DOL Issues 2022 H-2A Final Rule, FAQs on Implementation

The U.S. Department of Labor (DOL) published a final rule modifying H-2A temporary labor certification regulations in the Federal Register on October 12, 2022. The final rule is effective November 14, 2022. Some of the highlights of the new rule include the following:

• • Improving the health and safety protections for agricultural workers in public or rental housing;

• • Updating bond requirements for labor contractors;

• • Clarifying joint-employer status for employers;

• • Establishing authority to debar attorneys and agents for misconduct outside of an employer’s violations;

• • Requiring electronic filing for most applications;

• • Modernizing the process of determining the prevailing wage to allow state workforce agencies to produce more prevailing wage findings; and

• • Supporting the DOL’s Wage and Hour Division’s enforcement efforts to address H-2A program fraud and abuse.

Under the H-2A program, employers can employ temporary foreign agricultural workers when there are insufficient able, willing, qualified, and available U.S. workers to fill those positions. However, employers also must show that hiring H-2A workers will not adversely affect the wages and working conditions of other similarly employed workers in the U.S.

Round 1 FAQs – Implementation of 2022 H-2A Final Rule

Simultaneously with its publication of the H-2A final rule, DOL issued Round 1 of FAQs – Implementation of 2022 H-2A Final Rule. These FAQs are designed to help employers, workers, and other interested parties understand implementation of the rule.

First, the FAQs establish transition procedures for processing H-2A job program orders and H-2A Applications for Temporary Employment Certification. These transition procedures are as follows:

• • The H-2A Application for Temporary Employment Certification and the related job program order will continue to be processed under the precursor to the 2022 H-2A final rule, which is the 2010 H-2A final rule, if:

    • • The H-2A Application was submitted before November 14, 2022; or
    • • The H-2A Application was submitted on or after November 14, 2022, with the first date of need no later than February 12, 2023, or 90 days after the effective 2022 H-2A final rule.

• • Any other H-2A Application and related job order will be processed under the 2022 H-2A final rule using the OMB-approved forms.

Previously submitted H-2A Applications and job orders will continue to be processed according to the 2010 H-2A final rule; there is no need to refile previously submitted materials due to the new rule’s implementation.

Furthermore, all H-2A temporary labor certifications issued before the effective date of the 2022 H-2A final rule, or November 14, 2022, remain valid for the period stated on the certification. The only exception will be if the certification is subject to revocation or another action that would affect the validity of the certification.

Round 2 FAQs – Job Order Filing and Processing

On October 25, 2022, DOL published Round 2 of its 2022 H-2A Final Rule FAQs – Job Order Filing and Processing. These FAQs address various job order filing and processing issues, including electronic filing, timing considerations, wage offer requirements, SWA processing, and withdrawal requests.

Electronic Filing

Employers (or their agents or attorneys) must submit H-2A job orders electronically unless a specific exemption applies. Currently, the Department’s Foreign Labor Application Gateway (FLAG) System, available at https://flag.dol.gov, is the Office of Foreign Labor Certification’s (OFLC) Administrator’s designated electronic filing method. In a joint employer situation, the employers must submit only one job order, with each employer specified.

The job order must contain the original signature of the employer. However, in an electronic submission, employers can satisfy this requirement by providing a scanned copy of the signature or a valid, verifiable electronic signature that meets all five requirements published by the Office of Management and Budget through the Federal Chief Information Council. (See Use of Electronic Signatures in Federal Organization Transactions, Version 1.0 (Jan. 25, 2013). In the case of joint employers, each employer must submit an original signature on the job order.

Timing Considerations

Employers must submit job orders to the National Processing Center (NPC) no more than 75 calendar days and no less than 60 days before the employer’s first date of need.

Some exceptions to these timelines apply for emergency situations under 20 CFR 655.134. This regulation allows the Certifying Officer (CO) to waive the required periods for employers who did not use temporary foreign agriculture workers during the prior year’s agriculture season or for any employer that has other good and substantial cause, so long as the CO has sufficient time to test the domestic labor market on an expedited basis to make the determinations under § 655.100. The employer must submit all required forms and documentation, as long as a statement justifying its request for a waiver of the required periods. If the request is based on good and substantial cause, the statement must contain detailed information describing that cause.

Furthermore, if an employer intends to provide housing that requires a pre-occupancy housing inspection from the State Workforce Agency (SWA), the employer should contact the SWA and schedule the inspection well before its first date of need. Preferably, the employer should contact SWA when it submits its initial H-2A application, but in any event, no later than when it submits its job order.

Wage Offer Requirements

H-2A employers must pay workers a wage that is at least equal to the highest wage applicable from:

• • the Adverse Effect Wage Rate (AEWR);

• • the prevailing wage rate (if available);

• • the agreed-upon collective bargaining wage rate (if applicable);

• • the Federal minimum wage rate; or

• • the State minimum wage rate.

The only exception is for workers employed in herding or livestock production on the range. If a job opportunity is subject to a collective bargaining agreement (CBA), an employer must submit a copy of the applicable CBA to the SWA when submitting its job order.

If SWA determines that a wage offer is too low upon receiving a job order, SWA will issue a Notice of Deficiency that directs the employer to modify the job order to reflect the appropriate wage level.

SWA Processing

After it receives an electronic job order submission, the OFLC NPC sends it to the SWC serving the area of intended employment for review. The SWA then has seven calendar days to either accept the job order for intrastate clearance or notify the employer that the job order is deficient by issuing a Notice of Deficiency. The employer then has five calendar days to respond to the SWA and correct any deficiencies. Once corrected, the SWA will send the employer a Notice of Acceptance within three calendar days and place the job order in intrastate clearance. However, if the employer fails to timely correct the deficiencies, the SWA will issue a Notice of Denial.

If the SWA doesn’t accept the job order in time or the employer cannot agree with the SWA on deficiencies or necessary changes to the job order, the employer still has some recourse. More specifically, the employer can use the emergency procedures under 20 CFR 655.134 to submit its application and work order to the NPC for review, so long as it meets certain criteria.

Withdrawal Requests

An employer can withdraw a job order if it no longer intends to apply for H-2A workers. However, the employer must still comply with the employment terms contained in the job order concerning any workers recruited using that job order. An employer can submit a request for withdrawal electronically or in writing via email to the NPC at [email protected].

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