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The Department of Labor’s (DOL) Employment and Training Administration and Wage and Hour Division propose to amend regulations to improve working conditions and protections for workers engaged in temporary agricultural employment in the United States; and strengthen protections in the recruitment, job order clearance, and oversight processes. The proposed regulatory changes involve 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.

The Department has identified a need to strengthen and clarify protections for all temporary agricultural workers, including U.S. workers and workers employed through the H-2A temporary agricultural program. The H-2A temporary agricultural program allows agricultural employers to perform agricultural labor or services of a temporary or seasonal nature so long as there are not sufficient able, willing, and qualified U.S. workers to perform the work and the employment of H-2A workers does not adversely affect the wages and working conditions of similarly employed workers in the United States. The use of the H-2A program has grown substantially in recent years and the Department is committed to protecting agricultural workers in light of their significant vulnerabilities.

Statement of Need:

The Department will propose revisions to the H-2A regulations and the Employment Service regulations that will strengthen protections for agricultural workers and enhance the Department’s enforcement capabilities against fraud and program violations. The Department has determined the proposed revisions will help prevent exploitation and abuse of agricultural workers and ensure that employers do not gain from their violations or contribute to economic and workforce instability by circumventing the law.  

Summary of the Legal Basis:

The Department’s proposals to strengthen protections and improve compliance are aimed at ensuring that the Department can better fulfill its statutory responsibility at 8 U.S.C. 1188(a)(1) to certify that:  (1) there are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services involved in the petition; and (2) the employment of H-2A workers will not adversely affect the wages and working conditions of workers in the United States similarly employed, and its responsibility under the Wagner-Peyser Act at 29 U.S.C. 49b to effectively assist in coordinating the State public employment service offices throughout the country.

Alternatives:

The Department has considered alternatives but believes that rulemaking to update the H-2A regulations and the Employment Service regulations is a reasonable approach to better ensure the necessary worker protections are available and enforceable.  

Anticipated Costs and Benefits:

Risks:

To be determined.