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DOL Publishes Final H-2A Rule
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The U.S. Department of Labor's Employment and Training Administration (ETA) and Employment Standards Administration (ESA) today published a final rule that modernizes the H-2A program for employing foreign workers in temporary or seasonal agricultural jobs, and enhance important worker protections. "These reforms will improve the operation of the H-2A program for agricultural employers and help ensure that the employment of temporary foreign workers does not adversely affect U.S. workers," said Secretary of Labor Elaine L. Chao.

Many of the program's regulations have not been updated in more than 20 years. Last year, only about 75,000 positions were certified to be filled by legal H-2A workers, while there are an estimated 600,000 to 800,000 undocumented workers employed on America's farms.

The changes will update the H-2A program to improve the process for hiring legal foreign agricultural workers when no U.S. workers can be found. Unlike the proposed AgJOBS legislation, which would arbitrarily slash agricultural workers' wages, the revised H-2A regulations will set required wages according to prevailing local market rates, a methodology that has been used successfully in other temporary worker programs.

Regulatory updates include reducing unnecessarily duplicative filing, and federal and state government review of applications. Required employer recruitment for U.S. workers will begin earlier, thereby giving U.S. workers additional notice of available jobs, and employers will be required to submit an initial recruitment report to the department prior to receiving certification.

The rule establishes enhanced penalties for violations and new tools to ensure employer compliance, including audits, revocation of approved Labor Certification(s), increased debarment authority and substantial increases in fines — up to $100,000 for violations resulting in serious injury or death of a worker. The rule also will prohibit employers and recruiters from charging fees to workers for access to jobs, a practice that in the past has led to many reported abuses.

The rule will become effective on Jan. 17, 2009.

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