-2A program for a period of up to 3 years. In addition, other Federal agencies will be notified, as appropriate, of the audit findings.

The current regulation provides debarment authority solely to ETA and requires the WHD to report findings of violations to ETA and make recommendations to deny future certifications. Under the proposal, debarment authority for issues identified by WHD investigations would reside with the Wage and Hour Administrator, while debarment authority for violations of program requirements committed during the application and attestation process would remain with ETA. This change will allow administrative hearings and appeals for civil money penalties assessed by the WHD to be consolidated with debarment actions arising from the same facts. It will also eliminate the need for ETA to review Wage and Hour investigations, allowing for more

expeditious proceedings and efficient enforcement.

D. Other Significant Changes

1. Wages and the Adverse Effect Wage Rate (AEWR)

Section 218(a)(1)(B) of the INA requires as a condition for approval of H-2A petitions that the Secretary has certified that “the employment of the alien in such labor or services will not adversely affect the wages and working conditions of workers in the United States similarly employed.” To ensure that the wages of similarly employed U.S. workers are not adversely affected, agricultural employers wishing to utilize the H-2A program have traditionally been required to offer and pay their covered U.S. workers and H-2A workers the higher of the applicable hourly “Adverse Effect Wage Rate” (AEWR), as determined by the Federal government; the applicable prevailing wage, as determined by the States; or the Federal or State statutory minimum wage.

Over the last 20 years, it has become clear that perhaps the biggest threat to the wages and working conditions of U.S. workers is direct competition from a large undocumented workforce that is often underpaid and taken advantage of yet is afraid to assert its rights. Senators from both political parties remarked upon this phenomenon during the recent immigration debates in Congress,
12

and the U.S. Supreme Court has also noted the threat that undocumented workers pose to the wages and working conditions of U.S. workers. See
Sure-Tan
v.
NLRB,
467 U.S. 883, 892 (1984).

12
See e.g., 152 Cong. Rec. S9773 (2006) (statement of Senator Dianne Feinstein); 153 Cong. Rec. S441-S442 (2007) (statement of Senator Larry Craig); and 153 Cong. Rec. S6590 (2007) (statement of Senator Edward Kennedy).

Thus, based on data collected during more than 20 years of experience in administering the H-2A program, the Department has concluded that one of the most significant actions it can take to protect the wages and working conditions of U.S. workers is to render the H-2A program sufficiently functional such that, rather than resorting to the employment of workers illegally present in the U.S. to make up for shortages in the number of U.S. workers who are willing and available to perform agricultural work, agricultural employers will instead use the H-2A program, with all of its accompanying legal requirements and protections.

One of the most important things the Department must do to ensure that the H-2A program is fully functional and protective of the wages and working conditions of U.S. workers is to set AEWRs that appropriately reflect market realities and labor costs. Two decades of experience with the H-2A program have shown that, in light of the prevailing conditions in the agricultural labor market, an AEWR that is set too low or too high is likely to harm U.S. workers. It is no secret that foreign workers may be willing to work for wages that are lower, and often substantially lower, than wages that are typically paid to U.S. workers. Allowing foreign workers to work at substandard wages would likely harm U.S. agricultural workers by causing them to be displaced or by forcing them to accept substandard wages in order to compete with the foreign workers. Direct harm effects of a too-low AEWR may also include increased levels of unemployment among U.S. workers. Indirect effects of a too-low AEWR could include worsening working conditions.

Conversely, an AEWR that is artificially set too high can also result in harm to U.S. workers. If the AEWR is set so high that it is seen as not reflective of actual market conditions, agricultural employers may hire undocumented foreign workers instead of participating in the H-2A program, and the resulting influx of undocumented foreign workers erodes the earnings and employment opportunities of U.S. workers in agricultural occupations. U.S. workers cannot fairly compete against undocumented workers, who may accept work at below-market wages, and who are also cheaper to employ than H-2A workers because they do not require the additional payment of other H-2A program requirements, including transportation, and housing. Although the threat of legal sanctions and attendant risks of work disruption will constrain some employers from employing undocumented workers, the greater the total cost to employers of the AEWR plus all other attendant H-2A program costs as compared to the market rate for labor, the greater the likelihood is that employers will risk hiring undocumented foreign labor.

Indeed, according to the USDA, there are an estimated 1.2 million hired agriculture workers in the United States. Recent survey data from the Department indicate that more than 50 percent of agriculture workers in the U.S. admit to being here illegally, and some farm worker advocacy groups have estimated that 70 percent of the agricultural labor force is undocumented.
13

That means there are currently more than 600,000 and perhaps more than 800,000 illegal agricultural workers on U.S. farms, a strong indication of the failures of the current system.

13

See
Julia Preston, “Farmers Call Crackdown on Illegal Workers Unfair,” The New York Times, August 11, 2007.

These system failures have contributed to the large number of undocumented workers in agricultural positions in the U.S., which has in turn adversely impacted U.S. workers by eroding agricultural employment opportunities and wages. The effect on U.S. workers of an AEWR that is set too high is ultimately similar to the effect of an AEWR that is set too low: Loss of family income, increased duration of job searches, and increased levels of unemployment. The undocumented workers whose hiring is incentivized when AEWRs are artificially set too high lack the legally enforced protections and benefits that the H-2A program provides, further threatening to degrade U.S. workers' working conditions.

The Supreme Court expressly recognized in its decision in
Sure-Tan,
467 U.S. at 892, that “acceptance by illegal aliens of jobs on substandard terms as to wages and working conditions can seriously depress wage scales and working conditions of citizens and legally admitted aliens * * *.” This is still the case today. As Senator Kennedy stated in May 2007,

We have, unfortunately, employers who are prepared to exploit the current condition of undocumented workers in this country—potentially, close to 12 [and] 1/2 million are undocumented. Because they are undocumented, employers can have them in these kinds of conditions. If they don't like it, they tell them they will be reported to the immigration service and be deported. That is what is happening today.”
14

14
153 Cong. Rec. S6590 (2007).

Because illegal aliens may be willing to work for substandard wages, may be reluctant to report violations of the labor and employment laws, and in some instances may even accept illegally low wages that are paid off the books, the prevalence of illegal aliens in the agricultural sector today represents a substantial threat to the wages and working conditions of U.S. workers.

As noted above, there is demand for hundreds of thousands of agricultural workers beyond what the domestic labor market is able to supply. Replacing the hundreds of thousands of undocumented agricultural workers currently employed in the U.S. with U.S. workers or with H-2A program workers paid at a legally required wage

that will not undermine agricultural wages will substantially counteract these adverse effects.

Wages vary across the U.S. by geographic location, by specific agricultural occupation, and by level of skill. An AEWR that does not take into account these variables will inevitably disrupt program functionality and adversely affect U.S. workers. For example, a single national AEWR applicable to all agricultural jobs in all geographic locations would prove to be below market rates in some areas and above market rates in other areas, resulting in all of the associated adverse effects that have been previously discussed. AEWRs covering large multi-state regions suffer from similar flaws. In an agricultural sector where prevailing labor conditions make the need for precision in AEWR determinations paramount, it is essential that a methodology be adopted that allows for as great a degree of geographic refinement as possible.

It is therefore critical that the AEWR be accurate and reflect market conditions for each locality across the country. If the AEWR does not reflect market wages and is too low or too high in any given area, it will harm U.S. workers directly by artificially lowering wages or it will harm U.S. workers indirectly by providing an incentive for employers to hire undocumented workers. Improving the geographic precision of the AEWR is essential to ensuring that the AEWR meets its statutory objective.

Another important element in determining an appropriate AEWR that reflects market realities and labor costs is including wage data relating to the specific occupation and level of skill or experience required for a position. Farm labor comprises a number of occupations and skills, and both the demand for and supply of farm workers with a particular skill level or experience varies significantly across geographic areas. The farm labor market is not a monolithic entity, but rather is a matrix of markets across a spectrum of occupations, skill or experience levels, and local areas. Effectively protecting U.S. workers from unfair foreign competition by setting an AEWR that is neither too low nor too high requires that the AEWR be specifically applicable to the labor market affected in terms of specific occupation, skill or experience, and geographic location.

The present AEWR calculation method is based on a 1989 final rule, 29 CFR part 655, that calculates regional AEWRs based on the previous year's annual combined average hourly wage rate for field and livestock workers in each of 15 multi-state regions and 3 stand-alone States, as compiled by the USDA quarterly Farm Labor Survey Reports. In 1989, the Department determined that the USDA survey was the best available “barometer” for measuring farm wages on a nationwide basis. In the succeeding years, however, the Department has gained vast knowledge and experience in applying wage data that simply did not exist in 1989.

The Department's reliance on USDA Farm Labor Survey data creates several problems for functional program administration. The USDA quarterly Farm Labor Survey does not provide refined data by skill level or experience, occupations, or geographic locales of workers typically sought by agriculture employers in the H-2A program. The USDA Farm Labor Survey population includes not only the lower-skilled crop field workers typically sought by agriculture employers who turn to the H-2A program for labor resources, but also inspectors, animal breeding technicians, and trained animal handlers—all occupations that provide a poor basis for determining H-2A wages because they are rarely, if ever, filled by H-2A workers. Additionally, the USDA Farm Labor Survey does not account at all for different skill levels required by agriculture occupations.

The accuracy of AEWRs based on the USDA Farm Labor Survey is further diminished because the Farm Labor Survey is not based on reported hourly wage rates. Instead, USDA's Farm Labor Survey asks employers to report total gross wages and total hours worked for all hired workers for the two reference weeks of the survey. Based on this limited information, the survey constructs annual average wages for the broad general categories of field workers and livestock workers. The AEWR is then calculated by combining the average of the annual wage for field workers and the average annual wage for livestock workers into one annual wage rate covering both of those general occupational categories. The survey thus determines the hourly AEWR based not on reported hourly wages, but rather on the basis of the numerator (total gross wages for the combined occupations) and denominator (total hours for the combined occupations) derived from the information supplied by employers.

In addition, the Farm Labor Survey estimates hired labor use and costs at the aggregation of 15 multi-state regions (along with 3 stand-alone states). The aggregation of a widely diverse national agricultural landscape into just 15 regions (and 3 stand-alone states) results in extremely broad generalizations that fail to account for specific market conditions at the local level. Wage data collected at each individual State and even substate level would be more appropriate for purposes of computing an accurate, sub-regional AEWR that reflects local market conditions. Indeed, market-based wage survey data at the state or substate level is the standard for calculating comparison wages in other temporary worker programs administered by the Department, including the H-2B program that is the non-agricultural counterpart of H-2A and the H-1B specialty occupation worker program.
15

Moreover, the USDA Farm Labor Survey is administered and funded through USDA, giving the Department no direct control over its design and implementation. USDA could terminate the survey at any time and leave the Department without the basic data, problematic as it is, used to calculate the AEWR. In fact, just this past year, USDA announced that it would suspend the survey in February 2007 due to budget constraints. Ultimately, USDA resumed the Survey in May 2007. The possibility that USDA may suspend the survey at some point in the future adds a measure of instability and uncertainty for AEWR determinations in future years.

Therefore, this NPRM proposes to institute an alternative methodology for determining the AEWR that will more accurately measure market-based wages by occupation, skill level, and geographic location. A more accurate and refined AEWR methodology will produce an AEWR that more closely approximates actual market conditions, which will, in turn, help protect the wages and working conditions of U.S. workers.

The Department invites comment on an alternative AEWR methodology that achieves the goals described above. Under this proposed rule, the Department suggests a revised AEWR methodology that would achieve those goals by utilizing the Bureau of Labor Statistics (BLS) Occupational Employment Survey (OES) data instead of USDA Farm Labor Survey data. The OES program in BLS collects data on wage and salary workers and produces employment and wage estimates for about 800 occupations covering over 70 percent of the employment in the U.S. See 67 FR at 30479, May 6, 2002.

15
Calculation of the applicable wage by a SWA using the OES survey is, in fact, a “safe harbor” providing presumption of correctness in the H-1B labor condition application. 20 CFR 655.730.(a)(2)(ii)(A)(3).

The wage component of the OES survey is, with the exception of the

Decennial Census, the most comprehensive survey conducted by any agency of the Federal Government. The OES program surveys approximately 200,000 establishments every 6 months, and over 3 years collects the full sample of 1.2 million establishments. The OES program collects occupational employment and wage data in every State in the U.S. and the data are published annually. The OES wage data is already utilized by the Department for determining comparison wages in other temporary worker programs and has proven to be an accurate and successful wage reference. In 1989, when the Department established the current AEWR methodology, the OES program was not well developed and thus was not an effective alternative for the USDA Labor Survey. In the intervening 18 years the OES program has surpassed the USDA Labor Survey as a source for comprehensive agricultural wage data in several respects.

First, the OES program produces occupational estimates by geographic area and by industry. Estimates based on geographic areas are available at the national, State, and metropolitan area levels. Industry estimates are available for over 450 industry classifications at the national level. The industry classifications correspond to the sector, 3, 4, and 5-digit North American Industry Classification System (NAICS) industrial groups.

Second, the OES program provides data at the substate level in addition to the State level. Data is compiled for each metropolitan statistical area (MSA) and for additional non-MSA areas that completely cover the balance of each State. Data is available for 573 distinct areas comprehensively covering the U.S. This level of detail will enable AEWRs to be defined for H-2A applicant occupations that are specific to a relevant substate labor market area, greatly improving the ability of the Department to tailor certification decisions and parameters to relevant local labor market conditions. By contrast, the current AEWR provides wage data for just 15 multi-state regions and 3 stand-alone States across the U.S.

Another advantage of OES is that it offers the ability to establish four wage level benchmarks commonly associated with the concepts of experience, skill, responsibility, and difficulty variations within each occupation. The four skill levels for each occupation afford the employer and the Department the opportunity to more closely associate the level of skill required for the job opportunity to the relevant OES occupational category and skill level. This is another important advantage over the USDA Farm Labor Survey, which makes absolutely no skill distinctions.

There are five OES categories of occupations that would most likely be identified with H-2A job classifications. The Department expects that the “farm workers and laborers, crop, nursery and greenhouse” occupational category would encompass the majority of the jobs that employers would seek to fill under the H-2A program. The survey does, however, contain other categories, such as “sorters and graders” and “farmworkers, farm and ranch animals,” that will enable employers and the Department to more closely match the job opportunity to the relevant OES job category and, in turn, the appropriate AEWR. This is a significant advantage over the USDA Farm Labor Survey, which awkwardly provides just a single wage that purports to cover the entire spectrum of agricultural occupations.

Importantly, the OES survey is conducted by the Department's Bureau of Labor Statistics, which will enable continuity and coordination between those who gather the wage data and those who utilize it. This will help ensure the data needs of the H-2A program and AEWR calculation are consistently met.

The Department recognizes that the proposed new methodology utilizing the OES survey data to determine the AEWR is subject to some limitations. For example, the OES survey presently determines agricultural wages by surveying establishments that provide support activities for crop production, such as farm labor contractors, who provide workers and laborers to farm owners and operators. The survey does not include farm establishments that are directly engaged in the business of crop production. Nonetheless, the survey is broad enough to provide accurate and statistically valid wage rates: The latest OES data covers agricultural establishments accounting for the employment of 451,770 hired agricultural workers of all types or more than one-third of the 1.2 million hired farm workers in the U.S., according to the USDA. Moreover, employees of farm labor contractors and other similar businesses generally perform the same type of work as H-2A workers, and thus provide a good general basis for wage comparison. In the Department's estimation, taking these factors into account, the OES survey data is substantially more complete, detailed, and accurate—considering geography, occupation, and skill level—than is the USDA Farm Labor Survey.

The Department's examination of data from the Census Bureau's Current Population Survey (CPS), which includes agricultural workers from both farm and nonfarm establishments, confirms that the OES data covering wages paid by nonfarm agricultural establishments provides an effective and appropriate proxy for the wages paid directly to workers by farm operators. The CPS, a monthly survey of 60,000 households, collects information on the employment and unemployment experience of workers in the U.S. Estimates based on CPS data for 2006 show little difference in the mean or median earnings of agricultural workers employed by farm establishments and those employed by nonfarm establishments (the establishments within the scope of OES).
16

Agricultural workers in nonfarm establishments had mean hourly earnings of $8.86 and median hourly earnings were $8.20. In the farm establishments, mean hourly earnings were $8.55 and median hourly earnings were $7.80. Because of the small size of the CPS survey, the difference in wages reported by agricultural workers in farm establishments and nonfarm establishments is not statistically significant. Comparable OES estimates place mean hourly earnings at $8.94 for agricultural workers in nonfarm establishments and are very similar to the CPS estimate of $8.86.
17

16
As noted above, although an OES-surveyed employer may technically be a nonfarm establishment, the employer's workers may work on farms in agricultural occupations as reflected in the OES agricultural worker categories.

17
The CPS estimates were for miscellaneous agricultural workers (occupation code 45-2090). The OES estimates were done for four more specific occupations: Agricultural equipment operators (occupation code 45-2091); farmworkers and laborers, crop, nursery, and greenhouse (45-2092); farmworkers, farm and ranch animals (45-2093); and agricultural workers, all other (45-2099). Average hourly earnings for these four occupations ranged from $8.48 to $12.05 (see
www.bls.gov/oes/current/oes_nat.htm#b45-0000
) and the weighed average across the four occupations was $8.94. Median hourly earnings range from $7.95 to $10.80. The vast majority of the workers in these occupations are in the “farmworkers and laborers, crop, nursery, and greenhouse” category, which has median earnings of $7.95, and so it is likely that the median across all four occupational categories differs little from $7.95 or from the CPS estimate of $7.80.

In looking at the CPS as a possible source of wage data for this purpose, the Department determined that while that survey may provide a reasonable basis for making national level estimates and comparisons, the sample size is too small to provide the type of detailed State and substate-level estimates that can be gleaned from the OES data. And for that reason, the Department

determined that the CPS program would not be able to provide sufficiently accurate comprehensive data on agricultural wages to compute a precise and reliable AEWR.

The Department is aware that shifting from regional AEWRs derived from USDA Farm Labor Survey data to more geographically and occupationally refined AEWRs derived from OES data may raise the legally required wage rates in some areas while lowering them in others. Although these changes in wage rates presumably will make local AEWRs more reflective of actual local labor market conditions, the Department proposes, and asks for comment on, adding an additional protection for workers against potential short-term wage reductions resulting from the change in AEWR methodology. To counteract potential wage reductions in some areas, the Department proposes to use the future (effective July 24, 2009) Fair Labor Standards Act (FLSA) minimum wage of $7.25 as the floor for any AEWR, regardless of the methodology ultimately selected for calculating the AEWR. This basic wage floor will provide a fundamental protection to both foreign temporary workers and U.S. workers that will ensure that AEWRs cannot be lower than new federal minimum wage even though that wage will not be legally required until 2009.

An additional frame of reference on appropriate wage rates is the proposed “AgJOBS” legislation, which has been widely endorsed by groups representing both agricultural businesses and agricultural workers.
18

Many AgJOBS provisions implicate important Governmental interests that may not have been adequately taken into account when business and worker groups worked out their proposed compromise legislation, but the wage provisions are at the heart of the direct economic interests of both groups, and the bargain they have struck with respect to wages presumably reflects a comfortable middle ground from their point of view. At a minimum, the Department believes that the many worker advocacy groups and congressional sponsors who have endorsed the legislation would never agree to wage rates that they believe would hurt the interests of U.S. workers.

18
The
Agricultural Job Opportunities, Benefits, and Security Act (AgJOBS)
builds upon years of discussion and ideas from growers, farm worker advocates, and various groups and organizations, including several Latino groups, focused on the issue of immigration.” Senator Larry Craig, AgJOBS Issue Briefing,
http://craig.senate.gov/~craig/i_agjobs.cfm#faq.
Myriad advocacy groups have supported the AgJOBS legislation, including for example, the United Farm Workers, Farmworker Justice, National Council of LaRaza, AFL-CIO, Change to Win, Farm Labor Organizing Committee, Int'l Brotherhood of Teamsters, Laborers' Int'l Union of North America, Service Employees Int'l Union, United Food and Commercial Workers, UNITE HERE, National Council of Agricultural Employers, American Farm Bureau Federation, Western Growers Assn, Florida Fruit and Vegetable Assn, Agricultural Coalition for Immigration Reform, U.S. Chamber of Commerce, National Cattlemen's Beef Assn, American Nursery and Landscape Assn, United Egg Producers, United Fresh Fruit and Vegetable Assn, and New England Apple Council. See letter signed by more than 850 organizations supporting AgJOBS legislation that was sent to every member of the U.S. Senate, available at
http://fj.nclr.org/Public/webpage/October2007edits/InformationAboutAgJOBS/110thAgJOBSsignonApril2007Final.pdf.

As a comparison of the OES hourly wage rate at the national average or median rates for the occupational category “Farmworkers and Laborers, Crop, Nursery and Greenhouse” and the national average for the AEWR included in the “AgJOBS” legislation shows that on average, these workers would receive higher wages if paid an AEWR based on the OES data ($8.39) rather than the AEWR prescribed in AgJOBS ($7.50), thus demonstrating that use of the OES data provides additional wage protection to similarly employed U.S. workers. Even at the 25th percentile OES wage rate, workers in several States will receive higher AEWR wages on average than the AEWR rates proposed in AgJOBS. Further, when considering the proposed addition of the 2009 FLSA minimum wage floor to the OES data, that average AEWR turns out to be almost exactly the same as the average AEWR prescribed in AgJOBS.

Even in those instances where the use of OES data may result in lower AEWRs for H-2A workers in the short term, the Department is confident that the wages and working conditions of U.S. workers will be protected because the total costs of hiring H-2A workers are higher than the hourly AEWR alone reflects, and employers focus not only on wages when making hiring decisions, but on a workers' total cost. The program requirement that employers pay for H-2A workers' transportation and lodging, as well as the administrative expense of filing H-2A applications with several different Government agencies, add substantial additional costs to the employment of H-2A workers. The additional costs beyond wages (administrative expense, transportation and lodging) associated with utilization of foreign labor under the H-2A program are an important consideration that provides significant protection for U.S. workers. It is expected that U.S. workers in similar occupations, with similar skills and working in the same locality would likely be able to command higher hourly wages than H-2A workers and at least equivalent benefits because the additional cost considerations associated with utilization of the H-2A program provide an economic incentive for employers to seek out and hire U.S. workers instead of H-2A workers.
19

And of course, U.S. workers also have the protection of the rule requiring agricultural employers to first attempt to recruit U.S. workers before they can employ H-2A workers. This proposed rule also includes added protection for U.S. workers by requiring employers to recruit U.S. workers for an expanded period of time.

19
U.S. workers hired in response to recruitment required by the H-2A program are entitled to at least the same benefits received as those received by H-2A workers.

In conclusion, the Department seeks comment on alternative methodologies for calculating AEWRs for the H-2A program, including the use of OES data. The Department believes that to achieve a more accurate AEWR, the proposed methodology must include data concerning occupational category, skill level, and geographical distinctions, at a state or substate level. The Department's proposals have been made after careful consideration of the statutory requirements of the program and with the full knowledge of the administrative record developed in earlier rulemaking activities regarding AEWRs, as published in the
Federal Register
. The Department has reviewed the current methodology in light of the limitations of the USDA data sources, as well as improvements in alternative data collection instruments. The Department invites specific comments on the current AEWR methodology as well as its proposals to improve it, including reasonable alternatives that both provide adequate protections for U.S. workers and avoid introducing undesirable inflexibilities in agricultural labor markets.

2. The 50 Percent Rule

The 50 percent rule, which requires employers of H-2A workers to hire any qualified U.S. worker who applies to the employer during the first 50 percent of the period of the H-2A work contract, was originally created by regulation as part of the predecessor H-2 agricultural worker program in 1978. 20 CFR 655.203(e); 43 FR 10316, Mar. 10, 1978. In 1986, IRCA added the 50 percent rule to the INA as a temporary 3 year statutory requirement, pending the findings of a study that the Department was required to conduct “and other relevant materials including evidence of benefits to U.S. workers and costs to employers addressing the advisability of continuing a policy which requires an

employer as a condition for certification under this section, to continue to accept qualified, eligible U.S. workers for employment after the date the H-2A workers depart for work with the employer.”
Id.
; Public Law 99-603. In the absence of the enactment of Federal legislation prior to the end of the 3 year period, the Secretary was instructed to immediately publish the findings and promulgate an interim or final regulation based on the findings.

The Secretary hired a research firm to analyze the cost-benefit impact of the 50 percent rule on U.S. workers, growers, and the general public. The research firm studied the impact of the 50 percent rule in just Virginia and Idaho, the two States that were determined to have had the highest number of 50 percent rule workers. The number of growers interviewed was small, as the firm interviewed only those growers that actually hired U.S. workers because of the 50 percent rule—just 66 growers (0.1 percent) in all of Virginia and Idaho's total 64,346 farms (according to the USDA). The study did not take into consideration the 131 growers in the two States who received referrals under the 50 percent rule but did not hire any of the referred workers. The study also did not investigate why so few growers were using the H-2A program, and therefore did not take into account the overwhelming number of growers who were not using the program. The study sought only to determine the costs to employers that hire referred 50 percent rule workers and the concomitant benefits to the U.S. workers hired under the rule.

Even with this narrow focus, the study made it clear that the H-2A program was not regarded as desirable by growers. Of those questioned, 6 percent said they were dropping out of the H-2A program because of the 50 percent rule. Forty percent wanted the rule eliminated entirely and 33 percent wanted to alter the requirement by, for example, requiring the 50 percent rule workers to finish the season or modifying substantially the 50 percent rule by requiring the hiring of U.S. workers only up to a certain point before the date of need. In fact, 16 years later, only one of the agriculture employers surveyed in 1990 is still using the H-2A program.

In 1990, pursuant to what is now INA § 218(c)(3)(B)(iii), ETA published an interim final rule to continue the 50 percent requirement. 55 FR 29356, July 19, 1990. Since the 1990 publication of the interim final rule continuing the 50 percent rule, the Department has gained experience and additional perspective that calls into question whether the Department's decision to continue the 50 percent rule was, at the time, supported by the data in the 1990 study; and whether the rule is in fact a necessary, efficient and effective means of protecting U.S. workers from the adverse impact resulting from the employment of foreign workers, No other temporary foreign labor program administered by the Department includes such a requirement, which may be yet another reason the H-2A program is viewed by many as containing burdensome requirements that do not provide a corresponding benefit to U.S. workers.

The Department has heard complaints that the 50 percent rule creates substantial uncertainty for the employer in terms of managing their labor supply and labor costs during the life of the contract. In many situations, it appears the employer does not substitute the U.S. worker arriving under the 50 percent rule for the existing H-2A worker, but rather retains both workers and incurs the added expense in order to prevent further disruption to work flow resulting from dismissing an H-2A worker and sending that worker home. Anecdotally, employers report that the majority of the U.S. workers who are hired under the 50 percent rule remain on the job for less than the term of the H-2A contract. This means that if an employer immediately dismisses an H-2A worker when a U.S. worker is hired under the 50 percent rule, that action could result in the employer being short of labor if and when the U.S. worker leaves the job early. In any case, the concern that new workers may arrive well into the harvest cycle and create the type of disruption described above can serve as a serious disincentive for employers to participate in the H-2A program. Given the ready availability of jobs in the agricultural sector to authorized workers, there is also reason to believe that U.S. workers would generally be best served by referrals to jobs that have not yet begun, rather than being thrust into job opportunities that have already partly elapsed.

With the newly redesigned process being proposed, employers will be required to conduct additional recruitment in advance of their application. Employers will begin advertising for job opportunities no earlier than 120 days and no later than 75 days before the date on which the foreign worker will begin. This is a significant expansion of the period of required recruitment in the current rule and would enable more U.S. workers to be apprised of the job opportunities in a timely manner before the job begins. Additionally, under the redesigned process, the SWA will post the job orders until the date of departure of the foreign workers for the place of employment. These expanded time frames for recruitment will ensure that U.S. workers have substantially better and more effective notice about opportunities to obtain full term employment than is currently afforded by the 50 percent rule. Substituting these expanded recruitment requirements for the current 50 percent rule would provide employers substantially greater certainty regarding required recruitment, expected labor costs, and the available workforce, and would help lend greater stability to a program that has been rendered unattractive to many agricultural employers because of the many administratively imposed uncertainties.

For the above reasons, the Department is inclined to replace the 50 percent rule with expanded up-front recruitment requirements that will enhance the ability of U.S. workers to identify and apply for agricultural job openings before the jobs begin. The Department would like more information about the impact of the 50 percent rule before it makes a final decision, however, and requests comment on and information regarding the costs and benefits of the 50 percent rule in the current labor market. The Department requests comments from employers, workers and their representatives on the merits of retaining or eliminating the rule, as well as possible alternatives, such as reducing the applicable time period for mandatory hiring to the first 25 percent of the H-2A worker's contract, that might be effective in protecting U.S. worker access to job opportunities without creating uncertainty and competitive disadvantage for employers.

3. Housing

Section 218(c)(4) of the INA requires employers to provide housing in accordance with specific regulations. Employer-provided housing, depending on when it was built, must meet either the Department's Occupational Safety and Health Administration (OSHA) standards set forth under 29 CFR 1910.142 (standards for temporary labor camps), or the ETA standards at 20 CFR 654.404-654.417 (standards for H-2A housing). In circumstances where rental, public accommodation, or another substantially similar class of habitation is used, the housing must first meet any local standards for such housing or, in the absence of applicable local standards, any applicable State standards. In the absence of both local and State standards, the housing must

meet the OSHA standards for temporary labor camps.

The Department is proposing to require that employers attest to having secured the necessary housin

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3AE8-2525. Public record. Not legal advice.