Temporary Agricultural Employment of H-2A Aliens in the United States

DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Part 655

Wage and Hour Division

29 CFR Part 501

RIN 1205-AB55

Temporary Agricultural Employment of H-2A Aliens in the United States

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 governing the certification of temporary employment of nonimmigrant workers 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) reexamines the process by which employers 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 status. The Department also proposes to amend the regulations at 29 CFR part 501 to provide for sufficient enforcement under the H-2A program so that workers are appropriately protected when employers fail to meet the requirements of the H-2A program.

DATES:

Interested persons are invited to submit written comments on the Proposed Rule on or before October 5, 2009. Interested persons are invited to submit comments on the proposed form mentioned herein; such comments must be received on or before November 3, 2009.

ADDRESSES:

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

•

Federal e-Rulemaking Portal at 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. Comments that are received by the Department through means beyond those listed in this Proposed Rule or that are received after the comment period has closed will not be reviewed in consideration of the Final Rule. 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 on the

http://www.regulations.gov

Web site. It is the commenter's responsibility 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

http://www.regulations.gov

Web site.

Docket:

For access to the docket to read background documents or comments received, go to the Federal e-Rulemaking 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 Employment and Training Administration (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 electronic file on 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 on 20 CFR part 655, contact William L. Carlson, PhD, Administrator, Office of Foreign Labor Certification, ETA, U.S. Department of Labor, 200 Constitution Avenue, NW., Room C-4312, Washington, DC 20210; Telephone (202) 693-3010 (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 on 29 CFR part 501 contact James Kessler, Farm Labor Branch Chief, 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. Statutory Standard and Regulatory History

The H-2A nonimmigrant worker visa program enables United States (U.S.) agricultural employers to employ foreign workers on a temporary basis to perform agricultural labor or services in the absence of U.S. labor. Section 101(a)(15)(H)(ii)(a) of the Immigration and Nationality Act (INA or the Act) defines an H-2A nonimmigrant as one 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. The H-2A class of admission is rooted in the Immigration and Nationality Act of 1952, which created an H-2 visa for nonimmigrant admission for all types of temporary labor. The Immigration Reform and Control Act of 1986 (IRCA), three decades later, amended the INA to establish a separate H-2A visa classification for agricultural labor under INA sec. 101(a)(15)(H)(ii)(A). Public Law 99-603, Title III, 100 Stat. 3359 (November 6, 1986).

The INA authorizes the Secretary of DHS to permit employers to import foreign workers to perform temporary agricultural services or labor of a seasonal or temporary nature if the Secretary of the United States Department of Labor (Secretary) certifies 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 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 Secretary has delegated these responsibilities, through the Assistant Secretary, Employment and Training Administration (ETA), to ETA's Office of Foreign Labor Certification (OFLC).

The statute applies strict timelines to the processing of requests for certification. The Secretary may not require that such a request, or

Application for Temporary Labor Certification

, be filed more than 45 days before the employer's date of need, and certification must occur no later than 30 days before the date of need, provided that all the criteria for certification are met. 8 U.S.C. 1188(c). If the

Application for Temporary Labor Certification

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.

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. The statute also 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).

B. Current Regulatory Framework

The Department operated the H-2A program for more than two decades under regulations promulgated in the wake of IRCA or earlier. For the most part, the regulations at title 20 of the Code of Federal Regulations (CFR) part 655 were published at 52 FR 20507, Jun. 1, 1987 (the 1987 Rule). On December 18, 2008, the Department published final regulations revising these regulations and also revising the companion regulations at 29 CFR part 501 governing the enforcement responsibilities of the Department's Wage and Hour Division (WHD) under the H-2A program (the 2008 Final Rule). Included in that rulemaking were revisions to Fair Labor Standards Act (FLSA) regulations at 29 CFR parts 780 and 788. 73 FR 77110, Dec. 18, 2008.

The 2008 Final Rule made several significant changes in the processing of H-2A

Application for Temporary Labor Certification (Application).

The 2008 Final Rule uses an attestation-based model, unlike the previous rule, which mandated a fully-supervised labor market test. Under the 2008 Final Rule, employers conduct the required recruitment and, based upon the results of that effort, apply for a number of needed foreign workers. Thereafter, employers attest that they have undertaken the necessary activities and made the required assurances to workers, rather than have such actual efforts reviewed by a Federal or State official, as was the process in the 1987 Rule. The 2008 Final Rule relies largely on post-adjudication integrity measures to review selected documentation from a percentage of employers to compensate for a lack of hands-on review. It also reflects several significant policy shifts; chief among these was the decision to base the Adverse Effect Wage Rate (AEWR), which is the wage determined by the Department to be the minimum below which adverse impact to domestic workers would accrue, on the Occupational Employment Statistics (OES) Wage Survey collected by the Department's Bureau of Labor Statistics (BLS), rather than data compiled by the U.S. Department of Agriculture (USDA), National Agriculture Statistics Service (NASS) in its quarterly Farm Labor Survey Reports, which was what was relied upon in the 1987 Rule.

Following the issuance of the 2008 Final Rule, a lawsuit was filed in the U.S. District Court for the District of Columbia challenging the H-2A Final Rule.

United Farm Workers, et al.

v.

Chao, et al.

, Civil No. 09-00062 RMU (D.D.C.). The plaintiffs asserted that in promulgating the 2008 Final Rule, the Department violated 8 U.S.C. 1188 and the Administrative Procedures Act (APA). The plaintiffs requested a temporary restraining order and preliminary injunction, along with a permanent injunction that would prohibit DOL from implementing the 2008 Final Rule. The plaintiffs' requests for a temporary restraining order and preliminary injunction were denied and the 2008 Final Rule went into effect as scheduled on January 17, 2009.

The Administration, however, desired to review the policy decisions emanating from the 2008 Final Rule, made by a prior Administration, particularly on the role of the H-2A program in supplying foreign workers in agricultural activities, and with specific review of the protections afforded under that rule to all agricultural workers in general and the domestic workforce in particular. This review was believed to be particularly timely in light of the rising unemployment among U.S. workers and their apparent increasing availability for these jobs. Regardless, the Department upon review has determined the current level of worker protections and incentives for U.S. workers to accept employment in agriculture require expansion and are accordingly addressed in this NPRM. The Department's concern is that our agricultural economy should to the fullest extent feasible employ U.S. workers and they be granted a level of worker safety and protection

characterized in other occupations and that the need for foreign labor be when only there are demonstrably no available domestic workers for these jobs.

Accordingly, the Department extended the transition period contained in the 2008 Final Rule. In addition, the Department proposed to suspend the 2008 Final Rule in a Notice of Proposed Suspension at 74 FR 11408, Mar. 17, 2009. After considering the comments submitted in connection with the Notice of Proposed Suspension, the Department suspended the 2008 Final Rule and reinstated the regulations in effect prior to the 2008 Final Rule in order to effectuate a thorough review of the regulatory activity undertaken and to determine whether a new rulemaking effort was appropriate. 74 FR 25972, May 29, 2009. The Department stated in the Final Suspension that it intended to reinstate the former regulations for a 9-month period, after which time it would revert to the suspended regulations, unless a new rulemaking was in place. On June 29, 2009, the United States District Court for the Middle District of North Carolina issued a preliminary injunction enjoining the implementation of the Final Suspension.

North Carolina Growers' Association

v.

Solis,

1:09-cv-00411 (June 29, 2009). As a result of that order, as of the date of publication of this Proposed Rule, the 2008 Final Rule remains in effect.

C. Need for New Rulemaking

The Department has determined for a variety of reasons that a new rulemaking effort is necessary for the H-2A program. The Department, upon due consideration, believes that the policy underpinnings of the 2008 Final Rule,

e.g.

streamlining the H-2A regulatory process to defer many determinations of program compliance until after an Application has been fully adjudicated, do not provide an adequate level of protection for either U.S. or foreign workers.

In addition, the usage of the program since January 2009 has demonstrated that the policy goals of the 2008 Final Rule have not been met. One of the clear goals of the 2008 Final Rule was to increase usage of the H-2A program, to make usage easier for the average employer, and more affordable. However, applications have actually decreased since the implementation of the new program. Employers filed 3,176 applications in the first three and one half months of Fiscal Year (FY) 2009, prior to the implementation of the 2008 Final Rule (October 1, 2008-January 16, 2009). In the six and one half months from January 17, 2009, to July 31, 2009, 4,214 applications were filed. When compared to the previous year (FY 2008), in which 8,360 applications were filed, employers are not increasing their usage of the program.

See

Chart of Average Monthly H-2A Applications Received by OFLC,

infra.

Not only has usage not increased under the program revisions, there has actually been a reversal of an existing multi-year trend toward increased program utilization. While factors other than the regulatory changes may play a role in this decrease, without accomplishing the prior rules' goal of increasing program usage, the Department can no longer justify the significant decrease in worker protections.

The Department also feels that there are insufficient worker protections in the attestation-based model in which employers merely confirm, and do not actually demonstrate to the satisfaction of an objective government observer, that they have performed an adequate test of the U.S. labor market. Even in the first year of the attestation model it has come to the Department's attention that employers, either from a lack of understanding or otherwise, are attesting to compliance with program obligations with which they have not complied. Specific situations have been reported to the Department of employers who have imposed obstacles in the way of U.S. workers seeking employment. Examples of this have included the requirement of interviewing in-person at remote interview sites that require payment to access; multiple interview processes for job opportunities requiring no skills or experience; test requirements that are not disclosed to the applicants; contact information that is disconnected, is located outside the U.S., or proves incorrect; farm labor contractors who attest to a valid license who in fact have none; and contractors who have not obtained surety bonds . This anecdotal evidence from different geographical sectors, representative of both new filers and experienced program users, has been obtained by the Department in the course of its activities in processing cases (in responses to requests for modifications), auditing certified cases, and in complaints from U.S. workers since the effective date of the 2008 Final Rule. Such non-compliance appears to be sufficiently substantial and widespread for the Department to revisit the use of attestations, even with the use of back-end integrity measures for demonstrated non-compliance.

The Department has also determined that the area in which agricultural workers are most vulnerable—wages—has been adversely impacted to a far more significant extent than anticipated by the 2008 Final Rule. As discussed further below, the shift from the AEWR as calculated under the 1987 Rule to the recalibration of the prevailing wage as the AEWR of the 2008 Final Rule resulted in a substantial reduction of farmworker wages in a number of labor categories, and the obvious effects of that reduction on the workers' and their families' ability to meet necessary costs is an important concern to the current Administration.

In order to adequately protect U.S. and H-2A workers, the Department is proposing the changes further discussed in the subsections below. The Department is engaging in new rulemaking to provide the affected public with notice and opportunity to engage in dialogue with the Department on the H-2A program. The Department took into account both the regulations promulgated in 1987, as well as the significant reworking of the regulations in the 2008 Final Rule, in order to arrive at a Proposed Rule that balances the worker protections of the 1987 Rule and the program integrity measures of the 2008 Final Rule. Much of the 2008 Final Rule has been retained in format, as it presents a more understandable regulatory roadmap; it has been used when its provisions do not conflict with the policies proposed in this NPRM. To the extent the 2008 Final Rule presents a conflict with the policies underpinning this Proposed Rule, it has been rewritten or the provisions of the 1987 Rule have been adopted. To the extent the 1987 Rule furthers the policies that underlie this rule, those provisions have been retained. These changes are pointed out below.

D. Overview of Proposed Process

In the proposed model, an employer must initiate the request for H-2A certification 60 to 75 days prior to the date of need by submitting an Agricultural and Food Processing Clearance Order, Form ETA-790, to the State Workforce Agency (SWA) in the area of intended employment to be placed as an intrastate job order. Concurrent with submitting the job order, the employer must request a housing inspection. The SWA will review the proposed terms and conditions, ensure that the wage offered meets the required wage, and commence required recruitment by placing the job order into intrastate clearance. The housing inspection must be completed prior to the issuance of the certification, since this is a requirement to access to the interstate clearance system (

see

20 CFR 653.501(d)(2)(xv) and 654.403(e)).

The SWA must keep the job order posted and continue to refer employment applicants until 50 percent of the employer's contract period is complete.

See

§ 655.135(d).

The employer must consider all U.S. worker applicants referred throughout the recruitment period. The employer may reject candidates only for lawful, job-related reasons. If the employer hires sufficient able, willing, and qualified U.S. workers during this pre-filing recruitment period to meet its needs, then the employer does not need to file a labor certification application for foreign workers with the Department's National Processing Center (NPC).

If the employer finds an insufficient number of U.S. workers available to meet its needs, then it may seek H-2A workers by filing with the NPC an Application, ETA Form 9142, along with a copy of the ETA-790 form at least 45 days prior to the date of need and an initial recruitment report.

See

§ 655.130(b). Associations, labor contractors (known as H-2ALCs in this program), and agents have specific additional requirements, outlined below. Upon review by the NPC, the employer will either receive a Notice of Acceptance or a Notice of Deficiency. If the employer receives the latter, it will have no more than 12 days to modify the Application and return it to the NPC.

Once the NPC accepts the Application, the employer will be required to begin positive recruitment as specified in the Notice of Acceptance. The employer will also be required to accept referrals not only from the local SWA, but also SWAs that the NPC has designated as traditional supply States and to which the local SWA has sent an interstate job order. As part of this positive recruitment, the employer will be required to place newspaper advertisements, which must comply with § 655.152.

By the deadline set by the NPC in the Letter of Acceptance, the employer must complete a recruitment report and submit it to the NPC. The employer continues positive recruitment until the H-2A workers leave for the employer's place of business or the first date of need, whichever is earlier. 8 U.S.C. 1188(b)(4).

During the first 50 percent of the contract period the employer must accept any referral of U.S. workers from the SWA and continue to update the recruitment report. At the end of the 50 percent period, the employer finalizes the recruitment report and retains it along with copies of the advertisements placed throughout the recruitment period in case of an audit. The NPC issues either a Certification in accordance with § 655.161 or a Denial Letter in accordance with § 655.164. Extensions can be granted only in accordance with § 655.170. Should the NPC deny the Application, the employer has the right to appeal the decision to the Office of Administrative Law Judges (ALJs).

See

§ 655.171.

Should any integrity measures, by which the Department means the measures it uses to determine which employers have complied with their worker protection obligations and what actions it takes against employers who have failed to do so, such as audits, debarment, or revocation, be instituted against the employer by the Department (either by OFLC or by the WHD), the employer will have an opportunity to respond. Once a decision has been rendered, the employer has the right to appeal a negative decision to the Department's ALJ as described in § 655.171.

The following time sequence occurs generally in the proposed H-2A program:

60-75 days from date of need:

Employer commences process by submitting job order for clearance.

60-75 days from date of need:

SWA clears job order, employer begins accepting referrals from SWA.

45-75 days from date of need:

Employer accepts referrals, conducts interviews, and begins to compile recruitment report.

45 days from date of need:

Employer files Application.

38-44 days from date of need:

Employer receives instructions from CO, SWA commences interstate recruitment, employer conducts positive recruitment, continues to compile recruitment report. Employer continues positive recruitment until the H-2A workers leave for the employer's place of business or the first date of need.

30-38 days from date of need:

CO certifies or denies.

50 percent of contract period (past date of need):

Employer continues to accept referrals of U.S. worker applicants.

II. Discussion of 20 CFR 655 Subpart B

A. Introductory Sections

1. § 655.100 Scope and Purpose of Subpart B

This provision informs the users of the regulatory part of the authority of the H-2A labor certification process, drawn directly from statute. It provides the statutory basis for the regulatory process for receiving, reviewing and adjudicating an Application for H-2A job opportunities.

2. § 655.101 Authority of the Office of Foreign Labor Certification (OFLC) Administrator

The OFLC is the office within ETA that exercises the Secretary's authority for determining the availability of U.S. workers and where there are not sufficient U.S. workers available, certifying that the employment of H-2A nonimmigrant workers will not adversely effect the wages and working conditions of similarly employed workers. Such determinations are arrived at by the OFLC acting through its Administrator. The Administrator, in turn, delegates to staff the responsibility to make these determinations. Certifying Officers (COs) in the Chicago National Processing Center (CNPC) are primarily responsible for the activities of reviewing Applications and making adjudicatory decisions.

3. § 655.102 Special Procedures

Section 655.102 proposes the establishment, continuation, revision, or revocation of special procedures. The H-2A regulations have, since their creation, included a provision for special procedures for variances from the process outlined in the regulation. These are situations where the Department recognizes that variations from the normal H-2A labor certification processes are appropriate to permit access to the program for specific industries or occupations. These include, for example, sheepherding, and occupations in range production of livestock, as well as custom combine occupations. Accordingly, the Department has always reserved the right to, in its discretion, develop and implement special procedures for H-2A Applications relating to specific occupations. Such special procedures supplement the procedures described in subpart B for all H-2A Applications.

Historically, these special procedures have encompassed the authority to establish monthly, weekly, or semi-monthly AEWR for particular occupations. That process will continue under this proposal.

4. § 655.103 Overview of This Subpart and Definition of Terms

Although the Department is proposing a number of changes to the definitions section, most of the changes are to improve clarity and do not substantively change the meaning of the term. Substantive changes to definitions are discussed below.

The Department has retained the definition of “employee” from the 2008

Final Rule. This definition is based on the common law definition, as set forth in the Supreme Court's holding in

Nationwide Mutual Insurance

v.

Darden

, 503 U.S. 318, 322-324 (1992), which is more consistent with the statute than the definition contained in the 1987 Rule. The Department is proposing to modify the definition of “employer” from that set forth in the 2008 rulemaking, in order to conform the definition to that used in most other Department-administered programs. The definition of “successor in interest” has been modified from that in the 2008 Final Rule to make it clearer.

Under 8 U.S.C. 1101(a)(15)(h)(ii)(A) the H-2A program encompasses agricultural services or labor defined by the Secretary to at least include agricultural labor or services as defined in the Internal Revenue Code (IRC) and the FLSA, and the pressing of apples for cider on a farm. Before the 2008 Final Rule, the Department never exercised its authority to expand the scope of the H-2A program beyond agricultural employment as defined in IRC or FLSA.

In the 2008 Final Rule, the Department changed the regulatory definition of “agricultural labor or services” to include work activities of the type typically performed on a farm and incidental to the agricultural labor or services for which an H-2A labor certification was approved. Because the FLSA definition of agriculture already encompasses incidental work (“and any practices * * * performed by a farmer or on a farm as an incident to or in conjunction with such farming operations”), the Department believes that inclusion of a definition of incidental activities is duplicative. The Department also views as duplicative the clarification, included in the 2008 Final Rule that an activity that meets either the IRC or the FLSA definitions of agriculture is considered agricultural labor or services for H-2A program purposes. Therefore, the Department proposes to eliminate the separate definition of incidental work and the duplicative clarification.

The Department, however, is proposing to continue to include “logging activities” in the definition of “agricultural labor or services” for the same reasons discussed in the 2008 Final Rule. Prior to 1986, the Department had applied the same standards to logging employment as it applied to traditional agricultural employment. In 1986, IRCA separated the H-2 visa category into agricultural work under the H-2A visa and nonagricultural work under the H-2B visa. As discussed above, the H-2A program was intended to cover agricultural labor or services as defined by the Secretary, including but not limited to agricultural labor or services as defined in the IRC and the FLSA. The Department chose at that time not to expand the definition of agriculture beyond the statutory minimum. Nevertheless, the Department simultaneously continued the existing regulatory H-2A-like standards for logging workers who were admitted under the H-2B program. Logging employers, therefore, have been subject to a substantially similar set of obligations and processes as H-2A employers, but their nonimmigrant employees must enter on H-2B, rather than H-2A, visas.

In the 2008 Final Rule the Department determined that there was no longer any reason to maintain two substantially similar yet slightly divergent processes for agriculture and logging, and returned to our 1965-1986 practice of treating both activities alike. The types of activities in which the employers in both fields engage—

i.e.

, harvesting of agricultural and horticultural products—and the labor certification requirements to which they are subject, are essentially the same. This proposal contains the identical provision as the 2008 Final Rule. The Department has also added a definition of “logging operations” consistent with that used by the Occupational Safety and Health Administration (OSHA).

In addition, the Department is now proposing to also include reforestation activities within the definition of “agricultural labor or services.” For purposes of the H-2A program, “reforestation activities” will be defined as predominately manual forestry work that includes, but is not limited to, tree planting, brush clearing, pre-commercial tree thinning, and forest fire fighting. Temporary foreign workers engaged in reforestation activities are currently admitted under the H-2B program.

Reforestation work is commonly performed by migrant crews and overseen by labor contractors. The Department's experience has been that contractor work performed by migrant crews, which carries these similar characteristics to reforestation, is subject to a higher rate of violations than that performed by work performed for fixed-site workers. For this and other reasons, the Department has imposed additional requirements and obligations on labor contractors, H-2ALCs, under the H-2A program. These reforestation crews share the same characteristics as traditional agricultural crews, and the characteristics of most reforestation contractors are nearly identical to the characteristics of farm labor contractors found in traditional agriculture, and dissimilar than other occupations found in the H-2B program. It is common for their work to be paid on a piece rate basis; they work in locations typically with no access to public transportation, and are often left to their own devices to secure housing and food. These workers generally reside in remote locations for short periods of time with little or no access to community or government resources to assist them with work-related problems. The 2008 Final Rule included logging, a sub-industry of forestry, within the scope of H-2A agricultural labor. Reforestation workers, another sub-industry of forestry, who perform work in such remote locations and for such short periods of time should have the benefit of the same terms and conditions of employment as loggers as well as other traditional migrant crews with whom they share characteristics of employment. Being dependent on the crew leader combined with being in remote locations, with little or no access to community or government resources, increases the potential to be exploited by crew leaders. Due to the isolated and often harsh nature of reforestation activities and reforestation working conditions, and the similarities in the workforce between reforestation and traditional agricultural activities, as well as the potential for exploitation of such transient crews, the Department is proposing to include reforestation activities in the definition of “agricultural labor or services.”

For like reasons, the Department is also proposing to include “pine straw activities” in its definitions. Crews engaged in the raking, gathering, baling, and loading of pine straw, activities typically performed manually with hand tools, share these same characteristics of traditional agriculture crews. This is employment typically controlled by labor contractors, and as discussed above, the Department's experience has found a higher violation rate with labor contractors as opposed to fixed-site employers. These crews work in remote locations, often for short periods of time. These crews are highly transient and are typically dependent on the crew leader for all transportation, and typically in remote locations, are often left to their own devices to secure housing. They are also typically paid on a piece rate basis. Being so dependent on the crew leader combined with being in such remote locations, with little or no access to community or government resources, increases the potential to be exploited by crew leaders. Due to the

nature and working conditions of these pine straw activities, and the similarities in the workforce between pine straw and traditional agricultural activities, as well as the heightened potential for exploitation by crew leaders, the Department is proposing to include pine straw activities in the definition of agricultural labor or services.

The Department is proposing a simplified definition of a “temporary or seasonal nature”, to track the definition found in the DHS regulations at 8 CFR 214.2(h)(5)(iv)(A). Both the 1987 Rule and 2008 Final Rule used a definition derived from the Migrant and Seasonal Agricultural Worker Protection Act (MSPA). Upon further consideration, the Department has concluded that the MSPA definition, which is driven by the circumstances of individual workers, is not compatible with the needs of the H-2A program, which relates to the temporary/seasonal needs of employers. This has led to confusion under the previous rules, which the Department now seeks to rectify.

Also in the definitional provisions of the proposed regulations, the Department proposes to define “corresponding employment” to more accurately reflect the statutory requirement that, as a condition for approval of H-2A petitions the Secretary certify that the employment of the alien in such labor or services will not adversely affect the wages and working conditions of workers in the U.S. similarly employed. To ensure that similarly employed workers are not adversely affected by the employment of H-2A workers, the Department makes certain that workers engaged in corresponding employment are provided no less than the same protections and benefits provided to H-2A workers.

“Corresponding employment” is defined as the employment of workers who are not H-2A workers by an employer whose H-2A Application was approved by OFLC in any work included in the job order, or any agricultural work performed by the H-2A workers. “Corresponding employment” would include non-H-2A workers employed by an employer whose Application was approved by ETA who are performing work included in the job order or any other agricultural work performed by the employer's H-2A workers as long as such work is performed during the validity period of the job order. The definition includes both non-H-2A workers hired during the recruitment period required under these regulations and non-H-2A workers already working for the employer when recruitment begins. In the 2008 Final Rule, only workers newly hired by the H-2A employer were considered as engaged in corresponding employment. However, in this NPRM the Department is proposing to define corresponding employment more in keeping with the statutory language mandating that the importation of H-2A workers not adversely impact the wages and working conditions of workers similarly employed in the U.S. Such adverse impact could include providing housing at no cost to H-2A workers while housing domestic workers performing the same work in the same housing with a housing charge or reducing wages of domestic workers in order to have more available resources in order to import H-2A workers. Some might argue that precluding domestic workers from being paid the higher rate offered to H-2A workers is an adverse impact.

B. Prefiling Requirements

1. § 655.120 Offered Wage Rate

a. The Need for an Adverse Effect Wage Rate (AEWR)

The AEWR is the minimum wage rate that agricultural employers seeking nonimmigrant alien workers must offer to and pay their U.S. and alien workers, if prevailing wages and any Federal or State minimum wage rates are below the AEWR. The AEWR is a wage floor, and the existence of the AEWR does not prevent the worker from seeking a higher wage or the employer from paying a higher wage.

The Department continues to believe that the justification for the establishment of an AEWR cited in the final rule published in 1989 specifically on the AEWR methodology, remains valid:

Even though the evidence is not conclusive on the existence of past adverse effect, DOL still believes that its statutory responsibility to U.S. workers will be discharged best by the adoption of an AEWR set at the USDA average agricultural wage in order to protect against the possibility that the anticipated expansion of the H-2A program will itself create wage depression or stagnation.

(54 FR 28037, Jul. 5, 1989.)

The AEWR not only addresses the potential adverse effect that the use of low-skilled foreign labor may have on the wages paid to native-born agricultural workers, but also protects U.S. workers whose low skills make them particularly vulnerable to wage deflation resulting from the hiring of immigrant labor. This is true even in the event of relatively mild, and thus very difficult to measure, wage deflation. Additionally, an adverse effect wage rate will potentially result in greater employment opportunities for U.S. workers, furthering statutory intent.

The statute recognizes that U.S. agricultural workers need protection from potential adverse effects of the use of foreign temporary labor, because they generally comprise an especially vulnerable population whose low educational attainment, low skills, low rates of unionization and high rates of unemployment leave them with few alternatives in the non-farm labor market. Consequently, their ability to negotiate wages and working conditions with farm operators or agriculture services employers is quite limited. The Department therefore believes that its statutory mandate justifies returning to the previous methodology as it better ensures U.S. workers are not adversely affected. Additionally, it creates a floor below which wages cannot be negotiated, thereby strengthening the ability of this particularly vulnerable labor force to negotiate over wages with growers who are in a stronger economic and financial position in contractual negotiations for employment.

The Department has determined that the area in which agricultural workers are most vulnerable—wages—has been adversely impacted to a far more significant extent than anticipated by the 2008 Final Rule. Experience with the 2008 Final Rule to date demonstrates, that on average, required wages under the program have declined by approximately $1.44 per hour.

1

The 2008 Final Rule did not anticipate such a precipitous drop in workers' wages and as a result, the Department seeks to rectify this adverse effect on agricultural workers.

1

See

Preamble section IV A. Administrative Information, Executive Order 12866.

Furthermore, exclusive reliance on the traditional notion of the prevailing wage (

i.e.,

the wage paid for that occupation in area of intended employment) is inappropriate to the unique circumstances of the H-2A program. The other temporary foreign labor programs administered by the Department are subject to statutory visa caps. Historically, those programs have not involved the influx of large numbers of foreign workers into a particular labor market. In these other programs, it is realistic to conclude that payment of a prevailing wage to the foreign workers will have no adverse effect on U.S. workers. This assumption is not valid in the H-2A context. The program is uncapped and experience indicates that it can involve large numbers of foreign workers entering a specific labor market. Under these circumstances employment

of foreign workers may produce wage stagnation in the local labor market. Access to an unlimited number of foreign workers in a particular labor market at the current prevailing wage would inevitably keep the prevailing wage improperly low. The most effective way to address this problem is to superimpose a wage floor based on a survey that encompasses a wide enough geographic area so that the wage depressing effect of the use of H-2A workers will be ameliorated if not completely avoided.

b. Determining the Adverse Effect Wage Rate

In the 2008 Final Rule, the Department changed the data on which the AEWR is based from the USDA Farm Labor Survey (FLS) to data from the BLS OES. Additionally, the Department added a four-tiered set of skill levels to permit wages to be set based on the relative complexity of the job activities. As recognized in the 2008 rulemaking, the FLS and the OES survey are the leading candidates among agricultural wage surveys potentially available to the Department to set AEWRs. Although the Department solicited comment on the potential for alternative wage surveys in 2008, it received no ideas for useable alternative wage surveys. However, the Department again seeks comment on whether there are other approaches to calculating the AEWR that should be considered, as well as on its decision to revert to what it considers to be, on balance, a survey that provides more accurate and targeted data.

The OES wage survey is among the largest ongoing statistical survey programs 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 Department already uses OES wage data to determine prevailing wages in other temporary worker programs.

The OES agricultural wage data, however, has a number of significant defects. Perhaps most significantly, BLS OES data do not include wages paid by farm employers. Rather, the OES focuses on establishments that support farm production, rather than engage in farm production. Given that the employees of non-farm establishments constitute a minority of the overall agricultural labor force, it can be argued that these data are therefore not representative of the farm labor supply, does not provide an appropriately representative sample for the labor engaged by H-2A employers.

In contrast, the USDA FLS surveys between 11,000 and 13,000 farms and ranches each quarter on multiple subjects, including the number of hired farm workers, the gross wages paid to workers, and their total hours worked. Only farms and ranches with value of sales of $1,000 or more are included in the scope of the survey. Hired farm workers are defined as “anyone, other than an agricultural service worker, who was paid for at least 1 hour of agricultural work on a farm or ranch.” The survey seeks data on four types of hired workers: field workers, livestock workers, supervisors, and other workers.

USDA, through the National Association of State Departments of Agriculture, uses four collection methods for the FLS: mail, CATI (computer-assisted telephone interviews), personal visits (for larger operations), and online (only about 2 percent of respondents). The FLS sample is distributed across the entire country, with the geographic detail covering 15 multistate regions and 3 stand-alone States. This broader geographic scope makes the FLS more consistent with both the nature of agricultural employment and the statutory intent of the H-2A program. Because of the seasonal nature of agricultural work, much of the labor force continues to follow a migratory pattern of employment that often encompasses large regions of the country. Congress recognized this unique characteristic of the agricultural labor market with its statutory requirement that employers recruit for labor in multistate regions as part of their labor market, prior to receiving a labor certification for employing H-2A workers. The 2008 Final Rule did not sufficiently account for this labor market attribute and the Department believes that by returning to the FLS' regionally-based methodology that inconsistency will be remedied.

USDA calculates and publishes average wage rates for four categories of workers each quarter. Wage rates are not calculated and published for supervisors or other workers, but are for field workers, livestock workers, field and livestock workers combined, and total hired workers. Within the FLS, the wage rates, or average hourly wage, by category are defined as the ratio of gross wages to total hours worked. To the extent workers receive incentive pay, the average wage rate would exceed the workers actual wage rate. Because the ratio of gross pay to hours worked may be greater than a workers' actual wage rate, some statistics agencies refer to the ratio as average hourly earnings, and not as hourly wages or wage rate.

The FLS-derived wage rate estimate for the four categories of workers is published quarterly, and annual averages are published as well. The Department has in the past used these annual averages to arrive at the annual AEWR. Before the implementation of the 2008 Final Rule, the Department used the regional annual average for the category field and livestock workers combined as the annual AEWR for each State within a given geographic region.

The FLS survey and publication schedule provides timely data for purposes of calculating the relevant State AEWRs. The FLS is the only source of data on farm worker earnings that is routinely available and published within 1 month of the survey date. The quarterly gathering of data ensures that the annual averages are more accurately reflective of the fluctuations of farm labor patterns, which are by definition seasonal and thus more subject to fluctuation than other occupations. This is in contrast to the OES data which can lag in wage rate reporting by up to 3 years and may be collected from surveys during times of the year when agricultural workers are not present in a specific geographic area, thus providing less precise calculations.

The FLS is the only annually available data source that actually uses information sourced directly from farmers. The majority of farm workers are hired directly by farm operators. The FLS reports for 2008, for example, showed that 73.4 percent (730,800 per quarter on average) of all hired workers on farms had been directly hired by farm operators. The FLS also collects data on the number of workers and wages of workers performing agricultural services on farms (

i.e.,

workers supplied by services contractors) in California and Florida. California and Florida account for the preponderance of agricultural service contract labor provided to farms. In 2008, on average, California accounted for 42.6 percent (112,750) of the estimated national total 264,700 farm workers supplied under agricultural services contracts.

The FLS is a scientifically-conducted quarterly survey of the wages of farm and livestock workers and includes small farms not covered in other surveys. The scope and frequency of the survey means that all crops and activities covered by the H-2A program are included in the survey data and that peak work periods are also covered. The Department believes that the average hourly wage, based on the FLS data, compensates for any wage depression or

stagnation resulting from the large numbers of undocumented workers in the agricultural labor market. Using this methodology, regional AEWRs will be calculated based on the previous year's annual combined average hourly wage rate for field and livestock workers in each of 15 multistate regions and 3 stand-alone States, as compiled by the USDA quarterly FLS Reports. In contrast, while the OES is an appropriate wage survey for other industries, it was not designed for the purpose of calculating an hourly wage for agricultural labor, does not survey farms and therefore does not provide data in the agricultural sector appropriate to what is needed to make the adverse effect wage determinations as required under the H-2A program. Therefore, the Department believes that the USDA FLS survey of farm and livestock workers presents the most appropriate data for determining the adverse effect wage in the agricultural sector for use in the H-2A program.

For these reasons, the Department proposes to return to its 1989 methodology for the formulation of the AEWR. The Department proposes to annually publish for each State the AEWR based on the average combined hourly wage for field and livestock workers for the four quarters of the prior calendar year from the USDA's NASS FLS. The Department seeks comments on this methodology.

The Department is also proposing to discontinue the process in the 2008 Final Rule of including within the AEWR four wage levels reflecting differences based on required skill levels and levels of responsibility. It is our experience that the majority of hired farm labor, and the vast majority of labor for which H-2A certification is sought, is in low-skilled positions where wage differences are not driven by the level of skill required and responsibility required. Such skill differences are difficult to discern and create opportunities for error, either intentional or inadvertent. In addition, and perhaps most important, to whatever extent such differences may exist, no wage data is collected that could reasonably be used to identify them.

The Department is also proposing a new provision in this NPRM: if a prevailing hourly wage or piece rate is announced by the Department as increasing during the work contract to such an extent as it becomes higher than the AEWR or the legal Federal or State minimum wage, the employer must pay the new amount for the remaining duration of the contract. This change in policy is intended to ensure workers are paid throughout the life of their contracts at an appropriate wage commensurate with the baseline of the market value of their services. The Department expects that in these rare instances it will notify employers of the new wage and allow a period of time to ensure compliance.

2. § 655.121 Job Orders

The INA requires employers to engage in recruitment through the Employment Service job clearance system, administered by the SWAs.

See

8 U.S.C. 1188(b)(4);

see

also 29 U.S.C. 49

et seq.,

and 20 CFR part 653, subpart F. This proposal requires the employer to place a job order with the SWA serving the area of intended employment for intrastate clearance in order to test the local labor market to confirm the lack of U.S. workers prior to filing an Application. This process is consistent with the 2008 Final Rule. This eliminates the needless expenditure of limited government resources processing Applications when U.S. workers are actually available. If the job opportunity is located in more than one State within the same area of intended employment, the employer may submit a job order to any one of the SWAs having jurisdiction over the anticipated worksites to place the job order, but that SWA must forward the job order to the companion SWAs to have it placed in all locations simultaneously.

The employer must submit the job order to the SWA no more than 75 calendar days and no fewer than 60 calendar days before the date of need. Upon clearance and placement of the job order in intrastate clearance, the SWA must keep the job order on its active file until 50 percent of the H-2A contract period is reached, and must refer each U.S. worker who applies (or on whose behalf an Application is made) for the job opportunity during that time period. Any issue with respect to whether a job order may be properly placed in the intrastate clearance system that cannot be resolved with the applicable SWA must be first brought to the attention of the CO in the NPC.

The placement of the job order in the intrastate clearance system is typically a conditional access to the employment service system, given the requirement that the employer provide housing that meets applicable standards. 20 CFR 654.403(a). When the job order is placed in intrastate clearance, the SWA must inspect the housing that is to be provided to H-2A workers and those workers in corresponding employment who are not reasonably able to return to their residence within the same day. 20 CFR 654.403(e).

The Department has eliminated the requirement in the 2008 Final Rule that SWAs must complete the employment eligibility verification process (Form I-9 or Form I-9 plus E-Verify) for all workers referred to the job order by the SWA. This is a reversion to the 1987 Rule, under which workers in most States self-attested that they were eligible to take up the employment, in other words that they met the definition of a U.S. worker or were authorized to be employed in the U.S. The Department has done so for several reasons. The Department, upon reconsideration of the rationale for this practice after decades of not requiring States to verify employment eligibility of referrals, has decided to again place the responsibility for H-2A employment eligibility verification back on the employer, where the statute places it as a primacy. A referral is not an offer of employment—the individual may not apply for and may reject the position, they may not even be offered the position; regardless there are legal distinctions between refer and hire which are again being separated with this decision. While the Department does not desire that SWAs should refer any undocumented workers to any H-2A job opportunities they assist, it is also a resource (both financial and human) issue for States to complete, update and maintain Forms I-9 for referrals. Most States rely on an attestation for ensuring the eligibility of applicants who utilize SWA resources other than H-2A job referrals (such as job skills training), and by returning to this practice States will ensure that no worker seeking services in the public workforce system is treated disparately.

The operational benefits address two general categories of difficulty with I-9 verification by SWAs: SWAs have been at best inconsistent in operationalizing the requirement and have reported back significant difficulties in doing so. SWAs offer decentralized services but the H-2A job orders are often handled in a central (single) location. Due to the necessity of physical inspection, more staff—some of whom are not State merit staff—must be trained to perform document inspection, especially in geographically large States. In addition, States forwarding workforce referrals to other States (

e.g.,

traditional labor supply States) carry a disproportionate share of verification because of the higher number of referrals they are charged with sending on; the receiving States cannot assist as the worker is not physically present to present the documentation. Employment verification is moreover seen as

discriminatory in that SWAs must verify eligibility of only those referrals to H-2A job orders and are not required to verify referrals for non-H-2A job orders; this is particularly an issue given the typical ethnic makeup of migrant agricultural referrals. Further, referrals are disparately impacted; individuals that show up (or are sent) to the farm as so-called gate potential hires do not get the benefit of employment verification by the SWA but must be verified by the employer. Accordingly, workers will be handled by two processes—the employer and the State referring the worker.

The 2008 Final Rule recommended use of E-Verify but did not (indeed could not) require its use by States. States have been extremely slow to use E-Verify, despite the efforts on the part of United States Citizenship and Immigration Services (USCIS) to implement access to E-Verify for SWAs and the training efforts of the Department to ensure States are comfortable in using it. This is in part because USCIS requires a State to apply equal use of E-Verify to all workers who are referred, which given the mandate for H-2A job orders only, is difficult to apply unless the State is required to (or agrees to) verify all referrals to all job orders and not only those it is required to do. In addition, the use of E-Verify requires the completion of the Form I-9, and is an extra step requiring already stretched resources.

The Department has accordingly determined that SWAs may choose to complete employment eligibility verification on those individuals it refers in accordance with USCIS regulatory procedures, but are not required to do so. The Department believes that the administrative burdens of this activity do not outweigh its benefits. The savings to SWAs in time and human capital are more effectively directed at the core functions of the nation's public workforce system, the effective placement of U.S. workers in appropriate job opportunities.

3. § 655.122 Contents of Job Offers

The job offer sets out the terms and conditions of employment contained within the job order. The employer can give this information to the workers by providing a copy of the job order or a separate work contract. A written job offer is critical to inform potential workers of the terms and conditions of employment and to demonstrate compliance with all of the obligations of the H-2A program. For H-2A program purposes, the job offer must contain, at a minimum, all of the worker protections that apply to both domestic and foreign workers pursuant to these regulations. The Department considers the job offer essential for providing the workers sufficient information to make informed employment decisions. The job order, which is the document representing the terms and conditions of the job offer, must be provided with its pertinent terms in a language the worker understands.

The Department is proposing to retain most of the 2008 Final Rule requirements concerning job offers. As these requirements are familiar to the regulated community, the Department's discussion below focuses solely on the main differences between this section and the corresponding section in the 2008 Final Rule as well as minor nuances and clarifications.

a. Prohibition against preferential treatment (§ 655.122(a)).

The Department's statutory obligation in administering the H-2A program dictates that the employer be required to extend a job offer containing the same benefits, wages and working conditions for both U.S. and foreign workers. An employer may not impose any additional restrictions or obligations on U.S. workers. Under the proposed regulations, the employer is also responsible for providing to the H-2A workers at least the same minimum level of benefits, wages, and working conditions that are being offered to U.S. workers. This additional requirement levels the playing field so that employers offer H-2A and U.S. workers the same minimum levels of benefits, wages, and working conditions. It is consistent with the approach taken by the Department in the 1987 Rule and is intended to provide parallel protections from exploitation for H-2A workers.

b.

Job qualifications and requirements (§ 655.122(b)).

The Department proposes to retain the same requirements as in the 2008 Final Rule that the job requirements be bona fide and consistent with the normal and accepted qualifications required by employers that do not use H-2A workers for the same or comparable occupations and crops. In addition, the Department has made explicit that the CO or the SWA has the discretion to require that the employer submit documentation to justify the qualifications specified in the job order.

c.

Minimum benefits, wages, working conditions (§ 655.122(c)).

The Department proposes to retain the identical provision from the 2008 Final Rule.

d.

Housing (§ 655.122(d)).

The proposed regulation clarifies the employer's obligation to provide housing both to H-2A workers and to workers in corresponding employment who are not reasonably able to return to their residence within the same day, for the entire duration of the contract period. The employer's obligation to provide housing ends when the worker departs, voluntarily abandons employment, or is terminated for cause. The employer's obligations with respect to housing standards, rental or public accommodations, open range housing, deposit charges, charges for public housing, and family housing under the proposed regulations have remained the same as under the 2008 Final Rule. With respect to certified housing that becomes unavailable, the Department is retaining most of the requirements of the 2008 Final Rule but is also proposing to require the SWA to promptly notify the employer of its obligation to cure deficiencies in the substituted housing, if the housing is found to be or becomes out of compliance with applicable housing standards after an inspection. To clarify the Department's available remedies, the NPRM provides that the Department can deny a pending Application as well as revoke an existing certification.

e.

Workers' compensation (§ 655.122(e)).

The Department is proposing to retain the 2008 Final Rule requirements regarding an employer's obligation to provide workers' compensation insurance coverage in compliance with State law. To reflect a policy change to a full adjudication model, the Department is additionally requiring employers to provide the CO with proof of workers' compensation insurance coverage, including the name of the insurance carrier, the insurance policy number, and proof that the coverage is in effect during the dates of need. This requirement is a return to the requirements of the 1987 Rule.

f.

Employer provided items (§ 655.122(f)).

It is proposed that this section on employer-provided items be amended from the 2008 Final Rule to require employers to provide to the worker, without charge, all tools, supplies and equipment necessary to complete the job offered to them.

g.

Meals (§ 655.122(g)).

The Department is proposing to retain identical requirements with regard to an employer's obligation to provide meals to workers as those outlined in the 2008 Final Rule.

h.

Transportation; daily subsistence (§ 655.122(h)).

The Proposed Rule retains the 2008 Final Rule requirement for transportation and daily subsistence

costs incurred by the worker when traveling to the employer's place of employment. In addition, language has been added to place employers on notice that they may be subject to the FLSA that operates independently of the H-2A program and imposes requirements relating to deductions from wages. In providing notice to employers of companion FLSA requirements, the Department hopes to assure better protection of U.S. and foreign workers. When it is the prevailing practice among non-H-2A employers in the area of intended employment, or the employer offers the benefit to foreign workers, the employer must advance the transportation and subsistence costs to U.S. workers in corresponding employment as well. At the end of the work contract or if the employee is terminated without cause, the employer must also provide or pay for transportation costs and daily subsistence from the place of employment to the place from which the worker departed for work. In addition, the Department proposes to eliminate the limitation in the 2008 Final Rule on the employer's obligation to provide for travel expenses and subsistence for foreign workers only to and from the place of recruitment,

i.e.

the appropriate U.S. consulate or port of entry; this Proposed Rule requires the employer to pay the costs of transportation and subsistence from the worker's home to and from the place of employment, as was required under the 1987 Rule.

(i)

Transportation from place of employment.

As noted above, the Department is proposing to keep the 2008 Final Rule requirement for employers to provide transportation from the place of employment for workers who complete their work contract period. In addition, the Department proposes to include a requirement from the 1987 Rule which obligates either the initial or subsequent employer to cover the transportation and subsistence fees for the travel between the initial and subsequent worksite. The obligation to pay remains with the first H-2A employer if the subsequent H-2A employer has not contractually agreed to pay the travel expenses. In addition, this proposed paragraph incorporates a 2008 Final Rule requirement concerning displaced H-2A workers and places employers on notice that they are not relieved of their obligation to provide or pay for return transportation and subsistence if an H-2A worker is displaced as a result of an employer's compliance with the 50 percent rule.

(ii)

Employer-provided transportation.

The 2008 Final Rule imposed mandatory compliance with applicable Federal, State or local laws and regulations regarding vehicle safety, driver licensure and vehicle insurance on the transportation between the living quarters and the worksite. The Department is now proposing to ensure this provision reflects similar existing compliance requirements for all employer-provided transportation. It is less an expansion however, of the requirement as much as an acknowledgment that such compliance requirements exist elsewhere, as these already exist in Federal, State or local transportation laws and regulations. The Department is ensuring that the requirement of compliance with these transportation and safety laws is reflected in the affirmative obligations to the workers. The Department anticipates that this will further ensure worker safety.

i.

Three-fourths guarantee (§ 655.122(i)).

The Department is proposing to retain the three-fourths guarantee from the 2008 Final Rule clarifying that the guarantee is to offer the worker employment for a total number of work hours equal to at least three-fourths of the workdays of the contract period, beginning with the first workday after the arrival of the worker at the place of employment. The Department proposes to retain the provision addressing displaced H-2A workers from the 2008 Final Rule, except that the provision now refers to the reinstated 50 percent rule rather than the 30 day rule contained in the 2008 Final Rule.

j.

Earnings records (§ 655.122(j)).

This proposed section mirrors the earning records requirements in the 2008 Final Rule with one exception. Under the Proposed Rule, the employer must keep the earning records for 5 instead of 3 years.

k.

Hours and earnings statements (§ 655.122(k)).

Under the Proposed Rule, the employer would be required to provide to each worker hours and earnings statements that consist of all elements contained in the 2008 Final Rule plus two additional pieces of information: the beginning and ending dates of the pay period, and the employer's name, address and Federal Employment Identification Number.

l.

Rate of pay (§ 655.122(l)).

The Department is proposing to keep the 2008 Final Rule requirements regarding the rate of pay and is introducing an additional requirement to the job offer (already contained in the assurances and obligations of the 2008 Final Rule) that provides that the offered wage may not be based on commission, bonuses, or other incentives, unless the employer guarantees a wage paid on a weekly, semi-monthly or monthly basis that equals or exceeds the AEWR, prevailing hourly wage or piece rate, or the legal Federal or State minimum wage, whichever is highest. The term semi-monthly replaces the term biweekly from the 2008 Final Rule's obligation.

Additionally, the Department proposes to retain the requirement of the 2008 Final Rule that if the employer has a productivity standard associated with a piece rate payment, the productivity standard must be disclosed in the job offer. The Department also proposes to revive the requirement of the 1987 Rule that the productivity standard must also be no more than that required by the employer in 1977, or, if the employer first filed an Application after 1977, the employer's productivity standard when it first filed an Application. If the productivity standard is higher than required by the employer in 1977 or when the employer first filed an Application, the productivity standard must be approved by the OFLC Administrator.

m.

Frequency of pay (§ 655.122(m)).

The Department is proposing to retain most of the 2008 Final Rule requirements on pay frequency, requiring employers to pay wages at least twice a month (semi-monthly) and state the pay frequency in the job offer. However, the Department is proposing to add an option from the 1987 Rule, whereby employers may set pay frequency according to the prevailing practice in the area of intended employment, and proposes to add a new requirement that they employers must pay wages when due.

n.

Abandonment of employment or termination for cause (§ 655.122(n)).

The Department's proposal retains the requirements of the 2008 Final Rule on the abandonment of employment or termination for cause. However, one key difference from the 2008 Final Rule is that the Department has not included the express exception to abandonment or abscondment of a short-term unexcused absence; the Department is using a purely temporal (5 day) calculation to provide clarity.

o.

Contract impossibility (§ 655.122(o)).

The Department proposes to retain the 2008 Final Rule requirements regarding contract impossibility with one additional obligation, taken from the 1987 Rule, under which an employer is required to make efforts to transfer the worker to other comparable

employment acceptable to the worker in the event the employer is prevented from fulfilling the requirements of the work contract.

p.

Deductions (§ 655.122(p)).

Under the Proposed Rule, the employer must make all deductions required by law and must specify all other reasonable deductions in its job offer, just as under the 2008 Final Rule. In addition, subject to an employer's compliance with applicable FLSA requirements, the Department proposes to once again permit an employer to deduct the cost of worker's inbound transportation and daily subsistence expenses to the place of employment which were paid directly by the employer, but only if the worker is reimbursed the full amount of such deduction when he or she completes 50 percent of the work contract period. This reimbursement must be inserted in the job order.

q.

Disclosure of work contract (§ 655.122(q)).

Under this proposal, as under the 2008 Final Rule, the employer must provide a copy of the work contract (or the job order in the absence of the separate, written contract) to the worker no later than on the day that work commences. As a new requirement under this NPRM, this disclosure, as necessary and reasonable, must be written in a language the worker understands. It is appropriate in a program administered by the Department that we obligate an employer to provide the terms and conditions of employment to a prospective worker in a manner permitting the worker to understand the nature of the employment being offered and the worker's commitment under that employment.

C. Application Filing Procedures

1. § 655.130 Application Filing Requirements

This provision sets out the basic requirements with which employers need to comply in order to file an Application. As discussed above, the proposed process begins with the filing of an Agricultural and Food Processing Clearance Order (Form ETA 790) with the SWA 60 to 75 days before the date of need. As discussed above, this required preliminary period permits the SWA, with its substantial knowledge of the local labor market and farming activities, to evaluate the job's requirements. As was the case in the 2008 Final Rule, a single Application is filed with only the NPC. This eliminates the duplication of effort that occurred under the 1987 regulations, in which OFLC and the SWA both received an Application and both spent time reviewing it. By requiring a submission of only one Application form with the NPC, the proposed regulation segregates the process into those activities best handled by each entity.

The proposed provision also establishes filing deadlines consistent with the 2008 Final Rule. The Department is constrained by statute from requiring employers to file an Application more than 45 days prior to the date of need. 8 U.S.C. 1188(c)(1). The Department anticipates, based on decades of program experience, that it will continue to receive requests 45 days prior to the date of need, although Applications may be voluntarily filed in advance of that date.

The Department proposes to continue to receive Applications filed in the same paper format as currently filed until such time as an electronic system can be fully implemented. The Department proposes to use the

Application for Temporary Employment Certification,

Form ETA 9142, to collect the necessary information; the form's appendices will be modified slightly to reflect changes from the 2008 Final Rule (such as a change of tense to note the pre-recruitment filing of the Application). The Department has begun efforts to establish an online format for the submission of information, but as such a system depends upon the resolution of issues in rulemaking, its implementation necessitates a period during which paper Applications will continue to be accepted. The Department contemplated in its 2008 rulemaking an electronic submission process; until such is developed, it will continue to accept paper Applications. This will assist employers familiar with the program, who are currently filing paper Applications and will thus have a less onerous transition.

The proposed provision also sets out the requirement for obtaining signatures. As in the 2008 Final Rule, the Department is proposing to require original forms and signatures. One departure from the 2008 Final Rule is the requirement that an association, filing not as an association but as an agent for it members, obtain the signatures of all its employer-members before submitting the Application to the Department, to ensure that all members are fully aware of the obligations of the Application to which each member must adhere.

The rule proposes that the employer will file the Application with an initial recruitment report, outlining the results of its initial recruitment attempts, including the results of referrals from its intrastate job order placed with the SWA, and any other efforts in which it has engaged. The employer will also file with the

Application

a copy of its ETA 790 clearance order, so that the NPC may verify the order placed with the SWA against the terms and conditions provided on the Application.

2. § 655.131 Association Filing Requirements

a. Associations (§ 655.131(a))

The Department has previously permitted associations to file on behalf of their members. The proposed provision clarifies the role of associations as filers, in order to assist both the employer-members and the Department in assessing the obligations of each party. As in the past, an association will identify in what capacity it is filing, so there is no doubt as to whether the association is subject to the obligations of an agent or an employer (whether individual or joint). Both the 1987 and 2008 regulations required an association of agricultural producers filing an Application to identify whether the association is the sole employer, a joint employer with its employer-members, or the agent of its employer-members.

b. Master Applications (§ 655.131(b))

Although the 1987 Rule did not specifically describe a master application that can be filed by associations, they are clearly contemplated by 8 U.S.C. 1188(d), and the Department has permitted master applications to be filed as a matter of practice.

See

52 FR 20496, 20498, Jun. 1, 1987 (cited in ETA Handbook No. 398). The 2008 Final Rule explicitly permitted their use. This Proposed Rule continues to permit their use but narrows the scope of what constitutes an acceptable master application. The Proposed Rule continues to require a single date of need as a basic element for a master application. The Department proposes to retain the long-standing requirement that a master application may be filed only by an association acting as a joint employer with its members; the Proposed Rule reiterates this joint responsibility by requiring that the association identify all employer-members that will employ H-2A workers. The Application must demonstrate that each employer has agreed to the conditions of H-2A eligibility.

The Department also proposes to revert to the long-established practice of permitting a master application only for the same occupation and comparable work within that occupation. However,

the Department proposes to modify that practice to limit such Applications to a single State. Requiring comparable work on a master application also reduces overstatement of need by employers and the potential for idling of workers, both domestic and H-2A. Workers applying to a job opportunity that is the subject of a master application are thus provided a more accurate start date and can gauge their own availability accordingly. The Department notes that similar crop activities are far more likely to link to the single date of need that is required.

3. § 655.132 H-2A Labor Contractor (H-2ALC) Filing Requirements

The proposed regulation sets out additional filing requirements for H-2A Labor Contractors (H-2ALCs), building upon those outlined as attestations for H-2ALCs in the 2008 Final Rule. We are proposing that H-2ALCs be required to provide certain basic information, such as the names and locations of each fixed-site farm or agricultural operation to which the H-2ALC has contracted to send the workers, as well as information regarding crop activities the workers will be performing at each site. The Department also proposes to require H-2ALCs to submit copies of all contracts with each fixed-site entity identified in its Application. In addition, the Department proposes to continue to require the submission of the Farm Labor Contractor Certificate of Registration, if MSPA requires the H-2ALC to have one.

The Department is proposing to continue its requirement that an H-2ALC post a bond to demonstrate its ability to meet its financial obligations to its employees. This permits the Department to ensure labor contractors can meet their payroll and other obligations contained in the terms of the job order and the H-2A program obligations. Additionally, we are proposing that the H-2ALC be required to submit documentation of its surety bond.

Finally, the Department is proposing to require that in situations where the fixed-site farm with which the H-2ALC has a contractual relationship is the entity that will be providing housing and/or transportation, the H-2ALC must provide proof that the housing complies with the applicable standards, and has been approved by the SWA, and that transportation provided complies with all applicable laws and regulations.

4. § 655.133 Requirements for Agents

The Department has long accepted Applications in many of its programs from agents. The Proposed Rule continues the long-standing practice of allowing employers to utilize agents to file the Application. However, in recognition of the unique relationship an agent has with an employer it represents before the Department, the proposed rule requires an agent to provide, as a part of the Application, a copy of the agreement by which it undertakes the representation—contract, agency agreement, or other proof of the relationship and the authority of the agent to represent the employer. In addition, the Department is requiring, for those agents who are required under MSPA to register as a farm labor contractor, proof of such registration.

5. § 655.134 Emergency Situations

The Department proposes to retain from both the 2008 Final Rule and its predecessor Rule the criteria for accepting and processing Applications filed less than 45 days before date of need on an emergency basis. The Department is proposing that emergency Applications continue to be accepted for employers who did not use the H-2A program in the previous year, or for any employer that has good and substantial cause. The predicate for accepting an Application on an emergency basis continues to be sufficient time for the employer to undertake an expedited test of the labor market. To meet the good and substantial cause test, the employer must provide to the CO detailed information describing the reason(s) which led to the request. Such cause is outlined in the regulation in a non-inclusive fashion, including factors such as loss of U.S. workers from weather-related conditions and unforeseen events affecting the work activities. The discretion to determine good and substantial cause rests entirely with the CO.

6. § 655.135 Assurances and Obligations of H-2A Employers

In addition to commitments made to workers through the job order, employers seeking H-2A workers must provide additional assurances designed to ensure that the granting of the certification will not adversely affect the wages and working conditions of workers similarly employed in the U.S.

Under this Proposed Rule, the employer must assure that the job opportunity is available to any qualified U.S. worker regardless of race, color, national origin, age, sex, religion, handicap or citizenship. Domestic applicants may only be rejected for lawful, job related reasons. Additionally, the employer must assure that there is no work stoppage or lockout at the worksite.

As under the 1987 Rule, we propose that employers continue to work with the SWA(s) and accept referrals of all eligible U.S. workers who apply for the job until the completion of 50 percent of the contract period. In addition, the employers will have to conduct positive recruitment until the actual date on which the H-2A workers depart for the place of work, or 3 calendar days before the first date the employer requires the services of workers.

In this NPRM the Department is proposing to reinstate the 50 percent rule, outlined in 8 U.S.C. 1188(c)(3)(B)(i). The 50 percent rule is a creation of statute; it was added in IRCA to enhance domestic worker access to job opportunities for which H-2A workers were recruited. In short, the rule provided that the Department was to require that an employer seeking H-2A certifications agree to accept referrals through 50 percent of the contract period outlined on the job order. The Department seeks to enhance protections for U.S. workers, to the maximum extent possible, while balancing the potential costs to employers. The Department acknowledges that such increased referral activity imposes an additional cost on both employers and on SWAs. The burden on SWAs, however, is already a core labor market exchange function which they already provide to the nation's workforce pursuant to the Wagner-Peyser Act (29 U.S.C. 49

et seq.

). The cost on employers is lessened, to large extent, by the ability to discharge the H-2A worker upon the referral of a U.S. worker. In addition, the Department proposes retaining from the 1987 Rule (and U.S.C. 1188(c)(3)(B)(ii)) the small farm exemption to the 50 percent rule to minimize the adverse effect on those operations least able to absorb additional workers.

The proposed regulation at § 655.135(e) requires employers to assure that they will comply with all applicable Federal, State and local laws and regulations, including health and safety laws, during the period of employment that is the subject of the labor certification. Among other obligations employers may be subject to the provisions of the FLSA. This proposed requirement is intended to emphasize the important policy objective of protecting both U.S. and foreign workers and ensuring that both groups are afforded the protections to which they are entitled.

Among other requirements, the Department is proposing to require employers to offer only full-time temporary employment of at least 35 hours per work week, an increase from

the 30 hours per week in the 2008 Final Rule. The Department believes that a 35-hour work week more accurately reflects the work patterns of farm entities and strikes an appropriate balance between the employer's needs and the employment and income needs of both U.S. and foreign workers.

As in the 2008 Final Rule, an employer must guarantee that it has not laid off and will not lay off any similarly employed U.S. worker in the occupation in which the employer is seeking to hire H-2A workers within 60 days of the date of need. If the employer has laid off U.S. workers, the Department will require the employer to demonstrate that it has offered the job opportunities created by the lay offs to those laid-off U.S. workers(s) and the U.S. worker(s) either refused the job opportunity or was rejected for lawful, job-related reasons. This proposed requirement is intended to prevent the few unscrupulous employers from firing U.S. workers, then hiring H-2A workers to perform the same services under less advantageous working conditions, including lower wages and benefits, resulting in savings for the employers.

Proposed § 655.135(h) would prohibit employers from intimidating, threatening, coercing, blacklisting, discharging or in any manner discriminating against complaining workers or former workers who file a complaint against the employer for violating 8 U.S.C. 1188 or who institute any proceeding against the employer or testify in any proceeding against the employer, or consult with an employee of a legal assistance program or an attorney on matters related to a proceeding against the employer, or exercise or assert any right or protection under the same section or under the Department's H-2A regulations.

The NPRM proposes to continue to require an employer to inform H-2A workers that they are required to depart the U.S. at the end of the certified work period, or if they become separated from the employer before the end of that period. The requirement that the workers depart applies to all H-2A workers who do not have a subsequent offer of employment from another H-2A employer. This continues a standing requirement in the program which parallels DHS regulations. Requiring employers to notify H-2A workers of their obligation to depart will help to ensure that the workers timely depart the U.S. without risking negative immigration consequences for overstays of their temporary work visas. This will enable workers to remain eligible to return the following season and assist the same or different employers if there are not sufficient qualified, able and willing U.S. workers. In addition, the proposed requirement ensures that the employers are aware that they may not offer employment to foreign workers which exceeds the period certified by the Department (and that approved by DHS) without violating their obligations under the program.

As in the 2008 Final Rule and in conjunction with similar DHS regulations, the Department proposes to prohibit employers from passing on fees associated with the recruitment of workers recruited under 8 U.S.C. 1188 to those workers, such as referral fees, retention fees, transfer fees, or similar charges. The Department proposes to define payment as monetary payments, wage concessions (including deductions from wages, salary or benefits), kickbacks, bribes, tributes, in-kind payments, and free labor. The Department believes that requiring employers to bear costs associated with the recruitment of foreign and domestic workers will incentivize employers to offer the terms and conditions that would most likely attract U.S. workers who are qualified, willing and able to perform the work. In addition, this prohibition protects the workers from becoming heavily indebted when applying for the job opportunities and vulnerable to exploitation by unscrupulous employers. As before, this provision does not prohibit employers or their agents from receiving reimbursement for costs that are the responsibility of the worker, such as government required passport fees. The Department has also removed visa fees, border inspection, and other government-mandated or authorized fees from consideration as an acceptable fee attributable to the worker. A visa fee for an H-2A visa is one directly attributable to the employer's need for the worker to enter the U.S. to work for the employer; as such it is not reimbursable from the employee to the employer.

In addition to prohibiting employers and their agents from collecting or soliciting fees from H-2A workers for the cost of recruitment, the proposed regulations require those employers to contractually forbid any foreign labor contractor or recruiter, or agent of such foreign labor contractor or recruiter, engaged in the international recruitment of H-2A workers from seeking or receiving payments, whether directly or indirectly, from prospective employees. This provision is also intended to ensure that the employer's contractual obligations do not permit the passing of recruitment fees to foreign employees.

As an additional element of worker protection, the Department proposes to require that employers post and maintain in conspicuous locations at the worksite a poster provided by the Department in English, and, to the extent necessary, language common to a significant portion of the workers if they are not fluent in English, which describes the rights and protections for workers employed pursuant to 8 U.S.C. 1188. Providing such notification to workers through a poster at the worksite of their rights is consistent with other programs administered and enforced by the Department. Such a posting requirement is even more meaningful at remote worksites where agricultural workers are often employed. The posting requirement ensures that both H-2A and corresponding workers are aware of their rights and are provided with resources (in the form of phone numbers or contact information) which they may use to notify the Department of any issues at the worksite or report employers who fail to meet their obligations under the program.

D. Processing of Applications

1. § 655.140 Review of Applications

Under the Department's proposed regulations, upon receipt of each Application, job order, and other required documentation, the CO at the NPC will promptly conduct a comprehensive review of all documentation provided by the employer to ensure that the employer has complied with all applicable requirements and obligations. The timing of the review process is defined primarily in the INA, and therefore the Department's procedures remain largely unchanged. The Proposed Rule, however, now requires that the Application be accompanied by required documentation supporting employer assurances. Additionally, the CO will have a greater role in substantively reviewing the Application for compliance with the requirements.

2. § 655.141 Notice of Acceptance

The Proposed Rule partially incorporates the requirements of the 1987 Rule with respect to the process of accepting an Application. Under the proposal, the Notice of Acceptance from the CO grants conditional access to the interstate clearance system and directs the SWA to circulate a copy of the job order to the States the CO determines to be potential sources of U.S. workers. The Notice of Acceptance also directs the employer to engage in positive recruitment of U.S. workers during the same time period. Finally, each Notice

of Acceptance informs the employer that the Department will adjudicate the certification request no later than 30 calendar days before the date of need, except in the case of modified Applications.

Under the proposed regulations, the CO will review each employer's Application to determine whether the employer has established the need for agricultural services or labor to be performed on a temporary or seasonal basis by temporary H-2A workers and met all the requirements and obligations required by these regulations. The CO will ensure that the employer has submitted the Application no less than 45 days from the date of need and that it has previously submitted a copy of the job order to the SWA serving the area of intended employment for intrastate clearance. Further, the CO will look for a complete and appropriate job description, a full number of job openings and the appropriate dates of need. Most significantly, the CO will ensure that the employer is offering prospective workers an adequate offered wage rate. While conducting its review of the employer's Application, the CO will also determine whether the employer has included complete housing information, proof of workers' compensation coverage, the guarantee to provide to the workers travel reimbursement and meals/cooking facilities, and a promise to provide tools or items required for the position, as appropriate. The CO will ensure that the employer has agreed to offer to workers a total number of work hours equal to at least three-fourths of the workdays of the total contract period.

3. § 655.142 Electronic Job Registry

The Department proposes to post employers' H-2A job orders, including modifications approved by the CO, into a national and publicly accessible electronic job registry. The job registry will be created and maintained by the Department and will serve as a public repository of H-2A job orders for the duration of 50 percent of the work contract. The job orders will be posted in the registry by a CO upon the acceptance of each submission. The posting of the job orders will not require any additional effort on the part of the SWAs or H-2A employers.

The Department intends that this new national job registry will serve as an effective, user-friendly tool for informing and attracting U.S. workers to agricultural jobs for which H-2A workers are being recruited. In addition, the Department anticipates that the job registry will contribute to increased transparency in the H-2A labor certification approval process. The Department will inform all stakeholders of the creation of the job registry through a notice in the

Federal Register

and provide access through the Department's resources, including its One-Stop Career Centers, as well as through a link to the job registry on the OFLC's Web site

http://www.foreignlaborcert.doleta.gov/.

4. §§ 655.143 and 655.144 Notice of Deficiency and Submission of Modified Applications

As in the 2008 Final Rule, the Department proposes that if the CO determines that the Application or job order is incomplete, contains errors or inaccuracies, or fails to meet necessary regulatory requirements, the CO must notify each employer within 7 days that the Application does not meet standards for approval. This Notice of Deficiency will include the reason(s) why the Application is deficient and provide the employer with an opportunity to resubmit a modified Application. It will also identify the type of modification that is necessary in order for the CO to issue a Notice of Acceptance. In addition, the Notice of Deficiency must inform the employer that the CO will grant or deny the certification within 30 days of the date of need as long as the employer submits a modified application within 5 business days.

The Notice of Deficiency will also give an employer the opportunity to request expedited administrative review or a de novo administrative hearing before an ALJ and provide instructions on filing a written request for a hearing with the ALJ. Finally, the Notice of Deficiency will inform the employer that failing to act within 5 business days to either modify the Application or request an administrative hearing or review will result in the denial of that employer's Application.

The employer may submit a modified application within 5 business days of receiving a Notice of Deficiency. If an employer timely submits a modified application that meets conditions for acceptance, the CO will issue a Notice of Acceptance. For each day over the 5-day window, the CO may take up to one additional day to issue a Final Determination on the Application, up to a maximum of an additional 5 days. The Application will be considered to be abandoned if the employer does not submit a modified Application within 12 calendar days (allowing for two periods of 5 business days each) after the Notice of Deficiency was issued. The 12 days, which is more time than was allotted under the 2008 Final Rule, is a reasonable maximum period, given the statute's concern for prompt processing of Applications and the time needed to obtain visas and bring in the workers by the date of need.

5. § 655.145 Amendments to Applications for Temporary Employment Certification

As in the 2008 Final Rule, the Department proposes that amendments to a request for labor certification for H-2A workers are permitted in two limited instances—where an employer desires to increase the number of workers requested, and where the employer makes minor changes to the period of employment. DHS regulations at 8 CFR 214.2(h)(5)(x) provide for a limited maximum of 2-week extension in emergent circumstances (the temporary labor cert will be deemed to be approved for up to 2 weeks under such emergent circumstances (upon DHS approval of the 2-week extension request)). As proposed, an employer will be able to amend its Application with the Department at any time before the final determination without an obligation to submit a new Application (and conduct additional recruitment), to increase the number of workers requested by not more than 20 percent (50 percent for employers requesting 10 workers or less). Requests for increases above these percentages will be approved by the CO only in limited circumstances when the employer can satisfy DOL that the need could not have been foreseen and the crops or commodities would be in jeopardy before the expiration of any additional recruitment period.

For amendments to the period of employment, the Department proposes that the employer seek written approval in advance from the CO. The employer's request must be justified, taking into account the effect of the change of the period of employment on the adequacy of the labor market test. An employer must demonstrate that the change to the period of employment could not have been foreseen, and the crops or commodities will be in jeopardy prior to the commencement of an additional recruitment period. In addition, if the change involves a delay in the date of need, the employer must offer assurances that workers who have already departed for the employer's job site will be provided with housing and subsistence without cost to the workers until they begin working.

E. Positive Recruitment and Post-Acceptance Requirements

The Department proposes, under new §§ 655.150-655.159, that employers be required to conduct the majority of their

recruitment after filing their Application at the direction of the NPC. The proposed post-acceptance recruitment is similar to the process used in the 1987 Rule. The Department has determined that this oversight of recruitment is preferable to ensure the validity and adequacy of the labor market test in which the employer will engage. However, because the proposal retains the audit system introduced in the 2008 Final Rule, employers must maintain all resumes and applications filed by the U.S. workers. U.S. worker recruitment will continue to use the steps that program experience has shown are the most appropriate for agricultural employment. These include the involvement of the SWAs, placement of two newspaper advertisements, contact with former U.S. employees, advertising in traditional or expected labor supply States, and as appropriate, contacting local unions.

1. § 655.150 Interstate Clearance of Job Order

The Department proposes to require the employer to test the labor market before filing the Application by submitting a job order to the SWA in the area of intended employment. As discussed previously, the SWA will place this order only in the intrastate job clearance system. If enough U.S. workers apply for the positions available and are qualified, able, and willing to perform the duties, then the employer cannot file with the Department for a labor certification. However, if the employer still has a need for foreign workers, then the employer files an Application with the NPC. Once the CO issues the Notice of Acceptance, the NPC will instruct the SWA to post the Job Clearance Order on its interstate job clearance system. Likewise, the NPC will inform the SWA of the traditional or expected labor supply States and the SWA will send the SWAs in those States the Job Clearance Order.

2. § 655.151 Newspaper Advertisements

Newspapers remain a potential recruitment source for U.S. workers likely to be affected by the introduction of H-2A labor. As in the 2008 Final Rule, the Department proposes to require two print advertisements in the State of intended employment. The newspaper advertisements can be on two consecutive days, but one of which must be on a Sunday or the day of the week with the largest circulation if there is no Sunday edition. Employers will be required to list the specifics of the newspaper advertisement on the Application but will not be required to submit tear sheets or other documentary evidence of that recruitment when the recruitment report is submitted. However, the employer will be required to maintain documentation of the actual advertisement(s) published in the event of an audit or other review. The Department is not requiring advertising in ethnic newspapers, but allows for this option if, in the discretion of the CO, it is normal and customary in the area of intended employment.

3. § 655.152 Advertising Requirements

Proposed § 655.152 retains the requirements of the 2008 Final Rule for the information that must be contained in the advertisements. However, the Proposed Rule requires the advertisements to be placed at the direction of the CO after the Application has been accepted. It also proposes to require employers with remote worksites to provide physical space or other assistance for the interviewing of U.S. workers in a place other than the worksite that is readily accessible to the population that is most likely to apply to the job opportunity.

4. § 655.153 Contact with Former U.S. Employees

The NPRM proposes to continue to require employers to contact former U.S. employees as included in the 2008 Final Rule. These contacts must occur during the pre-filing recruitment period. Contact with previous employees will be documented by maintaining copies of correspondence with such employees (or records of attempts to contact former employees). The recruitment report must contain a description of the outcome of those contacts, including the lawful, job-related reasons for not rehiring a former employee. This will increase the likelihood that former U.S. workers of the employer will receive advance notice of available job opportunities, as well as provide them with additional information on available positions.

5. § 655.154 Additional Positive Recruitment

The statute requires the Secretary to deny a petition if the employer has not made positive recruitment efforts within a multistate region of traditional or expected labor supply States and the Secretary finds that there are a significant number of qualified U.S. workers who, if recruited, would be willing to make themselves available for work at the time and place needed. Positive recruitment is in addition to and occurs within the same time period as the circulation of the job order through the interstate employment service system. The NPRM proposes that the Notice of Acceptance will instruct the employer how to conduct positive recruitment. If such traditional or expected labor supply States exist for an area of intended employment, the Notice of Acceptance will designate such States and the employer will be required to perform additional positive recruitment in those States. The type of recruitment that will be required of the employer is left to the discretion of the CO, but will be no less than the normal recruitment efforts of non-H-2A agricultural employers of comparable or smaller size in the area of intended employment. Such recruitment may include radio advertising, additional newspaper advertisements, and other targeted efforts.

6. § 655.155 Referrals of U.S. Workers

The NPRM proposes to return to the 1987 Rule standard which required the SWAs to refer only those individuals who have been apprised of all the material terms and conditions of employment. Under those provisions, only those individuals who had indicated that they were able and willing to perform such duties, qualified and eligible to take such a job and available at the time and place required in the job order were referred.

7. § 655.156 Recruitment Report

The reporting of recruitment results has always been an element of the H-2 program. Under the 1987 Rule, if the employer did not hire a referred worker, the employer was required to inform the SWA of the lawful employment-related reason(s) for not hiring the worker. The 2008 Final Rule formalized this process and required the preparation of a recruitment report, but the report was not sent to either the SWA or the NPC; instead the employer maintained the recruitment report in its records. The NPRM proposes to require that employers begin the recruitment report before they file their Application and continue to supplement it as referrals and applicants come in. The employer will be required to submit the initial recruitment report at the time of filing the Application with the NPC and to file an updated report by a date certain specified in the Notice of Acceptance. Finally, the employer will be required to continue to update the recruitment report until 50 percent of the contract period has expired at which time the SWA will cease referring U.S. workers. The complete recruitment report and all supporting documentation must be maintained by the employer for 5 years.

8. § 655.157 Withholding of U.S. Workers Prohibited

The statute prohibits willfully and knowingly withholding domestic workers until the arrival of H-2A workers in order to force the hiring of domestic workers under the 50 percent rule. Both previous rules implemented the statutory prohibition by describing the procedure for filing complaints in such instances. Because the Department has now centralized many of the functions formerly performed by the SWAs, the NPRM proposes to have such complaints filed directly with the CO rather than first going through the SWA and having the SWA refer complaints to the CO.

F. Labor Certification Determinations

1. § 655.160 Determinations

This NPRM proposes to continue to implement the Secretary's statutory mandate to make determinations on Applications no later than 30 days prior to the date of need.

2. § 655.161 Criteria for Certification

The NPRM sets out the criteria by which the CO will determine the availability of U.S. workers. As in the 2008 Final Rule, the CO will count as available those individuals who are rejected by the employer for any reason other than a lawful, job-related reason, or who are rejected and are not provided by the employer with a lawful, job-related reason for the rejection.

3. § 655.162 Approved Certification

The Department is proposing to continue the requirement from the 2008 Final Rule that the CO will send the certified Application

to the employer by means assuring next-day delivery. This is to ensure employers receive expeditious handling of their certifications.

4. § 655.163 Certification Fee

The Proposed Rule continues to require, as outlined in the statute, that each employer of H-2A workers under the Application (except joint employer associations, which may not be assessed a fee in addition to the fees assessed to the members of the association) must pay to the Department the appropriate certification fee. These processing fees are authorized by statute and set by regulations originally published at 52 FR 20507, Jun. 1, 1987. The Department is updating the fees to an amount that more nearly approaches the reasonable costs of administering the H-2A program.

The fee for each employer receiving a temporary agricultural labor certification will continue to be $100 plus $10 for each H-2A worker certified under the Application. The fee to an employer for an individual Application will be continue to be capped at $1000, regardless of the number of H-2A workers that are certified. Non-payment or untimely payment of fees may be considered a violation subject to the procedures under § 655.182.

5. § 655.164 Denied Certification

The Proposed Rule retains the general provisions for denying certifications from the 2008 Final Rule. The final determination letter will state the reasons that the certification was denied and cite the relevant regulatory provisions and/or special procedures that govern. The Department will continue to provide the applicant an opportunity to appeal the determination.

6. § 655.165 Partial Certification

The Proposed Rule retains in large part the 2008 Final Rule provision explicitly providing that the CO may issue a partial certification, reducing either the period of need or the number of H-2A workers requested or both. The ability to issue a partial certification is necessary where the Department receives an Application with respect to which eligible and qualified U.S. workers have been successfully recruited prior to certification. A partial certification is issued by subtracting the number of available U.S. workers from the total number of workers requested. In addition an employer will have the ability to request administrative review.

7. § 655.167 Document Retention Requirements

The Proposed Rule retains a provision from the 2008 Final Rule requiring the retention of certain documentation demonstrating compliance with the program's requirements, but increases the period of retention. Documents must be retained in hard copy for a period of 5 years from the date of adjudication of the Application, up from the 2008 Final Rule's 3-year requirement. Document retention is a necessary component of the H-2A certification process to respond to an audit or other investigation.

G. Post-Certification Activities

Proposed §§ 655.170 through 655.173 concern various actions an employer may take after its H-2A Application has been adjudicated, including making a request for extension of certification, appealing a decision of the CO, withdrawing an Application, and petitioning for higher meal charges. Section 655.174 proposes a new publicly-accessible electronic database of employers who have applied for H-2A certification that the Department will maintain.

1. § 655.170 Extensions

Proposed § 655.170 contains the provisions governing an employer's request for an extension of the time period for which an Application has been certified. Aside from two substantive changes, the provisions of this proposed section are the same as the provisions under the 2008 Final Rule, which were themselves similar to the provisions of the 1987 Rule.

The substantive changes in the proposed section would permit the CO to notify an employer through means other than writing if time does not permit, or in writing if time permits, of the CO's decision to grant or deny an extension of certification. This would enable COs to provide a decision in the fastest manner possible, when a delay for a formal writing would otherwise hamper the ability of the employer to act on the decision. The proposed regulation also would not allow an employer to appeal a denial of an extension. Under this Proposed Rule, there is no right to appeal a denied extension request. While the Department, in its discretion, allowed for appeals of denied extensions in the 2008 Final Rule, the Department does not see sufficient justification to continue this practice.

2. § 655.171 Appeals

This section sets out the procedures for ALJ review of a decision of a CO. The substance of this section has remained the same since 1987, except that this proposed section allows an ALJ to remand a case to the CO, in addition to the ALJ's existing ability to affirm, reverse, or modify a CO's decision.

The proposed section reorganizes the text in the corresponding sections of previous rules to enhance clarity and readability. The proposed section does not list the various CO decisions that may be appealed, such as a denial of certification, a decision to decline to accept an Application for consideration, or a denial of an amendment of an Application. Rather, the Proposed Rule is structured so that the right to appeal a particular decision of the CO is discussed in the sections of the rule that discuss the CO's authority and procedure for making that particular decision.

3. § 655.172 Withdrawal of Job Order and Application for Temporary Employment Certification

Proposed § 655.172 discusses the withdrawal of Applications. An employer may withdraw a job order from intrastate posting if the employer no longer plans to file an H-2A Application. However, withdrawal of a job order does not nullify the obligations the employer has to any workers recruited in connection with the placement of the job order before it was withdrawn.

An employer may also seek to withdraw an Application after it has been accepted by the NPC. However, the employer is still obligated to comply with the terms and conditions of employment contained in the Application for workers recruited in connection with that Application.

4. § 655.173 Setting Meal Charges; Petition for Higher Meal Charges

The text of proposed § 655.173 is substantively the same as the text of the section governing meal charges in the 2008 Final Rule. The proposed section contains some minor changes to the description of an employer's right to appeal a denial of a petition for higher meal charges, primarily to refer to current appeal procedures.

5. § 655.174 Public Disclosure

This proposed section describes a new initiative of the Department: DOL will maintain an electronic database accessible to the public containing information on all employers who apply for H-2A labor certifications. The database will include information such as the number of workers the employer requests on an Application, the date an Application is filed, and the final disposition of an Application.

H. Integrity Measures

Proposed §§ 655.180 through 655.185 have been grouped together under the heading Integrity Measures, describing those actions the Department may take to ensure that Applications filed with the Department are in fact compliant with the requirements of this subpart.

1. § 655.180 Audit

This section proposes how the Department will conduct audits of applications for which certifications have been granted. The regulatory text is substantively the same as the text of the audit section of the 2008 Final Rule, with minor changes to improve organization and readability. Like the 2008 Final Rule, the proposed section states that the Department has the discretion to choose which labor certification requests will be audited. When an Application is selected for audit, the CO will send a letter to the employer (and its attorney or agent) listing the documentation the employer must submit and the date by which the documentation must be received by the CO.

An employer's failure to comply with the audit process may result in the revocation of certification or debarment, under proposed §§ 655.181 and 655.182. A CO may provide any findings made or documents received in the course of the audit to the WHD, DHS or other enforcement agency. The CO will refer any findings that an employer discriminated against an eligible U.S. worker to the Department of Justice, Civil Rights Division, Office of Special Counsel for Unfair Immigration Related Employment Practices.

2. § 655.181 Revocation

This proposed section describes the Department's power to revoke an H-2A labor certification. The proposed section expands the grounds upon which the Department may revoke from those specified in the revocation (§ 655.117) in the 2008 Final Rule. Under the proposed section, the CO may revoke certification if the CO finds that it was not justified based on the requirements of the INA. This will allow the CO to correct situations where she finds that the labor certification should never have been granted. The CO may also revoke if the CO finds that the employer substantially violated a material term or condition of the approved labor certification. The definition of substantial violation is in the debarment section of these proposed regulations, at proposed § 655.182(d). Finally, the CO may revoke if she finds that the employer failed to cooperate with a DOL investigation, inspection, audit, or law enforcement function, or if she finds that the employer failed to comply with any sanction(s), remedy(ies), or order(s) of the Department.

The proposed procedures for revocation are largely the same as the revocation procedures in the 2008 Final Rule. They have been revised for clarity and to provide that in the event of a revocation, the employer may either take advantage of the opportunity to submit rebuttal evidence to the CO, or the employer may file an administrative appeal under proposed § 655.171.

The revocation procedure begins with the CO sending the employer a Notice of Revocation if the CO determines that certification should be revoked. Upon receiving the Notice of Revocation, the employer has two options: It may submit rebuttal evidence to the CO or the employer may appeal the revocation under the procedures in proposed § 655.171. The employer must submit rebuttal evidence or appeal within 14 days of the Notice of Revocation, or the Notice will be deemed the final decision of the Secretary, and the revocation will take effect immediately at the end of the 14-day period.

If the employer chooses to file rebuttal evidence, and the employer timely files that evidence, the CO will review it and inform the employer of her final determination on revocation within 14 calendar days of receiving the rebuttal evidence. If the CO determines that the certification should be revoked, the CO will inform the employer of its right to appeal under proposed § 655.171. The employer must file the appeal of the CO's final determination within 10 calendar days, or the CO's determination becomes the final decision of the Secretary and takes effect immediately after the 10-day period.

If the employer chooses to appeal either in lieu of submitting rebuttal evidence, or after the CO makes a determination on the rebuttal evidence, the appeal will be conducted under the procedures contained in proposed § 655.171. The timely filing of either rebuttal evidence or an administrative appeal stays the revocation pending the outcome of those proceedings. If labor certification is ultimately revoked, the CO will notify DHS and the Department of State.

Proposed § 655.181(c) lists an employer's continuing obligations if the employer's H-2A certification is revoked. These obligations are the same as those listed in § 655.117(d) of the 2008 Final Rule.

3. § 655.182 Debarment

Proposed § 655.182 describes the Department's debarment authority and procedures, pursuant to 8 U.S.C. 1188(b)(2). Sections 655.182(a-c) are substantively the same as § 655.118(a) -(c) of the Debarment section of the 2008 Final Rule; they have been revised to provide clarity. Section 655.182(a) states that the OFLC Administrator may debar an employer if the Administrator finds that the employer has committed a substantial violation. Section 655.182(b) states that the OFLC Administrator may debar an agent or attorney if the Administrator finds that the agent or attorney participated in, had knowledge of, or reason to know of an employer's substantial violation. The OFLC Administrator will not issue a future labor certification to any employer represented by a debarred agent or attorney. Under paragraph (b),

the agent or attorney is the subject of the debarment; the OFLC Administrator may issue labor certifications to the same employer(s) if they are not represented by the debarred agent or attorney (unless of course the employer itself is also debarred). The Administrator may not commence debarment proceedings against an employer, attorney, or agent any later than 2 years after the substantial violation occurred. The Administrator may not debar an employer, attorney, or agent for longer than 3 years from the date of the Department's final debarment decision.

The statute at 8 U.S.C. 1188(b)(2) directs the Secretary to debar any employer who the Secretary determines has committed a substantial violation. Proposed §§ 655.182(d) and 655.182(e) work together to describe the violations that the CO may determine are so substantial as to merit debarment. Proposed § 655.182(d) defines a violation for purposes of debarment. The text of this section is similar to the text of § 655.118(d) of the 2008 Final Rule, with the following changes:

• The proposed text of paragraph (d)(1) makes clear that there need only be one act of commission or omission that fits the criteria listed in paragraphs (d)(1)(i) through (x) to constitute a substantial violation; this replaces the 2008 Final Rule's requirement of a pattern or practice of acts.

• Proposed paragraph (d)(1)(iii) is changed to say failure to comply with recruitment obligations rather than willful failure.

• A new proposed paragraph (d)(iv) was added. Under the Proposed Rule, an employer's improper layoff or displacement of U.S. workers or workers in corresponding employment may be a debarrable violation.

• A new proposed paragraph (d)(vii) is added. Under the Proposed Rule, employing an H-2A worker outside the area of intended employment, in an activity/activities not listed in the job order, or outside the validity period of employment of the job order, including any approved extension of the job order may be a debarrable violation.

• A new proposed paragraph (d)(viii) is added. This will permit debarments based on violations of § 655.135(j) & (k) which address employer fee shifting and related matters.

• A new proposed paragraph (d)(ix) is added. Under the Proposed Rule, a violation of any of the anti-discrimination provisions listed in 29 CFR 501.4(a) may be a debarrable violation.

Proposed § 655.182(e) adds a description of the factors a CO may consider when determining when a violation is substantial for purposes of determining whether the violation merits debarment. This list of factors is not exclusive, but it offers some guidance to employers, attorneys, and agents as to what a CO commonly considers when determining whether a substantial violation has occurred. The factors are the same as those factors used by the WHD to determine whether to assess civil money penalties under 29 CFR 501.19 or whether to debar under 29 CFR 501.20.

The independent debarment authority of the WHD is a new feature of the Proposed Rule.

See

proposed language at 29 CFR 501.20 and the corresponding preamble. Because both OFLC and the WHD have concurrent debarment jurisdiction, some changes have been added to the OFLC debarment procedures in the Proposed Rule to ensure that the procedures are consistent with the WHD debarment procedures.

Proposed § 655.182(f) describes the procedures that will be followed in the event of an OFLC debarment. These procedures are the same as the debarment procedures contained in the 2008 Final Rule, but these procedures would eliminate the Notice of Intent to Debar and the employer's option to submit rebuttal evidence. Instead, the debarment procedures will begin with the OFLC Administrator sending a Notice of Debarment, and the same appeal opportunities as in the 2008 Final Rule will follow.

The Department believes that the provision for the employer to submit rebuttal evidence in response to an OFLC Notice of Debarment is unnecessary because of the reality of debarment under these proposed regulations: Most often, debarment will actually be done by the WHD. Because the WHD has more extensive investigation authority than the OFLC, any WHD debarment will come only after the WHD has conducted an extensive investigation in which the employer has many opportunities to submit evidence and otherwise communicate with the WHD official. Further, it is highly unlikely that any OFLC debarment would occur without the OFLC Administrator conducting an audit of the employer under proposed § 655.180, so the employer will have had opportunity to submit evidence before the Notice of Debarment occurs. Because of this, the Department does not believe that the employer would need an additional opportunity to submit further evidence. Also, because the employer will have already had opportunities to submit evidence to the Department, and debarment will only be conducted if the OFLC Administrator believes that the employer has committed a serious, substantial violation, the Department believes that giving the employer an additional option to submit rebuttal evidence would cause inappropriate delay in the debarment proceedings.

Another minor change was made in proposed § 655.182(f)(3), describing the ALJ's decision after a debarment hearing; it adds that the ALJ will prepare the decision within 60 days after completion of the hearing and closing of the record. This time constraint is consistent with the newly-proposed debarment hearing procedures of the WHD.

Proposed § 655.182(g) clarifies that while the WHD and OFLC will now have concurrent debarment jurisdiction, the two agencies may coordinate their activities so that a specific violation for which debarment is imposed will be cited in a single debarment proceeding.

Proposed § 655.182(h-j) state the impact a determination to debar a member of an agricultural association has on the rest of the association or its individual members, the impact that a debarment of an agricultural association acting as a joint employer has on the association's individual members, or the impact a debarment of an agricultural association acting as a sole employer has on the association. The text of these provisions is substantively the same as the text of § 655.118(f-h) of the 2008 Final Rule. The one substantive change is in proposed paragraph (i), which states that a debarment of an agricultural association acting as a joint employer with its members will apply only to that association and not to any individual employer-member of the association, unless the OFLC Administrator determines that an employer-member participated in, had knowledge of, or had reason to know of the violation. Unlike the 2008 Final Rule, an employer-member's knowledge of or reason to know of the association's debarrable violation may give rise to debarment of that member, in addition to the member's participation in the violation.

4. § 655.183 Less Than Substantial Violations

Proposed § 655.183 describes the CO's actions if she determines that a less than substantial violation has occurred. The text of this section is the same as the text of the 1987 Rule, with a few non-substantive editorial changes. If the OFLC Administrator believes that a less than substantial violation may have had or will continue to have a chilling or

otherwise negative effect on the recruitment, employment, and retention of U.S. workers, the OFLC Administrator may require the employer to follow special procedures before and after the temporary labor certification determination.

The OFLC Administrator will notify the employer (or agent or attorney) in writing of the special procedures which will be required in the coming year. The employer may request review of these special procedures according to the procedures of proposed § 655.171. If the OFLC Administrator determines that the employer has failed to comply with the special procedures, the Administrator will send a written notice to the employer, stating that the employer's otherwise affirmative H-2A certification determination will be reduced by 25 percent of the total number of H-2A workers requested (which cannot be more than those requested in the previous year) for a period of 1 year. Notice of such a reduction in the number of workers requested will be conveyed to the employer by the OFLC Administrator in the written certification determination. We have and will continue to provide for prompt notification to DHS and the Department of State (DOS) of any such determination. The employer may appeal the reduction in the number of workers according to the procedures in § 655.171. If the ALJ affirms the OFLC Administrator's determination that the employer has failed to comply with the required special procedures, the number of workers requested will be reduced.

5. § 655.184 Applications Involving Fraud or Willful Misrepresentation

Proposed § 655.184(a) is the same as § 655.113(a) in the 2008 Final Rule, discussing investigation of fraud and willful misrepresentation. The section states that if a CO discovers possible fraud or willful misrepresentation concerning an Application, the CO may refer the matter for investigation to the WHD, DHS, or to the Department's Office of Inspector General.

Proposed § 655.184(b) revises § 655.113(b) of the 2008 Final Rule to more accurately describe the ramifications of a determination of fraud or willful misrepresentation concerning an Application. If the WHD, a court, or the DHS determines that there was fraud or willful misrepresentation involving an Application, and the CO had granted certification of the fraudulent Application, the finding of fraud or misrepresentation will be grounds for the CO to revoke that certification. The finding may also merit debarment according to proposed § 655.182.

6. § 655.185 Job Service Complaint System; Enforcement of Work Contracts

Proposed § 655.185(a) contains the same provisions about complaints filed through the Job Service Complaint System as were in the 1987 Rule and the 2008 Final Rule, with one addition. Proposed § 655.185(b) states that complaints alleging that an employer discriminated against eligible U.S. workers may be referred to the U.S. Department of Justice, Civil Rights Division, Office of Special Counsel for Unfair Immigration Related Employment Practices and was also included in the 2008 Final Rule.

The Department has added a provision permitting allegations of fraud that are part of a complaint through the Job Service Complaint System to be brought to the CO. This will permit the CO to take any such actions as necessary to determine whether such allegations have any validity, such as an audit, and if such further inquiry has yielded information so as to call a certification into question, to determine whether there are any actions (revocation and/or debarment) that can be taken as a result.

III. Revisions to 29 CFR Part 501

Section 218(g)(2) of the INA authorizes the Secretary to take such actions, including imposing appropriate penalties and seeking appropriate injunctive relief and specific performance of contractual obligations, as may be necessary to ensure compliance with terms and conditions of employment under this section of the statute. The Secretary determined that enforcement of the contractual obligations of employers under the H-2A program is the responsibility of the WHD. Regulations at 29 CFR part 501 were issued to implement the WHD's responsibilities under the H-2A program; amendment of these regulations is part of this proposed rulemaking.

Concurrent with the Department's proposed regulations in 20 CFR part 655, subpart B amending the certification of temporary employment of nonimmigrant H-2A workers, the Department proposes to amend its regulations at 29 CFR part 501 on enforcement under the H-2A program.

Changes are proposed for enhanced enforcement to complement the certification process so that workers are appropriately protected when employers fail to meet the requirements of the H-2A program. Since this NPRM would make changes to the existing regulations in 29 CFR part 501, we have included the entire text of the regulation and not just the sections with proposed changes.

A. General Provisions and Definitions

Proposed § 501.2 has been broadened to allow broader information sharing and coordination between agencies both within and outside of DOL. Both WHD and OFLC will now have the express authority to share information for enforcement purposes, both with each other and with other agencies such as DHS and DOS which play a role in immigration enforcement. In addition, because ETA and WHD will have concurrent debarment authority under the proposal, the new regulation provides that a specific violation for which debarment is imposed will be cited in a single debarment proceeding, and that OFLC and the WHD may coordinate their activities to accomplish this result. It also provides that copies of final debarment decisions will be forwarded to DHS so that it can take appropriate action.

Section 501.3 of the proposed regulations sets forth the definitions used in part 501, most of which are carried forward from § 501.10 of the 2008 Final Rule. As in the 2008 Final Rule, proposed § 501.3 sets forth the same definitions in 20 CFR part 655, subpart B that pertain to 29 CFR part 501. The discussion of definitions that are common to both 20 CFR 655.103 and 501.3 can be found in the preamble for 20 CFR part 655, subpart B above.

The Department is proposing to modify language used in the 2008 Final Rule that defined “corresponding employment” as including only U.S. workers who are newly hired by the employer in the occupations and during the period of time set forth in the Application and thereby excluding U.S. workers who were already employed by the H-2A employer at the time the Application was filed. The Department is proposing to define “corresponding employment” more in keeping with the statutory language mandating that the importation of H-2A workers not adversely impact the wages and working conditions of workers similarly employed in the U.S. Corresponding employment would include non-H-2A workers employed by an employer whose Application was approved by ETA who are performing work included in the job order or any other agricultural work performed by the employer's H-2A workers as long as such work is performed during the validity period of the job order. The definition includes both non-H-2A workers hired during the recruitment period required under these regulations and non-H-2A

workers already working for the employer when recruitment begins.

In defining an H-2A worker, the INA gives the Secretary the authority to define in regulations the term “agricultural labor or services,” with the requirement that the definition include agricultural labor or services as defined in the IRC, the FLSA, and the pressing of apples for cider on a farm. The work must also be of a temporary or seasonal nature.

See

8 U.S.C. 1101(a)(15)(h)(ii)(A). The activity of “pressing apples for cider on a farm” was added to the statute by Public Law 109-90, (October 18, 2005). As in the 2008 Final Rule, the Department again proposes that the regulatory definition reflect the 2005 amendment, and the proposal adds an explanation of the term.

The Department is also proposing to expand the regulatory definition of “agricultural labor or services” to include certain reforestation activities and also pine straw activities. In addition, the Department proposes to retain the addition of logging employment that was included in the 2008 Final Rule and seeks to clarify which logging employment activities qualify for H-2A status. Finally, the proposal deletes the 2008 Final Rule's inclusion of minor and incidental work not listed on the Application and the handling, packing, processing,

etc.

of any agricultural or horticultural commodity. These changes are more fully discussed in the preamble for 20 CFR part 655, subpart B above. Section 501.6 (formerly § 501.5) has been substantially shortened and revised for clarity and to eliminate duplication. Section 501.7 (former § 501.6) is proposed to be broadened to require cooperation with any Federal official investigating, inspecting, or enforcing compliance with the statute or regulations. Section 501.8 has been renumbered from § 501.7 but is otherwise unchanged.

B. Surety Bonds for H-2ALCs

The number of Farm Labor Contractors (FLCs) applying for labor certifications enabling them to hire and employ H-2A workers has risen in recent years and is expected to continue to increase. The WHD's enforcement experience demonstrates that FLCs are generally more likely to violate applicable requirements than fixed-site agricultural employers. To address this higher violation rate of FLCs and given the transient nature of FLCs, as well as to ensure compliance with H-2A obligations and to protect the safety and security of workers, WHD proposes to continue the 2008 Final Rule's requirement that FLCs (called H-2ALCs in this Proposed Rule) must obtain and maintain a surety bond, based on the number of workers employed as listed on the Application, throughout the period the temporary labor certification is in effect, including any extensions thereof. WHD will have authority to make a claim against the surety bond to secure unpaid wages or other benefits due to workers employed under the labor certification.

The proposed text of this section is similar to the text of the 2008 Final Rule discussing the bonding requirement; however, in addition to the surety bond amounts specified in the 2008 Final Rule, the Department proposes to add larger bonding requirements applicable to H-2ALCs with larger crews. Under this proposal, H-2ALCs seeking to employ 75 to 99 workers will be required to obtain a surety bond in the amount of $50,000, and H-2ALCs seeking to employ 100 or more workers will be required to obtain a surety bond in the amount of $75,000. Hypothetically, the proposed increased amount would address 2 weeks where no wages have been paid for crews of 100 (40 hours × 2) × 9.25 (assumed AEWR) × 100 workers = $74,000. The Department specifically requests comments addressing the implications for H-2ALCs who may be subject to this requirement.

The Department also proposes to change the requirement that H-2ALCs provide written notice to the WHD Administrator of cancellation or termination of the surety bonds from a 30-day to a 45-day notice period. Finally, the proposal clarifies that the bond must remain in effect for at least 2 years. However, if WHD has commenced any enforcement proceedings by that date, the bond must remain in effect until the conclusion of those proceedings and any appeals.

The Department has not created a form specific to this bonding requirement, but instead proposes that documentation from the bond issuer be provided with the Application, identifying the name, address, phone number, and contact person for the surety, as well as providing the amount of the bond, date of its issuance and expiration and any identifying designation utilized by the surety for the bond. This requirement can be met by the applicant attaching a copy of the signed and dated document issued from the surety that shows the information required. This request for information is in keeping with the information that was required in the appendix for the ETA 9142 in the 2008 Final Rule.

C. Enforcement Provisions

In order to deter significant violations of the H-2A worker protection provisions, a number of changes and clarifications are proposed in the sanctions and remedies available under part 501 as discussed below. Most of these changes are consistent with those in the 2008 Final Rule.

Proposed § 501.16 has been amended to provide WHD with express authority to pursue reinstatement and make-whole relief in cases of discrimination, or in cases in which U.S. workers have been improperly rejected, laid off, or displaced. In addition, the proposal would allow WHD to pursue recovery of recruiter fees or other costs improperly deducted or paid in violation of regulations forbidding such payments, including where the employer has not properly contractually prohibited its recruiter and agents from seeking or receiving such payments, directly or indirectly, as set forth in proposed 20 CFR 655.135(j) and (k). Proposed § 501.17 has been changed to clarify the differing roles and responsibilities of OFLC and WHD, and to note that both agencies have concurrent jurisdiction to impose debarment. However, as explained above, § 501.2 is designed to protect an employer from being debarred twice for a single violation.

Proposed § 501.18 has been changed to conform to the statute, which provides for administrative appeals, but does not grant the Secretary independent litigating authority in civil litigation.

Proposed § 501.19 is amended to increase the maximum civil money penalty (CMP) amount from $1,000 to $1,500 for each violation, in most cases. This amount has not been adjusted since 1987. The CMP of up to $5,000 for failure to meet a condition of the work contract, or for discrimination against a U.S. or H-2A worker who, in connection with the INA or these regulations has filed a complaint, has testified or is about to testify, has exercised or asserted a protected right, has been retained from the 2008 Final Rule. The Proposed Rule increases the penalty amount to no more than $15,000 for a failure to meet a condition of the work contract that results in displacing a U.S. worker employed by the employer during the period of employment on the employer's Application, or during the period of 60 days preceding such period of employment. The Proposed Rule adds a penalty of an amount up to $15,000 for improperly rejecting a U.S. worker who has made application for employment.

These proposed penalties for violators who disregard their obligations would provide the Department with an effective tool to discourage potential abuse of the program. Such penalties will deter violations, discrimination and interference with investigations, and strengthen necessary enforcement of laws that protect workers who may be unlikely to approach government agencies to intercede on their behalf. The increase in certain penalties demonstrates the Department's commitment to protecting workers.

Further, if a violation of an applicable housing or transportation safety and health provision of the work contract causes the death or serious injury of any worker, the Department proposes a penalty of up to $50,000 per worker. Where the violation of safety and health provision involving death or serious injury is repeated or willful, the Department proposes to increase the maximum penalty to up to $100,000 per worker.

The proposed penalties for such violations of applicable safety and health provisions would provide a meaningful assurance that participants meet their obligation to see that housing and/or transportation provided to the workers meets all applicable safety and health requirements and that housing and/or vehicles used in connection with employment do not endanger workers.

The assessment of the maximum penalties available under proposed § 501.19 would not be mandatory, but rather would be based on regulatory guidelines found in paragraph (b) of this section and the facts of each individual case.

D. Debarment by the WHD

The current regulations provide OFLC the authority to deny access to future certifications (

i.e.

, debarment) and require the WHD to report findings in order to make a recommendation to OFLC to deny future certifications. Under proposed § 501.20, OFLC and WHD would have concurrent debarment authority, with WHD primarily concerned with issues arising from WHD investigations, while OFLC would focus on issues arising out of the application process. Both agencies may coordinate their activities whenever debarment is considered. The proposed standards for debarment within the WHD's purview are identical to those proposed by OFLC for debarment actions under 20 CFR part 655, thus ensuring consistency in Application. This change will allow administrative hearings and appeals relating to back wages or other relief to employees or CMP's assessed by the WHD to be consolidated with the debarment actions that arise from the same facts. This will not affect OFLC's ability to institute its own debarment proceedings on issues that arise from the Application or OFLC's proposed audits. Conforming changes are proposed to other sections in part 501 to reflect the proposed WHD debarment authority.

The Department proposes to modify the criteria for debarment to eliminate the multiple thresholds in the 2008 Final Rule, which required a pattern and practice of a violation that also must be significant. The proposed criteria require a substantial violation that includes a significant failure to comply with one or more of the provisions of the H-2A program. The criteria found in § 501.19(b) will be used in determining if a violation is substantial.

Section 501.20 (j) and (k) are proposed to conform to the proposed changes in 20 CFR part 655, which provide OFLC the authority to revoke an existing certification, by allowing the WHD to recommend revocation to OFLC based upon the WHD's investigative determinations.

E. Administrative Proceedings

The NPRM proposes few changes to the administrative proceedings set forth in §§ 501.30-501.47 of the 2008 Final Rule. Because the NPRM proposes to authorize the WHD to pursue debarment proceedings, rather than simply recommending debarment to OFLC, the NPRM adds references to debarment in §§ 501.30, 501.31, 501.32(a), and 501.41(d). Those sections of the proposal also specify that these procedures will govern any hearing on an increase in the amount of a surety bond pursuant to proposed § 501.9(c). Finally, those sections of the proposal replace the term unpaid wages with the term monetary relief to reflect the fact that WHD may seek to recover other types of relief, such as if an employer fails to provide housing or meet the three-fourths guarantee.

Proposed § 501.33 would permit hearing requests to be filed by overnight delivery, as well as by certified mail, and would reiterate that surety bonds must remain in force throughout any stay pending appeal. Section 501.34(b) provides discretion to the ALJ to ensure the production of relevant and probative evidence while excluding evidence that is immaterial, irrelevant or unduly repetitive without resort to the formal strictures of the Federal Rules of Evidence. This section conforms H-2A procedures to those used in the H-1B program.

Other than very minor editorial changes or corrections of typographical errors, the NPRM proposes no other changes to §§ 501.30-501.47.

IV. Administrative Information

A. Executive Order 12866

Under Executive Order (E.O.) 12866, the Department must determine whether a regulatory action is significant and therefore, subject to the requirements of the E.O. and subject to review by the Office of Management and Budget (OMB). Section 3(f) of the E.O. defines a “significant regulatory action” as an action that is likely to result in a rule that: (1) Has an annual effect on the economy of $100 million or more or adversely and materially affects a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or Tribal governments or communities (also referred to as “economically significant”); (2) creates serious inconsistency or otherwise interferes with an action taken or planned by another agency; (3) materially alters the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raises novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the E.O.

The Department has determined that this NPRM is not an economically significant regulatory action under sec. 3(f)(1) of E.O. 12866. The time frames and procedures for fixed-site agricultural employers, H-2ALCs, or an association of agricultural producer-members to file a job offer and Application, prepare supporting documentation, and satisfy the required assurances and obligations under the H-2A visa category, proposed under this regulation, are substantially similar to those under the 2008 Final Rule and would not have an annual economic impact of $100 million or more. The proposed regulation would not adversely affect the economy or any sector thereof, productivity, competition, jobs, the environment, nor public health or safety in a material way. In fact, this NPRM is intended to provide to agricultural employers clear and consistent guidance on the requirements for participation in the H-2A temporary agricultural worker program. The Department, however, has determined that this NPRM is a significant regulatory action under sec. 3(f)(4) of the E.O. and accordingly OMB has reviewed this NPRM.

The Department anticipates that the changes in this NPRM would have

limited net direct impact on employers, above and beyond the baseline of the current costs required by the program as it is currently implemented. Further, the Department does not anticipate that this NPRM would result in significant processing delays on its part or the SWAs, as the Department continues to operate under the statutory mandate to make a determination of whether or not the Application meets the threshold requirements for certification within 7 days of filing. The Department is requesting comment on the benefits and costs of these policies, with the goal of ensuring a thorough consideration and discussion at the Final Rule stage.

1. Need for Regulation

The Department has determined that there are significant defects in the 2008 Final Rule that necessitate new rulemaking. First, the Department has determined that there are insufficient worker protections in the attestation-based model in which employers do not actually demonstrate that they have performed an adequate test of the U.S. labor market. Even in the first year of the attestation model it has come to the Department's attention that employers, either from a lack of understanding or otherwise, are attesting to compliance with program obligations with which they have not complied. This anecdotal evidence appears to be sufficiently substantial and widespread for the Department to revisit the use of attestations, even with the use of back-end integrity measures for demonstrated non-compliance.

The Department has also determined that the area in which agricultural workers are most vulnerable—wages—has been adversely impacted to a far more significant extent than anticipated by the 2008 Final Rule. As discussed further below, the shift from the AEWR as calculated under the 1987 Rule to the recalibration of the prevailing wage as the AEWR of the 2008 Final Rule resulted in a reduction of farmworker wages in a number of labor categories, and an increase in a few others.

The 2008 Final H-2A Rule based the estimation of the AEWR on the OES Wage Survey collected by BLS. This NPRM changes the methodology for estimating the AEWR to the USDA survey.

Using data from the OES Wage Survey for the States with the top-ten largest numbers of H-2A workers in the job classification of farmworkers and crop laborers (SOC-OES Code 45-2092.02), the Department estimates a weighted average hourly wage rate of $7.92. Using data from the USDA's NASS FLS for the same States, the Department estimates a weighted average hourly wage rate of $9.36. Thus, the 2008 Final Rule is associated with a lower average hourly wages of approximately $1.44, equivalent to an 18 percent decrease.

The table below displays the hourly wage rates under the two wage methodologies for the top 10 agricultural states based on the total workers certified. The estimated wage rates for each of the top ten States would be higher under the NPRM where the Department proposes to base the methodology for calculating the AEWR on the USDA's NASS FL survey.

2008 Final rule

Average hourly wage from OES survey

Proposed NPRM

average hourly wage from 2009 AEWR USDA survey

Differential

wage

decrease for workers under 2008 final rule

North Carolina

$7.57

$9.34

−$1.77

Kentucky

7.39

9.41

−2.02

Georgia

7.44

8.77

−1.33

Louisiana

8.07

8.92

−0.85

Tennessee

7.54

9.41

−1.87

Virginia

7.46

9.34

−1.88

South Carolina

7.33

8.77

−1.44

New York

9.37

10.20

−0.83

California

9.37

10.16

−0.79

Colorado

8.72

9.88

−1.16

The graph below displays program participation in the H-2A program for FY 2006, 2007, and 2008, as well as FY 2009 before and after implementation of the 2008 Final Rule (through the end of June 2009). As shown in the graph, the H-2A program experienced increased participation from approximately 560 Applications per month on average in FY 2006 to 903 Applications per month immediately prior to the implementation of the 2008 Final Rule. After the implementation of the 2008 Final Rule, agricultural employer participation in the H-2A program decreased to approximately 773 Applications per month.

2

The Department is not certain of the source of this decrease, noting it has multiple origins, including economic weaknesses, including the relatively high rate of unemployment at that time; the presence of enhanced worker protections in the 2008 Final Rule that may have disincentivized employers from participation, the litigation to which the 2008 Final Rule was subject since prior to its implementation; and simple confusion on the part of potential program participants stemming from the new requirements.

2

Source:

H-2A Case Management System. Data extracted on July 10, 2009.

EP04SE09.000

To adequately protect U.S. and H-2A workers, the Department is proposing the changes discussed in the subsections below. The Department is engaging in new rulemaking to provide the affected public with notice and opportunity to engage in dialogue with the Department on the H-2A program. The Department took into account both the regulations promulgated in 1987, as well as the substantive reworking of the regulations in the 2008 Final Rule, in order to arrive at an NPRM that balances the worker protections of the 1987 Rule and the program integrity measures of the 2008 Final Rule.

Much of the 2008 Final Rule has been retained in format, as it presents a more understandable regulatory roadmap; it has been used when its provisions do not conflict with the policies proposed in this NPRM. To the extent the 2008 Final Rule presents a conflict with the policies underpinning this NPRM, it has been rewritten or the provisions of the 1987 Rule have been adopted. To the extent the 1987 Rule furthers the policies that underlie this rule, those provisions have been retained. These changes are pointed out below.

2. Alternatives

The Department has considered three alternatives: (

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