HOUSTON IMMIGRATION & NATURALIZATION ATTORNEYS
HOUSTON IMMIGRATION ATTORNEYS DAILY UPDATE - FEBRUARY 15, 2010
Secretary of Labor Hilda 1. Solis announces final rule for H-2A program
Labor certification for temporary agriculture employment of H-2A workers in US to strengthen worker protection for
both American and foreign workers
WASHINGTON — U.S. Secretary of Labor Hilda L. Solis today announced a new rule regarding the H-2A program. The Labor Department will publish in the Feb. 12 edition of the Federal Register, a final rule governing the labor certification process and enforcement mechanisms for the H-2A temporary agricultural worker program. The final rule is being published to strengthen worker protections for both U.S. and foreign workers and to ensure overal H-2A program integrity. The rule will be effective March 15, 2010.
The H-2A nonimmigrant visa classification apples to foreign workers coming to or already in the U.S. to perform agricutural work of a temporary or seasonal nature. The U.S. Department of Homeland Security may not approve an H-2A visa petition unless the Department of Labor, through its Emploment and Training Administration, certifies that there are not sufficient U.S. workers qualified and available to perform the labor involved in the petition and that the employment of the foreign worker will not have an adverse effect on the wages and working conditions of similarly employed U.S. workers. Additionally, through its Wage and Hour Division, the department enforces the terms and conditions of the labor certification and enforces worker protections.
"This new rule will make it possible for all workers who are working hard on American soil to receive fair pay while at the same time expand opportunities for U.S. workers," said Secretary Solis. “The actions that we have taken through this rulemaking aiso will enable usto detect and remedy different forms of worker violations.”
During fiscal year 2009, employers filed 8,150 labor certification applications requesting 103,955 H-2A workers for temporary agricultural work. The Department of Labor certified 94 percent of the applications submitted for a total of 86,014 workers.
This final rule is the result of the department’s review of the policy decisions underlying a previous revision of the H-2A regulations,published in late 2008. The department’s review focused on the process for obtaining labor certifications, the method for determining the H-2A Adverse Effect Wage Rate, and the protections afforded to both the temporary foreign workers as we~ as the domestic agricultural workforce. The final rule includes stronger mechanisms for enforcement of the worker protection provisions required by the H-2A program.
Overall benefits of the final rule rickide increased wages for workers and greater access to the domestic labor market. The new rule ensures that U.S. workers in the same occupation working for the same empbyer, regardless of date of hire, receive no less than the same wage as foreign workers; proviles more transparency by creating a national electronic job registry where job orders will be posted through 50 percent of the contract period; and protects against worker abuses by proh~iting cost-shfting from the empbyer to the worker for recruitment fees, visa fees, border crossing fees and other U.S. government mandated fees.
To view fact sheet and more information about the benefits of the new H2A Rule, visit: htt~:I/www.dol.gov.
LABOR CERTIFICATION FOR TEMPORARY AGRICULTURAL EMPLOYMENT OF H-2A ALIENS IN THE UNITED STATES (H-2A WORKERS)
On September 4, 2009, the Department of Labor publinhed in the Federal Reginter a Notce of Proposed Rulemaking proposing to amend the 2008 regulatons governing the labor certification process under the H-2A temporary agricultural worker program. The Comment period initially was planned to end on October 5, 2009 but was extended to October 20, 2009. The timeFine for completion of a Final Rule targets )anuary 6, 2010 for subminsion to the Offce of Management and Budget for review, with a tentative publication on February 12,2010.
Under the Immigration and Nabonality Act, the Department of Labor must ensure that U.S. workers are provided access to temporary agricultural jobs, and that both U.S. and foreign workers are provided with appropriate worker protections. Thin rulemaking reflects the Adminintratlon’s commitment to provding fair wages and strong labor protections for thin vulnerable group of workers.
Major Features of the Final Rule:
The employer must provide the Department with documentation that it has compiled with the prerequkites for bringing l-1-2A workers into the country, including the requirements related to recruiting for qualified U.S. workers, instead of si1~ply attesting to compliance.
Returns to using the USDA Farm Labor Survey as the basin for determining the Adverse Effect Wage Rate. The 2008 win used the Occupational Employment Statintics Survey, whkh resulted in a substantial reducton of worker wages (an average of over $1.00/hour).
Reinstates the critical role of the State Workforce Agencies (SWA) in assinting employers by using their expertine on local labor market conditions and recruitment patterns, thereby expanding job opportunities for U.S. workers. Reinstates the requirement that the SWA inspect and approve employer-provided housing before the Department lasues an H-2A labor certification.
Requires that all employer-provided transportation meet, at a minimum, the same Federal standards for vehicle safety, vehicle insurance and driver Ficensure applicable to most other agricultural workers.
Strengthens revocation and debarment authorities by providing WHD with independent debarment authority in addition to ETA, rakes civil money penalties and expands audit authority to include housing.
Continues to incbjde logging as an H-2A occupation. The NPRM proposed to add other forestry-related occupations such as tree planting and related reforestation activities as we~ as pine straw gathering, but thin was not included in the Final Rule in response to concerns from both the industry and advocates about the costs and the workers’ potential loss of MSPA protections, including a private right of action.
Creates a national electronic job regintry for aU H-2A job orders to ~nprove U.S. worker access to agricultural jobs and help growers find workers from across the U.S.
Extends H-2A program benefits to workers in “conesponding employment” (other workers employed by an H-2A employer in any work included in the job order and any work performed by the H-2A workers) to ensure that similarly employed U.S. workers are not provided with lower wages or fewer benefits. Requires employers to provide workers with copies of the job orders no later than before departure, including from the workers’ home countrias and to dinplay a poster describing empbyee rights and protections in EngFeh and another language common to the workers at the work site.
Prohibits the use of mu~i-area itineraries by H-2A Labor Contractors, ending the practice of moving N-2A workers from site to site inmultiple areas of employment under one labor certification. Labor contractors participating in thin program will now have the same regulatory standards as fixed-site farmers. Required surety bond amounts for H-2ALCs have been increased.
Prohibits the approval of labor certif~aton appbations for worksites where workers are on strke or locked Out and protects U.S. workers who are denied employment or laid off.
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