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The Department of Labor (DOL) proposed to amend its regulations governing the certification of agricultural labor or services to be performed by temporary foreign workers in H-2A nonimmigrant status (H-2A workers) and enforcement of the contractual obligations applicable to employers of such nonimmigrant workers. The Notice of Proposed Rulemaking (NPRM) proposed rescinding provisions contained within a final rule published by the Department on April 29, 2024, which adopted a number of unnecessary, burdensome, and costly requirements on employers. The proposed regulatory changes may impact the regulations for the Employment Service and the H-2A non-immigrant visa program at 29 CFR part 501 and 20 CFR parts 651, 653, 654, 655, and 658.

Statement of Need:

On April 29, 2024, the Department published a final rule entitled Improving Protections for Workers in Temporary Agricultural Employment in the United States, which adopted a number of unnecessary, burdensome, and costly requirements on employers. The 2024 Final Rule was the subject of four distinct legal challenges, two of which resulted in the Department being preliminarily enjoined from enforcing all or part of the 2024 Final Rule in certain States and for certain parties, and one of which resulted in a nationwide stay. On July 2, 2025, the Department proposed to rescind most requirements that were introduced by the 2024 Final Rule to ensure that the H-2A program's regulatory framework is a more reasonable balance between the statute's competing goals of providing an adequate labor supply and protecting the jobs of domestic agricultural workers.

Summary of the Legal Basis:

The Immigration and Nationality Act (INA), as amended by the Immigration Reform and Control Act of 1986 (IRCA), establishes an H-2A nonimmigrant visa classification for a worker having a residence in a foreign country which he has no intention of abandoning who is coming temporarily to the United States to perform agricultural labor or services . . . of a temporary or seasonal nature. 8 U.S.C. 1101(a)(15)(H)(ii)(a); see also 8 U.S.C. 1184(c)(1) and 1188. Agricultural labor or services includes the types of labor and services defined by the Secretary of Labor in regulations, as well as the Internal Revenue Code definition of agricultural labor at section 3121(g) of title 26, the Fair Labor Standards Act definition of agriculture at section 203(f) of title 29, and the pressing of apples for cider on a farm . . . . 8 U.S.C. 1101(a)(15)(H)(ii)(a). The Secretary of Labor has delegated the authority to issue temporary agricultural labor certifications to the Assistant Secretary for Employment and Training, who in turn has delegated that authority to ETA's Office of Foreign Labor Certification (OFLC). In addition, the Secretary has delegated to the Department's Wage and Hour Division (WHD) the responsibility under sec. 218(g)(2) of the INA, 8 U.S.C. 1188(g)(2), to assure employer compliance with the terms and conditions of employment under the H-2A program.

Alternatives:

In its NPRM, the Department considered two alternatives to this proposal. First, the Department considered preserving the current regulations at 20 CFR parts 651 , 653 , 655 , and 658 , and 29 CFR part 501 , as modified by the 2024 H-2A Final Rule, until litigation is resolved. Second, the Department considered reverting back to the regulations in 20 CFR parts 651 , 653 , 655 , and 658 , and 29 CFR part 501 , as of June 27, 2024. This option would remove all changes effectuated by the 2024 H-2A Final Rule, regardless of their utility.

Anticipated Costs and Benefits:

Anticipated costs and benefits for this final rule are under development. In its proposal, the Department estimated total quantifiable annualized net cost savings from the rescissions in this proposed rule as $1.02 million and the annualized transfer payments (from employees to H-2A employers) at $12.66 million, each at a discount rate of 7 percent over a 10-year analysis period.

Risks:

Under development