U.S. Secretary of Labor Hilda L. Solis today announced a new rule regarding
the H-2A program. The Labor Department published in the Feb. 12 edition
of the Federal Register, a final rule governing the labor
certification process and enforcement mechanisms for the H-2A temporary
agricultural worker program. The final rule is being published to strengthen
worker protections for both U.S. and foreign workers and to ensure overall
H-2A program integrity. The rule will be effective March 15, 2010.
The H-2A nonimmigrant visa classification applies to foreign workers coming
to or already in the U.S. to perform agricultural work of a temporary or seasonal
nature. The U.S. Department of Homeland Security may not approve an H-2A visa
petition unless the Department of Labor, through its Employment and Training
Administration, certifies that there are not sufficient U.S. workers qualified
and available to perform the labor involved in the petition and that the employment
of the foreign worker will not have an adverse effect on the wages and working
conditions of similarly employed U.S. workers.
Additionally, through its Wage and Hour Division, the department enforces
the terms and conditions of the labor certification and enforces worker protections.
"This new rule will make it possible for all workers who are working
hard on American soil to receive fair pay while at the same time expand opportunities
for U.S. workers," said Secretary Solis. "The actions that we have
taken through this rulemaking also will enable us to detect and remedy different
forms of worker violations."
During fiscal year 2009, employers filed 8,150 labor certification applications
requesting 103,955 H-2A workers for temporary agricultural work. The Department
of Labor certified 94 percent of the applications submitted for a total of
This final rule is the result of the department's review of the policy decisions
underlying a previous revision of the H-2A regulations, published in late 2008.
The department's review focused on the process for obtaining labor certifications,
the method for determining the H-2A Adverse Effect Wage Rate, and the protections
afforded to both the temporary foreign workers as well as the domestic agricultural
workforce. The final rule includes stronger mechanisms for enforcement of the
worker protection provisions required by the H-2A program.
Overall benefits of the final rule include increased wages for workers and
greater access to the domestic labor market. The new rule ensures that U.S.
workers in the same occupation working for the same employer, regardless of
date of hire, receive no less than the same wage as foreign workers; provides
more transparency by creating a national electronic job registry where job
orders will be posted through 50 percent of the contract period; and protects
against worker abuses by prohibiting cost-shifting from the employer to the
worker for recruitment fees, visa fees, border crossing fees and other U.S.
government mandated fees.