Proposed Rule2025-12315
Recission of Final Rule: Improving Protections for Workers in Temporary Agricultural Employment in the United States
Primary source
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Published
July 2, 2025
Issuing agencies
Labor DepartmentEmployment and Training AdministrationWage and Hour Division
Abstract
The Department of Labor (Department or DOL) is proposing to amend its regulations governing the certification of agricultural labor or services to be performed by temporary foreign workers in H-2A nonimmigrant status (H-2A workers) and enforcement of the contractual obligations applicable to employers of such nonimmigrant workers. This notice of proposed rulemaking (NPRM or proposed rule) that would rescind provisions contained within a final rule published by the Department on April 29, 2024, which adopted a number of unnecessary, burdensome, and costly requirements on employers. Specifically, these provisions include, but are not limited to, substantial new requirements associated with the material terms and conditions offered by employers to H-2A workers that are not commonly provided to other U.S. workers, including progressive discipline policies for cause-based employment terminations, anti-retaliation measures for certain workers engaged in self-organization and other concerted activities, and expanding the authority and scope for a State Workforce Agency (SWA) to discontinue employment services to employers, which prevents those employers from accessing the H-2A program, while eliminating employers' option to request a hearing prior to the SWA's final determination. Further, the final rule imposed extensive highly-sensitive data collection requirements on employers related to their use of foreign labor recruiters, including personal names and physical addresses abroad, as well as detailed personal information associated with all owners of the employers, operators of the place(s) of employment, and supervisor(s) and manager(s) of workers employed under the terms of the work contract, with very limited or no practical utility to the agency's statutory decision making. A brief summary of this rulemaking can be found at www.regulations.gov by searching by the RIN: 1205-AC25.
Full Text
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<title>Federal Register, Volume 90 Issue 125 (Wednesday, July 2, 2025)</title>
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[Federal Register Volume 90, Number 125 (Wednesday, July 2, 2025)]
[Proposed Rules]
[Pages 28919-28946]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-12315]
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DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Parts 651, 653, 655, and 658
Wage and Hour Division
29 CFR Part 501
[DOL Docket No. ETA-2025-0007]
RIN 1205-AC25
Recission of Final Rule: Improving Protections for Workers in
Temporary Agricultural Employment in the United States
AGENCY: Employment and Training Administration and Wage and Hour
Division, Department of Labor.
ACTION: Proposed rule.
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SUMMARY: The Department of Labor (Department or DOL) is proposing to
amend its regulations governing the certification of agricultural labor
or services to be performed by temporary foreign workers in H-2A
nonimmigrant status (H-2A workers) and enforcement of the contractual
obligations applicable to employers of such nonimmigrant workers. This
notice of proposed rulemaking (NPRM or proposed rule) that would
rescind provisions contained within a final rule published by the
Department on April 29, 2024, which adopted a number of unnecessary,
burdensome, and costly requirements on employers. Specifically, these
provisions include, but are not limited to, substantial new
requirements associated with the material terms and conditions offered
by employers to H-2A workers that are not commonly provided to other
U.S. workers, including progressive discipline policies for cause-based
employment terminations, anti-retaliation measures for certain workers
engaged in self-organization and other concerted activities, and
expanding the authority and scope for a State Workforce Agency (SWA) to
discontinue employment services to employers, which prevents those
employers from accessing the H-2A program, while eliminating employers'
option to request a hearing prior to the SWA's final determination.
Further, the final rule imposed extensive highly-sensitive data
collection requirements on employers related to their use of foreign
labor recruiters, including personal names and physical addresses
abroad, as well as detailed personal information associated with all
owners of the employers, operators of the place(s) of employment, and
supervisor(s) and manager(s) of workers employed under the terms of the
work contract, with very limited or no practical utility to the
agency's statutory decision making. A brief summary of this rulemaking
can be found at <a href="http://www.regulations.gov">www.regulations.gov</a> by searching by the RIN: 1205-AC25.
DATES: Interested persons are invited to submit written comments on
this proposed rule on or before September 2, 2025.
ADDRESSES: You may submit comments electronically by the following
method:
Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Follow the
instructions on the website for submitting comments.
Instructions: Include the agency's name and docket number ETA-2025-
XXXX0007 in your comments. All comments received will become a matter
of public record and will be posted without change to <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Please do not include any personally identifiable
or confidential business information you do not want publicly
disclosed.
FOR FURTHER INFORMATION CONTACT: For further information regarding 20
CFR parts 651, 653, and 658, contact Kimberly Vitelli, Administrator,
Office of Workforce Investment, Employment and Training Administration,
Department of Labor, Room C-4526, 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, 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-
3018, 200 Constitution Avenue NW, Washington, DC 20210, telephone:
(202) 693-0406 (this is not a toll-free number). For persons with a
hearing or speech disability who need assistance to use the telephone
system, please dial 711 to access telecommunications relay services.
SUPPLEMENTARY INFORMATION:
I. Background
A. Legal Authority
1. Immigration and Nationality Act
The Immigration and Nationality Act (INA), as amended by the
Immigration Reform and Control Act of 1986 (IRCA), establishes an ``H-
2A'' nonimmigrant visa classification for a worker ``having a residence
in a foreign country which he has no intention of abandoning who is
coming temporarily to the United States to perform agricultural labor
or services . . . of a temporary or seasonal nature.'' 8 U.S.C.
1101(a)(15)(H)(ii)(a); see also 8 U.S.C. 1184(c)(1) and 1188.\1\
Agricultural labor or services includes the types of labor and services
``defined by the Secretary of Labor in regulations,'' as well as the
Internal Revenue Code definition of ``agricultural labor'' at ``section
3121(g) of title 26,'' the Fair Labor Standards Act definition of
``agriculture'' at ``section 203(f) of title 29,'' and ``the pressing
of apples for cider on a farm . . . .'' 8 U.S.C. 1101(a)(15)(H)(ii)(a).
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\1\ For ease of reference, sections of the INA are referred to
by their corresponding section in the United States Code.
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The admission of foreign workers under this classification involves
a multi-step process before several Federal agencies. A prospective H-
2A employer must first apply to the Secretary of Labor (Secretary) for
a certification that:
(A) there are not sufficient 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 prohibits the Secretary from issuing
this certification--known as a ``temporary labor certification''--
unless both of the above referenced conditions are met and none of the
conditions in 8 U.S.C. 1188(b) apply concerning strikes or lock-outs,
labor certification program debarments, workers' compensation
assurances, and positive recruitment.
The Secretary has delegated the authority to issue temporary
agricultural labor certifications to the Assistant Secretary for
Employment and Training, who in turn has delegated that authority to
ETA's Office of Foreign Labor Certification (OFLC).\2\ In addition, the
Secretary has delegated to the Department's Wage and Hour Division
(WHD) the responsibility under sec. 218(g)(2) of the INA, 8 U.S.C.
1188(g)(2), to assure employer compliance with the
[[Page 28920]]
terms and conditions of employment under the H-2A program.\3\
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\2\ See Secretary's Order 06-2010 (Oct. 20, 2010), 75 FR 66268
(Oct. 27, 2010).
\3\ See Secretary's Order 01-2014 (Dec. 19, 2014), 79 FR 77527
(Dec. 24, 2014).
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Once an employer obtains a temporary labor certification from DOL,
it may then file a nonimmigrant visa petition with the Secretary of
Homeland Security. See 8 U.S.C. 1184(c).\4\ If the employer's petition
is approved, the foreign workers whom it seeks to employ must,
generally, apply for a nonimmigrant H-2A visa at a U.S. Embassy or
consulate abroad. Id. Finally, if the foreign worker is coming from
abroad, he or she must apply to U.S. Customs and Border Protection for
admission to the United States.\5\
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\4\ Under sec. 1517 of title XV of the Homeland Security Act of
2002, Public Law 107-296, 116 Stat. 2135, reference to the Attorney
General's or other Department of Justice Official's responsibilities
under sec. 1184(c) have been expressly transferred to the Secretary
of Homeland Security. See 6 U.S.C. 202, 271(b).
\5\ See generally 8 U.S.C. 1225; 8 CFR part 235.
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2. Wagner-Peyser Act
The Wagner-Peyser Act of 1933 established the United States
Employment Service (ES), a nationwide system to improve the functioning
of the nation's labor markets by bringing together individuals seeking
employment with employers seeking workers. 29 U.S.C. 49 et seq. Section
3(a) of the Act sets forth the basic responsibilities of the Department
in the ES, which include assisting in coordinating the State public
employment service offices throughout the country and in increasing
their usefulness by prescribing standards for efficiency, promoting
uniformity in procedures, and maintaining a system of clearing labor
between the States. 29 U.S.C. 49b. The Act further authorizes the
Department ``to make such rules and regulations as may be necessary to
carry out [its] provisions.'' 29 U.S.C. 49k.
Consistent with the aims of sec. 3(a), the ES system provides labor
exchange services to its participants and has undergone numerous
changes to align its activities with broader national workforce
development policies and statutory requirements. The Workforce
Innovation and Opportunity Act (Pub. L. 113-128), passed in 2014,
expanded upon the previous workforce reforms in the Workforce
Investment Act of 1998 and, among other things, identified the ES
system as a core program in the One-Stop local delivery system, also
called the American Job Center network.
In 1974, the case National Ass'n for the Advancement of Colored
People (NAACP), Western Region, et al. v. Brennan et al., No. 2010-72,
1974 WL 229 (D.D.C. Aug. 13, 1974), resulted in a detailed court order
mandating various Federal and State actions consistent with applicable
law (Richey Order). The Richey Order required the Department to
implement and maintain a Federal and State monitoring and advocacy
system relating to farmworker ES services. In 1977 and 1980, consistent
with its authority under the Wagner-Peyser Act, the Department
published regulations at 20 CFR parts 651, 653, and 658 to implement
the requirements of the Richey Order. Part 653 sets forth standards and
procedures for providing services to migrant and seasonal farmworkers
(MSFWs) and provides regulations governing the Agricultural Recruitment
System (ARS), a system for interstate and intrastate agricultural job
recruitment. Part 658 sets forth standards and procedures for the
administrative handling of complaints alleging violations of ES
regulations and of employment-related laws, the discontinuation of
services provided by the ES system to employers, the review and
assessment of State agency compliance with ES regulations, and the
process the Department must follow if State agencies are not complying
with the ES regulations.
B. Current Regulatory Framework
Since 1987, the Department has operated the H-2A temporary labor
certification program under regulations promulgated pursuant to the
INA. Prior to publication of a final rule in 2024, the majority of the
Department's regulations governing the H-2A program were published in
2010 and many were updated in a final rule published in 2022.\6\ The
standards and procedures applicable to the certification and employment
of workers under the H-2A program are found in 20 CFR part 655, subpart
B, and 29 CFR part 501. In addition, prior to 2015, the Department had
issued special procedures for the employment of foreign workers in the
herding and production of livestock on the range as well as animal
shearing, commercial beekeeping, and custom combining occupations.\7\
The Department incorporated the provisions for employment of workers in
the herding and production of livestock on the range into the H-2A
regulations, with modifications, in 2015.\8\ The provisions governing
the employment of workers in the herding and production of livestock on
the range are now codified at 20 CFR 655.200 through 655.235. In 2022,
the Department amended the H-2A regulations by modifying the minimum
standards and conditions of employment that employers must offer to
workers, revising standards for determining the prevailing wage rate,
expanding its enforcement authority to combat program abuse, and
codified standards and procedures for employers that employ workers
engaged in itinerant animal shearing, commercial beekeeping, and custom
combining activities at 20 CFR 655.300 through 655.304.\9\ Relatedly,
the regulations implementing the Wagner-Peyser Act at 20 CFR parts 651,
653, and 658 establish the ARS, through which employers can recruit
U.S. workers for agricultural employment opportunities, and which
prospective H-2A employers must use to recruit U.S. workers as a
condition of receiving a temporary agricultural labor certification.
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\6\ Final Rule, Temporary Agricultural Employment of H-2A Aliens
in the United States, 75 FR 6884 (Feb. 12, 2010) (2010 H-2A Final
Rule); Final Rule, Temporary Agricultural Employment of H-2A
Nonimmigrants in the United States, 87 FR 61660 (Oct. 12, 2022)
(2022 H-2A Final Rule).
\7\ See Training and Employment Guidance Letter (TEGL) No. 32-
10, Special Procedures: Labor Certification Process for Employers
Engaged in Sheepherding and Goatherding Occupations under the H-2A
Program (June 14, 2011), <a href="https://wdr.doleta.gov/directives/corr_doc.cfm?docn=3042">https://wdr.doleta.gov/directives/corr_doc.cfm?docn=3042</a>; TEGL No. 15-06, Change 1, Special
Procedures: Labor Certification Process for Occupations Involved in
the Open Range Production of Livestock under the H-2A Program (June
14, 2011), <a href="https://wdr.doleta.gov/directives/corr_doc.cfm?docn=3044">https://wdr.doleta.gov/directives/corr_doc.cfm?docn=3044</a>;
TEGL No. 17-06, Change 1, Special Procedures: Labor Certification
Process for Employers in the Itinerant Animal Shearing Industry
under the H-2A Program (June 14, 2011), <a href="https://wdr.doleta.gov/directives/corr_doc.cfm?docn=3041">https://wdr.doleta.gov/directives/corr_doc.cfm?docn=3041</a>; TEGL No. 33-10, Special
Procedures: Labor Certification Process for Itinerant Commercial
Beekeeping Employers in the H-2A Program (June 14, 2011), <a href="https://wdr.doleta.gov/directives/corr_doc.cfm?DOCN=3043">https://wdr.doleta.gov/directives/corr_doc.cfm?DOCN=3043</a>; TEGL No. 16-06,
Change 1, Special Procedures: Labor Certification Process for Multi-
State Custom Combine Owners/Operators under the H-2A Program (June
14, 2011), <a href="https://wdr.doleta.gov/directives/corr_doc.cfm?DOCN=3040">https://wdr.doleta.gov/directives/corr_doc.cfm?DOCN=3040</a>.
\8\ Final Rule, Temporary Agricultural Employment of H-2A
Foreign Workers in the Herding or Production of Livestock on the
Range in the United States, 80 FR 62958 (Oct. 16, 2015) (2015 H-2A
Herder Final Rule).
\9\ 2022 H-2A Final Rule, 87 FR at 61771.
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In 2024, the Department again amended the ES and H-2A regulations
by adopting a number of new requirements associated with the material
terms and conditions offered by employers to H-2A workers and workers
recruited through the ARS, such as incorporating progressive discipline
policies for cause-based employment terminations, anti-retaliation
measures for workers engaged in concerted activities, expanding
regulatory criteria and procedural requirements permitting a State
Workforce Agency to discontinue
[[Page 28921]]
employment services to an employer, and imposing new data collection
requirements related to the use of foreign labor recruiters and
personal information associated with all owners of the employers,
operators the place(s) of employment, and the supervisor(s) and
manager(s) of workers employed under the terms of the work
contract.\10\
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\10\ Final Rule, Improving Protections for Workers in Temporary
Agricultural Employment in the United States, 89 FR 33898 (Apr. 29,
2024) (2024 H-2A Final Rule).
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C. Need for Rulemaking
On August 26, 2024, the United States District Court for the
Southern District of Georgia issued a preliminary injunction order in
the case Kansas v. U.S. Department of Labor, 749 F. Supp. 3d 1363 (S.D.
Ga. 2024) (``Kansas'') prohibiting DOL from enforcing the entire 2024
H-2A Final Rule in 17 states and with respect to certain entities.\11\
The preliminary injunction specifically prohibits DOL from enforcing
the 2024 H-2A Final Rule in the states of Georgia, Kansas, South
Carolina, Arkansas, Florida, Idaho, Indiana, Iowa, Louisiana, Missouri,
Montana, Nebraska, North Dakota, Oklahoma, Tennessee, Texas, and
Virginia, and against Miles Berry Farm and the members of the Georgia
Fruit and Vegetable Growers Association as of August 26, 2024.
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\11\ Kansas, 749 F. Supp. 3d at 1383.
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In addition, on November 25, 2024, the United States District Court
for the Eastern District of Kentucky issued a preliminary injunction in
the case of Barton v. U.S. Department of Labor, 757 F. Supp. 3d 766
(E.D. Ky. 2024) (``Barton''), enjoining and restraining the Department
from implementing, enacting, enforcing, or taking any action in any
manner to enforce certain provisions of the Farmworker Protection Rule
in 4 additional states and with respect to certain entities.\12\ This
preliminary injunction applies to the Commonwealth of Kentucky and the
States of Alabama, Ohio, West Virginia, and a large number of
individual and association plaintiffs to this proceeding, including
Richard Barton; Doug Langley; Benny Webb; Dale Seay; David DeMarcus,
II; David DeMarcus, Sr.; Steve Stakelin; Agriculture Workforce
Management Association, Inc. (including its shareholders and members);
North Carolina Growers' Association, Inc. (including all members of
that non-profit association); Workers and Farmer Labor Association
(including all members of that non-profit association); USA FARMERS,
Inc. (including all members of that non-profit association); and
National Council of Agricultural Employers (including all members of
that non-profit association). The Barton order prohibits the Department
from implementing, enacting, enforcing, or taking any action in any
manner to enforce the following provisions of the 2024 H-2A Final Rule:
seat belt modifications to enhanced safety requirements including but
not limited to 20 CFR 655.122(h)(4); any and all worker voice and
empowerment provisions, and provisions allowing workers to invite and
accept guests under Sec. 655.135 and any and all parallel provisions
under 29 CFR 501.4, including but not limited to 20 CFR 655.135(h),
655.135(m), and 655.135(n); updated information collection requirements
including but not limited to Sec. 655.130(a); and new minimum pay
requirements including but not limited to Sec. Sec. 655.120(a) and
655.122(l).
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\12\ Barton, 757 F. Supp. 3d at 794.
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Also on November 25, 2024, the United States District Court for the
Southern District of Mississippi issued a nationwide stay pursuant to 5
U.S.C. 705 in International Fresh Produce Association v. U.S.
Department of Labor, 758 F. Supp. 3d 575 (S.D. Miss. 2024) (``IFPA'')
staying the effective date of 20 CFR 655.135(h)(2) and (m) in the 2024
H-2A Final Rule until the conclusion of proceedings in the case,
including any appellate proceedings.\13\ The additional plaintiffs in
this proceeding include a broad coalition of state and national
agricultural associations, including the American Farm Bureau
Federation, Mississippi Farm Bureau Federation, Stone County Farm
Bureau, Chamber of Commerce of the United States of America,
AmericanHort, Florida Fruit & Vegetable Association, North American
Blueberry Council, Texas International Produce Association, State of
Mississippi, and U.S. Apple Association.
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\13\ IFPA, 758 F. Supp. 3d at 594.
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On the other hand, on May 5, 2025, the U.S. District Court for the
Eastern District of North Carolina upheld the 2024 Final Rule in North
Carolina Farm Bureau Federation v. U.S. Department of Labor, 2025 WL
1296245,---F. Supp. 3d.----(E.D.N.C. 2025) (``NCFBF''). There, the
court concluded that the rule was a lawful exercise of the Department's
authority under the INA, that the rule was not arbitrary and
capricious, and that the rule did not conflict with other laws.
In these litigations challenging the Department's 2024 H-2A Final
Rule, three different district courts recognized that the public had a
substantial interest in having agencies act within their
congressionally designated authority and concluded that many of the
2024 H-2A Final Rule provisions are contrary to specific Constitutional
protections, other laws, or are arbitrary or capricious. These three
courts granted the plaintiffs' requests for preliminary relief,
concluding that the plaintiffs were likely to succeed on their claims
challenging various provisions of the rule and that the evidence weighs
in favor of a finding of irreparable harm because, among other
considerations, the costs of compliance related to the rule are
nonrecoverable. Although the courts in the Kansas and Barton cases
noted that ``Sec. 1188 [of the INA] affords the DOL discretion to
promulgate regulations that protect American workers from being
adversely affected by the issuance of H-2A visas,'' the Barton court,
citing the Kansas court, when discussing those provisions the court
deemed to have conflicted with the National Labor Relations Act (NLRA),
affirmed that the Department ``cannot create law, and the DOL cannot
create rights that Congress has not. The DOL cannot make both executive
rules and congressional laws.'' \14\ For example, the IFPA court, when
discussing the worker empowerment provisions, agreed that a plain
reading of the statute does not confer a ``broad grant of authority as
to allow DOL to effectively provide collective action rights to H-2A
workers in the name of reducing the adverse effect of the H-2A program
on domestic workers'' and pointed out that ``the language does not
support the conclusion that DOL can prescribe these kinds of rights as
part of the `criteria for certification[.]' '' \15\
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\14\ Barton, 757 F. Supp. 3d at 777.
\15\ IFPA, 758 F. Supp. 3d at 588 (citing 8 U.S.C.
1188(c)(3)(i)).
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In light of these district court decisions and the Administration's
policy (e.g., Executive Order 14192, Unleashing Prosperity Through
Deregulation) to significantly reduce the private expenditures required
to comply with Federal regulations to secure America's economic
prosperity and national security and the highest possible quality of
life for each citizen, the Department has determined that the
regulatory requirements and policies contained in the 2024 H-2A Final
Rule must be reconsidered and proposes revisions in this NPRM. The
Department concludes that the proposals outlined in this rulemaking, if
adopted, would better ensure that the H-2A program's regulatory
framework is a more reasonable balance between the statute's competing
goals of providing an adequate labor supply and protecting
[[Page 28922]]
the jobs of domestic agricultural workers.
II. Discussion of Proposed Rule
A. Worker Voice and Empowerment Provisions
The Department proposes to rescind requirements added by the 2024
H-2A Final Rule that were collectively referred to in that rule as
``protections for worker voice and empowerment.'' Specifically, the
Department proposes to: (1) rescind revisions to 20 CFR 655.135(h) and
29 CFR 501.4 that expanded activities protected from retaliation; (2)
rescind 20 CFR 655.135(m) that required employers to permit workers
engaged in agriculture as defined by 29 U.S.C. 203(f) of the Fair Labor
Standards Act (FLSA) to designate a representative of their choosing in
investigatory interviews; and (3) rescind the definitions of ``labor
organization'' and ``key service provider'' added by the 2024 H-2A
Final Rule at 20 CFR 655.103(b). The Department proposes to return to
language at 20 CFR 655.135(h), and 29 CFR 501.4 in effect as of June
27, 2024, and remove these two definitions from 20 CFR 655.103(b).
The 2024 H-2A Final Rule created new activities that were protected
from retaliation at 20 CFR 655.135(h)(1) and (2), and made parallel
edits to 29 CFR 501.4(a)(1) and (2). The protected activities in Sec.
655.135(h)(1) and 29 CFR 503.4(a)(1) were applicable to all people,
regardless of whether they were engaged in agriculture as defined by
the FLSA. These activities remained similar to those protected
activities that had existed before the 2024 H-2A Final Rule, but made
two important revisions; specifically, the 2024 H-2A Final Rule newly
expressly protected (1) consultation with a key service provider on
matters related to H-2A, and (2) filing a complaint, instituting, or
causing to be instituted any proceeding, or testifying, assisting, or
participating (or is about to testify, assist or participate) in any
investigation, proceeding or hearing under or related to any applicable
Federal, State, or local laws or regulations, including safety and
health, employment, and labor law. The Department framed these changes
as clarifications of existing rights; the Department noted that workers
were already entitled to access and meet with many different key
service providers to discuss or assert rights under the H-2A program
without fear of retaliation under the Department's previous regulatory
framework. Similarly, the 2024 H-2A Final Rule noted that existing 20
CFR 655.135(e) already required employers to comply with all applicable
Federal, State, and local laws, and existing Sec. 655.135(h)(1) and
(5) already prohibited retaliation against workers who assert their
rights under the H-2A program, and therefore the changes were only to
make these rights explicit.
However, the protected activities implemented by the 2024 H-2A
Final Rule in 20 CFR 655.135(h)(2) and 29 CFR 501.4(a)(2) were
significantly different from the previous regulatory scheme.
Specifically, these protections were limited to workers who were
engaged in agriculture as defined by 29 U.S.C. 203(f) of the Fair Labor
Standards Act (FLSA), because these workers were exempt from the
protections of the National Labor Relations Act (NLRA), 29 U.S.C. 151
et seq. These new protected activities were directly related to rights
applicable to non-exempt workers under the NLRA, specifically: (1)
engaging in activities related to self-organization, including any
effort to form, join, or assist a labor organization; engaging in other
concerted activities for the purpose of mutual aid or protection
relating to wages or working conditions; or refusing to engage in any
or all of such activities; and (2) refusing to attend an employer-
sponsored meeting with the employer or its agent, representative or
designee, the primary purpose of which is to communicate the employer's
opinion concerning any activity protected by this subpart; or listen to
speech or view communications, the primary purpose of which is to
communicate the employer's opinion concerning any activity protected by
this subpart. The new protection at Sec. 655.135(m), introduced by the
2024 H-2A Final Rule, similarly applied only to those workers who were
exempt from the NLRA, but afforded protections similar to those
afforded by the NLRA. The 2024 H-2A Final Rule reasoned that these new
protections, which were modeled on certain protections in the NLRA,
were not preempted by the NLRA, as they applied only to those
agricultural workers that are excluded from the NLRA. See 89 FR at
33963.
However, at this point, multiple courts have found the ``worker
voice and empowerment'' provisions unlawful. Specifically, in Kansas,
the U.S. District Court for the Southern District of Georgia
preliminarily enjoined the Department from enforcing the 2024 H-2A
Final Rule in multiple states and against certain entities and members
of certain associations, finding that the worker voice and empowerment
provisions of the 2024 H-2A Final Rule violated the NLRA, and thus were
not in accordance with law, because they created ``collective
bargaining rights'' for workers whom Congress intended to exclude from
the NLRA. The Kansas court issued a preliminary injunction specifically
prohibiting the Department from enforcing the 2024 H-2A Final Rule in
the states of Georgia, Kansas, South Carolina, Arkansas, Florida,
Idaho, Indiana, Iowa, Louisiana, Missouri, Montana, Nebraska, North
Dakota, Oklahoma, Tennessee, Texas, and Virginia, and against an
individual employer and the members of a growers association as of
August 26, 2024. Later, the District Court for the Eastern District of
Kentucky agreed with this reasoning in Barton, and preliminarily
enjoined certain portions of the Final Rule in Alabama, Kentucky, Ohio,
and West Virginia, and with respect to a group of individuals and
associations. On the same day, the United States District Court for the
Southern District of Mississippi ruled in IFPA that the Department had
exceeded its statutory authority in promulgating the regulations--
specifically those related to worker voice and empowerment. The court
issued a Section 705 stay of the effective date of 20 CFR 655.135(h)(2)
and (m) in the 2024 H-2A Final Rule nationwide until the conclusion of
proceedings in the case, including any appellate proceedings. By
contrast, NCFBF concluded that the H-2A Final Rule was a lawful
exercise of the Department's authority under the INA.\16\
---------------------------------------------------------------------------
\16\ NCFBF, 2025 WL 1296245.
---------------------------------------------------------------------------
The 2024 H-2A Final Rule also expanded the prohibition of unfair
treatment requirements at Sec. 655.135(h) to include as protected
activity consultation with ``key service providers.'' The 2024 H-2A
Final Rule also added a definition of that term at Sec. 655.103(b).
The present definition includes the following: a health-care provider;
a community health worker; an education provider; a translator or
interpreter; an attorney, legal advocate, or other legal service
provider; a government official, including a consular representative; a
member of the clergy; an emergency services provider; a law enforcement
officer; and any other provider of similar services.
This provision was intended to apply broadly, and not only to those
workers engaged in agriculture under the FLSA. As this provision is not
directly related to self-organization and collective action, it is not
implicated by court decisions weighing the effect of the NLRA, and was
not addressed in the decisions cited above, unlike the provisions in
Sec. 655.135(h)(2). The Department believes the definition of
[[Page 28923]]
``key service provider'' within this provision is vague and overly
broad and the lack of constraining or limiting language within this
definition impermissibly expands the universe of protected activity a
person can engage in. Specifically, at Sec. 655.135(h)(1)(v), the
provision states that an employer violates the law where there is any
``unfair treatment'' against any person who has ``[c]onsulted with a
key service provider on matters related to 8 U.S.C. 1188 or this
subpart or any Department regulation in this chapter or 29 CFR part 501
promulgated under 8 U.S.C. 1188.'' The provisions then define ``key
service provider'' at Sec. 655.103(b) as ``A health-care provider; a
community health worker; an education provider; a translator or
interpreter; an attorney, legal advocate or other legal service
provider; a government official, including a consular representative; a
member of the clergy; an emergency services provider; a law enforcement
officer; and any other provider of similar services.'' The lack of
constraining or limiting language in the definition of ``key service
provider,'' most notably with the inclusion of ``any other provider of
similar services,'' is concerning because it impermissibly expands the
universe of potential protected activity in which a person can engage
in. It further creates a regulatory environment in which an employer
has no reasonable understanding of when a person is engaging in
protected activity. The Department proposes to rescind this provision.
The Department also seeks comment on whether consultation with any of
the categories of persons identified in the definition of key service
providers should be retained as a protected activity under 20 CFR
655.135(h) and 29 CFR 501.4(a).
The Department also proposes to rescind the regulations at 20 CFR
655.135(h)(1)(vii) and 29 CFR 501.4(a)(1)(vii) prohibiting
discrimination against workers who have ``[f]iled a complaint,
instituted, or caused to be instituted any proceeding, or testified,
assisted, or participated (or is about to testify, assist or
participate) in any investigation, proceeding or hearing under or
related to any applicable Federal, State, or local laws or regulations,
including safety and health, employment, and labor laws.'' The
Department believes that this provision is duplicative of other rights
under the H-2A regulations and other Federal, State, and local laws.
The Department seeks comment on this proposal, including on whether
this provision should be retained for the purpose of clarity.
In light of these decisions, and upon further consideration, the
Department has determined that 20 CFR 655.135(h), 655.135(m), and 29
CFR 501.4, as amended by the 2024 Final Rule, may not be authorized by
the INA and/or may be inconsistent with the NRLA. The Department
further believes granting H-2A workers these worker-empowerment rights
is not necessary to ensure that U.S. workers are not adversely affected
by H-2A workers, especially given that U.S. workers do not enjoy the
same worker-empowerment rights. The Department thus proposes to remove
the edits made by the 2024 H-2A Final Rule and revert to the
regulations in effect as of June 27, 2024. The Department similarly
proposes to rescind the definitions of ``key service provider'' and
``labor organization'' added by the 2024 H-2A Final Rule at Sec.
655.103(b). The Department invites comment on all aspects of this
proposal, including any alternatives.
B. Access to Worker Housing
The Department proposes to rescind current 20 CFR 655.135(n)
relating to guest access to worker housing that was added by the 2024
H-2A Final Rule. This provision requires employers to allow workers
residing in employer-furnished housing to invite, or accept at their
discretion, guests to their living quarters and/or the common areas or
outdoor spaces near such housing during time that is outside of the
workers' workday subject only to certain limited restrictions. The 2024
H-2A Final Rule reasoned that these new provisions were needed to
protect workers' fundamental First Amendment rights of association and
access to information and to prevent adverse effect on the working
conditions of workers in the United States similarly employed. To
support its reasoning, the Department argued that the isolation of H-2A
workers, when combined with these workers' unique vulnerabilities,
renders them particularly at risk of being subject to workplace abuses,
labor exploitation, and trafficking. The Department noted that the
Supreme Court's decision in Cedar Point Nursery v. Hassid, 141 S. Ct.
2066 (2021), did not specifically address the type of provision at
issue in Sec. 655.135(n). 89 FR 34021 (citing authorities).
In its decision issuing a preliminary injunction in the Barton
case, however, the United States District Court for the Eastern
District of Kentucky deemed this provision an infringement on the
property rights of employers amounting to a taking of the employers'
property. 757 F. Supp. 3d at 789-90 (citing Cedar Point, 141 S. Ct. at
2075).
The Department believes that employers' property rights must be
weighed appropriately with agricultural workers' associational rights.
Agricultural workers in the United States, including H-2A workers and
workers in corresponding employment, enjoy the rights of association
and to receive information from those who wish to provide it.\17\ Yet,
as the Barton court reasoned, the 2024 housing access provision
presents effectively imposes a government-mandated right of access to
employer-furnished housing by third parties who are invited by an H-2
worker, without the property owners' consent and regardless of the
reason for entry. Such a broad right of access appears to be
inconsistent with Cedar Point, which struck down a California
regulation that was arguably narrower, as it granted access only to a
specific type of person for a specific purpose and with specific time
limitations. Even the NRLA grants ``access to union organizers only
when `needed,' '' meaning there is ``no other reasonable means of
communicating with the employees.'' Cedar Point, 141 S. Ct. at 2080-81
(Kavanaugh, J. concurring), cited at 89 FR 34021. The unqualified
access granted under the 2024 housing access provision appear to be
broader than ``needed'' and in any event may also lack statutory
authority. The
[[Page 28924]]
Department invites comment on the proposed recission of current Sec.
655.135(n), and specifically invites any proposed alternative
provisions that may effectively balance the private property rights of
employers with the free speech and association rights of workers.
Additionally, the Department proposes to rescind a related provision at
Sec. 655.132(e)(1) that requires H-2ALCs using housing provided by
fixed-site agricultural businesses to provide proof that such fixed-
site agricultural businesses have agreed to comply with the
requirements at Sec. 655.135(n). This rescission would leave intact
the other requirement of Sec. 655.132(e)(1) that was in place prior to
the publication of the 2024 H-2A Final Rule relating to the submission
of proof that such housing complies with applicable health and safety
standards.
---------------------------------------------------------------------------
\17\ See Rivero v. Montogomery Cty., 259 F. Supp. 3d 334, 355
(D. Md. 2017) (explaining that H-2A workers, who are lawful
residents of the United States, ``are entitled to unfettered
exchange of information just as much as any other individual in a
community,'' and do not ``forfeit their constitutional rights by
living on their employer's premises''); see also, e.g., Petersen v.
Talisman Sugar Corp., 478 F.2d 73, 82-83 (5th Cir. 1973) (holding
that property owner that housed migrant farmworkers on its property
``must accommodate its property rights to the extent necessary to
allow the free flow of ideas and information'' between the migrant
farmworkers and the labor and faith-based organizers that wished to
visit them); Mid-Hudson Legal Servs., Inc. v. G & U, Inc., 437 F.
Supp. 60, 62 (S.D.N.Y. 1977) (legal service providers had First
Amendment right to enter migrant community on farm property at
reasonable times for the purpose of discussing with its inhabitants
the living or working conditions prevalent at the farm); Folgueras
v. Hassle, 331 F. Supp. 615, 623 (W.D. Mich. 1971) (explaining that
property owner who opened up portions of his property as the living
areas for those working on his farm does not have the right to
censor the associations, information, and friendships of the
migrants living in his camps); see also Rivero, 259 F. Supp. 3d at
345-48 (discussing the right of service providers and other visitors
``to impart information and opinions'' to these workers in their
homes); Martin v. City of Struthers, 319 U.S. 141, 141 (1943) (``For
centuries it has been a common practice in this and other countries
for persons not specifically invited to go from home to home and
knock on doors or ring doorbells to communicate ideas to the
occupants or to invite them to political, religious, or other kinds
of public meetings.'').
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C. Rates of Pay and Adverse Effect Wage Rate (AEWR) Effective Dates
The Department proposes to rescind the regulations, added by the
2024 H-2A Final Rule, expressly requiring that where there is an
applicable prevailing piece rate, or where an employer intends to pay a
piece rate or other non-hourly wage rate, the employer must include the
non-hourly wage rate on the job order along with the highest hourly
rate, and must pay workers' wages using the wage rate that will result
in the highest wages for each worker in each pay period. The Department
proposes to revert to the regulations in effect on June 27, 2024. These
changes affected Sec. Sec. 655.120(a), 655.122(l), 655.210(g),
655.211, and 653.501(c).
Both the prior and current versions of Sec. 655.120(a) require an
H-2A employer, in order to comply with its obligation under Sec.
655.122(l), to ``offer, advertise in its recruitment, and pay'' a wage
that is at least the highest of several enumerated wage rates,
including the AEWR and any applicable prevailing wage rate. As set
forth in the 2024 H-2A Final Rule, where there is an applicable
prevailing piece rate, it is usually not possible to determine until
the time work is performed whether the prevailing piece rate will be
higher than the highest of the applicable hourly wage rates as this
will depend on worker productivity.\18\ This led to conflicting
interpretations of the requirements at Sec. Sec. 655.120(a) and
655.122(l). The Department's Board of Alien Labor Certification Appeals
(BALCA), construing earlier versions of the regulations, concluded that
OFLC can only require H-2A employers to list a wage that is at least
equal to the highest applicable hourly wage rate--usually the AEWR--on
job orders because OFLC does not know at the certification stage
whether the prevailing piece rate will be higher than the hourly wage.
89 FR 33957 (citing Golden Harvest Farm, 2011-TLC-00442, at *3 (BALCA
Aug. 17, 2011); Dellamano & Assocs., 2010-TLC-00028, at *5-7 (BALCA May
21, 2010); and Twin Star Farm, 2009-TLC-00051, at *4-5 (BALCA May 28,
2009)). Based on these decisions, OFLC did not require employers to
list applicable prevailing piece rates on job orders and, in most
instances, WHD could not enforce those prevailing piece rates even when
these would have resulted in higher earnings for workers. 89 FR 33957.
In contrast, the Ninth Circuit, in adjudicating a challenge to OFLC's
practice of not requiring that applicable prevailing piece rates be
included on job orders, held that the prior version of Sec. 655.120(a)
requires that applicable prevailing piece rates be included on job
orders because a piece rate wage offers workers ``the opportunity to
earn more than they might under an hourly wage.'' Torres Hernandez v.
Su, 2024 WL 2559562, at *1 (9th Cir. 2024). The Ninth Circuit stated
that ``allowing employers and DOL to ignore piece-rate prevailing wages
under Sec. 655.120(a) would largely nullify Sec. 655.120(c), which
defines the procedure for determining prevailing wages.'' Id. (``There
is no reason to think that the regulations contemplate calculating
piece-rate prevailing wages under Sec. 655.120(c) but exclude such
wages from consideration under Sec. 655.120(a).'').
---------------------------------------------------------------------------
\18\ 89 FR at 33956-57.
---------------------------------------------------------------------------
Anticipating the Ninth Circuit's decision in Torres Hernandez, DOL
revised the applicable regulations. The 2024 H-2A Final Rule revised
Sec. Sec. 655.120(a) and 655.122(l) to expressly require that, where
there is an applicable prevailing piece rate, or where an employer
intends to pay a piece rate or other non-hourly wage rate, the employer
must include the non-hourly wage rate on the job order along with the
highest hourly rate, and to clarify that, in such instances, an
employer must pay workers' wages using the wage rate that will result
in the highest wages for each worker in each pay period. The Department
made analogous changes to the regulations at Sec. Sec. 655.210(g) and
655.211, which govern rates of pay for herding and range livestock
occupations, as well as corresponding changes to Sec.
653.501(c)(1)(iv)(E).
However, whether an employer is obligated to disclose a piece rate
or other non-hourly rate in the job offer and whether that piece rate
or other non-hourly rate, once disclosed, must be paid if it results in
higher wages than the AEWR, remains contested and is actively being
litigated. Following the Department's issuance of the 2024 H-2A Final
Rule, the United States District Court for the Eastern District of
Kentucky enjoined the Department from enforcing the ``new minimum pay
requirements including but not limited to Sec. Sec. 655.120(a) and
655.122(l)'' with respect to employers belonging to plaintiff
agricultural associations, among others. Barton, 757 F. Supp. 3d at
794. Consistent with this injunction, the Department ceased requiring
affected employers to list applicable prevailing piece rates on their
job orders, only for a new claim to be filed against it challenging the
cessation. Applying the Ninth Circuit's rationale, the United States
District Court for the Western District of Washington ordered the
Department to resume requiring employers to offer and pay applicable
prevailing piece rates for work in Washington State. Familias Unidas
Por La Justicia v. DOL, No. 24-cv-00637 (W.D. Wash. Mar. 28, 2025,
modified Apr. 24, 2025). To ensure its compliance with both
injunctions, the Department is now administering and enforcing the
requirements of Sec. Sec. 655.120(a) and 655.122(l) differently in
different jurisdictions, resulting in two distinct regulatory schemes.
Employers seeking to hire H-2A workers in most parts of the country are
not required to include applicable prevailing piece rates on job orders
consistent with the Barton order. However, that order does not affect
the versions of Sec. Sec. 655.120(a) and 655.122(l) that were in place
prior to the 2024 H-2A Final Rule. Consistent with the Ninth Circuit's
interpretation of the pre-2024 regulations in Torres Hernandez and with
the Familias injunction, for work to be performed in Washington State,
employers must offer and pay any applicable prevailing piece rates.
In light of this ongoing litigation and the resulting differences
in enforcement nationwide, the Department proposes to rescind current
Sec. 655.120(a)(1)(vi) and (a)(2) and revert to the version of Sec.
655.120(a) in effect as of June 27, 2024. Similarly, the Department
proposes to rescind current Sec. 655.122(l) and replace it with the
version of Sec. 655.122(l) in effect as of June 27, 2024. The reasons
for rescinding Sec. Sec. 655.122(l)(3) and (4), relating to
productivity standards and overtime disclosure, are discussed later in
this NPRM. For the same reasons, the Department proposes to rescind
current Sec. 655.210(g) and Sec. 655.211 and replace these provisions
with the versions of
[[Page 28925]]
Sec. 655.210(g) and Sec. 655.211 in effect as of June 27, 2024. The
Department also proposes to rescind the current Sec.
653.501(c)(1)(iv)(E) and replace it with the version of Sec.
653.501(c)(1)(iv)(E) in effect as of June 27, 2024 because these
corresponding changes were made in the interest of having analogous
processes and requirements, where possible, for the review of H-2A
(criteria) and non-H-2A (non-criteria) clearance orders.
The Department notes that, given the Familias injunction, as well
as the Ninth Circuit's decision in Torres Hernandez, both of which
apply to the pre-2024 version of these provisions, the intended effect
of the proposed rescission will be to clarify that employers seeking to
employ H-2A workers outside of the Ninth Circuit are not required by
Sec. 655.120(a) to list applicable prevailing piece rates on job
orders.
The Department requests comments on all aspects of this proposal.
Specifically, the Department solicits comments from employers who pay
piece rates on how and why they choose to pay piece rates, whether they
use piece rates in recruiting, and how they track time and productivity
on different crops. The Department also solicits comments from
employees and advocates on how frequently workers are paid piece rates,
and how workers will know that a piece rate will be offered on a job if
these provisions are rescinded, and generally the impact of the
disclosure on the job order of the availability of a piece rate.
Finally, the Department solicits comments on how this proposal
interacts with the Department's statutory mandate to prevent adverse
effect on similarly employed workers in the United States, and that
employers hire H-2A workers only when there are not sufficient workers
who are able, willing, qualified, and available to perform the work.
The Department also proposes to rescind the 2024 H-2A Final Rule
provisions at Sec. 655.120(b)(2)-(3), which currently designate the
effective date of each updated AEWR as the date of publication in the
Federal Register and require employers to pay the updated AEWR
immediately upon publication of the new AEWR in the Federal Register.
Instead, the Department proposes to revert to the regulations that were
in effect on June 27, 2024.
The Department reasoned in the 2024 H-2A Final Rule that such a
change was necessary in order to ensure H-2A and corresponding workers
receive the most current AEWR at the time work is performed, but in
doing so it departed from a practice of providing a reasonable
adjustment period for employers after publication of updated AEWRs. The
Department has long required employers participating in the H-2A
program to offer and pay the highest of the AEWR, the prevailing wage,
any agreed-upon collective bargaining wage, or the Federal or State
minimum wage at the time the work is performed, upon the effective date
stated in the notice of new AEWRs in the Federal Register.\19\ The 2024
H-2A Final Rule provision at Sec. 655.120(b)(2) constituted ``a
departure from more recent practice . . . which allowed a minor period
for wage adjustment after publication of the FRN.'' \20\ Prior to the
2024 H-2A Final Rule, the Department ``identifie[d] the effective date
of the new AEWRs'' in ``the Federal Register notice publishing the
updated AEWRs . . .'' and the Department's uncodified practice
``provid[ed] employers a short period of time (i.e., up to 14 days) to
update their payroll systems, such that an employer would not be
required to adjust a worker's pay in the middle of a pay period, but
would be required to promptly implement the adjustment.'' \21\
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\19\ See, e.g., 1987 H-2A IFR, 52 FR 20496, 20521; Labor
Certification Process for the Temporary Employment of Aliens in
Agriculture in the United States; H-2A Program Handbook, 53 FR
22076, 22095 (Jun. 13, 1988) (``Certified H-2A employers must agree,
as a condition for receiving certification, to pay a higher AEWR
than the one in effect at the time an application is submitted in
the event publication of the [higher] AEWR coincides with the period
of employment.'')
\20\ 89 FR at 33955.
\21\ 87 FR at 61688 (citing Notice, Labor Certification Process
for the Temporary Employment of Aliens in Agriculture in the United
States: 2020 Adverse Effect Wage Rates for Non-Range Occupations, 84
FR 69774 (Dec. 19, 2019) (announcing AEWRs for 2020 on December 19,
2019, to be effective January 2, 2020)).
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The Department has reconsidered the decision to deviate from
practice and, similar to the Department's conclusion in the 2022 H-2A
Final Rule, the Department has concluded that reinstating the prior
practice of providing an AEWR effective date in FRNs that provide a
period of up to 14 days for employers to identify AEWR changes and
adjust payroll most effectively balances the need to ensure H-2A and
U.S. workers receive timely payment of wages necessary to prevent
adverse effect with the need to provide employers adequate time to
adjust to new AEWRs after the Department publishes notice.\22\ The
Department proposes to continue to require employers to contractually
agree to pay updated wages to H-2A foreign workers and corresponding
workers and to make mid-contract updates to the AEWRs upon the
effective date stated in the Department's FRNs, but proposes to revert
to the policy of setting the effective date of the updated AEWR on a
date up to 14 days after publication of the FRN. The Department
believes this reinstatement of prior policy, which it previously
acknowledged ``may alter employer budgets for the season,'' \23\ would
best balance the Department's statutory mandate to ensure the
employment of H-2A foreign workers does not adversely affect the wages
of workers in the United States similarly employed with the need for
sound administration of the H-2A program, by providing a reasonable
adjustment period for employers to receive notice of, and make changes
to accommodate, updated AEWRs without imposing unnecessary regulatory
burdens that may unreasonably subject employers to investigation and
enforcement actions.
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\22\ See id. (declining to ``require immediate implementation''
of AEWRs or codify an AEWR effective date, instead maintaining
``current practice of stating the effective date of the new AEWRs in
the Federal Register announcement of the new AEWRs, which may be
immediate and will not be more than 14 calendar days after
publication of that notice, consistent with historical and current
practice.'').
\23\ See 75 FR at 6901; 87 FR at 61688.
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The Department recognizes that this issue has been the subject of
contention and concern, particularly regarding the burden that this
requirement would have on employers, including reasonable concerns that
employers cannot immediately update payroll or pay structures, and
especially cannot do so when they are required to monitor the Federal
Register for the Department's notices, and must conduct operational
planning, and that a limited adjustment period is necessary to ensure
employers receive notice of the new AEWR obligation and to make payroll
adjustments that in some cases may be difficult and require a brief
period of time to complete. The need for a brief adjustment period is
especially pertinent for employers who may be subject to multiple
AEWRs--a Farm Labor Survey (FLS)-based AEWR and occupation-specific
AEWR based on the Occupational Employment and Wage Statistics (OEWS)
survey--under the 2023 H-2A AEWR Final Rule,\24\ either one of which
may be applicable upon publication of updated AEWRs, depending on which
is highest. The 2024 H-2A Final Rule deviation from prior policy also
failed to adequately account for the fact that FRN publication dates
can be unpredictable, given the Department does not control the dates
it receives the underlying FLS or OEWS data on which AEWRs are
[[Page 28926]]
based,\25\ and a reasonable adjustment period provides flexibility to
employers to cushion against this predictability. The Department
believes reinstating the prior policy of providing a brief adjustment
period would most effectively balance the need to provide reasonable
flexibility to employers with the need to ensure the wages of workers
in the United States similarly employed are not affected.
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\24\ 88 FR 12760 (Feb. 28, 2023).
\25\ See 89 FR at 33956 (noting the Department ``does not
control the publication dates of BLS and USDA data'' and ``it is
administratively impractical for the Department to publish AEWRs on
the same date that BLS and USDA publishes the underlying data'' and
``given the resources required to draft an FRN'').
---------------------------------------------------------------------------
Therefore, the Department proposes to rescind current Sec.
655.120(b)(2)-(3) and reinstate the Sec. 655.120(b)(2)-(3) AEWR
requirements in effect prior to the 2024 H-2A Final Rule. Under this
proposal, the Department would revert to the practice that was in
place, prior to the 2024 H-2A Final Rule, which allowed a minor period
for wage adjustment after publication of the FRN. Under this practice,
when publishing the Federal Register notice containing updated AEWRs,
the Department would state the effective date of the new AEWRs in the
notice and generally set the effective date of the new AEWRs at no
later than 14 calendar days from the publication of that notice.
D. Enhanced Information Collection Requirements
The Department proposes to rescind the additional information
disclosure requirements at Sec. 655.130(a)(1)-(4) in the 2024 H-2A
Final Rule, which required the employer provide, at the time of filing,
the identity, location, and contact information for the owner(s) of
each employer, any person or entity who operates a place of employment,
and any person who manages or supervises workers employed under the H-
2A Application. Additionally, the rule required employers to provide
their prior trade/DBA names used in the most recent 3-year period
preceding its filing of the H-2A Application. Consistent with these
revisions, a new Sec. 655.167(c)(9) included a recordkeeping provision
requiring the employer to keep this information up-to-date until the
end of the work contract period and retain the information for three
years.
The Department anticipated that these revisions would allow the
Department to gain a more accurate and detailed understanding of the
scope and structure of the employer's agricultural operation and
thereby assist the Department in program administration and
enforcement, including in determinations of whether an employer has
demonstrated a bona fide temporary or seasonal need, or, conversely,
whether an employer has, through multiple related entities, sought to
obtain year-round H-2A labor. The Department further reasoned that
collecting this additional information would enhance the Department's
enforcement capabilities by helping the Department identify,
investigate, and pursue remedies from program violators and ensure that
sanctions, such as debarment or civil money penalties, are
appropriately assessed.
The Department has determined collection of owner, operator,
manager, and supervisor information at the time of application filing
presents legal risks and places extensive burdens on filers while
providing limited utility in the stated goals, such as single employer
test determinations.
While the collection of the information may result in identifying
program violations and allow the Department to seek appropriate
sanctions where violations occur, the Department need not collect this
information at the time of filing, as it can seek this information when
necessary to demonstrate program compliance at the time of an audit or
investigation and enforcement action. The Department did not
appropriately balance the likelihood of uncovering important
information, such as program violations, against the burden on
employers of providing such information to the Department at the time
of filing. The benefit to the Department is minimal when compared to
the burden placed on law-abiding employers to provide this information
in every case, and the Department believes the practical utility of
collecting the information at the time of filing is significantly
outweighed by the burden on the public. The Department has concluded
that the more practical approach is to continue to collect pertinent
information such as information about owners and operators of worksites
when it is necessary for enforcement or investigatory purposes.
Therefore, the Department proposes rescinding the enhanced information
collection provisions in the 2024 H-2A rule to permit the Department to
instead collect such information in other ways as it did prior to the
2024 H-2A Final Rule, as needed, such as from the subject of an
investigation rather than from all employers of H-2A workers.\26\
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\26\ See 5 U.S.C. 552a(e)(2).
---------------------------------------------------------------------------
Therefore, the Department proposes to rescind the current Sec.
655.130(a)(1)-(4) and reinstate the Sec. 655.130(a) filing
requirements in effect prior to the 2024 H-2A Final Rule. Under this
proposal, the Department would again require only that the employer
disclose information about the identity of the employer and its agent
or attorney; the places where work will be performed; and, when
requested by the Certifying Officer (CO), the employer's use of a
foreign labor recruiter, and provide any necessary supporting
documentation required at the time of filing under Sec. Sec. 655.131
through Sec. Sec. 655.135. Consistent with this proposal, the
Department also proposes to rescind Sec. 655.167(c)(9) governing
document retention related to the Sec. 655.130(a) requirements.
E. Seat Belts
The Department proposes to rescind the requirement, added by the
2024 H-2A Final Rule, to require the provision, maintenance, and
wearing of seat belts in most employer-provided transportation. The
2024 H-2A Final Rule revised 20 CFR 655.122(h)(4) to prohibit an
employer from operating any employer-provided transportation unless all
passengers and the driver were properly restrained by seat belts
meeting standards established by the U.S. Department of Transportation
(U.S. DOT), as long as the transportation was manufactured with seat
belts pursuant to U.S. DOT's Federal Motor Vehicle Safety Standards.
The Department proposes to return to the language of Sec.
655.122(h)(4) in effect as of June 27, 2024,which prior to the
effective date of the 2024 H-2A Final Rule, made no mention of seat
belts but required that all employer-provided transportation comply
with all applicable local, State, or Federal laws and regulations and
provide, at a minimum, the same transportation safety standards, driver
licensure, and vehicle insurance as required under 29 U.S.C. 1841, 29
CFR 500.104 or 500.105, and 29 CFR 500.120 through 500.128, and
outlined other requirements for disclosure of transportation modes and
use of workers' compensation for vehicle transportation purposes. In
other words, the Department proposes to rescind current Sec.
655.122(h)(4)(ii), but retain and recombine into a single paragraph
Sec. 655.122(h)(4) current Sec. 655.122(h)(4)(i), Sec.
655.122(h)(4)(iii), and Sec. 655.122(h)(4)(iv).
The 2024 H-2A Final Rule reasoned that the provision of seat belts
in employer-provided transportation, and the requirement that employers
ensure that workers wear seat belts, was necessary to prevent adverse
effect on the wages and working conditions of
[[Page 28927]]
similarly employed workers in the United States because H-2A workers
may have more limited recourse than workers in the United States
similarly employed when placed in an inherently dangerous situation,
such as being transported in a vehicle without seat belts.
Additionally, the NPRM reasoned that unbelted passengers posed a grave
safety risk to other passengers, including non-H-2A workers, in the
event of a crash.\27\
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\27\ See 89 FR at 33963.
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The Barton court found the 2024 H-2A Final Rule's provision
requiring the wearing of seat belts to be arbitrary and capricious
because the Department did not explain how holding employers liable for
an employee's failure to wear a seat belt would avoid downgrading
worker safety conditions. Barton, 757 F. Supp. 3d at 788-89. Instead,
the court reasoned, the requirement would degrade working conditions
because employees would find themselves under greater levels of
scrutiny and supervision. Id. The court further reasoned that the
requirement holds H-2A employers to a higher standard than that to
which other agricultural employers are subject, and noted that
employers have little control over whether their employees choose to
wear seat belts. Id. The court did not specifically address the 2024 H-
2A Final Rule's requirement that employers provide and maintain seat
belts in most employer-provided transportation, id., yet still enjoined
this portion of the rule.
Upon further review, and in light of the court's decision in
Barton, the Department no longer believes that these requirements serve
the statutory purpose of preventing adverse effect on similarly
employed workers in the United States. The transportation safety
requirements under the Migrant and Seasonal Agricultural Worker
Protection Act, 29 U.S.C. 1801 et seq. and 29 CFR part 500 Subpart D,
which cover many of the agricultural workers in the United States
without H-2A visas, do not specifically require the provision of seat
belts nor that employers ensure that workers are wearing seat belts.
The current Sec. 655.122(h)(4)(ii), therefore, requires more
heightened safety measures for employers employing H-2A workers than
those employing only U.S. workers, which does not meaningfully achieve
the statutory goal of protecting similarly employed workers from
adverse effect from the employment of foreign workers.
This proposed rescission does not affect the Department's
perspective on the safety benefits of seat belts. Seat belts continue
to be one of the most effective ways to prevent serious injuries and
fatalities in vehicle crashes. The Department reminds employers using
the H-2A program that they must continue to comply with all applicable
local, State, and Federal laws relating to transportation safety,
including those relating to seat belts.
The Department invites comment on the recission of current Sec.
655.122(h)(4)(ii). Specifically, the Department seeks comment on the
potential effect this proposal may have on similarly employed workers
in the United States, the importance of and/or burden posed by current
Sec. 655.122(h)(4)(ii), and whether any part of this provision should
be retained (e.g., retaining the requirement that employers provide and
maintain seat belts if the vehicle was manufactured with seat belts but
not the requirement that employers require their workers to wear seat
belts).
F. Termination for Cause
The Department proposes to rescind regulations defining termination
for cause, establishing five conditions that must be satisfied before
an employer may terminate a worker for cause, and setting recordkeeping
requirements associated with termination for cause, including
requirements for maintaining disciplinary records and termination
records. Specifically, the Department proposes to return to the
regulatory language of 20 CFR 655.122(n) as of June 27, 2024, prior to
the 2024 H-2A Final Rule, which only stated that an employer was
relieved of certain obligations if a worker was terminated for cause or
abandoned work, and then only if timely required notification of
government agencies was made, and established basic recordkeeping
requirements related to this notification. In other words, the
Department proposes to rescind current 20 CFR 655.122(n)(2), (n)(4)(ii)
and (n)(4)(iii) and recombine the remaining language in one paragraph.
The Department also proposes to rescind corresponding recordkeeping
requirements at Sec. 655.167(c)(10) and (11).
In the 2024 H-2A Final Rule, the Department defined termination for
cause and outlined five conditions that must be met before a
termination for cause could occur, one of which was that the employer
must first correct the worker's performance or behavior using
progressive discipline. The 2024 H-2A Final Rule further clarified what
situations will never constitute termination for cause. The Department
reasoned that these changes were necessary to promote the integrity and
regularity of any such processes and to help ensure that employers do
not arbitrarily and unjustly terminate workers, thereby stripping them
of essential rights under the H-2A program which serve to protect
similarly employed workers against any potential adverse effect from
the employment of H-2A workers (namely the right to outbound
transportation and subsistence, the three-fourths guarantee, and, in
the case of U.S. workers, the right to be contacted in subsequent
years).
Upon further review, the Department believes that these regulations
are overly burdensome and unnecessary. For decades, the Department has
enforced the requirement that a worker is owed outbound transportation
and subsistence, the three-fourths guarantee, and, if the worker is a
U.S. worker, the right to be contacted for employment the subsequent
year, unless he or she is terminated for cause or abandons employment.
Only in 2024 did the Department determine that it needed a rigid set of
criteria and recordkeeping before it would accept any termination as
being ``for cause.'' Indeed, the Department acknowledged in the 2024 H-
2A Final Rule that ``[h]istorically, when determining whether a worker
has been terminated for cause, the Department has reviewed all relevant
factors, including, for example, the reasonableness of the rule,
consistent application of a rule among employees, and whether the
employer fairly reviewed the misconduct or job performance.'' \28\ Upon
further review, the Department believes that previous procedures were
sufficient to identify when a worker was terminated for cause and seeks
to remove the complicated, burdensome, and overly prescriptive
framework in 20 CFR 655.122(n)(2) from the regulations.
---------------------------------------------------------------------------
\28\ 89 FR at 33970.
---------------------------------------------------------------------------
Furthermore, certain provisions in current Sec. 655.122(n)(2) have
become untethered from the statutory mandate of protecting similarly
employed workers in the United States from adverse effect from the
employment of foreign workers. Specifically, the requirement that an
employer progressively discipline a worker before terminating that
worker for cause has no meaningful connection to preventing the
employment of H-2A workers from adversely affecting the wages and
working conditions of similarly employed workers in the United States.
Most workers in the United States are not entitled to progressive
discipline (although progressive discipline, or lack thereof, may be
instructive in determining whether a reason for
[[Page 28928]]
termination is pretextual). The Department believes that explicitly
requiring an employer using the H-2A program to progressively
discipline a worker before terminating them for cause does not
meaningfully protect similarly employed workers in the United States;
there may be many situations where termination for cause is appropriate
even without progressive discipline, and other situations where
termination for cause is not appropriate even if the employer has gone
through a progressive discipline process. The 2024 H-2A final rule
developed a system where any termination for cause required progressive
discipline, which is not reflective of the working world for most
people in the United States, where progressive discipline is generally
not explicitly required by law to effectuate a termination for cause.
While the Department continues to emphasize the importance of
safeguarding essential and longstanding worker protections in the H-2A
program (specifically, the right to outbound transportation and
subsistence, the three-fourths guarantee, and, if the worker is a U.S.
worker, the right to be contacted for subsequent employment), it no
longer believes that explicitly requiring progressive discipline before
an employer terminates a worker for cause achieves that goal.
The Department solicits comments on this proposed rescission.
Specifically, the Department solicits comments as to potential effect
this proposal may have on similarly employed workers in the United
States, the importance of and/or burden posed by current Sec.
655.122(n)(2), and whether any part of this provision should be
retained either in regulation or in subregulatory guidance (e.g.,
retain the definition of termination for cause in Sec. 655.122(n)(2)
but remove the five criteria, or retain Sec. 655.122(n)(2)(i)(A)-(D)
in subregulatory guidance).
The Department also proposes to rescind current 20 CFR
655.122(l)(3) and reinstate the 20 CFR 655.122(l)(2)(iii) in effect as
of June 27, 2024, prior to the 2024 H-2A Final Rule. In order to align
the regulations with changes to Sec. 655.122(n)(2), the 2024 H-2A
Final Rule required that all employers requiring one or more
productivity standards as a condition of job retention disclose those
standards in the job order, and set a ceiling on the productivity
standards. Prior to the 2024 H-2A Final Rule, Sec. 655.122(l)(2)(iii)
only required disclosure and the ceiling if the employer paid by a
piece rate and required the productivity standard as a condition of job
retention. As the Department proposes to rescind the regulation that
necessitated this change (current Sec. 655.122(n)(2)), it similarly
proposes to revert to the regulatory text of Sec. 655.122(l)(2)(iii)
before the effective date of the 2024 H-2A Final Rule. The Department
solicits comments on this proposal, including on whether an employer
who has productivity standards as a condition of job retention but does
not pay by a piece rate should be required to disclose the productivity
standards in the job order.
G. Disclosure of Foreign Labor Recruiter Information
The Department proposes to rescind all regulatory and related data
collection requirements requiring employers to identify any foreign
labor recruiters, and to provide copies of the agreements between the
employer and such recruiter(s) at the time of filing. Specifically, the
Department proposes to rescind Sec. 655.137, Disclosure of Foreign
Worker Recruitment, a related assurance at Sec. 655.135(p), and Sec.
655.167(c)(8) that provides applicable document retention requirements.
The regulatory requirements at Sec. 655.137 govern what
information and documentation an employer must provide at filing
regarding foreign worker recruitment, as well as how it must maintain
and update that information. These provisions also address the
Department's dissemination or publication of the information it
receives. Paragraph (a) requires that if the employer engaged or plans
to engage an agent or foreign labor recruiter, directly or indirectly,
in international recruitment, the employer, and its attorney or agent,
as applicable, must provide copies of all contracts and agreements with
any agent or recruiter or both, executed in connection with the job
opportunity, a requirement that is also covered by the assurance at
Sec. 655.135(p). These agreements must contain the contractual
prohibition against charging fees as set forth in Sec. 655.135(k). In
paragraph (b), the Department requires that applications must contain
all recruitment-related information required in the Application for
Temporary Employment Certification, as defined in Sec. 655.103(b),
including the identity and location of all persons and entities hired
by or working for the recruiter or agent, and any of the agents or
employees of those persons and entities, to recruit prospective foreign
workers for the H-2A job opportunity. Paragraph (c) of Sec. 655.137
requires that employers must continue to keep the foreign labor
recruiter information referenced in paragraphs (a) and (b) up to date
until the end of the work contract period, with this updated
information available in the event of a post-certification audit or
upon request by the Department.
The Department is also proposing to rescind Sec. 655.167(c)(8)
governing applicable employer document retention requirements,.
Finally, the Department proposes to rescind paragraph (d) of Sec.
655.137, which required the Department to maintain a publicly available
list of agents and recruiters (including government registration
numbers, if any) who are party to the agreements employers submit, as
well as the persons and entities the employer identified as hired by or
working for the recruiter and the locations in which they are
operating.
Based on a review of the 2024 H-2A Final Rule, the Department has
determined it did not adequately address the legitimate concerns raised
by commenters regarding the time and burden to collect this
information; the need for employers to understand their information
disclosure, retention, and production obligations; the ability to
access this information and the timing of the collection, including the
obligation and burden to update the information. The Department also
did not adequately explain why this information must be collected at
the time of filing Application for Temporary Employment Certification,
in addition to similar collections at the time the employer files a
petition with the Department of Homeland Security (DHS). The Department
notes that DHS has statutory authority for the admission of foreign
beneficiaries under the H-2A visa classification and the United States
Citizenship and Immigration Services (USCIS) requires employers to
provide identifying information about agents and recruiters, including
addresses, at the time of filing the H-2A petition. Specifically, the
Form I-129 requires the employer to provide the names and addresses of
all agents, facilitators, staff, recruiters, or any person or entity
that recruits or solicits prospective beneficiaries of an H-2 petition.
The Department also overstated the value the additional disclosure
of information would provide in ``aiding enforcement of provisions like
Sec. 655.135(k), which prohibits seeking or receiving of recruitment
fees,'' as well as the value in ``better . . . map[ping] international
recruitment relationships'' to ``identify where prohibited fees are
collected . . .'' \29\ The fact that there exists the current practice
of collecting this information in the H-2B program does not justify its
collection in the H-2A program, especially in light of the
[[Page 28929]]
significant reporting burden on employers.
---------------------------------------------------------------------------
\29\ 89 FR at 34026.
---------------------------------------------------------------------------
The 2024 H-2A Final Rule requirement to disclose contracts and
agreements with international recruiters and additionally provide
identifying information for the recruiter's employees and anyone within
the recruitment chain engaged in foreign worker recruitment, and to
maintain these records for a period of three years from certification,
imposes significant burdens. The burdens include the completion of
paperwork, disclosures at the time of filing, information security
related to retention of identifying information, and potential breach
of privacy claims, as well as imposing an unnecessarily thorough duty
to inquire into every link in the international recruitment chain to
ascertain the ``identity and location of all persons and entities hired
by or working for the recruiter or agent, and any of the agents or
employees of those persons and entities . . .'' \30\ While the
additional disclosures may provide H-2A foreign workers a better sense
of the foreign labor recruiters used by their employers or prospective
employers and ``better understand[ing] [of] the roles of recruiters . .
. in the recruitment chain . . .'' \31\ the Department does not think
the benefit outweighs the burden. Furthermore, the Department has lacks
both the resources and methods to verify, at the time of filing, that
the employer provided complete information about the recruiters the
employer used independently verify the validity of the data the
employer provides at the time of processing, so it cannot be sure that
H-2A foreign workers have accurate or complete information to decide
whether a recruiter is legitimate. The inability of the Department to
verify the completeness or accuracy of the information, and therefore
its utility to potential H-2A workers, leads the Department to conclude
it cannot justify the burden placed on employers to provide this
information.
---------------------------------------------------------------------------
\30\ Id. at 34025.
\31\ Id. at 34026.
---------------------------------------------------------------------------
Therefore, the Department proposes to eliminate Sec. Sec.
655.135(p), 655.137, and 655.167(c)(8), and maintain the existing
provisions like Sec. Sec. 655.135(j) and (k) that provide measurable
value in protecting U.S. and foreign workers through prohibitions
against unlawful fees and enforcement of related contractual
obligations and provide authority for WHD to enforce compliance with
these provisions. The Department believes the regulations in existence
prior to the 2024 H-2A Final Rule will provide sufficient protection
against exploitation and abuse of foreign workers by foreign labor
recruiters and permit the Department to enforce provisions prohibiting
imposition of unlawful fees in a framework that is consistent with the
scope of the Department's statutory authority. The regulations at Sec.
655.135(j), generally prohibit the employer and its agents from seeking
or receiving fees related to H-2A labor certification, including
recruitment costs. The regulations at Sec. 655.135(k) more
specifically require the employer to contractually prohibit in writing
any foreign labor contractor or recruiter (or any agent of such foreign
labor contractor or recruiter) whom the employer engages from seeking
or receiving payments or other compensation from prospective workers
and to provide documentation of the prohibition upon request by the
Department or a Federal party. Under these provisions, the Department
may, in the course of an audit or investigation, request the employer
present documentation demonstrating the contractual arrangement with a
foreign labor recruiter and demonstrating compliance with the H-2A
provisions and are sufficient to permit WHD to ``identify individuals
charging fees, connect such individuals' relationships with recruitment
agencies contracted by the employer, determine whether all entities had
contractually prohibited cost-shifting as required under Sec.
655.135(k), and hold the appropriate parties responsible,'' without
imposing unnecessary burdens on employers to disclose the identity of
every individual within the international recruitment chain to the
Department at the time of filing the Application for Temporary
Employment Certification.\32\
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\32\ 89 FR at 34026.
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H. Minor Delays in Start Date of Work
The Department proposes to eliminate Sec. 655.175, including the
new delayed start date procedure and related assurances and obligations
promulgated in the 2024 H-2A Final Rule. Instead, the Department
proposes to revert to the regulatory scheme that governed the delayed
start date process for many years prior to the 2024 H-2A Final Rule.
Section 655.175, as well as a related recordkeeping obligation at Sec.
655.167(c)(12) and conforming changes to Sec. Sec. 655.122(i) and
655.145(b), were intended to clarify employer obligations in the event
of a delay in the start of work and to distinguish post-certification
delays from pre-certification Application amendments under current
Sec. 655.145(b). The rule defines a ``minor'' delay in the start of
work as a delay of 14 calendar days or fewer and continues to limit
these delays to situations in which unforeseen circumstances require
the delay and the employer's crops or commodities would be in jeopardy
prior the expiration of an additional, expedited recruitment period.
The rule also requires the employer to contact the SWA and workers at
least 10 business days prior to the start date and maintains the
existing requirement that the employer provide housing and subsistence
to any worker already traveling to the worksite. If the employer fails
to provide this notice, the rule requires employers to provide
compensation to workers for each day work is delayed during the delay
period, at the highest hourly rate specified in the applicable
regulations, for a period of up to 14 calendar days, and provide this
compensation no later than the date workers would have been paid had
work begun on time, similar to the Wagner-Peyser Act (WP Act) provision
at Sec. 653.501(c), which covers U.S. workers the SWA refers to the
employer's job opportunity. This provision also requires employers to
send notice to workers of the delay using an electronic method, when
possible, and translate the notice into a language workers can
understand, similar to the current work contract translation language
at Sec. 655.122(q). Consistent with these changes, Sec.
655.167(c)(12) includes a recordkeeping provision requiring the
employer to maintain a record that it sent notice of the delayed start
of work.
Beginning with the 2010 H-2A Final Rule, OFLC regulations have
permitted an employer to request a delay in the start date after
submitting a written request to the CO and receiving the CO's approval.
Section 655.145(b) in that rule explained that if the request is for a
delay in the start date and is made after workers have departed for the
employer's place of work, the CO may only approve the change if the
employer includes with the request a written assurance signed and dated
by the employer that all workers who are already traveling to the job
site will be provided housing and subsistence, without cost to the
workers, until work commences. Upon acceptance of an amendment, the CO
would submit to the SWA any necessary modification to the job order.
This provision required the employer to show that the delay was caused
by unforeseeable circumstances and demonstrate that the crops or
commodities will be in jeopardy prior to the expiration of an
additional
[[Page 28930]]
recruitment period. It also required an employer seeking a post-
certification delay in the start of work to provide housing and
subsistence to workers who had already begun traveling to the place of
employment and comply with the WP Act regulations at Sec. 653.501(c).
Similarly, the WP Act regulations pre-dating the 2024 H-2A Final Rule
``provide[] a process close to the start date the employer identified
in the job order for the employer, the SWA, and referred farmworkers to
communicate regarding the actual start date of work.'' \33\ These
provisions ``require[ ] an employer to notify the SWA of start date
changes at least 10 business days before the originally anticipated
start date and require the SWA to notify farmworkers that they should
contact the SWA between 9 and 5 business days before the anticipated
start date to verify the actual start date of work.'' \34\
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\33\ 87 FR 61660, 61678 (Oct. 12, 2022) (citing Sec.
653.501(c)(1)(iv)(D), (c)(3)(i) and (iv), (c)(5), and (d)(4)).
\34\ Id. (citing Sec. Sec. 653.501(c)(5) and (d)(4)).
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The Department proposes to revert to the delayed start date
provisions under the 2010 and 2022 H-2A Final Rules. Consistent with
this proposal, the Department proposes to revise Sec. 655.145(b) and,
as discussed further below, 653.501(c), to mirror language in place
beginning in the 2010 H-2A Final Rule. As under the 2010 and 2022 H-2A
Final Rules, this proposed language requires the employer to request CO
approval for a minor delay in the start date, demonstrate unforeseeable
circumstances that jeopardize crops, and assure the CO that if the
employer requests a start date delay after workers have departed for
the place of employment, the employer will provide housing and
subsistence to all workers who are already traveling to the place of
employment, without cost to the workers, until work commences. If the
employer fails to comply with its obligations, the Department may
pursue revocation of the temporary agricultural labor certification
under Sec. 655.181 or debarment of the employer under Sec. 655.182 or
29 CFR 501.20. The Department proposes to reinstate Sec.
655.122(i)(1)(i) and (ii) as effective prior to the 2024 H-2A Final
Rule, which reflect that the work contract period can be shortened by
agreement of the parties with the approval of the CO. These provisions
were removed during the prior rulemaking to ensure consistency with
Sec. 655.175(b), which permitted only minor delays to the start date
of work and did not require CO approval of the delay. The Department
also proposes to remove the recordkeeping obligation at Sec.
655.167(c)(12), as necessary for consistency with the above proposals.
These proposals are consistent with President Trump's E.O.
directing the Department to reduce regulatory complexity, reduce
burdens on program users, and rescind or revise regulations that are
inconsistent with the Department's clear statutory authority. The
provision at Sec. 655.145(b) provides similar flexibility to employers
as Sec. 655.175, consistent with the Department's acknowledgment that
the actual day work begins may vary due to such factors as travel
delays or crop conditions at the time the employer expects work to
begin. This proposed rule maintains existing emergency filing
procedures at Sec. 655.134 to accommodate employers faced with exigent
circumstances necessitating a longer delay in the start date of work.
The Department has determined workers similarly employed are provided
adequate protections in the event of a delayed start date through the
pre-2024 WP Act provisions requiring notice of the delay by SWAs and
compensation of U.S. workers under Sec. 653.501(c), the requirement
that employers guarantee H-2A and corresponding workers a total number
of work hours equal to at least three-fourths of the workdays of the
total period of employment under Sec. 655.122(i), and the Sec.
655.145(b) language limiting delayed start date requests to a minor
period, justified by unforeseeable circumstances that jeopardize crops,
and subject to CO approval, as well as a determination that the test of
the U.S. labor market will not be impacted, and employer assurances
related to provision of housing and subsistence to workers traveling to
the worksite at the time of the delay. In contrast, the 2024 H-2A Final
Rule provision providing additional notice and recordkeeping burdens
and extending the WP Act compensation obligation to H-2A foreign
workers was not necessary to prevent adverse effects on the wages and
working conditions of similarly employed workers.
Additionally, the Department's elimination of the requirement for
employers to obtain CO approval of changes to start dates reduced
filing burdens on employers and administrative burdens on the
Department and SWAs related to adjudication of requests and notice of
delay to workers, but also made it more difficult for the Department to
ensure that employers provide notice of delays to workers, provide
accurate start dates in filings, and delay start dates only where
necessitated by exigent circumstances unforeseeable at the time of
filing and only when the Department determined the change would not
impact the labor market test and the employer would comply with
assurances to provide housing and subsistence to workers already en
route to the worksite. The Department believes reversion to the delayed
start date provisions implemented prior to the 2024 H-2A Final Rule
will best balance the need for agricultural employers to respond to
unforeseeable exigent circumstances and the need to ensure U.S. workers
are accurately apprised of the start date of work in the event of a
minor delay, and do not suffer financial hardship or material changes
to terms and conditions of employment as a result of the employer's
employment of H-2A foreign workers.
I. Other Regulatory Provisions Clarifying Existing Policy or Procedural
Standards
The Department proposes to retain several provisions adopted in the
2024 H-2A Final Rule that merely codified existing practice or
streamlined procedures and imposed no additional burdens on employers,
the Department, or U.S. or foreign workers. While the Department is
proposing to retain these provisions, it seeks public comment to
determine if any changes are appropriate or necessary. The Department
will consider any comments on the provisions listed below when
developing the Final Rule.
First, the Department proposes to retain the definition of single
employer and the explanation of the single employer test at Sec.
655.103(e) and 29 CFR 501.3(d). This provision codified the test that
the Department had already implemented in practice, but had not
included in its regulations prior to the 2024 H-2A Final Rule. The
Department believes this provision provides clarity to filers about
when and how the Department will determine that two seemingly separate
entities will be evaluated to determine whether they are in fact one
entity for the purpose of ensuring compliance with H-2A program
regulations, including the statutory requirement that an employer have
a temporary or seasonal need.
Second, for similar reasons, the Department proposes to retain the
streamlined procedures and modified definition relating to successors
in interest at Sec. 655.103, as well as conforming edits to Sec. Sec.
651.10, 655.181, 655.182, and 29 CFR 501.20. These provisions provide
greater clarity to filers than the prior regulations without placing
any additional burden on them. The provisions articulate a clear
methodology for determining whether an employer or agent or attorney is
a
[[Page 28931]]
successor-in-interest to a debarred entity, and whether an entity must
be considered debarred from the H-2A program. By clarifying and
streamlining this regulatory text, employers and agents and attorneys
can make an informed decision as to whether they will be considered a
debarred entity prior to preparing and submitting an H-2A application.
These changes also reduced burdens on the Department and enhanced the
Department's ability to protect program integrity.
Third, the Department proposes to retain the explicit prohibition
against passport withholding at Sec. 655.135(o), but redesignate the
paragraph as Sec. 655.135(m). The withholding of a worker's passport,
visa, or other immigration or government identification documents is an
egregious restriction of a worker's movements and may be indicative of
labor exploitation or trafficking. The Department does not believe that
compliance with this provision represents a significant burden to
employers because most employers understand the seriousness of such an
action--in some circumstances, the withholding of passports,
immigration, or identity documents constitutes a criminal offense--and
do not withhold worker passports. Given the minimal burden required to
comply, and the importance that workers retain in control of their
identity documents, the Department believes that current Sec.
655.135(o) should be retained. Doing so will better enable the
Department to combat labor exploitation and trafficking.
Fourth, the Department proposes to retain current 29 CFR
501.33(b)(2), introduced by the 2024 H-2A Final Rule, to state that any
issue not raised in a party's request for a hearing before the Office
of Administrative Law Judges (OALJ) ``ordinarily may be deemed waived''
in any further proceedings. In the 2024 H-2A Final Rule preamble, the
Department explained that issue exhaustion requirements are applicable
and appropriate under the H-2A administrative review procedures and, as
a result, issues not raised in a request for hearing to the OALJ may be
deemed waived. This regulation codifies the Department's current
practice, better informs parties of the potential consequences of
failing to raise an issue in a request for review, and better preserves
agency and judicial resources.
Fifth, the Department proposes to retain the severability
provisions implemented by the 2024 H-2A Final Rule at Sec. 655.190 and
29 CFR 510.10. These regulations reflect the Department's position,
based on its experience enforcing and administering the H-2A provisions
of the INA, that the regulations can function sensibly in the event
that any specific provisions, sections, or applications are
invalidated.
Sixth, the Department proposes to retain minor technical fixes made
by the 2024 H-2A Final Rule. Specifically, the 2024 Final Rule edited
Sec. 655.167(c)(6) to update this paragraph's outdated cross-reference
to the regulatory citation for the definition of ``work contract.'' The
2024 Rule also changed Sec. 655.167(c)(7) to add ``to'' before
``DHS.''
Seventh, the Department proposes to retain clarifying edits made by
the 2024 H-2A Final Rule to 20 CFR 655.122(l)(4) and 20 CFR 655.210(g)
with respect to overtime compensation. Specifically, current
regulations clarify that, if applicable, the employer must state in the
job order: (1) that overtime hours may be available; (2) the wage rate
to be paid for any such overtime hours; (3) the circumstances under
which overtime hours will be paid; and (4) where the overtime pay is
required by law, the applicable Federal, State, or local law requiring
the overtime pay. The Department believes that this provision is useful
for U.S. workers to understand what benefits are being offered so they
may make a reasoned decision as to whether they want the job. The
Department solicits comments on this provision, including whether U.S.
workers consider overtime benefits when considering whether to accept
an agricultural job and, if these benefits are not described in the job
order, how applicants may learn about the potential for overtime pay.
The retention of these provisions is consistent with President
Trump's E.O. 14192, Unleashing Prosperity Through Deregulation, which
directs agencies to reduce regulatory burdens and simplify regulations
that ``are often difficult for the average person or business to
understand . . .'' and require program users to ``synthesiz[e] the
collective meaning'' of sub-regulatory guidance that was not subject to
the Administrative Procedures Act (APA) and for which the Department
did not provide notice and opportunity to comment. The rulemaking
culminating in the 2024 H-2A Final Rule provided notice and opportunity
to comment on long-standing Departmental standards, such as use of the
single employer test, and the 2024 H-2A Final Rule responded to those
comments and codified the provisions in the regulations, providing
clarity to the regulated community and Department's OALJ regarding, for
example, the methods the Department uses to determine when two
ostensibly distinct employers are, in fact, a single employer, as
necessary to maintain program integrity, reduce instances of
misrepresentation and fraud in the nonimmigrant labor certification
programs, and ensure fairness for law abiding employers seeking foreign
labor certification to fill legitimate labor needs. Similarly, Sec.
655.104 streamlined the successor-in-interest provisions the Department
uses across programs, including clearly explaining to the regulated
community the factors the Department considers in determining
successor-in-interest status and the procedures the Department follows
when making such a determination in relation to a notice of debarment
from the H-2A program. Finally, the provision explicitly prohibiting
passport withholding merely reflects existing employer obligations
pursuant to certain Federal, State, and local laws and imposes no new
burdens or obligations on employers. Retaining the provision that makes
this prohibition explicit in the H-2A program regulations also is
consistent with the general aims of President Trump's E.O. 14159,
Protecting the American People Against Invasion, which declares ``it is
the policy of the United States to achieve the total and efficient
enforcement of [U.S. immigration] laws . . .'' and directs agencies to
prioritize ``enforcement of the provisions of the INA and other Federal
laws related to the illegal entry and unlawful presence of aliens in
the United States and the enforcement of the purposes of this order,''
including ``dismantl[ing] cross-border human smuggling and trafficking
networks . . .''
J. Wagner-Peyser Act
The Department proposes to rescind some provisions adopted in the
2024 H-2A Final Rule that are not necessary for the efficient
functioning of the ES. The Department proposes to rescind requirements
at Sec. Sec. 658.503 and .504 relating to the ES-system-wide effect of
SWA determinations to discontinue services to employers and
notification to the ETA Office of Workforce Investment (OW) regarding
discontinuation and reinstatement, as well as at Sec. 653.501(b)(4),
which requires ES staff to consult the OWI discontinuation of services
list prior to placing a job order in intra-state or inter-state
clearance. Requirements for this list were established to ensure that a
final decision to discontinue services to an employer would prohibit an
employer from receiving any services from the ES system, not just from
offices in the State that discontinued services, enabling States to
meet the requirements of Sec. 658.503(e). Ongoing litigation in
[[Page 28932]]
multiple jurisdictions prevents this nationally-scoped provision from
taking effect, and because each State is responsible for issuing its
own discontinuation determinations under part 658, subpart F, the
Department believes it is appropriate for these actions to be effective
only in the States in which they are issued. The Department proposes to
revise Sec. 653.501(b)(4) and paragraphs (i) and (ii) so that the
State receiving the clearance order will not provide ES services to an
employer for which it has already discontinued services, to remove
references to a national OWI discontinuation of services list, and to
rescind Sec. 658.504(d) (while retaining clarifying changes to Sec.
658.504 broadly). The Department also proposes to rescind changes to
Sec. Sec. 658.502(b) and 658.503(b) from the 2024 H-2A Final Rule that
removed employers' option for pre-final determination hearings and
allow employers to request a hearing only after the State makes a final
determination. This change was intended to ensure a complete record of
decision-making on appeal, but might have limited employers' options
for appeal and introduced delay for employers seeking a hearing, and
the Department is proposing to restore the option to request a hearing
at Sec. 658.502 to provide maximum process to employers using the ES
system. Similarly, with regard to the basis for determining the
necessity of immediate discontinuation without going through regular
procedures, the Department proposes to retain only the basis that
existed prior to the 2024 H-2A Final Rule. Any exceptions to a State
following regular procedures should be narrow, and a lower threshold
for immediate discontinuation raises the risk of insufficiently
supported and erroneous decisions adversely impacting employers seeking
to recruit workers. The Department invites comments on the balance
between State need to act quickly in exceptional circumstances and due
process for employers.
The Department proposes to retain certain provisions adopted in the
2024 H-2A Final Rule that clarify long-standing, but previously
confusing, discontinuation of services provisions and align standards
for foreign workers and U.S. workers rather than disadvantaging U.S.
workers, and is soliciting public comment as to whether the following
provisions should be retained or modified. As discussed above, the
Department proposes to maintain definitions in Sec. 651.10 for
``agent,'' ``farm labor contractor,'' and ``successor in interest.''
The Department also proposes to maintain definitions that make the ES
regulations more readable and understandable and that more clearly
define concepts that previously were discussed in the ES regulations
yet not adequately defined. These include ``criteria clearance order,''
``discontinuation of services,'' ``employment-related laws,'' ``joint
employer,'' ``non-criteria clearance order,'' and ``week.'' The
Department sought to align these new definitions with the same or
similar definitions throughout the rule.
The Department proposes to retain a provision at Sec.
653.501(b)(4)(i) that requires States to consult the OFLC and WHD
debarment lists and discontinue services to any employer debarred from
participating in the H-2A or H-2B foreign labor certification programs.
Consistent with an America First policy direction, this provision
ensures that U.S. workers are protected from the narrow set of
employers the Department has already found to have committed
significant violations sufficient to justify their debarment from the
labor certification program.
The Department proposes to revert requirements in Sec.
653.501(c)(1)(iv)(E) for listing wages on clearance orders, as the
change to this provision in the 2024 H-2A Final Rule was made for
consistency with H-2A regulations prescribing wage rate requirements,
which the Department proposes above to revert. The Department also
proposes to revert provisions in Sec. 653.501(c) and (d) relating to
employer obligations in the event of a delay in the start of work, from
the current provisions to those that were in effect prior to the 2024
H-2A Final Rule. The current provisions require employers to notify
workers in the event of a delay, and in the event of less than 10 days'
notice, impose requirements on employers relating to the provision of
housing, as well as compensation and benefits for up to 14 days. In
order to reduce the financial burden that these regulations impose on
employers, which is in addition to the burden caused by work delays,
the Department proposes to revert to a guarantee of one week's pay for
workers recruited through the ES system in the event of a short-notice
delay, and to require SWAs to notify workers of delays and other
changed circumstances. The prior provisions appropriately allocated the
burden-sharing between employers, workers, and the ES system.
Lastly, the Department proposes to retain certain clarifying
changes in Sec. Sec. 658.501 and 658.502, and the changes in Sec.
658.503 related to discontinuation of services. The changes in
Sec. Sec. 658.501(a) and 658.502(a) include clarifying changes related
to discontinuing services on the bases of debarment from foreign labor
certification programs or, as in Sec. 658.501(b), fraud in those
programs. The changes in Sec. 658.502(a) require states to more
thoroughly document and communicate the bases for discontinuation and
the basic facts of the alleged violation, and they give greater clarity
and protection to employers in submitting rebuttal evidence and
information to the SWA. Discontinuations of service require a high bar
and are rare, yet previous to the 2024 H-2A Final Rule, State
discontinuations of service sometimes lacked sufficient documentation
to explain to employers the basis of a discontinuation, making it
difficult for employers to remedy the violation. These provisions
ensure States discontinue services only upon thorough review and
documentation of violations. Similarly, the Department proposes to
retain 2024 H-2A Final Rule changes in Sec. Sec. 658.503(a), (c), (d)
and (f) that clarify processes States must follow prior to
discontinuing services, particularly the full documentation and
notification required before a discontinuation can take effect. In
Sec. 658.503(b), the 2024 H-2A Final Rule describes previously
existing requirements for when immediate discontinuation is
appropriate, and adds requirements that the State document the facts
that led to the immediate discontinuation and notify employers of the
details of the discontinuation and their ability to request a hearing.
The Department proposes to retain these provisions, in order to ensure
employers have adequate information and opportunity to respond, in
furtherance of affording maximum process to employers participating in
the ES. However, the Department proposes to rescind changes that
limited access to a hearing and supported the OWI discontinuation of
services list. In Sec. 658.503(e), the Department proposes to retain
provisions that explain what discontinuation of services means
operationally, so that States and employers understand the process, and
proposes to rescind language that refers to nation-wide impact of
discontinuation of services, consistent with rescissions described
earlier.
[[Page 28933]]
III. Administrative Information
A. Executive Order 12866: Regulatory Planning and Review, Executive
Order 13563: Improving Regulation and Regulatory Review, and 14192
(Unleashing Prosperity Through Deregulation)
Under E.O. 12866, the Office of Information and Regulatory Affairs
(OIRA) in the Office of Management and Budget (OMB) determines whether
a regulatory action is significant and, therefore, subject to the
requirements of the Executive Order and review by OMB. Regulatory
Planning and Review, 58 FR 51735 (Oct. 4, 1993). Section 3(f) of E.O.
12866 defines a ``significant regulatory action'' as an action that is
likely to result in a rule that may: (1) have an annual effect on the
economy of $100 million or more, or adversely affect in a material way
the economy, a sector of the economy, productivity, competition, jobs,
the environment, public health or safety, or State, local, or Tribal
governments or communities; (2) create a serious inconsistency or
otherwise interfere with an action taken or planned by another agency;
(3) materially alter the budgetary impact of entitlement, grants, user
fees, or loan programs or the rights and obligations of recipients
thereof; or (4) raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order. OIRA has reviewed this rule and designated it a
significant regulatory action under E.O. 12866.
E.O. 13563 directs agencies to, among other things, propose or
adopt a regulation only upon a reasoned determination that its benefits
justify its costs; the regulation is tailored to impose the least
burden on society, consistent with achieving the regulatory objectives;
and in choosing among alternative regulatory approaches, the agency has
selected those approaches that maximize net benefits. Improving
Regulation and Regulatory Review, 76 FR 3821, 3821 (Jan. 21, 2011),
E.O. 13563 recognizes that some costs and benefits are difficult to
quantify and provides that, where appropriate and permitted by law,
agencies may consider and discuss qualitative values that are difficult
or impossible to quantify, including equity, human dignity, fairness,
and distributive impacts. Id.
Executive Order 14192, titled ``Unleashing Prosperity Through
Deregulation,'' was issued on January 31, 2025. This rule, if finalized
as proposed, is expected to be an E.O. 14192 deregulatory action.
Outline of the Analysis
Section III.A.1 describes the need for the rule. Section III.A.2
describes the process used to estimate the cost savings of the rule and
the general inputs used, such as wages and number of affected entities.
Section III.A.3 explains how the provisions of the rule will result in
quantified costs and transfer payments and presents the calculations
the Department used to estimate them. Section III.A.4 describes the
quantified and unquantified transfer payments and benefits of the
rescissions contained within this proposed rule. Section III.A.5
summarizes the estimated first-year and 10-year total and annualized
costs and transfer payments of the rule.
Summary of the Analysis
The Department estimates that all the rescissions contained in this
proposed rule will result in a significant reduction in costs, or
otherwise create cost savings, as well as transfers of payments from
employees to employers. As shown in Exhibit 1, the proposed rule is
expected to have an annualized quantifiable net cost savings of $1.02
million and a total present value 10-year quantifiable net cost savings
of $10.18 million, each at a discount rate of 7 percent.\35\ The
proposed rule is estimated to result in annualized quantifiable
transfer payments from H-2A employees to H-2A employers of $12.66
million and present value 10-year transfer payments of $88.92 million
at a discount rate of 7 percent.\36\
---------------------------------------------------------------------------
\35\ The rule will have an annualized quantifiable cost of $1.28
million and a present value 10-year quantifiable cost of $12.77
million at a discount rate of 3 percent in 2022 dollars.
\36\ The rule will have annualized quantifiable transfer
payments from H-2A employees to H-2A employers of $12.48 million and
total 10-year transfer payments of $106.46 million at a discount
rate of 3 percent in 2022 dollars.
Exhibit 1--Estimated Monetized Net Cost Savings and Transfer Payments of
the Proposed Rule
[2022 $Millions]
------------------------------------------------------------------------
Net cost savings Transfer payments
------------------------------------------------------------------------
Undiscounted 10-Year Total.... $15.35 $123.42
10-Year Present Value with a 12.77 106.46
Discount Rate of 3%..........
10-Year Present Value with a 10.18 88.92
Discount Rate of 7%..........
10-Year Average............... 1.54 12.34
Annualized at a Discount Rate 1.28 12.48
of 3%........................
Annualized with at a Discount 1.02 12.66
Rate of 7%...................
------------------------------------------------------------------------
The total quantifiable cost of the rule is associated with rule
familiarization and the provisions requiring additional information
disclosure on the H-2A Applications. Transfer payments are the results
of the elimination of the immediate effective date for the updated
AEWRs, as described below. The Department also notes that there are
unquantifiable cost savings associated with the rescission of certain
provisions of the 2024 H-2A Final Rule. For example, there are
unquantifiable cost savings to employers that no longer need to spend
time inspecting whether each worker has chosen to use their seatbelt
prior to transporting workers and does not have to potentially assign a
supervisor to each vehicle to enforce seatbelt usage.
1. Need for Regulation
As previously discussed and in light of these district court
injunctions and the Administration's policy to significantly reduce the
private expenditures required to comply with Federal regulations to
secure America's economic prosperity and national security and the
highest possible quality of life for each citizen, the Department has
determined that the regulatory requirements and policies contained in
the 2024 H-2A Final Rule must be reconsidered and proposes revisions in
this NPRM. Specifically, the 2024 H-2A Final Rule adopted a number of
unnecessary, burdensome, and costly requirements on employers.
Specifically, these provisions include, but are not limited to,
substantial new requirements associated with the
[[Page 28934]]
material terms and conditions offered by employers to H-2A workers that
are not commonly provided to other U.S. workers, including progressive
discipline policies for cause-based employment terminations, anti-
retaliation measures for certain workers engaged in concerted
activities, and expanding the authority and scope for a State Workforce
Agency to discontinue employment services to an employer that
effectively debars an employer from accessing the H-2A program without
sufficient due process.
Further, the final rule imposed extensive data collection
requirements on employers related to their use of foreign labor
recruiters, including personal names and addresses abroad, and detailed
personal information associated with all owners of the employers,
operators the place(s) of employment, and supervisor(s) and manager(s)
of workers employed under the terms of the work contract, often with
limited or no practical utility to agency decision making. Thus, the
Department has determined that the proposals outlined below will return
the H-2A program's regulatory framework to a more reasonable balance
between the statute's competing goals of providing an adequate labor
supply and protecting the jobs of domestic agricultural workers.
2. Analysis Considerations
The Department estimated the cost savings and transfer payments of
this proposed rule relative to the existing baseline (i.e., the current
practices for complying, at a minimum, with the H-2A program as
currently codified at 20 CFR part 655, subpart B, and 29 CFR part 501).
In accordance with the regulatory analysis guidance articulated in
OMB's Circular A-4 \37\ and consistent with the Department's practices
in previous rulemakings, this regulatory analysis focuses on the likely
consequences of the proposed rule (i.e., costs, benefits, and transfer
payments that accrue to entities affected). The analysis covers 10
years (from 2025 through 2034) to ensure it captures measurable costs
and transfer payments that accrue over time. The Department expresses
all quantifiable impacts in 2022 dollars and uses discount rates of 3
and 7 percent, pursuant to Circular A-4 published on October 9, 2003.
---------------------------------------------------------------------------
\37\ OMB Circular No. A-4, Regulatory Analysis (2003).
---------------------------------------------------------------------------
Exhibit 2 presents the number of affected entities that are
expected to be impacted by this proposed rule.\38\ The average number
of affected entities is calculated using OFLC H-2A certification data
from FY 2016 through FY 2022. Exhibit 3 presents the number of workers
who are expected to be impacted by this proposed rule. The exhibit
contains the number of certified H-2A workers from FY 2012 through FY
2022.
---------------------------------------------------------------------------
\38\ OFLC, Performance Data, <a href="https://www.dol.gov/agencies/eta/foreign-labor/performance">https://www.dol.gov/agencies/eta/foreign-labor/performance</a> (last visited Feb. 8, 2024).
Exhibit 2--Number of Unique Employers by Year
------------------------------------------------------------------------
FY Number
------------------------------------------------------------------------
2016.................................................... 6,713
2017.................................................... 7,187
2018.................................................... 7,902
2019.................................................... 8,391
2020.................................................... 7,785
2021.................................................... 9,442
2022.................................................... 10,571
---------------
Average............................................. 8,284
------------------------------------------------------------------------
Exhibit 3--Historical H-2A Program Data
------------------------------------------------------------------------
Workers
FY certified
------------------------------------------------------------------------
2012.................................................... 85,248
2013.................................................... 98,814
2014.................................................... 116,689
2015.................................................... 139,725
2016.................................................... 165,741
2017.................................................... 199,924
2018.................................................... 242,853
2019.................................................... 258,446
2020.................................................... 275,430
2021.................................................... 317,619
2022.................................................... 371,619
------------------------------------------------------------------------
a. Growth Rate
The Department estimated growth rates for certified H-2A workers
based on program data presented in Exhibit 3 and estimated growth rates
for unique H-2A employers based on program data presented in Exhibit 2.
The compound annual growth rate (CAGR) for certified H-2A workers
using the program data in Exhibit 3 is calculated as 15.9 percent. This
growth rate, applied to the analysis timeframe of 2025 to 2034, would
result in more H-2A certified workers than projected employment of
workers in the relevant H-2A SOC codes by BLS.\39\ Therefore, to
estimate realistic growth rates for the analysis, the Department
applied the growth rate for unique employers, assuming the growth rate
for unique employers and workers should be similar. The Department used
FY 2016-2022 data on unique employers, where the use of FY 2016 as the
first year is due to data availability on calculated unique employers.
The Department calculated a CAGR based on FY 2016 unique employers
(6,713) and the FY 2022 unique employers (10,571). The result is an
estimate of 7.9 percent.\40\
---------------------------------------------------------------------------
\39\ Comparing BLS 2032 projections for combined agricultural
workers (SOC 45-2000) with a 14.8-percent growth rate of H-2A
workers yields estimated H-2A workers about 178 percent greater than
BLS 2032 projections. The projected workers for the agricultural
sector were obtained from BLS's Occupational Projections and Worker
Characteristics, <a href="https://www.bls.gov/emp/tables/occupational-projections-and-characteristics.htm">https://www.bls.gov/emp/tables/occupational-projections-and-characteristics.htm</a>.
\40\ Calculation: 7.9% = (10,571 / 6,713)(1. / 6.) - 1.
---------------------------------------------------------------------------
The estimated annual growth rates for unique employers (7.9
percent) and workers (7.9 percent) were applied to the estimated cost
savings and transfers of this proposed rule to forecast participation
in the H-2A program.\41\
---------------------------------------------------------------------------
\41\ Proposed forecasted estimates of H-2A employer
participation: 11,419 in 2023; 12,335 in 2024; 13,325 in 2025;
14,394 in 2026; 15,548 in 2027; 16,796 in 2028; 18,143 in 2029;
19,599 in 2030; 21,171 in 2031; and 22,869 in 2032.
---------------------------------------------------------------------------
b. Compensation Rates
In Section VIII.A.3, the Department presents the measurable cost
savings, including labor, associated with the implementation of the
provisions of the rule. Exhibit 4 presents the hourly compensation
rates for the occupational categories expected to experience a change
in the number of hours necessary to comply with all the rescissions
contained in this proposed rule. The Department used the mean hourly
wage rate for a private sector HR Specialist (SOC code 13-1701).\42\
Wage rates are adjusted to reflect total compensation, which includes
nonwage factors such as overhead and fringe benefits (e.g., health and
retirement benefits). We use an overhead rate of 17 percent \43\ and a
fringe benefits rate based on the ratio of average total compensation
to average wages and salaries in 2022.\44\ We then multiply the loaded
wage factor by the wage rate to calculate an hourly compensation rate.
The Department used the hourly compensation rates presented in Exhibit
[[Page 28935]]
4 throughout this analysis to estimate the labor costs for each
provision.
---------------------------------------------------------------------------
\42\ BLS, National Occupational Employment and Wage Estimates:
13-1701 (May 2021), <a href="https://www.bls.gov/oes/current/oes131701.htm">https://www.bls.gov/oes/current/oes131701.htm</a>
(last visited Feb. 8, 2024).
\43\ Cody Rice, U.S. Envtl. Prot. Agency, Wage Rates for
Economic Analyses of the Toxics Release Inventory Program 7 (June
10, 2002), <a href="https://www.regulations.gov/document?D=EPA-HQ-OPPT-2014-0650-0005">https://www.regulations.gov/document?D=EPA-HQ-OPPT-2014-0650-0005</a>.
\44\ BLS, News Release, Employer Costs for Employee
Compensation--December 2022 (Mar. 17, 2023), <a href="https://www.bls.gov/news.release/archives/ecec_03172023.pdf">https://www.bls.gov/news.release/archives/ecec_03172023.pdf</a>. Ratio of total compensation
to wages and salaries for all private industry workers: 40.23 /
28.37 = 1.418.
Exhibit 4--Compensation Rates
[2022 Dollars]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Hourly
Position Grade level Base hourly Loaded wage factor Overhead costs compensation
wage rate rate
(a)......................... (b) (c)..................... (d)..................... (d = a + b +
c)
--------------------------------------------------------------------------------------------------------------------------------------------------------
HR Specialist......................... N/A......................... $35.13 $14.75 ($35.13 x 0.42).. $5.97 ($35.13 x 0.17)... $55.79
--------------------------------------------------------------------------------------------------------------------------------------------------------
3. Analysis of Quantified Costs, Cost Savings, and Transfers
The Department's analysis below covers the estimated cost savings
and transfer payments associated with the baseline requirements (i.e.,
2024 H-2A Final Rule) compared to the rescissions under this proposed
rule. In accordance with Circular A-4, the Department considers
transfer payments as payments from one group to another that do not
affect total resources available to society. This final rule estimated
the cost of rule familiarization and application additions and transfer
payments associated with the elimination of the delayed effective date
for updated AEWRs.
a. Quantified Costs and Cost Savings
The following sections describe the quantified costs and cost
savings associated with employers having to read and understand this
proposed rulemaking, not having to read and understand the 2024 H-2A
Final Rule, and the rescission of the provisions requiring additional
information disclosure on the H-2A Application.
i. Rule Familiarization
Under this proposed rule, H-2A employers will incur costs to
familiarize themselves with the impact of the rescissions of
requirements contained in the 2024 H-2A Final Rule. New employers in
each subsequent year will now save time and costs trying to familiarize
themselves with current requirements relative to the requirements they
would have needed to familiarizing themselves with if the 2024 H-2A
Final Rule were still in effect.
To estimate the costs and cost savings, the Department applied the
growth rate of H-2A employers (7.9 percent) to the number of unique H-
2A employers (8,284) to determine the number of unique H-2A applicants
impacted in the first year. For subsequent years, the number of new
employers was estimated by multiplying the previous year's employer
count by the growth rate of H-2A employers (7.9 percent) and then
subtracting that value from the previous year's total employer count.
Exhibit 5 details the number of new employers for each year of the
analysis.
Exhibit 5--Number of New Employers by Year
------------------------------------------------------------------------
Total New
FY employers employers
------------------------------------------------------------------------
2025............................................ 8,938 N/A
2026............................................ 9,645 706
2027............................................ 10,406 762
2028............................................ 11,229 822
2029............................................ 12,116 887
2030............................................ 13,073 957
2031............................................ 14,106 1,033
2032............................................ 15,220 1,114
2033............................................ 16,422 1,202
2034............................................ 17,720 1,297
------------------------------------------------------------------------
For the initial costs, the number of unique H-2A employers in the
first year (8,938) was multiplied by the estimated amount of time
required to review this rule (1 hour). This number was then multiplied
by the total compensation rate of an HR specialist, as described above
in Exhibit 4 ($55.79 per hour). This calculation results in a total
undiscounted cost of $498,651 during the first year.
The Department estimated that the 2024 Final Rule would require H-
2A employers to incur four hours of rule familiarization costs.
Rescinding the 2024 Final Rule will remove those four hours of rule
famliarization costs. Accounting for the one hour of rule
familiarization associated with this rulemaking, the net effect is a
reduction of three hours of rule familiarization costs in FY 2026-2034.
Using the same total compensation rate of an HR specialist as above,
this produces an undiscounted cost savings of $1,469,509 during FY
2026-2034 and an undiscounted net cost savings of $970,858 over the 10
years after the rule takes effect. Combining the FY 2025 costs with the
FY 2026-2034 cost savings, the annualized net cost savings over the 10-
year period are $73,188 and $49,478479,217 at discount rates of 3 and 7
percent, respectively.
ii. Additional Information Disclosure on the H-2A Application
Under the 2024 H-2A Final Rule, H-2A employers are required to
submit additional information on the H-2A Application, which imposed a
yearly cost as the time associated with filling out this information is
required for every application for certification. The additional
information includes the names, addresses, business phone numbers, and
dates of birth for the owner(s) of each employer, each operator of the
place(s) of employment, and all managers and supervisors of workers
employed under the H-2A Application; DBA information; and information
about the identity and location of any foreign labor recruiter the
employer engaged, directly or indirectly, in international recruitment,
as well as all persons and entities hired by or working for the
recruiter or agent, and any of the agents or employees of those persons
and entities.
To estimate the annual cost savings associated with proposed
rescissions of the application additions contained in this rule, the
Department applied the growth rate of H-2A employers (7.9 percent) to
the current number of unique certified H-2A employers (8,938) to
determine the number of unique H-2A employers in the first year
(8,938). The number of unique certified H-2A employers in the first
year is then multiplied by the growth rate again to determine the
number of unique certified H-2A employers in the second year. This
process is repeated each year to determine the total number of unique
certified H-2A employers every year during the study period. Since it
is assumed that only a single HR specialist per employer will incur the
additional time investment, the estimated total yearly cost can be
calculated by multiplying the total number of unique certified H-2A
employers (8,938) by the HR specialist hourly wage rate ($35.13 per
hour), the loaded wage factor and
[[Page 28936]]
the overhead rate for the private sector (1.59), and the estimated
additional time taken to gather and enter the information on a yearly
basis (2 hours on average). Lastly, this value is multiplied by the
growth rate of unique employers (7.9 percent) to the nth power, with n
being equal to the period year. The result is $997,302 in cost savings
in the first year, an undiscounted average over a 10-year period of
$1,437,987 in cost savings, and discounted annualized savings of
$1,204,219, and $968,193 at rates of 3 and 7 percent, respectively.
b. Transfer Payments and Benefits
The following section describes the quantified and unquantified
transfer payments and benefits of the rescissions contained within this
proposed rule and describes the practical utility of the Department's
disclosure of unquantified transfer payments and qualitative benefits
associated with the 2024 Final Rule.
i. Quantified Transfer Payments
This section discusses the quantifiable transfer payments related
to the elimination of the immediate effective date for the AEWR
publication. The Department considers transfers as payments from one
group to another that do not affect total resources available to
society. The transfers measured in this analysis are wage transfers
from H-2A workers to U.S. employers. H-2A workers are migrant workers
who will spend some of their earnings on consumption goods in the U.S.
economy but likely send a large fraction of their earnings to their
home countries.\45\ Therefore, the Department considers the wage
transfers in the analysis as transfer payments within the global
economic system.
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\45\ Elimination of the immediate effective date for updated
AEWRs will also result in wage transfers from workers in
corresponding employment to U.S. employers, but the Department is
not able to quantify this transfer due to the lack of data for
workers in corresponding employment and their wages. In particular,
the Department does not collect or possess sufficient information
about the number of corresponding workers affected and their wage
payment structures to reasonably measure the transfers to
corresponding workers. Employers are not required to provide the
Department, on any application or report, the estimated or actual
total number of workers in corresponding employment. Although each
employer, as a condition of being granted a temporary agricultural
labor certification, must provide the Department with a report of
its initial recruitment efforts for U.S. workers, including the name
and contact information of each U.S. worker who applied or was
referred to the job, such information typically reflects only a very
small portion of the total recruitment period, which runs through 50
percent of the certified work contract period, and does not account
for any other workers who may be considered in corresponding
employment and already working for the employer. Because the report
of initial recruitment efforts for U.S. workers only captures
information from a limited portion of the recruitment period and
does not account for workers already employed by the employer who
may be in corresponding employment, the Department is not able to
draw on this information to meaningfully assess the total number of
corresponding workers affected or their wage payment structures,
without which the Department is unable to reasonably measure the
transfers from corresponding workers. The Department has
consistently sought public comment on how these wage transfer
impacts can be calculated but consistently receives no comments.
---------------------------------------------------------------------------
A. Elimination of the Immediate Effective Date for Updated AEWRs
Under the 2024 H-2A Final Rule, the Department publishes the AEWR
as soon as data are available, typically in the middle of December for
AEWRs based on FLS data and which has an immediate effective date.\46\
Under this proposed rule, the Department intends to return to its
practice of providing a 2-week delay until the AEWR is effective,
typically January 1st of the following year. As noted previously, this
brief period provides time for employers to adjust their payroll
systems and to make business decisions related to these changed costs
in labor, which are particularly significant for employers planting,
cultivating, and harvesting specialty crops where labor costs are often
30 to 40 percent of total operating cost. Reinstating the 2-week delay
until the AEWR is effective means, employers that employ workers during
the 2-week period from mid-December to early January will no longer
experience a wage transfer to employees due to the elimination of the
immediate effective date of the updated AEWRs.
---------------------------------------------------------------------------
\46\ New AEWRs based on OEWS data currently become effective on
or around July 1st for the small percentage of job opportunities
that cannot be encompassed within the SOC codes for AEWRs that are
based on the FLS field and livestock workers (combined) data. The
use of OEWS data to calculate AEWRs in limited circumstances was the
result of a change made under the Department's 2023 AEWR Final Rule.
See 88 FR 12760, 12764-65 (Feb. 28, 2023). The analysis here is
limited to FY 2020 and FY 2021 H-2A certification data, during which
period the AEWR was calculated based only on FLS data, and thus, the
analysis focuses on the 2-week period from mid-December to early
January that is associated with the publication and effective dates
of FLS-based AEWRs under current practice.
---------------------------------------------------------------------------
To estimate the transfer associated with wages from employees to H-
2A employers, the Department first uses FY 2020 and FY 2021 H-2A
certification data to calculate the weighted average increase in AEWR
from one year to the next.\47\ The Department weights the average by
the number of workers in each State with employment between December
14th and the end of the year to account for regional differences in
employment during December. The result is an average increase in the
AEWR by $1.09.\48\ The Department then calculates the average number of
days worked between December 14th and the end of the year (11.87) using
the FY 2020 and FY 2021 H-2A certification data. The Department
estimates the average annual number of workers with work during this
period using the H-2A certification data (89,208).\49\
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\47\ OFLC, Performance Data, <a href="https://www.dol.gov/agencies/eta/foreign-labor/performance">https://www.dol.gov/agencies/eta/foreign-labor/performance</a> (last visited June 18, 2025).
\48\ Because FY 2020 and FY 2021 H-2A certification data do not
reflect the wage increases due to the 2023 AEWR Final Rule, as
explained in a previous footnote, the transfer payments estimated in
the analysis are likely understated in that they may not account for
the main change under that rule, namely the limited job
opportunities that would be subject to updated AEWRs based on the
OEWS data. See 88 FR at 12764-65. The 2023 AEWR Final Rule became
effective on March 30, 2023, and, therefore, the Department does not
have any readily available FY H-2A certification data to estimate
wage transfer payments after the publication of the 2023 AEWR Final
Rule. The Department, moreover, sought public comment on how these
wage transfer impacts can be calculated but received no comments.
However, the 2023 AEWR Final Rule explained that the Department
anticipates a very limited number of H-2A job opportunities would be
subject to the OEWS-based AEWR, as the majority of H-2A job
opportunities are and will continue to remain subject to FLS-based
AEWRs. See 88 FR at 12766, 12799. As such, the Department considers
the impacts of the potential underestimation here to be de minimis
because of the low incidence of job opportunities assigned the OEWS
AEWR pursuant to the 2023 AEWR Final Rule.
\49\ The Department uses the growth rate of H-2A workers (7.9
percent) to produce proposed forecasted estimates of H-2A workers:
96,247 in 2023; 103,840 in 2024; 112,033 in 2025; 120,873 in 2026;
130,410 in 2027; 140,699 in 2028; 151,800 in 2029; 163,777 in 2030;
176,699 in 2031; and 190,641 in 2032.
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The Department determines the total amount of the transfers by
multiplying the 2-year weighted AEWR difference for end-of-year
employment (1.09), the 2-year average number of days worked between
December 14th and the end of year (11.87), the average number of work
hours in a day (7.4),\50\ and the number of H-2A workers during this
period (89,208). To determine the transfers for every year in the 10-
year period, the total number of H-2A workers during the period is
multiplied by the growth rate of H-2A workers (7.9 percent). The same
process is repeated each year in the period. The total undiscounted
average annual transfers associated with this provision is $12,342,109
and the discounted annualized transfers are $12,480,377 and $12,660,319
at discount rates of 3 and 7 percent, respectively. The Department also
conducted a sensitivity
[[Page 28937]]
analysis using the CAGR of 15.9 percent for H-2A workers. The resulting
total undiscounted average annual transfers is $18,135,595, and the
discounted annualized transfers are $18,037,709 and $17,901,328 at
discount rates of 3 and 7 percent, respectively.
---------------------------------------------------------------------------
\50\ The Department analyzed FY 2020 and FY 2021 certification
data for end-of-year employers that reported anticipated hours per
day, resulting in an average of 7.4 hours per day.
---------------------------------------------------------------------------
ii. Unquantified Transfer Payments and Benefits
In the 2024 H-2A Final Rule, the Department did not provide any
measurable estimates of benefits associated with the major regulatory
requirements impacting employers who seek to employ H-2A workers. The
Department consistently noted that it lacked any data regarding the
prevalence of certain conditions (e.g., number of workers impacted by
work start date delays, frequency of employers paying higher piece
rates, transportation related accidents) to make measurable
determinations regarding the benefits of certain provisions of the 2024
H-2A Final Rule. In fact, no measurable wage transfers were estimated
for employers who would otherwise have to compensate workers based on
untimely notifications of a change in the work start date or even
payments of piece rate wages, because no evidence was presented that
such requirements were necessary due to any prevalence of employer non-
compliance with the regulatory requirements in effect before the 2024
Final Rule was promulgated.
Rather, the Department made general and unsubstantiated qualitative
statements noting that certain provisions ensure workers are not
``deprived of their rights using inconsistent or unfair practices''
(i.e., due to unjustified terminations for cause) or ``should increase
workers' dignity and safety'' or ``should help ensure that workers
under the H-2A program can assert their rights without the unique risks
associated with retaliation'' (e.g., protection for worker advocacy and
self-organization) or ``safeguards the health, safety, and dignity of
those workers and also prevents the depression of working conditions
for the local agricultural workforce.'' Thus, in the absence of
benefits that can offer some degree of measurable balance to the
quantified costs, the Department initially concludes that the expected
unrecoverable compliance and transfer costs associated with the 2024 H-
2A Final Rule far outweigh its expected unquantifiable transfers and
benefits, which this proposed rule seeks to better balance based on the
clear statutory mandates enacted by Congress for the Secretary of
Labor.
5. Summary of the Analysis Concerning Costs, Cost Savings, and
Transfers
Exhibit 6 summarizes the estimated total quantifiable cost savings
and transfer payments of this final rule over the 10-year analysis
period. The Department estimates the annualized net cost savings from
the rescissions in this proposed rule $1.02 million and the annualized
transfer payments (from employees to H-2A employers) at $12.66 million,
each at a discount rate of 7 percent.
Exhibit 6--Estimated Monetized Cost Savings and Transfer Payments of
This Proposed Rule
[2022 $Millions]
------------------------------------------------------------------------
Net cost savings Transfer payments
------------------------------------------------------------------------
2024.......................... $0.50 $8.56
2025.......................... 1.19 9.24
2026.......................... 1.29 9.97
2027.......................... 1.39 10.76
2028.......................... 1.50 11.60
2029.......................... 1.62 12.52
2030.......................... 1.75 13.51
2031.......................... 1.88 14.57
2032.......................... 2.03 15.72
2033.......................... 2.19 16.96
-----------------------------------------
Undiscounted 10-Year Total 15.35 123.42
10-Year Total with a 12.77 106.46
Discount Rate of 3%......
10-Year Total with a 10.18 88.92
Discount Rate of 7%......
10-Year Average........... 1.54 12.34
Annualized with a Discount 1.28 12.48
Rate of 3%...............
Annualized with a Discount 1.02 12.66
Rate of 7%...............
------------------------------------------------------------------------
Alternatives Considered
The Department considered two alternatives to this proposal. First,
the Department considered the alternative of preserving the current
regulations at 20 CFR parts 651, 653, 655, and 658, and 29 CFR part
501, as modified by the 2024 H-2A Final Rule, until litigation is
resolved. This alternative was rejected because of the multiple court
decisions preventing the Department from enforcing parts of the
regulations as currently codified. The different court orders place
different limitations on the Department's enforcement scheme (e.g.,
some provisions are enjoined in some localities but not in others),
which results in a confusing patchwork of regulatory requirements
throughout the country. Retaining current 20 CFR parts 651, 653, 655,
and 658, and 29 CFR part 501, as modified by the 2024 H-2A Final Rule,
would be confusing and cumbersome for employers using the H-2A program
to understand which provisions apply to them. Second, the Department
considered reverting back to the regulations in 20 CFR parts 651, 653,
655, and 658, and 29 CFR part 501, as of June 27, 2024. This option
would remove all changes effectuated by the 2024 H-2A Final Rule,
regardless of their utility. The Department rejected this option
because it believes that some of the provisions adopted in the 2024 H-
2A Final Rule that merely codified existing practice, streamlined
procedures and imposed no additional burdens on stakeholders may be
worth retaining. The Department invites comments on these two
regulatory alternatives, as well as other regulatory alternatives that
commenters may propose.
[[Page 28938]]
B. Regulatory Flexibility Act and Small Business Regulatory Enforcement
Fairness Act and Executive Order 13272: Proper Consideration of Small
Entities in Agency Rulemaking
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601 et seq.,
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996, Public Law 104-121, requires agencies to determine whether
regulations will have a significant economic impact on a substantial
number of small entities. The Department certifies that the recission
proposed in this rulemaking does not have a significant economic impact
on a substantial number of small entities. The Department presents the
basis for this certification in the analysis below.
1. Description of the Number of Small Entities to Which This Proposed
Rule Will Apply
a. Definition of Small Entity
The RFA defines a ``small entity'' as a (1) small not-for-profit
organization, (2) small governmental jurisdiction, or (3) small
business. The Department used the entity size standards defined by the
Small Business Administration (SBA), in effect as of December 19, 2022,
to classify entities as small.\51\ SBA establishes separate standards
for individual 6-digit North American Industry Classification System
(NAICS) industry codes, and standard cutoffs are typically based on
either the average number of employees, or the average annual receipts.
Small governmental jurisdictions are another noteworthy exception. They
are defined as the governments of cities, counties, towns, townships,
villages, school districts, or special districts with populations of
less than 50,000 people.\52\
---------------------------------------------------------------------------
\51\ SBA Table of Small Business Size Standards Matched to North
American Industry Classification System Codes (December 19, 2022),
<a href="https://www.sba.gov/document/support--table-size-standards">https://www.sba.gov/document/support--table-size-standards</a>.
\52\ See <a href="https://advocacy.sba.gov/resources/the-regulatory-flexibility-act">https://advocacy.sba.gov/resources/the-regulatory-flexibility-act</a> for details.
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b. Number of Small Entities
Given that the 2024 H-2A Final Rule was promulgated and became
effective on June 28, 2024, only one year ago, the Department initially
concludes that the employment and annual revenue data from the business
information provider Data Axle,\53\ which was merged with the H-2A
labor certification records maintained by OFLC for FY 2020 and FY 2021,
remains valid for analytical use in this proposed rulemaking. This
process allows the Department to identify the number and type of small
entities in the H-2A certification data as well as provide reasonable
estimates of their annual revenues. Based on these data sources, the
Department determined the number of unique employers in the FY 2020 and
FY 2021 certification data based on the employer name and city. The
Department identified 9,927 unique employers (excluding labor
contractors). Of those 9,927 employers, the Department was able to
obtain data matches of revenue and employees for 2,615 H-2A employers
in the FY2020 and FY2021 labor certification data.
---------------------------------------------------------------------------
\53\ Data Axle (Aug. 2023), <a href="https://www.data-axle.com">https://www.data-axle.com</a>.
---------------------------------------------------------------------------
Of those 2,615 employers, the Department determined that 2,159 were
small (82.5 percent). These unique small entities had an average of 11
employees and average annual revenue of approximately $3.6 million. Of
these small unique entities, 2,139 of them had revenue data available
from Data Axle. The Department's analysis of the impact of this
proposed rule on small entities is based on the number of small unique
entities (2,139 with revenue data).
To provide clarity on the agricultural industries impacted by this
proposed rule, Exhibit 7 shows the number of unique H-2A small entities
employers with certifications in the FY 2020 and FY 2021 labor
certification data within each NAICS code at the 6-digit level.
Exhibit 7--Number of H-2A Small Employers by NAICS Code
----------------------------------------------------------------------------------------------------------------
Number of
6-Digit NAICS Description employers Percent Size standard
----------------------------------------------------------------------------------------------------------------
111998...................... All Other Miscellaneous 611 29 $2.5 million.
Crop Farming.
444240...................... Nursery, Garden Center, 162 8 $21.5 million.
and Farm Supply Stores.
561730...................... Landscaping Services... 135 6 $9.5 million.
445230...................... Fruit and Vegetable 127 6 $9.0 million.
Markets.
424480...................... Fresh Fruit and 78 4 100 employees.
Vegetable Merchant
Wholesalers.
111339...................... Other Noncitrus Fruit 78 4 $3.5 million.
Farming.
112990...................... All Other Animal 57 3 $2.75 million.
Production.
424930...................... Flower, Nursery Stock, 47 2 100 employees.
and Florists' Supplies
Merchant Wholesalers.
424910...................... Farm Supplies Merchant 39 2 200 employees.
Wholesalers.
484230...................... Specialized Freight 37 2 $34.0 million.
(except Used Goods)
Trucking, Long-
Distance.
All Other.............. 768 36
--------------------------
Total............... 2,139 100
----------------------------------------------------------------------------------------------------------------
The Department also collected employment and annual revenue data
for the NAICS Agricultural major industry \54\ from SUSB \55\ and
merged those data into the estimated costs for small businesses from
the H-2A certification data for FY 2020 and FY 2021. The Department
assumes that NAICS sectors related to H-2A employment (1112, 1113,
1114, 1121, 1122, 1123, 1124, 1125, and 1129) have similar
representation in size distribution as the broader 2-digit industry.
The Department believes it is a reasonable assumption for the analysis
because the broader 2-digit industry completely covers the 4-digit
NAICS industries (1112, 1113, 1114, 1121, 1122, 1123, and 1129). The
size distribution in the broader 2-digit industry mirrors the average
size distribution in the 4-digit NAICS industries (1112, 1113, 1114,
1121, 1122, 1123 and 1129). No small businesses are left out for
estimating impact on small entities in the affected NAICS industries.
This assumption allows the Department to conduct a robust analysis of
the most inclusive set of small businesses, which includes the
[[Page 28939]]
number of firms, number of employees, and annual revenue by firm size.
Using this data allows the Department to estimate the per-provision
cost of this final rule as a percent of revenue by firm size.
---------------------------------------------------------------------------
\54\ Due to omissions in collected data, 6-digit and 4-digit
NAICS code data were not available. See U.S. Census Bureau, Economic
Census: NAICS Codes Understanding Industry Classification Systems
(Sept. 28, 2023). <a href="https://www.census.gov/programs-surveys/economic-census/year/2022/guidance/understanding-naics.html">https://www.census.gov/programs-surveys/economic-census/year/2022/guidance/understanding-naics.html</a>.
\55\ See U.S. Census Bureau, Statistics of U.S. Businesses
(Sept. 19, 2023). <a href="https://www.census.gov/programs-surveys/susb/data.html">https://www.census.gov/programs-surveys/susb/data.html</a>.
---------------------------------------------------------------------------
2. Projected Impacts to Affected Small Entities
The Department estimated the incremental impacts on small entities
from the baseline (i.e., the current practices for complying, at a
minimum, with the H-2A program as currently codified at 20 CFR part
655, subpart B) to this proposed rule. As discussed in previous
sections, the Department estimates impacts using historical
certification data and therefore simulates the impacts of the proposed
rule to each actual employer in the H-2A program rather than using
representative data for employers within a given sector. The Department
estimated the costs of (a) time to read and review this proposed rule,
(b) time and cost savings associated with rescinding requirements for
employers to collect and maintain additional information for the
application additions provision and add that information to H-2A
applications, and (c) wage transfers associated with rescinding the
immediate effective date from the AEWR publications and reinstituting
the agency's practice of permitting a 2-week delay in the effective
date. The estimates included in this analysis are consistent with those
presented in the E.O. 12866 section.
The Department estimates that 2,139 unique small entities will
incur a one-time cost of $55.79 to familiarize themselves with this
proposed rule, based on one hour of an HR Specialist's time, as
described above in Exhibit 4. This is an estimated one-time net savings
of $167.37, compared to reading and understanding the 2024 H-2A Final
Rule if it once again became effective, which would have required four
hours of an HR Specialist's time. Small entities will experience
another estimated annual savings of $111.58 due to the recission of
unnecessary and burdensome requirements to collect and maintain
information due to the additional disclosure requirements associated
with the 2024 final rule, which had required two hours of an HR
Specialist's time.
In addition to the cost of rule familiarization and the cost of
information and record keeping due to application additions, each small
entity may have savings in wage costs due to the rescission of the
immediate effective date requirement of the AEWR. To estimate the
savings associated with this rescission for each small entity, we
followed the methodology presented in the E.O. 12866 section. For each
certification of a small entity, the Department calculated total wage
impacts of this final rule in calendar year (CY) 2020 and CY 2021 based
on each certification for employment between December 14th and the end
of the year and the annual increase in the AEWR. The Department
estimates the wage savings to all small entities at $826, on average,
in the first year.\56\ The Department initially concludes that many
small entities will not experience an impact related to this rescission
from this final rule because they do not have workers employed at the
end of December.
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\56\ In CY 2020 the average wage impact to all small entities is
$620 in savings, and in CY 2021 it is $1,032 in savings. Because CY
2020 and CY 2021 H-2A certification data do not reflect the wage
increases due to the 2023 AEWR Final Rule, the transfer payments
estimated in the analysis are likely understated. As explained in a
previous footnote, the transfer payments are likely understated in
that they may not account for the main change under the 2023 AEWR
Final Rule, namely the limited job opportunities that would be
subject to updated AEWRs based on OEWS data. See 88 FR at 12764-
12765. The 2023 AEWR Final Rule explained that the Department
anticipates a very limited number of H-2A job opportunities would be
subject to the OEWS-based AEWR, as the majority of H-2A job
opportunities are and are estimated to continue to remain subject to
FLS-based AEWRs. See 88 FR at 12766, 12799. The Department therefore
considers the impacts of the potential underestimation to be de
minimis because of the low incidence of job opportunities assigned
the OEWS AEWR under the 2023 AEWR Final Rule.
---------------------------------------------------------------------------
Exhibit 8 shows the estimated cost savings per small entity for
each year of the analysis due to this proposed rule. The first-year
cost savings per small entity is estimated at $1,087 at a discount rate
of 7 percent. The annualized cost savings per small entity is estimated
at $979 at a discount rate of 7 percent. These estimates are average
costs, meaning that some small entities will have higher cost savings
while other small entities will have lower cost savings, regardless of
firm size.
Exhibit 8--Estimated Cost Savings to Small Entities Due to Rescissions
----------------------------------------------------------------------------------------------------------------
Recission of rule Rescission of Recission of AEWR Average total cost
Year familiarization application immediate savings per
costs additions effective date employer
----------------------------------------------------------------------------------------------------------------
1............................... $167.37 $111.71 $808 $1,087
2............................... 167.37 111.71 872 1,151
3............................... 167.37 111.71 941 1,220
4............................... 167.37 111.71 1,015 1,294
5............................... 167.37 111.71 1,095 1,374
6............................... 167.37 111.71 1,181 1,460
7............................... 167.37 111.71 1,264 1,543
8............................... 167.37 111.71 1,375 1,654
9............................... 167.37 111.71 1,483 1,762
10.............................. 167.37 111.71 1,600 1,879
----------------------------------------------------------------------------------------------------------------
First-year cost savings ($), 7% discount rate........................................... 1,087
Annualized cost savings ($), 7% discount rate........................................... 979
----------------------------------------------------------------------------------------------------------------
The Department used the cost per employer analysis in the 2024 H-2A
Final Rule as the basis for estimating the cost savings of the
rescissions (i.e., or cost avoidances) in this proposed rule per small
entity as a percentage of annual receipts. First, the Department used
SBA's Table of Small Business Size Standards to determine the size
thresholds for small entities within the agricultural industry.\57\
Next the Department obtained data on the
[[Page 28940]]
number of firms, number of employees, and annual revenue by industry
and firm size category from SUSB.\58\ The Department used the Gross
Domestic Product deflator to convert revenue data from 2017 dollars to
2022 dollars.\59\ Then, the Department divided the estimated first-year
cost and the annualized cost per small business (discounted at a 7-
percent rate) by the average annual receipts per firm to determine
whether this final rule will have a significant or substantial economic
impact on small businesses in each size category. The Department used a
total cost estimate of 3 percent of revenue as the threshold for a
significant individual impact and set a total of 20 percent of small
entities incurring a significant impact as the threshold for a
substantial impact on small entities. A threshold of 3 percent of
revenues has been used in prior rulemakings for the definition of
significant economic impact.\60\ This threshold is also consistent with
that sometimes used by other agencies.\61\
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\57\ SBA, Table of Small Business Size Standards Matched to
North American Industry Classification System Codes, (Mar. 17,
2023), <a href="https://www.sba.gov/document/support-table-size-standards">https://www.sba.gov/document/support-table-size-standards</a>.
The size standards, which are expressed in either average annual
receipts or number of employees, indicate the maximum allowed for a
business in each subsector to be considered small.
\58\ U.S. Census Bureau, Statistics of U.S. Businesses (May 10,
2022), <a href="https://www.census.gov/programs-surveys/susb/data.html">https://www.census.gov/programs-surveys/susb/data.html</a>.
\59\ U.S. Bureau of Economic Analysis, Table 1.1.9. Implicit
Price Deflators for Gross Domestic Product, <a href="https://apps.bea.gov/iTable/?reqid=19step=2isuri=1categories=survey">https://apps.bea.gov/iTable/?reqid=19step=2isuri=1categories=survey</a> (last visited May 30,
2023).
\60\ See, e.g., Final Rule, Increasing the Minimum Wage for
Federal Contractors,79 FR 60634, 60706 (Oct. 7, 2014); Final Rule,
Discrimination on the Basis of Sex, 81 FR 39108, 39151 (June 15,
2016); NPRM, National Apprenticeship System Enhancements, 89 FR
3118, 3252 (Jan. 17, 2024).
\61\ See, e.g., Final Rule, Medicare and Medicaid Programs;
Regulatory Provisions to Promote Program Efficiency, Transparency,
and Burden Reduction; Part II, 79 FR 27106, 27151 (May 12, 2014)
(Department of Health and Human Services rule stating that under its
agency guidelines for conducting regulatory flexibility analyses,
actions that do not negatively affect costs or revenues by more than
3 percent annually are not economically significant).
---------------------------------------------------------------------------
Finally, when examining the impact of the rescissions contained in
this proposed rule on small entities by the proportion of revenue, of
the 2,139 unique small entities with revenue data in the FY 2020 and FY
2021 certification data, only 0.7 percent of employers are estimated to
have more than 3 percent of their total revenue saved in the first year
based on 2020 data and another 2.0 percent of employers are estimated
to have more than 3 percent of their total revenue saved in the first
year based on 2021 data due to the rescission of these unnecessary
regulatory requirements. In addition, no individual NAICS code sector
has 20 percent or more of small entities with an impact greater than 3
percent of revenue. Thus, based on this initial analysis, the
Department certifies that this final rule will not impose a significant
economic impact on a substantial number of small entities. Rather, the
rescissions contained in this proposed rule will provide some cost
``relief'' to small entities who otherwise would have to absorb
additional and unrecoverable compliance costs associated with the
requirements, data collection, and record retention mandates imposed by
the 2024 H-2A Final Rule.
C. Review Under the Paperwork Reduction Act
The purpose of the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C.
3501 et seq., includes minimizing the paperwork burden on affected
entities. The PRA requires certain actions before an agency can adopt
or revise a collection of information, including publishing for public
comment a summary of the collection of information and a brief
description of the need for and proposed use of the information.
As part of its continuing effort to reduce paperwork and respondent
burden, the Department conducts a preclearance consultation program to
provide the public and Federal agencies with an opportunity to comment
on proposed and continuing collections of information in accordance
with the PRA. See 44 U.S.C. 3506(c)(2)(A). This activity helps to
ensure that the public understands the Department's collection
instructions, respondents can provide the requested data in the desired
format, reporting burden (time and financial resources) is minimized,
collection instruments are clearly understood, and the Department can
properly assess the impact of collection requirements on respondents.
A Federal agency may not conduct or sponsor a collection of
information unless it is approved by the Office of Management and
Budget (OMB) under the PRA and it displays a currently valid OMB
control number. The public is also not required to respond to a
collection of information unless it displays a currently valid OMB
control number. In addition, notwithstanding any other provisions of
law, no person will be subject to penalty for failing to comply with a
collection of information if the collection of information does not
display a currently valid OMB control number (44 U.S.C. 3512).
This rulemaking potentially affects specific information
collections Criteria and Non-Criteria Agricultural Clearance Order
Forms and H-2A Application for Temporary Employment Certification in
States and by Employers Covered by Injunction of the Farmworker
Protection (OMB 1205-0562), H-2A Temporary Agricultural Labor
Certification Program (OMB 1205-0466), and Agricultural Recruitment
System Forms Affecting Migratory Farm Workers (OMB 1205-0134)). Any
changes the Department might contemplate making to these collections
will be communicated through an upcoming 60-day Federal Register
Notices. Through these notices, the Department will request public
comments that will be later addressed by publishing 30-day Federal
Register Notices and submitting information collection requests to OMB.
D. Review Under Executive Order 13132
E.O. 13132, Federalism, 64 FR 43255 (Aug. 10, 1999), imposes
certain requirements on Federal agencies formulating and implementing
policies or regulations that preempt State law or that have federalism
implications. The E.O. requires agencies to examine the constitutional
and statutory authority supporting any action that would limit the
policymaking discretion of the States and to carefully assess the
necessity for such actions. The E.O. also requires agencies to have an
accountable process to ensure meaningful and timely input by State and
local officials in the development of regulatory policies that have
federalism implications.
The Department has examined this proposed rescission and has
determined that it would not have a substantial direct effect on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government.
E. Executive Order 13175 (Consultation and Coordination With Indian
Tribal Governments)
The Department has reviewed this proposed rule in accordance with
E.O. 13175 and has determined that it does not have tribal
implications. This proposed rule does not have substantial direct
effects on one or more Indian tribes, on the relationship between the
Federal Government and Indian tribes, or on the distribution of power
and responsibilities between the Federal Government and tribal
governments.
F. Review Under Executive Order 12988
With respect to the review of existing regulations and the
promulgation of new regulations, section 3(a) of E.O. 12988, ``Civil
Justice Reform,'' imposes on Federal agencies the general duty to
adhere to the following requirements: (1) eliminate drafting errors and
ambiguity, (2) write regulations to minimize litigation, (3) provide a
clear
[[Page 28941]]
legal standard for affected conduct rather than a general standard, and
(4) promote simplification and burden reduction. 61 FR 4729 (Feb. 7,
1996). Regarding the review required by section 3(a), section 3(b) of
E.O. 12988 specifically requires that Executive agencies make every
reasonable effort to ensure that the regulation: (1) clearly specifies
the preemptive effect, if any, (2) clearly specifies any effect on
existing Federal law or regulation, (3) provides a clear legal standard
for affected conduct while promoting simplification and burden
reduction, (4) specifies the retroactive effect, if any, (5) adequately
defines key terms, and (6) addresses other important issues affecting
clarity and general draftsmanship under any guidelines issued by the
Attorney General.
Section 3(c) of E.O. 12988 requires Executive agencies to review
regulations in light of applicable standards in section 3(a) and
section 3(b) to determine whether they are met or it is unreasonable to
meet one or more of them. DOL has completed the required review and
determined that, to the extent permitted by law, this proposed
rescission meets the relevant standards of E.O. 12988.
G. Review Under the Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4,
codified at 2 U.S.C. 1501 et seq.) is intended, among other things, to
curb the practice of imposing unfunded Federal mandates on State,
local, and tribal governments. UMRA requires Federal agencies to assess
a regulation's effects on State, local, and tribal governments, as well
as on the private sector, except to the extent the regulation
incorporates requirements specifically set forth in law. Title II of
the UMRA requires each Federal agency to prepare a written statement
assessing the effects of any regulation that includes any Federal
mandate in a proposed or final agency rule that may result in $100
million or more expenditure (adjusted annually for inflation) in any
one year by State, local, and Tribal governments, in the aggregate, or
by the private sector. A Federal mandate is any provision in a
regulation that imposes an enforceable duty upon State, local, or
tribal governments, or upon the private sector, except as a condition
of Federal assistance or a duty arising from participation in a
voluntary Federal program.
The Department examined this proposed rescission according to UMRA
and its statement of policy and determined that the rescission does not
contain a Federal intergovernmental mandate, nor is it expected to
require expenditures of $100 million or more in any one year by State,
local, and Tribal governments, in the aggregate, or by the private
sector. As a result, the analytical requirements of UMRA do not apply.
H. Review Under Executive Order 12630
Pursuant to E.O. 12630, Governmental Actions and Interference with
Constitutionally Protected Property Rights, 53 FR 8859 (Mar. 18, 1988),
the Department has determined that this proposed rescission would not
result in any takings that might require compensation under the Fifth
Amendment to the U.S. Constitution.
I. Review Under the Treasury and General Government Appropriations Act,
1999
Section 654 of the Treasury and General Government Appropriations
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family
Policymaking Assessment for any rule that may affect family well-being.
This proposed rescission would not have any impact on the autonomy or
integrity of the family as an institution. Accordingly, the Department
has concluded that it is not necessary to prepare a Family Policymaking
Assessment.
J. Review Under the Treasury and General Government Appropriations Act,
2001
Section 515 of the Treasury and General Government Appropriations
Act, 2001 (44 U.S.C. 3516, note) provides for Federal agencies to
review most disseminations of information to the public under
information quality guidelines established by each agency pursuant to
general guidelines issued by OMB. OMB's guidelines were published at 67
FR 8452 (Feb. 22, 2002). The Department has reviewed this proposed
rescission under the OMB and has concluded that it is consistent with
applicable policies in those guidelines.
List of Subjects
20 CFR Part 651
Employment, Grant programs--labor.
20 CFR Part 653
Agriculture, Employment, Equal employment opportunity, Grant
programs--labor, Migrant labor, Reporting and recordkeeping
requirements.
20 CFR Part 655
Administrative practice and procedure, Foreign workers, Employment,
Employment and training, Enforcement, Forest and forest products,
Fraud, Health professions, Immigration, Labor, Passports and visas,
Penalties, Reporting and recordkeeping requirements, Unemployment,
Wages, Working conditions.
20 CFR Part 658
Administrative practice and procedure, Employment, Grant programs--
labor, Reporting and recordkeeping requirements.
29 CFR Part 501
Administrative practice and procedure, Agricultural, Aliens,
Employment, Housing, Housing standards, Immigration, Labor, Migrant
labor, Penalties, Transportation, Wages.
For the reasons stated in the preamble, the Department of Labor
proposes to amend 20 CFR parts 651, 653, 655, and 658 and 29 CFR part
501 to read as follows:
Title 20: Employees' Benefits
Employment and Training Administration
PART 653--SERVICES OF THE WAGNER-PEYSER ACT EMPLOYMENT SERVICE
SYSTEM
0
3. The authority citation for part 653 continues to read as follows:
Authority: Secs. 167, 189, 503, Public Law 113-128, 128 Stat.
1425 (Jul. 22, 2014); 29 U.S.C. chapter 4B; 38 U.S.C. part III,
chapters 41 and 42.
0
4. Amend Sec. 653.501 by:
0
a. Revising paragraph (b)(4);
0
b. Revising paragraph (c)(1)(iv)(E);
0
c. Revising paragraphs (c)(3) introductory text, (c)(3)(i) and (iv),
and (c)(5); and
0
d. Adding paragraphs (d)(4), (7), and (8).
The additions and revisions read as follows:
Sec. 653.501 Requirements for processing clearance orders.
* * * * *
(b) * * *
(4) Prior to placing a job order into intrastate or interstate
clearance, ES staff must consult the Department's Office of Foreign
Labor Certification and Wage and Hour Division debarment lists.
(i) If the employer requesting access to the clearance system is
currently debarred from participating in the H-2A or H-2B foreign labor
certification programs, the SWA must initiate discontinuation of
services pursuant to part 658, subpart F, of this chapter.
(ii) If the employer requesting access to the clearance system is
currently
[[Page 28942]]
discontinued from receiving ES services under Sec. 658.503 of this
chapter by the order-holding SWA, the SWA must not approve the
clearance order for placement into intrastate or interstate clearance.
(iii) * * *
(c) * * *
(1) * * *
(iv) * * *
(E) The hourly wage rate or the piece rate estimated in hourly wage
rate equivalents for each activity and unit size;
* * * * *
(3) * * *
(i) The employer will provide to workers referred through the
clearance system the number of hours of work cited in paragraph
(c)(1)(iv)(D) of this section for the week beginning with the
anticipated date of need, unless the employer has amended the date of
need at least 10 business days prior to the original date of need
(pursuant to paragraph (c)(3)(iv) of this section) by so notifying the
order-holding office in writing (email notification may be acceptable).
The SWA must make a record of this notification and must attempt to
inform referred workers of the change expeditiously.
* * * * *
(iv) The employer will expeditiously notify the order-holding
office or SWA by emailing and telephoning immediately upon learning
that a crop is maturing earlier or later, or that weather conditions,
over-recruitment or other factors have changed the terms and conditions
of employment.
* * * * *
(5) If there is a change to the anticipated date of need and the
employer fails to notify the order-holding office at least 10 business
days prior to the original date of need the employer must pay eligible
(pursuant to paragraph (d)(4) of this section) workers referred through
the clearance system the specified hourly rate of pay, or if the pay is
piece-rate, the higher of the Federal or State minimum wage for the
first week starting with the originally anticipated date of need or
provide alternative work if such alternative work is stated on the
clearance order. If an employer fails to comply under this section the
order holding office may notify the Department's Wage and Hour Division
for possible enforcement.
(d) * * *
(4) The applicant holding office must notify all referred
farmworkers, farm labor contractors on behalf of farmworkers, or family
heads on behalf of farmworker family members, to contact an ES office,
preferably the order-holding office, to verify the date of need cited
in the clearance order between 9 and 5 business days prior to the
original date of need cited in the clearance order; and that failure to
do so will disqualify the referred farmworker from the first weeks' pay
as described in paragraph (c)(3)(i) of this section. The SWA must make
a record of this notification.
* * * * *
(7) If an order holding office learns that a crop is maturing
earlier than expected or that other material factors, including weather
conditions and recruitment levels have changed since the date the
clearance order was accepted, the SWA must contact immediately the
applicant holding office which must inform immediately crews and
families scheduled to report to the job site of the changed
circumstances and must adjust arrangements on behalf of such crews and
families.
(8) When there is a delay in the date of need, SWAs must document
notifications by employers and contacts by individual farmworkers or
crew leaders on behalf of farmworkers or family heads on behalf of
farmworker family members to verify the date of need.
* * * * *
PART 655--TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED
STATES
0
5. The authority citation for part 655 continues to read as follows:
Section 655.0 issued under 8 U.S.C. 1101(a)(15)(E)(iii),
1101(a)(15)(H)(i) and (ii), 8 U.S.C. 1103(a)(6), 1182(m), (n), and
(t), 1184(c), (g), and (j), 1188, and 1288(c) and (d); sec. 3(c)(1),
Pub. L. 101-238, 103 Stat. 2099, 2102 (8 U.S.C. 1182 note); sec.
221(a), Pub. L. 101-649, 104 Stat. 4978, 5027 (8 U.S.C. 1184 note);
sec. 303(a)(8), Pub. L. 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1101
note); sec. 323(c), Pub. L. 103-206, 107 Stat. 2428; sec. 412(e),
Pub. L. 105-277, 112 Stat. 2681 (8 U.S.C. 1182 note); sec. 2(d),
Pub. L. 106-95, 113 Stat. 1312, 1316 (8 U.S.C. 1182 note); 29 U.S.C.
49k; Pub. L. 107-296, 116 Stat. 2135, as amended; Pub. L. 109-423,
120 Stat. 2900; 8 CFR 214.2(h)(4)(i); 8 CFR 214.2(h)(6)(iii); and
sec. 6, Pub. L. 115-218, 132 Stat. 1547 (48 U.S.C. 1806).
Subpart A issued under 8 CFR 214.2(h).
Subpart B issued under 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c),
and 1188; and 8 CFR 214.2(h).
Subpart E issued under 48 U.S.C. 1806.
Subparts F and G issued under 8 U.S.C. 1288(c) and (d); sec.
323(c), Pub. L. 103-206, 107 Stat. 2428; and 28 U.S.C. 2461 note,
Pub. L. 114-74 at section 701.
Subparts H and I issued under 8 U.S.C. 1101(a)(15)(H)(i)(b) and
(b)(1), 1182(n), and (t), and 1184(g) and (j); sec. 303(a)(8), Pub.
L. 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 412(e),
Pub. L. 105-277, 112 Stat. 2681; 8 CFR 214.2(h); and 28 U.S.C. 2461
note, Pub. L. 114-74 at section 701.
Subparts L and M issued under 8 U.S.C. 1101(a)(15)(H)(i)(c) and
1182(m); sec. 2(d), Pub. L. 106-95, 113 Stat. 1312, 1316 (8 U.S.C.
1182 note); Pub. L. 109-423, 120 Stat. 2900; and 8 CFR 214.2(h).
0
6. Amend Sec. 655.103 by removing definitions for Key service provider
and Labor organization.
0
8. Amend Sec. 655.120 by revising paragraphs (a) and (b)(2) and (3) to
read as follows:
Sec. 655.120 Offered wage rate.
(a) Employer obligation. Except for occupations covered by
Sec. Sec. 655.200 through 655.235, to comply with its obligation under
Sec. 655.122(l), an employer must offer, advertise in its recruitment,
and pay a wage that is at least the highest of:
(1) The AEWR;
(2) A prevailing wage rate, if the OFLC Administrator has approved
a prevailing wage survey for the applicable crop activity or
agricultural activity and, if applicable, a distinct work task or tasks
performed in that activity, meeting the requirements of paragraph (c)
of this section;
(3) The agreed-upon collective bargaining wage;
(4) The Federal minimum wage; or
(5) The State minimum wage.
(b) * * *
(2) The OFLC Administrator will publish, at least once in each
calendar year, on a date to be determined by the OFLC Administrator,
the AEWRs for each State as a notice in the Federal Register.
(3) If an updated AEWR for the occupational classification and
geographic area is published in the Federal Register during the work
contract, and the updated AEWR is higher than the highest of the
previous AEWR, a prevailing wage for the crop activity or agricultural
activity and, if applicable, a distinct work task or tasks performed in
that activity and geographic area, the agreed-upon collective
bargaining wage, the Federal minimum wage, or the State minimum wage,
the employer must pay at least the updated AEWR upon the effective date
of the updated AEWR published in the Federal Register.
* * * * *
0
9. Amend Sec. 655.122 by revising paragraphs (h)(4), (i)(1) (ii), (l),
and (n) to read as follows:
Sec. 655.122 Contents of job offers.
* * * * *
(h) * * *
[[Page 28943]]
(4) Employer-provided transportation. All employer-provided
transportation must comply with all applicable local, State, or Federal
laws and regulations, and must provide, at a minimum, the same
transportation safety standards, driver licensure, and vehicle
insurance as required under 29 U.S.C. 1841, 29 CFR 500.104 or 500.105,
and 29 CFR 500.120 through 500.128. The job offer must include a
description of the modes of transportation (e.g., type of vehicle) that
will be used for inbound, outbound, daily, and any other
transportation. If workers' compensation is used to cover
transportation in lieu of vehicle insurance, the employer must either
ensure that the workers' compensation covers all travel or that vehicle
insurance exists to provide coverage for travel not covered by workers'
compensation and it must have property damage insurance.
(i) * * *
(1) For purposes of this paragraph (i)(1) a workday means the
number of hours in a workday as stated in the job order and excludes
the worker's Sabbath and Federal holidays. The employer must offer a
total number of hours to ensure the provision of sufficient work to
reach the three-fourths guarantee. The work hours must be offered
during the work period specified in the work contract, or during any
modified work contract period to which the worker and employer have
mutually agreed and that has been approved by the CO.
(ii) The work contract period can be shortened by agreement of the
parties only with the approval of the CO. In the event the worker
begins working later than the specified beginning date of the contract,
the guarantee period begins with the first workday after the arrival of
the worker at the place of employment, and continues until the last day
during which the work contract and all extensions thereof are in
effect.
* * * * *
(l) Rates of pay. Except for occupations covered by Sec. Sec.
655.200 through 655.235, the employer must pay the worker at least the
AEWR; a prevailing wage if the OFLC Administrator has approved a
prevailing wage survey for the applicable crop activity or agricultural
activity and, if applicable, a distinct work task or tasks performed in
that activity, meeting the requirements of Sec. 655.120(c); the
agreed-upon collective bargaining rate; the Federal minimum wage; or
the State minimum wage rate, whichever is highest, for every hour or
portion thereof worked during a pay period.
(1) 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 wage rate, the Federal minimum wage, the State minimum wage,
or any agreed-upon collective bargaining rate, whichever is highest; or
(2) If the worker is paid on a piece rate basis and at the end of
the pay period the piece rate does not result in average hourly piece
rate earnings during the pay period at least equal to the amount the
worker would have earned had the worker been paid at the appropriate
hourly rate:
(i) The worker's pay must be supplemented at that time so that the
worker's earnings are at least as much as the worker would have earned
during the pay period if the worker had instead been paid at the
appropriate hourly wage rate for each hour worked;
(ii) The piece rate must be no less than the prevailing piece rate
for the crop activity or agricultural activity and, if applicable, a
distinct work task or tasks performed in that activity in the
geographic area if one has been issued by the OFLC Administrator; and
(iii) If the employer who pays by the piece rate requires one or
more minimum productivity standards of workers as a condition of job
retention, such standards must be specified in the job offer and be no
more than those required by the employer in 1977, unless the OFLC
Administrator approves a higher minimum, or, if the employer first
applied for temporary agricultural labor certification after 1977, such
standards must be no more than those normally required (at the time of
the first Application for Temporary Employment Certification) by other
employers for the activity in the area of intended employment.
(3) If applicable, the employer must state in the job order:
(i) That overtime hours may be available;
(ii) The wage rate(s) to be paid for any such overtime hours;
(iii) The circumstances under which the wage rate(s) for overtime
hours will be paid, including, but not limited to, after how many hours
in a day or workweek the overtime wage rate will be paid, and whether
overtime wage rates will vary between places of employment; and
(iv) Where the overtime pay is required by law, the applicable
Federal, State, or local law requiring the overtime pay.
* * * * *
(n) Abandonment of employment or termination for cause. If a worker
voluntarily abandons employment before the end of the contract period,
or is terminated for cause, and the employer notifies the NPC, and DHS
in the case of an H-2A worker, in writing or by any other method
specified by the Department in a notice published in the Federal
Register or specified by DHS not later than 2 working days after such
abandonment occurs, the employer will not be responsible for providing
or paying for the subsequent transportation and subsistence expenses of
that worker under this section, and that worker is not entitled to the
three-fourths guarantee described in paragraph (i) of this section,
and, in the case of a U.S. worker, the employer will not be obligated
to contact that worker under Sec. 655.153. Abandonment will be deemed
to begin after a worker fails to report to work at the regularly
scheduled time for 5 consecutive working days without the consent of
the employer. The employer is required to maintain records of such
notification to the NPC, and DHS in the case of an H-2A worker, for not
less than 3 years from the date of the certification.
0
10. Amend Sec. 655.130 by revising paragraphs (a) and removing
paragraphs (a)(1), (a)(2), (a)(3), and (a)(4), to read as follows:
Sec. 655.130, Application filing requirements
(a) What to file. An employer that desires to apply for temporary
agricultural labor certification of one or more nonimmigrant workers
must file a completed Application for Temporary Employment
Certification, all supporting documentation and information required at
the time of filing under Sec. Sec. 655.131 through 655.135, and,
unless a specific exemption applies, a copy of Form ETA-790/790A,
submitted as set forth in Sec. 655.121(a). The Application for
Temporary Employment Certification must include a valid FEIN as well as
a valid place of business (physical location) in the United States and
a means by which it may be contacted for employment.
0
11. Amend Sec. 655.132 by revising paragraph (e)(1) to read as
follows:
Sec. 655.132 H-2A labor contractor filing requirements.
* * * * *
(e) * * *
(1) All housing used by workers and owned, operated, or secured by
the fixed-site agricultural business complies with the applicable
standards as set forth in Sec. 655.122(d) and certified by the SWA;
and
* * * * *
0
12. Amend Sec. 655.135 by:
0
a. Revising paragraph (h);
[[Page 28944]]
0
b. Deleting subsections (m), (n), and (p); and
0
c. Renumbering subsection (o) to (m).
The revision reads as follows:
Sec. 655.135 Assurance and obligations of H-2A employers.
* * * * *
(h) * * *
(1) Filed a complaint under or related to 8 U.S.C. 1188 or this
subpart or any Department regulation in this chapter or 29 CFR part 501
promulgated under 8 U.S.C. 1188;
(2) Instituted or caused to be institu
[…truncated; see source link]Indexed from Federal Register on July 2, 2025.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.