Notice2025-15653
Notification of Rescission of Frequently Asked Question Issued on July 22, 2011
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
August 25, 2025
Effective
August 25, 2025
Issuing agencies
Labor DepartmentEmployment and Training Administration
Abstract
The Employment and Training Administration (ETA) of the Department of Labor (DOL or the Department) provides notice that it is rescinding a Frequently Asked Question (FAQ) issued by the Office of Foreign Labor Certification (OFLC) on July 22, 2011, prohibiting employers from filing a single temporary agricultural labor certification to hire nonimmigrant workers under the H-2A visa classification into the United States after the first date of need.
Full Text
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<title>Federal Register, Volume 90 Issue 162 (Monday, August 25, 2025)</title>
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[Federal Register Volume 90, Number 162 (Monday, August 25, 2025)]
[Notices]
[Pages 41413-41414]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-15653]
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DEPARTMENT OF LABOR
Employment and Training Administration
Notification of Rescission of Frequently Asked Question Issued on
July 22, 2011
AGENCY: Employment and Training Administration, Department of Labor.
ACTION: Notice.
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SUMMARY: The Employment and Training Administration (ETA) of the
Department of Labor (DOL or the Department) provides notice that it is
rescinding a Frequently Asked Question (FAQ) issued by the Office of
Foreign Labor Certification (OFLC) on July 22, 2011, prohibiting
employers from filing a single temporary agricultural labor
certification to hire nonimmigrant workers under the H-2A visa
classification into the United States after the first date of need.
DATES: The rescission of informal guidance announced in this notice is
effective August 25, 2025.
FOR FURTHER INFORMATION CONTACT: Brian Pasternak, Administrator, Office
of Foreign Labor Certification, Employment and Training Administration,
U.S. Department of Labor, 200 Constitution Avenue NW, Room N-5311,
Washington, DC 20210, telephone (202) 693-8200 (this is not a toll-free
number). For 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: The Department is reviewing applicable
regulations and administrative guidance documents to eliminate
unnecessary and burdensome requirements. As part of this review, the
Department has determined that the FAQ identified below, the issuance
of which no longer represents the considered policy judgment of the
Department, required employers to file multiple labor certification
applications for agricultural labor or services to be performed in the
same or comparable occupations and crops, covering the same area of
intended employment, where the only difference is the expected start
date of work, and is otherwise appropriate for rescission.
Under 8 U.S.C. 1188(a)(1) of the Immigration and Nationality Act,
the admission of foreign workers under the H-2A visa 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 (1) 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 (2) 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. See 8 U.S.C.
1188(a)(1). To carry out these statutory mandates, Congress delegated
discretionary authority to the Secretary under Sec. 1188 to issue
regulations, including ``regulations to ensure that the certification
requirements of Sec. 1188(a) are met before the DOL issues such a
certification. See, e.g., Sec. 1188(c)(3)(A) (requiring that employers
seeking H-2A visas comply with ``the criteria for certification,''
``including criteria for the recruitment of eligible individuals as
prescribed by the Secretary'').
Accordingly, the Department promulgated regulations at 20 CFR 655,
subpart B, establishing the criteria for labor certification necessary
to meet these statutory mandates. The FAQ identified below and
published on July 22, 2011, which interprets the regulations, prohibits
an employer from using a single temporary agricultural labor
certification to bring nonimmigrant workers under the H-2A visa
classification into the United States. The Department has reconsidered
this guidance. Accordingly, the following guidance in the form of a
frequently asked question issued by OFLC on July 22, 2011, is hereby
rescinded, effective immediately.
Can an employer file a single Application for Temporary Employment
Certification for staggered dates of need?
No. An application must contain a single date of need for all
workers under that application. Under the H-2A program, a date of need
is defined as the first date the employer requires the services of H-2A
and U.S workers as indicated in the Application for Temporary
Employment Certification. The date is not an indication of the first
date of need for some workers, but for all the workers that are the
subject of the application. We expect that the filing of an Application
indicates that the employer has full-time work available for all
positions it is requesting for that single start date and that all
information reflects the employer's true need. Changing the date of
need for some or all workers invalidates the validity of the labor
market test, which eliminates the Department's basis for granting the
labor certification. A different date was not advertised to U.S.
workers, in particular those who, if they had been apprised of the
later date, could have made themselves available for the job
opportunity, and therefore made the approval of the certification
unnecessary. Where the employer has staggered dates of need, the
employer must file a separate application for each date of need.
[[Page 41414]]
(Authority: 8 U.S.C. 1188(a)(1); 20 CFR 655, subpart B)
Susan Frazier,
Acting Assistant Secretary for Employment and Training, Labor.
[FR Doc. 2025-15653 Filed 8-22-25; 8:45 am]
BILLING CODE 4510-FP-P
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