Rule2025-00525
Temporary Agricultural Employment of H-2A Aliens in the United States; Ratification of Department's Actions
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
January 13, 2025
Issuing agencies
Labor DepartmentEmployment and Training AdministrationWage and Hour Division
Abstract
The Department of Labor is publishing notification of the Assistant Secretary for Employment and Training's and the Administrator of the Wage and Hour Division's ratification of the rule published February 10, 2010, titled Temporary Agricultural Employment of H-2A Aliens in the United States.
Full Text
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<title>Federal Register, Volume 90 Issue 7 (Monday, January 13, 2025)</title>
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[Federal Register Volume 90, Number 7 (Monday, January 13, 2025)]
[Rules and Regulations]
[Pages 2609-2610]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-00525]
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DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Parts 653 and 655
Wage and Hour Division
29 CFR Part 501
[DOL Docket No. ETA-2009-0004]
Temporary Agricultural Employment of H-2A Aliens in the United
States; Ratification of Department's Actions
AGENCY: Employment and Training Administration and Wage and Hour
Division, Department of Labor.
ACTION: Ratification.
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SUMMARY: The Department of Labor is publishing notification of the
Assistant Secretary for Employment and Training's and the Administrator
of the Wage and Hour Division's ratification of the rule published
February 10, 2010, titled Temporary Agricultural Employment of H-2A
Aliens in the United States.
DATES: This ratification was signed on January 7, 2025.
FOR FURTHER INFORMATION CONTACT:
For further information regarding 20 CFR part 655, contact Brian
Pasternak, Administrator, Office of Foreign Labor Certification,
Employment and Training Administration, U.S. Department of Labor, 200
Constitution Avenue NW, Room N-5311, Washington, DC 20210, telephone:
(202) 693-8200 (this is not a toll-free number).
For further information regarding 29 CFR part 501, contact Daniel
Navarrete, Director of the Division of Regulations, Legislation, and
Interpretation, Wage and Hour Division, Department of Labor, Room S-
3502, 200 Constitution Avenue NW, Washington, DC 20210, telephone:
(202) 693-0406 (this is not a toll-free number).
Individuals with hearing or speech impairments may access the
telephone numbers above via Teletypewriter (TTY)/Telecommunications
Device for the Deaf (TDD) by calling the toll-free Federal Information
Relay Service at 1 (877) 889-5627.
SUPPLEMENTARY INFORMATION:
I. Background
On September 4, 2009, the Department of Labor (``DOL'' or
``Department'') issued a notice of proposed rulemaking (``NPRM'') in
the Federal Register (``FR'') to amend its regulations regarding the
certification of temporary employment of nonimmigrant workers employed
in temporary or seasonal agricultural employment and the enforcement of
the obligations applicable to employers of such nonimmigrant workers.
See Temporary Agricultural Employment of H-2A Aliens in the United
States, 74 FR 45906 (Sept. 4, 2009) (``NPRM''). The NPRM was open for
public comment for 45 days until October 5, 2009. See Temporary
Agricultural Employment of H-2A Aliens in the United States, 75 FR 6884
(Feb. 12, 2010) (``Final Rule'').
On February 12, 2010, DOL published a final rule in the FR that
adopted much of the regulatory text proposed in the NPRM, with some
important changes. See Final Rule, 75 FR at 6884. The Final Rule
included improvements to the application processing procedures, worker
protections, and program integrity measures. The Final Rule went into
effect on March 15, 2010.
Since publication of the Final Rule, a question has been raised in
litigation concerning whether a separate rule, Adverse Effect Wage Rate
Methodology for the Temporary Employment of H-2A Nonimmigrants in the
Non-Range Occupations in the United States, 88 FR 12760 (Feb. 28,
2023), was approved by the Attorney General in consultation with the
Secretary of Labor and the Secretary of Agriculture. 8 U.S.C. 1188,
Statutory Note.\1\ Further, on November 25, 2024, the Secretary of
Homeland Security, in consultation with the Secretary of Labor and
Secretary of Agriculture, approved the Final Rule.
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\1\ Although this provision vests approval authority in the
``Attorney General,'' the Secretary of Homeland Security now may
exercise this authority. See 6 U.S.C. 202(3)-(4), 251, 271(b), 291,
551(d)(2), 557; 8 U.S.C. 1103(c) (2000).
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To resolve any possible uncertainty with respect to the Final Rule,
the Department, through its Assistant Secretary for Employment and
Training and its Administrator of the Wage and Hour Division, is
ratifying the Final Rule. Under established case law, an agency may,
through ratification, ``purge[ ] any residual taint or prejudice left
over from'' a potential defect in a prior governmental action.\2\ The
Department is issuing this ratification out of an abundance of caution,
and this ratification is not a statement that the Final Rule is invalid
absent this ratification.
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\2\ Guedes v. Bureau of Alcohol, Tobacco, Firearms & Explosives,
920 F.3d 1, 13 (D.C. Cir. 2019).
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II. Ratification
By virtue of the authority vested in the Secretary of Labor by law,
including by the Immigration and Nationality Act of 1952, as amended, 8
U.S.C. 1101 et seq. (``INA''), and as delegated to the Assistant
Secretary for Employment and Training, 75 FR 66268, and the
Administrator of the Wage and Hour Division, 75 FR 55352, we are
affirming and ratifying a prior action by Jane Oates, Assistant
Secretary for Employment and Training, and Nancy Leppink, Deputy
Administrator of the Wage and Hour Division. On February 12, 2010, the
Employment and Training Administration and the Wage and Hour Division
published in the FR the Final Rule codifying amendments to the
Department's regulations regarding the certification of temporary
employment of nonimmigrant workers employed in temporary or seasonal
agricultural employment and the enforcement of the obligations
applicable to employers of such nonimmigrant workers. 75 FR 6884 (Feb.
12, 2010).
The Final Rule was signed by Assistant Secretary Oates and Deputy
Administrator Leppink. We have full and complete knowledge of the Final
Rule action taken by former Assistant Secretary Oates and former Deputy
Administrator Leppink. Subsequent to the Secretary of Homeland
Security's documented approval of the Final Rule dated November 25,
2024, in consultation with the Secretary of Labor and Secretary of
Agriculture, and out of an abundance of caution and to avoid any doubt
as to its validity, we have independently evaluated the Final Rule and
the basis for adopting it. We have determined that the amendments to
the regulations in the Final Rule are consistent with the Secretary of
Labor's statutory responsibility to certify that there are insufficient
able, willing, and qualified U.S. workers available to perform the
needed work and that the employment of H-2A workers will not adversely
affect the wages and working conditions of workers in the United States
similarly employed. We have also determined that the changes adopted in
the Final Rule strike an appropriate balance between the statute's
competing goals of providing employers with an adequate supply of legal
agricultural labor and protecting the wages of workers in the United
States similarly employed by improving the H-2A application and
temporary labor certification process, strengthening protections for
workers, and enhancing
[[Page 2610]]
program integrity measures. We also agree with the Department's
certification that the Final Rule does not have a significant economic
impact on a substantial number of small entities. See Final Rule, 75 FR
at 6953.
Therefore, pursuant to our authorities as the Assistant Secretary
for Employment and Training and the Administrator of the Wage and Hour
Division, and based on our independent review of the action and the
reasons for taking it, we hereby affirm and ratify the Final Rule, as
of January 7, 2025, including all regulatory analysis certifications
contained therein. This action is taken without prejudice to any right
to litigate the validity of the Final Rule as approved and published on
February 12, 2010. Nothing in this action is intended to suggest any
legal defect or infirmity in the approval or publication of the Final
Rule.
Jos[eacute] Javier Rodr[iacute]guez,
Assistant Secretary, Employment and Training Administration, Labor.
Jessica Looman,
Administrator, Wage and Hour Division, Labor.
[FR Doc. 2025-00525 Filed 1-8-25; 4:15 pm]
BILLING CODE 4510-FP-P
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