Rule2025-00526
Temporary Agricultural Employment of H-2A Nonimmigrants 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 October 12, 2022, titled Temporary Agricultural Employment of H-2A Nonimmigrants 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 2610-2611]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-00526]
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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-2019-0007]
Temporary Agricultural Employment of H-2A Nonimmigrants 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
October 12, 2022, titled Temporary Agricultural Employment of H-2A
Nonimmigrants in the United States.
DATES: This ratification was signed on January 7, 2025.
FOR FURTHER INFORMATION CONTACT:
For further information regarding 20 CFR part 653, contact Kimberly
Vitelli, Administrator, Office of Workforce Investment, Employment and
Training Administration, Department of Labor, 200 Constitution Avenue
NW, Washington, DC 20210, telephone: (202) 693-3980 (this is not a
toll-free number).
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 July 26, 2019, 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 Nonimmigrants in the
United States, 84 FR 36168 (July 26, 2019) (``NPRM''). The NPRM was
open for public comment for 60 days from July 26, 2019 until September
24, 2019. See id. at 36168.
On October 12, 2022, DOL published a final rule in the FR that
adopted much of the regulatory text proposed in the NPRM, with some
significant changes. Temporary Agricultural Employment of H-2A
Nonimmigrants in the United States, 87 FR 61660 (Oct. 12, 2022)
(``Final Rule'').\1\ The Final Rule included improvements to the
minimum standards and conditions of employment that employers must
offer to workers, improvements to program integrity measures, such as
program debarment for substantial violations of program requirements,
revisions to the standards and procedures for determining prevailing
wage rates, and revisions to modernize and simplify the temporary
employment certification process. The Final Rule went into effect on
November 14, 2022.
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\1\ On January 11, 2021, DOL transmitted to the Office of the
Federal Register (``OFR'') a draft of an unpublished draft final
rule covering certain aspects of the NPRM. On January 20, 2021,
prior to the draft final rule being published in the FR and prior to
OFR making it available for public inspection, DOL requested that
OFR withdraw the document from processing ``for the purpose of
reviewing issues of law, fact, and policy raised by the rule.'' See
Announcement, U.S. Department of Labor Withdraws Forthcoming H-2A
Temporary Agricultural Program Rule for Review, (Jan. 20, 2021),
<a href="https://perma.cc/CTW2-VH2U">https://perma.cc/CTW2-VH2U</a>.
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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.\2\ With respect to the Final Rule, prior to its
issuance in October 2022, the Final Rule was provided to the
Departments of Homeland Security and Agriculture through the
interagency review process prescribed by Executive Order 12866. On
November 7, 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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\2\ 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.\3\ 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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\3\ 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
[[Page 2611]]
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 Martin J. Walsh, Secretary of Labor. On October 12, 2022, 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. 87 FR 61660 (Oct.
12, 2022).
The Final Rule was signed by Secretary Walsh. We have full and
complete knowledge of the Final Rule action taken by former Secretary
Walsh. Subsequent to the Secretary of Homeland Security's documented
approval of the Final Rule dated November 7, 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 strengthening protections for workers,
modernizing and simplifying the H-2A application and temporary labor
certification process, and easing regulatory burdens on employers. 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 87 FR 61660, 61787.
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
October 12, 2022. 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. 2025-00526 Filed 1-8-25; 4:15 pm]
BILLING CODE 4510-FP-P
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</html>Indexed from Federal Register on January 13, 2025.
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