Temporary workers make up a huge chunk of the labor force behind America’s agriculture. That’s why the Department of Labor (the Department), Employment and Training Administration and Wages and Hour Division proposed a rulemaking on July 18 to improve the H-2A temporary agricultural labor certification program.
The proposed rulemaking will be open for public comment and aims to streamline and simplify the H-2A application process. Streamlining the process would speed up application reviews and increase protections for temporary workers.
Proposed changes
The department proposes to require electronic filing of applications. In the past, 81 percent of applications have been filed electronically and the department said they result most often in complete submissions, better quality entries and more of a streamlined process through email. Electronic filing would also speed up the review process and save costs on mailing.
The government would have to promptly give a reason for application denial and give reasonable time for the employer to adjust the application.
The department also proposes to accept electronic signatures on the paperwork, as “modern technologies and evolving business practices are rendering the distinction between original paper and electronic signatures nearly obsolete.”
The proposed rulemaking suggests adjusting the methodology used when creating the required wage rate. Section 218 of the Immigration and Nationality Act states that an H-2A worker will only be granted access into the U.S. if “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.”
The department recommends establishing separate adverse effect wage rates by agricultural occupation to “better protect against adverse effect on the wages of similarly employed workers in the United States.”
Under the current regulation, an employer with a temporary agricultural labor certificate must grant agricultural labor to any qualified U.S. worker who applies until 50 percent of the period of the work contract has elapsed. The department conducted a study that showed a very low number of U.S. workers apply for a job within 30 days after the starting date, so it is proposed to change the 50 percent rule to a 30-day rule.
A staggered entry permit of H-2A workers would allow an employer to hire nonimmigrant workers up to 120 days after the first date of need is identified, but an employer must continue to accept referrals of U.S. workers in the first 30 days.
A temporary worker who follows their visa terms would also be rewarded with expedited approvals for the next time they apply for work. For an employer hiring returning workers, the application process would be simplified and guarantee certain approvals pending any required security checks.
The proposed rulemaking is available ahead of its publishing in the Federal Register, but when published, public comments will be accepted in a 60-day period. Comments may be submitted through the Federal Register by searching for docket 1205-AB89, or by mail to Adele Gagliardi, Administrator, Office of Policy Development and Research, Employment and Training Administration, U.S. Department of Labor, 200 Constitution Avenue NW, Room N– 5641, Washington, DC 20210. — Anna Miller, WLJ editor
