1205-AB55 200910 The Regulatory Plan and the Unified Agenda of Federal Regulatory and Deregulatory Actions 1205 Employment and Training Administration ETA 1200 Department of Labor DOL Temporary Agricultural Employment of H-2A Aliens in the United States The Department of Labor (the Department of DOL) proposes to amend its regulations governing the certification of temporary employment of nonimmigrant workers in temporary or seasonal agricultural employment and the enforcement of the contractual obligations applicable to employers of such nonimmigrant workers. This Notice of Proposed Rulemaking would reexamine the process by which employers obtain a temporary labor certification from the Department for use in petitioning the Department of Homeland Security (DHS) to employ a nonimmigrant worker in H-2A status. Other Significant Previously Published in The Unified Agenda Final Rule Stage No No 20 CFR 655 8 USC 1101(a)(15)(H)(ii)(a) 8 USC 1188 Yes The Department has determined for a variety of reasons that a new rulemaking effort is necessary for the H-2A program. The Department believes that the policy underpinnings of the 2008 Final Rule, e.g., streamlining the H-2A regulatory process to defer many determinations of program compliance until after an application has been fully adjudicated, do not provide an adequate level of protection for either U.S. or foreign workers. In addition, the Department’s experience under the program since January 2009 demonstrates that the policy goals of the 2008 Final Rule have not been met. One of the clear goals of the 2008 Final Rule was to increase the use of the H-2A program and to make the program easier and more affordable to use for the average employer. However, applications have actually decreased since the implementation of the new program. Not only has usage not increased under the program revisions, there has actually been a reversal of an existing multi-year trend toward increased program use. While factors other than the regulatory changes may play a role in this decrease, the Department can not justify the significant decrease in worker protections if the prior rules’ goal of increasing program use is not being accomplished. The Department believes that there are insufficient worker protections in the attestation-based model in which employers merely confirm, and do not actually demonstrate, that they have performed an adequate test of the U.S. labor market. Even in the first year of the attestation model, it has come to the Department’s attention that employers, either from a lack of understanding or otherwise, are attesting to compliance with program obligations with which they have not complied. Such non-compliance appears to be sufficiently substantial and widespread for the Department to revisit the use of attestations, even with the use of back-end integrity measures for demonstrated non-compliance. The Department has also determined that the area in which agricultural workers are most vulnerable – wages – has been adversely impacted to a far more significant extent than anticipated by the 2008 Final Rule. The shift from the AEWR as calculated under the 1987 Rule to the AEWR of the 2008 Final Rule resulted in a substantial reduction of farmworker wages in a number of labor categories, and the obvious effects of that reduction on the workers' and their families' ability to meet necessary costs is an important concern. These proposed regulations are authorized under Section 101(a)(15)(H)(ii)(a) of the Immigration and Nationality Act, as amended. 8 U.S.C. 1101(a)(15)(H)(ii)(a); see also 8 U.S.C. 1184(c)(1) and 1188. The Department took into account both the regulations promulgated in 1987, as well as the significant reworking of the regulations in the 2008 Final Rule, in order to arrive at a balance between the worker protections of the 1987 Rule and the program integrity measures of the 2008 Final Rule. Preliminary estimates of the anticipated monetized costs of this proposed regulatory action are $10.56 million in 2009 to $18.07 million in 2018. A final estimate of costs and benefits will be prepared at the Final Rule stage in response to public comments. NPRM 02/13/2008 73 FR 8538 NPRM Comment Period End 03/31/2008 NPRM Comment Period Extended 04/14/2008 73 FR 16243 Final Rule 12/18/2008 73 FR 77110 Final Rule Effective 01/17/2009 Notice of Proposed Suspension 03/17/2009 74 FR 11408 Comment Period End 03/27/2009 Notice of Final Suspension 05/29/2009 74 FR 25972 NPRM 09/04/2009 74 FR 45905 NPRM Comment Period End 10/05/2009 NPRM Comment Period Extended 10/20/2009 74 FR 50929 Final Rule 02/00/2010 No Businesses Federal State No No No William Carlson L. Ph.D. 1205 Employment and Training Administration ETA 202 693-3010 carlson.william@dol.gov Room C-4312, FP Building, 200 Constitution Avenue NW., Washington DC 20210