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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

[Federal Register: December 18, 2008 (Volume 73, Number 244)]
[Rules and Regulations]               
[Page 77109-77158]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18de08-20]                         
 

[[Page 77109]]

-----------------------------------------------------------------------

Part II





Department of Labor





-----------------------------------------------------------------------



Employment and Training Administration



20 CFR Part 655



Wage and Hour Division

29 CFR Parts 501, 780, and 788



-----------------------------------------------------------------------



Temporary Agricultural Employment of H-2A Aliens in the United States; 
Modernizing the Labor Certification Process and Enforcement; Final Rule


[[Page 77110]]


-----------------------------------------------------------------------

DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Part 655

Wage and Hour Division

29 CFR Parts 501, 780, and 788

RIN 1205-AB55

 
Temporary Agricultural Employment of H-2A Aliens in the United 
States; Modernizing the Labor Certification Process and Enforcement

AGENCY: Employment and Training Administration, and Wage and Hour 
Division, Employment Standards Administration, Labor.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Department of Labor (DOL or Department) is amending its 
regulations regarding the certification for the temporary employment of 
nonimmigrant workers in agricultural occupations on a temporary or 
seasonal basis, and the enforcement of the contractual obligations 
applicable to employers of such nonimmigrant workers.
    This final rule re-engineers 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 (agricultural temporary worker) status. The 
final rule utilizes an attestation-based application process based on 
pre-filing recruitment and eliminates duplicative H-2A activities 
currently performed by State Workforce Agencies (SWAs) and the 
Department. The rule also provides enhanced enforcement, including more 
rigorous penalties, to complement the modernized certification process 
and to appropriately protect workers.

DATES: This final rule is effective January 17, 2009.

FOR FURTHER INFORMATION CONTACT: For further information about 20 CFR 
part 655, subpart B, contact William L. Carlson, Administrator, Office 
of Foreign Labor Certification, Employment and Training Administration, 
U.S. Department of Labor, 200 Constitution Avenue, NW., Room C-4312, 
Washington, DC 20210. Telephone: (202) 693-3010 (this is not a toll-
free number). Individuals with hearing or speech impairments may access 
the telephone number above via TTY by calling the toll-free Federal 
Information Relay Service at 1-800-877-8339.
    For further information regarding 29 CFR part 501, contact James 
Kessler, Farm Labor Team Leader, Wage and Hour Division, Employment 
Standards Administration, U.S. Department of Labor, 200 Constitution 
Avenue, NW., Room S-3510, Washington, DC 20210; Telephone (202) 693-
0070 (this is not a toll-free number). Individuals with hearing or 
speech impairments may access the telephone number above via TTY by 
calling the toll-free Federal Information Relay Service at 1-800-877-
8339.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background Leading to the NPRM
    A. Statutory Standard and Current Department of Labor 
Regulations
    B. Overview of the Proposed Redesign of the System
    C. Severability
II. Discussion of Comments on Proposed Rule
    A. Revisions to 20 CFR Part 655 Subpart B
    Section 655.93 Special Procedures
    Section 655.100 Overview and Definitions
    Section 655.101 Applications for Temporary Employment 
Certification
    Section 655.102 Required pre-filing activity
    Section 655.103 Advertising requirements
    Section 655.104 Contents of job offers
    Section 655.105 Assurances and obligations of H-2A employers
    Section 655.106 Assurances and obligations of H-2A labor 
contractors
    Section 655.107 Processing of applications
    Section 655.108 Offered wage rate
    Section 655.109 Labor certification determinations
    Section 655.110 Validity and scope of temporary labor 
certifications
    Section 655.111 Required departure
    Section 655.112 Audits
    Section 655.113 H-2A Applications Involving Fraud or Willful 
Misrepresentation
    Section 655.114 Setting Meal Charges; Petition for Higher Meal 
Charges
    Section 655.115 Administrative Review and De Novo Hearing before 
an Administrative Law Judge
    Section 655.116 Job Service Complaint System; enforcement of 
work contracts
    Section 655.117 Revocation of H-2A certification approval
    Section 655.118 Debarment
    Timeline for Anticipated Training and Education Outreach 
Initiative Transition
    B. Revisions to 29 CFR Part 501
    Section 501.0 Introduction
    Section 501.1 Purpose and scope
    Section 501.2 Coordination of intake between DOL agencies
    Section 501.3 Discrimination
    Section 501.4 Waiver of rights prohibited
    Section 501.5 Investigation authority of Secretary
    Section 501.6 Cooperation with DOL officials
    Section 501.8 Surety bond
    Section 501.10 Definitions
    Section 501.15 Enforcement
    Section 501.16 Sanctions and remedies
    Section 501.19 Civil money penalty assessment
    Section 501.20 Debarment and revocation
    Section 501.21 Failure to cooperate with investigations
    Section 501.30 Applicability of procedures and rules
    Section 501.31 Written notice of determination required
    Section 501.32 Contents of notice
    Section 501.33 Requests for hearing
    Section 501.42 Exhaustion of administrative remedies
    C. Revisions to 29 CFR Parts 780 and 788
    Section 780.115 Forest products
    Section 780.201 Meaning of forestry or lumbering operations
    Section 780.205 Nursery activities generally and Christmas tree 
production
    Section 780.208 Forestry activities
    Section 788.10 Preparing other forestry products
III. Administrative Information
    A. Executive Order 12866--Regulatory Planning and Review
    B. Regulatory Flexibility Analysis
    C. Unfunded Mandates Reform Act of 1995
    D. Executive Order 13132--Federalism
    E. Executive Order 13175--Indian Tribal Governments
    F. Assessment of Federal Regulations and Policies on Families
    G. Executive Order 12630--Protected Property Rights
    H. Executive Order 12988--Civil Justice Reform
    I. Plain Language
    J. Executive Order 13211--Energy Supply
    K. Paperwork Reduction Act

I. Background Leading to the NPRM

A. Statutory Standard and Current Department of Labor Regulations

    The H-2A visa program provides a means for U.S. agricultural 
employers to employ foreign workers on a temporary basis to perform 
agricultural labor or services when U.S. labor is in short supply. 
Section 101(a)(15)(H)(ii)(a) of the Immigration and Nationality Act 
(INA or the Act) (8 U.S.C. 1101(a)(15)(H)(ii)(a)) defines an H-2A 
worker as a nonimmigrant admitted to the U.S. on a temporary or 
seasonal basis to perform agricultural labor or services. Section 
214(c)(1) of the INA (8 U.S.C. 1184(c)(1)) mandates that the Secretary 
of DHS consult with the Secretary of the Department of Labor (the 
Secretary) with respect to adjudication H-2A petitions, and, by cross-
referencing Section 218 of the INA (8 U.S.C. 1188), with determining 
the availability of U.S. workers and the effect on wages and working 
conditions. Section 218 also sets forth further details of the H-2A 
application process and the requirements to be met by the agricultural 
employer.

[[Page 77111]]

    Although foreign agricultural labor has contributed to the growth 
and success of America's agricultural sector since the 19th century, 
the modern-day agricultural worker visa program originated with the 
creation, in the INA (Pub. L. 82-144), of the ``H-2 program''--a 
reference to the INA subparagraph that established the program. Today, 
the H-2A nonimmigrant visa program authorizes the Secretary of DHS to 
permit employers to hire foreign workers to come temporarily to the 
U.S. and perform agricultural services or labor of a seasonal or 
temporary nature, if the need for foreign labor is first certified by 
the Secretary.
    Section 218(a)(1) of the INA (8 U.S.C. 1188(a)(1)) states that a 
petition to import H-2A workers may not be approved by the Secretary of 
Homeland Security unless the petitioner has applied to the Secretary 
for a certification that:
    (a) There are not sufficient U.S. 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
    (b) The employment of the alien in such labor or services will not 
adversely affect the wages and working conditions of workers in the 
United States similarly employed.
    The INA specifies conditions under which the Secretary must deny 
certification, and establishes specific timeframes within which 
employers must file--and the Department must process and either reject 
or certify--applications for H-2A labor certification. In addition, the 
statute contains certain worker protections, including the provision of 
workers' compensation insurance and housing as well as minimum 
recruitment standards to which H-2A employers must adhere. See 8 U.S.C. 
1188(b) and (c). The INA does not limit the number of foreign workers 
who may be accorded H-2A status each year or the number of labor 
certification applications the Department may process.
    The Department has regulations at 20 CFR part 655, subpart B--
``Labor Certification Process for Temporary Agricultural Employment 
Occupations in the United States (H-2A Workers),'' governing the H-2A 
labor certification process, and at 29 CFR part 501 implementing its 
enforcement responsibilities under the H-2A program. Regulations 
relating to employer-provided housing for agricultural workers appear 
at 20 CFR part 654, subpart E (Housing for Agricultural Workers), and 
29 CFR 1910.142 (standards set by the Occupational Safety and Health 
Administration); see also 20 CFR 651.10, and part 653, subparts B and 
F.
    The Department was charged with reviewing the efficiency and 
effectiveness of its H-2A procedures in light of the increasing 
presence of undocumented workers in agricultural occupations and 
because of growing concern about the stability of the agricultural 
industry given its difficulty in gaining access to a legal 
workforce.\1\ The Department reviewed its administration of the program 
and, in light of its extensive experience in both the processing of 
applications and the enforcement of worker protections, proposed 
measures to re-engineer the H-2A program in a Notice of Proposed 
Rulemaking on February 13, 2008 (73 FR 8538) (NPRM or Proposed Rule).
---------------------------------------------------------------------------

    \1\ Fact Sheet: Improving Border Security and Immigration Within 
Existing Law, Office of the Press Secretary, The White House (August 
10, 2007); see also Statement on Improving Border Security and 
Immigration Within Existing Law, 43 Weekly Comp. Pres. Doc. (August 
13, 2007).
---------------------------------------------------------------------------

B. Overview of the Proposed Redesign of the System

    The NPRM described a pre-filing recruitment and attestation process 
as part of a re-engineered H-2A program. The Department proposed a 
process by which employers, as part of their application, would attest 
under threat of penalties, including debarment from the program, that 
they have complied with and will continue to comply with all applicable 
program requirements. In addition, employers would not be required to 
file extensive documentation with their applications but would be 
required to maintain all supporting documentation for their application 
for a period of 5 years in order to facilitate the Department's 
enforcement of program requirements. The Department's proposal also 
contained new and enhanced penalties and procedures for invoking those 
penalties against employers as well as their attorneys or agents who 
fail to perform obligations imposed under the H-2A program. The program 
also eliminates duplicative administration and processing by the State 
Workforce Agencies (SWAs) and the Department by requiring filing of the 
application only with the Department's National Processing Center (NPC) 
in Chicago, Illinois. This program would also enable the SWAs to better 
perform their mandated functions in processing H-2A agricultural 
clearance orders, by enhancing their ability to conduct housing 
inspections well in advance of the employer's application date. The 
SWAs would also continue to clear and post intrastate job orders, 
circulate them through the Employment Service interstate clearance 
system and refer potential U.S. workers to employers.
    Finally, the Department proposed additional processes for 
penalizing employers or their attorneys or agents who fail to perform 
obligations required under the H-2A program, including provisions for 
debarring employers, agents, and attorneys and revoking approved labor 
certifications.

C. Severability

    The Department declares that, to the extent that any portion of 
this Final Rule is declared to be invalid by a court, it intends for 
all other parts of the Final Rule that are capable of operating in the 
absence of the specific portion that has been invalidated to remain in 
effect. Thus, even if a court decision invalidating a portion of this 
Final Rule resulted in a partial reversion to the current regulations 
or to the statutory language itself, the Department intends that the 
rest of the Final Rule would continue to operate, if at all possible, 
in tandem with the reverted provisions.

II. Discussion of Comments on Proposed Rule

    The Department received over 11,000 comments in response to the 
proposed rule, the vast majority of them form letters or e-mails 
repeating the same contentions. Commenters included individual farmers 
and associations of farmers, agricultural associations, law firms, 
farmworker advocates, community-based organizations, and individual 
members of the public. The Department has reviewed these comments and 
taken them into consideration in drafting this Final Rule.
    We do not discuss here those provisions of the NPRM on which we 
received no comments. Those provisions were adopted as proposed. We 
have also made some editorial changes to the text of the proposed 
regulations, for clarity and to improve readability. Those changes are 
not intended to alter the meaning or intent of the regulations.

A. Revisions to 20 CFR Part 655 Subpart B

Section 655.93 Special Procedures
    The Department proposed to revise the current regulation on special 
procedures to clarify its authority to establish procedures that vary 
from those procedures outlined in the regulations. We received numerous 
comments about this revised language on special procedures.

[[Page 77112]]

    Several commenters questioned the effect the proposed language 
would have on special procedures currently in use. Section 655.93(b) of 
the current regulations provides for special procedures, stating that: 
``the Director has the authority to establish special procedures for 
processing H-2A applications when employers can demonstrate upon 
written application to and consultation with the Director that special 
procedures are necessary.'' The proposed rule provides that ``the OFLC 
Administrator has the authority to establish or to revise special 
procedures in the form of variances for processing certain H-2A 
applications when employers can demonstrate upon written application to 
and consultation with the OFLC Administrator that special procedures 
are necessary.''
    Four associations of growers/producers specifically requested 
clarification of the phrase ``in the form of variances.'' These 
associations asked the Department to confirm that the proposed language 
does not pose a threat to the continued use of the special procedures 
for sheepherders currently in place. One association expressed concern 
that this revised language would require hundreds of employers engaged 
in the range production of livestock to annually document their need 
for special procedures.
    The addition of the phrase ``in the form of variances'' is intended 
to clarify that special procedures differ from those processes set out 
in the regulation, which otherwise apply to employers seeking to hire 
H-2A workers. The special procedures for sheepherders, for example, 
arise from decades of past practices and draw upon the unique nature of 
the activity that cannot be completely addressed in the generally 
applicable regulations. The establishment of special procedures 
recognizes the peculiarities of an industry or activity, and provides a 
means to comply with the underlying program requirements through an 
altered process that adequately addresses the unique nature of the 
industry or activity while meeting the statutory and regulatory 
requirements of the program. The special procedures do not enable 
industries and employers to evade their statutory or regulatory 
responsibilities but rather establish a feasible and tailored means of 
meeting them while recognizing the unique circumstances of that 
industry. The language in Sec.  655.93(b) affirms the Department's 
authority to develop and/or revise special procedures. The Department 
does not intend to require any industry currently using special 
procedures to seek ratification of their current practice, nor does the 
Department intend to require annual or periodic justifications of an 
industry's need for special procedures. The Department does reserve the 
right to make appropriate changes to those procedures after 
consultation with the industry involved.
    Section 655.93(b) in the NPRM enables the Administrator/OFLC ``to 
establish or revise special procedures in the form of variances for 
processing certain H-2A applications when employers can demonstrate 
upon written application to and consultation with the OFLC 
Administrator that special procedures are necessary.'' In contrast, the 
current rule states that the subpart permits the Administrator/OFLC to 
``continue and * * * revise the special procedures previously in effect 
for the handling of applications for sheepherders in the Western States 
(and to adapt such procedures to occupations in the range production of 
other livestock) and for custom combine crews.''
    The Department received several comments about the proposed 
language, universally expressing concern that the new language provides 
the Department with broader authority for changing or revoking existing 
special procedures without providing due process with respect to 
altering the procedures. An association of growers/producers stated 
that the proposed rule uses ``more ominous terms'' and gives the 
impression that the Administrator/OFLC has unilateral authority to make 
changes without safeguards, review, or democratic procedures. One 
association of growers and producers expressed the view that the 
revocation language gives the Department authority to revoke the 
procedures without advance notice and opportunity for comment and is, 
therefore, a violation of the Administrative Procedure Act.
    A law firm that provides counsel to agricultural employers stated 
that the new language does not adequately solidify the Department's 
commitment to existing special procedures and recommended that the 
Department amend the regulation to affirm its commitment to continuing 
such long-standing special procedures by providing that any proposed 
changes to the existing special procedures and policies can be made 
only after publication in the Federal Register with at least a 120-day 
period for public comment. The firm also commented that the proposal to 
empower the Administrator/OFLC to revoke special procedures would 
violate Section 218(c)(4) of the INA, which requires the Secretary of 
Labor to issue regulations addressing the specific requirements of 
housing for employees principally engaged in the range production of 
livestock.
    The Department has decided, following consideration of these 
concerns, to retain the NPRM language in the final regulation, but has 
added language similar to that in the current regulation, to enumerate 
those special procedures currently in effect as examples of the use of 
special procedures. It is our belief that this provision, as it now 
reads, provides both the Department and employers using the H-2A 
program essential flexibility regarding special procedures, thus 
permitting the Department to be far more responsive to employers' 
changing needs, crop mechanization, and similar concerns. In addition, 
the language on special procedures in the Final Rule reaffirms the 
Department's continuing commitment to use special procedures where 
appropriate. The Department has no present intent to revoke any of the 
special procedures that are already in place, nor does the language of 
the final regulation give the Department any new power to do so. While 
it is possible that at some time in the future the Department may need 
to revoke or revise existing special procedures, that step would be 
taken with the same level of deliberation and consultation that was 
employed in the creation of those procedures. To strengthen our 
commitment to continue the current consultative process, we have 
changed the word ``may'' in the last sentence of paragraph (b) to 
``will.'' The provision also provides the Department with the authority 
to develop new procedures to meet employer needs and, additionally, 
provides employers with the opportunity to request that the Department 
consider additional procedures or revisions to existing special 
procedures. Proposed paragraph (c) has been deleted as unnecessarily 
duplicative of the language in paragraph (b).
    Two associations of growers and producers requested that the 
Department formulate special procedures for dairy workers, stating that 
these requested special procedures should not be different from those 
already established for sheepherders. The associations stated the 
provisions for sheepherders have ``special relevance to the current 
dairy situation'' and also stated the ``special procedures relieve the 
sheepherding industry from having to make a showing of temporary or 
seasonal employment.'' The longstanding special procedures that allow 
sheepherders to participate in the

[[Page 77113]]

H-2A program have their origins in prior statutory provisions dating 
back to the 1950s. The Department is unaware of any comparable 
statutory history pertaining to the dairy industry. The Department 
would, of course, consider a specific request from dairy producers or 
their representatives for the development of special procedures that 
would be applicable to eligible H-2A occupations (see further 
discussion on this point in the discussion of the definition of 
``agricultural labor or services'' below). The Department does not 
believe, however, that it would be appropriate to speculatively address 
the merits of a specific special procedures request in this regulation, 
particularly before a request making a detailed case for the 
appropriateness of such special procedures has been received.
    An individual employer commented that those involved in discussing 
and considering changes to the H-2A program should preserve the special 
procedures for sheepherders and extend them to all occupations engaged 
in the range production of other livestock (cattle and horses). A 
private citizen provided suggestions for improving the handling of 
certification for sheep shearers.
    The Department has previously established special procedures for 
open range production of livestock and sheep shearers and does not have 
any plans to change those procedures at this time and does not believe 
that it would be appropriate to address in this regulation the merits 
of the commenters' general suggestions for revising these special 
procedures. The Department would, of course, be willing to consider a 
specific request from livestock producers or their representatives for 
the revision or expansion of special procedures consistent with its 
authority and this regulation.
Section 655.100--Overview and definitions
(a) Overview
    The Department included a provision in the NPRM, similar to a 
provision in the current regulation, which provides an overview of the 
H-2A program. This overview provides the reader, especially readers 
unfamiliar with the program, a general description of program 
obligations, requirements, and processes.
    Only two commenters identified concerns with the overview as 
written. Both expressed concern with the proposed earlier time period 
for the recruitment of U.S. workers. They questioned whether U.S. 
workers who agreed to work on a date far in advance would then be 
available to work for the entire contract period. The overview, 
however, simply describes in broad-brush fashion the regulatory 
provisions that are discussed in detail later in the NPRM, and in and 
of itself has no legal effect. The concerns and observations expressed 
by commenters will be addressed in the context of the relevant 
regulatory provision to which they apply rather than in the overview. 
The overview has also been edited for general clarity and to reflect 
changes made throughout the regulatory text.
(b) Transition
    The Department, due to past program experience, has decided to add 
a transition period in order to provide an orderly and seamless 
transition to the new system created by these regulatory revisions. 
This will allow the Department to make necessary changes to program 
operations, provide training to the NPC, SWAs and stakeholder groups, 
and allow employers and their agents/representatives to become familiar 
with the new system. Employers with a date of need for workers on or 
after July 1, 2009 will be obligated to follow all of the new 
procedures established by these regulations. Prior to that time, the 
Department has created a hybrid system involving elements of the old 
and the new regulations as delineated in the new Sec.  655.100(b).
    Even though the NPRM put current and future users of H-2A workers 
on some notice regarding what this Final Rule will require, the rule as 
a whole implements several significant changes to the administration of 
the program. Several commenters requested that the Department allow 
employers some period of time to prepare and adjust their requests for 
temporary agricultural workers. These regulations implement new 
application forms, new processes, and new time periods for conducting 
recruitment for domestic workers to which current and new users of the 
program will need to become accustomed.
    The Department is accordingly adopting a transition period after 
the effective date of this Final Rule. The transition period 
establishes procedures that will apply to any application for which the 
first date of need for H-2A workers is no earlier than the effective 
date of this rule and no later than June 30, 2009.
    During this transition period, the Department will accept 
applications in the following manner: An employer will complete and 
submit Form ETA-9142, Application for Temporary Employment 
Certification, in accordance with Sec.  655.107, no less than 45 days 
prior to their date of need. The employer will simultaneously submit 
Form ETA-790 Agricultural and Food Processing Clearance Order (job 
order), with the Application for Temporary Employment Certification 
(application) directly to the Chicago NPC. Activities that are required 
to be conducted prior to filing an application under the Final Rule 
will be conducted post-filing during this transition period, much as 
they are under the current rule. The employer will also be expected to 
make attestations in its application applicable to its future 
recruitment activities, payment of the offered wage rate, etc. 
Employers will not be required to complete an initial recruitment 
report for submission with the application, but will be required to 
complete a recruitment report for submission to the NPC prior to 
certification, and will also be required to complete a final 
recruitment report covering the entire recruitment period.
    The employer will not separately request a wage determination from 
the Chicago NPC. Upon receipt of Forms ETA-9142 and ETA-790, the 
Chicago NPC will provide the employer with the minimum applicable wage 
rate to be offered by the employer, and will process the application 
and job order in a manner consistent with Sec.  655.107, issuing a 
modification for any curable deficiencies within 7 calendar days. Once 
the application and job order have been accepted, the Chicago NPC will 
transmit a copy of the job order to the SWA(s) serving the area of 
intended employment to initiate intrastate and interstate clearance, 
request the SWA(s) schedule an inspection of the housing, and provide 
instructions to the employer to commence positive recruitment in a 
manner consistent with Sec.  655.102. The NPC will designate labor 
supply States during this transition period on a case-by-case basis, 
applying the basic information standard for such designations that is 
set forth in Sec.  655.102(i).
    This transition period process will apply only to applications 
filed on or after the effective date of this regulation with dates of 
need no earlier than the effective date and no later than June 30, 
2009. Employers with a date of need on or after July 1, 2009 will be 
expected to fully comply with all of the requirements of the Final 
Rule. Moreover, after the Final Rule's effective date, the requirements 
of the Final Rule will fully apply except for those modifications that 
are expressly mentioned as transition period procedures in Sec.  
655.100(b); all other

[[Page 77114]]

provisions of the Final Rule will apply on the effective date of the 
Final Rule.
    These transition period procedures are designed to ensure that 
employers seeking to utilize the program immediately after its 
effective date, especially those with needs early in the planting 
season, will not be prejudiced by the new pre-filing requirements 
regarding wage determinations and recruitment, which might otherwise 
substantially impact employers' application timing. Because the 
Department's seasonal H-2A workload begins to peak in January of each 
year, however, the Department deems it essential to the smooth and 
continuous operation of the H-2A program throughout calendar year 2009 
to make the rule effective as early in the year as possible.
(c) Definitions 655.100
Definition of ``agent,'' ``attorney,'' and ``representative''
    The Department did not propose any changes to the definition of 
``agent'' from existing regulations but added definitions for 
``attorney'' and ``representative'' in the proposed rule. A major trade 
association commented that the definitions of, and references to, the 
terms ``agent,'' ``attorney'' and ``representative'' are confusing. The 
association found the definitions of agent and representative to be 
duplicative and the distinctions between these two terms, both of which 
encompass the authority to act on behalf of an employer, unclear. The 
association also commented that the definition of ``attorney'' is self-
evident and appears to be a vehicle for permitting attorneys to act as 
``agents'' or ``representatives.'' Further, according to the commenter, 
the term ``representative'' is also problematic and the Department 
should consider revising it or eliminating it entirely. The association 
believes the main purpose of the definition is to deem the person who 
makes the attestations on behalf of the employer a ``representative,'' 
but the association believes it is not clear whether the intent of the 
definition of ``representative'' is to also make the representative 
liable for any misrepresentations made in an attestation on behalf of 
an employer. The association recommended the proposed rule should 
clarify the intent of the definition of ``representative'' and also 
under what circumstances an agent will be liable for activities 
undertaken on behalf of an employer. The association recommended a 
clear set of standards for liability and suggested such standards 
should not deviate from the current standards where agents, attorneys, 
and representatives (under the proposed rule) are not liable if they 
perform the administrative tasks necessary to file labor certification 
applications and petitions for visas and do not make attestations that 
are factually based. In addition, the association recommended that the 
agents, attorneys, or representatives should not be liable for program 
violations by the employer.
    The Department understands the need for clarity in determining who 
qualifies as a representative before the Department and what 
responsibilities and liabilities attach to that role and has 
accordingly simplified the definition of a representative. Although the 
Department does distinguish between the different roles of attorneys 
and agents, both groups are held to the same standards of ethics and 
honesty under the Department's rules. Under the rules, attorneys can 
function as agents, and either attorneys or agents can function as a 
representative of the employer. The Department has, in addition, 
replaced the word ``official'' with ``person or entity'' to parallel 
the definition of agent.
    However, the Department disagrees with the commenter's 
interpretation of the extent to which an agent or attorney can be held 
accountable by the Department for their own and their clients' conduct 
in filing an application for an employer. While agents and attorneys 
are of course not strictly liable for all misconduct engaged in by 
their clients, they do undertake a significant duty in attestations to 
the Department regarding their employer-clients' obligations. They are, 
therefore, responsible for exercising reasonable due diligence in 
ensuring that employers understand their responsibilities under the 
program and are prepared to execute those obligations. Agents and 
attorneys do not themselves make the factual attestations and are not 
required to have personal knowledge that the attestations they submit 
are accurate. They are, however, required to inform the employers they 
represent of the employers' obligations under the program, including 
the employers' liability for making false attestations, and the 
prohibition on submitting applications containing attestations they 
know or should know are false. The debarment provisions at Sec.  
655.118 of the final regulations have accordingly been clarified to 
state that agents and attorneys can be held liable for their employer-
clients' misconduct when they ``participated in, had knowledge of, or 
had reason to know of, the employer's substantial violation.''
    The same association also questioned why the Department is 
``singling out attorneys'' in the definition of ``representative'' by 
requiring an attorney who acts as an employer's representative and 
interviews and/or considers U.S. workers for the job offered to the 
foreign worker(s) to also be the person who normally considers 
applicants for job opportunities not involving labor certifications. 
The association found no apparent rationale justifying why the 
Department should dictate who and under what circumstances an attorney 
or any other person should interview U.S. job applicants. It further 
recommended that the rule eliminate the reference to attorneys or, at a 
minimum, clarify that the rule does not reach attorneys who merely 
advise and guide employers through the H-2A program. The Department has 
accordingly clarified the definition of representative by deleting the 
sentence limiting the role attorneys can play in interviewing and 
considering workers, primarily because, unlike other labor 
certification programs administered by the Department, the relatively 
simple job qualifications that apply to most agricultural job 
opportunities render it unlikely that U.S. workers would be discouraged 
from applying for those jobs by the prospect of being interviewed by an 
attorney.
    A specialty bar association urged that the definition of ``agent'' 
be changed in order to prevent abuses related to foreign nationals 
paying recruiters' fees. The association suggested that the Department 
limit representation of employers to that recognized by DHS: attorneys 
duly licensed and in good standing; law students and law graduates not 
yet licensed who are working under the direct supervision of an 
attorney licensed in the United States or a certified representative; a 
reputable individual of good moral character who is assisting without 
direct or indirect remuneration and who has a pre-existing relationship 
with the person or entity being represented; and accredited 
representatives, who are persons representing a nonprofit organization 
which has been accredited by the Board of Immigration Appeals.
    The Department acknowledges that its allowance of agents who are 
not attorneys and who do not fit into the categories recognized by DHS 
creates a difference of practices between the two agencies. However, 
the Department has for decades permitted agents who do not meet DHS's 
criteria to appear before it. Agents who are not attorneys have 
adequately represented claimants before the Department in a wide 
variety of

[[Page 77115]]

activities since long before the development of the H-2A program. To 
change such a long-standing practice in the context of this rulemaking 
would represent a major change in policy that the Department is not 
prepared to make at this time. The Department has, however, added 
language to the definition of both ``agent'' and ``attorney'' to 
clarify that individuals who have been debarred by the Department under 
Sec.  655.118 cannot function as attorneys or agents during the period 
of their debarment.
Definition of ``adverse effect wage rate''
    The Department proposed a revised definition of ``adverse effect 
wage rate,'' limiting its application to only H-2A workers. A law firm 
commented that the proposed definition of ``adverse effect wage rate'' 
appears to apply only to H-2A workers and not to U.S. workers who are 
employed in ``corresponding employment.'' The Department has clarified 
the definition to make clear that those hired into corresponding 
employment during the recruitment period will also receive the highest 
of the AEWR, prevailing wage, or minimum wage, as applicable. The firm 
also requested the same revision to 29 CFR Part 501 regulations. The 
Department believes that this requirement is adequately explained in 
the text of the regulations at Sec.  655.104(l) and Sec.  655.105(g).
Definition of ``agricultural association''
    The Department added a definition for ``agricultural association'' 
in the proposed regulation. A major trade association commented that 
the proposed definition does not acknowledge that associations may be 
joint employers and suggests that the definition could cause confusion 
because other sections of the proposed regulation acknowledge that 
associations may have joint employer status. The association 
recommended the definition clarify that agricultural associations may 
serve as agents or joint employers and define the circumstances under 
which joint employer arrangements may be utilized. A professional 
association further commented that associations should not be exempt 
from Farm Labor Contractor provisions if the associations are 
performing the same activities as Farm Labor Contractors.
    The Department agrees that agricultural associations play a vital 
role in the H-2A program and seeks to minimize potential confusion 
about their role and responsibilities. The regulation has been revised 
to clarify that agricultural associations may indeed serve as sole 
employers, joint employers, or as agents. The definition of ``H-2A 
Labor Contractors'' has also been revised to clearly differentiate 
labor contractors from agricultural associations and that an 
agricultural association that meets the definition in this part is not 
subject to the requirements attaching to H-2A Labor Contractors. 
Finally, the regulation has been clarified by specifying that 
``processing establishments, canneries, gins, packing sheds, nurseries, 
or other fixed-site agricultural employers'' can all be encompassed by 
agricultural associations.
Definition of Application for Temporary Employment Certification
    The Department has added to the Final Rule a definition of 
Application for Temporary Labor Certification. An Application for 
Temporary Labor Certification is an Office of Management and Budget 
(OMB)-approved form that an employer submits to DOL to secure a 
temporary agricultural labor certification. A complete submission is 
required to include an initial recruitment report.
Definition of ``date of need''
    The Department slightly modified the definition of ``date of need'' 
to clarify that the applicable date is the one that is specified in the 
employer's Application for Temporary Employment Certification.
Definition of ``employ'' and ``employer''
    In the NPRM, the Department added a definition for ``employ'' and 
made revisions to the existing definition of ``employer.'' A trade 
association suggested that the Department eliminate the definition of 
``employ'' but retain the definition of ``employer,'' stating that the 
definition of ``employ'' adds nothing to clarify status or legal 
obligations under the H-2A program. The association believes the status 
of an employer under the H-2A program is defined by the labor 
certification and visa petition processes and that the incorporation of 
the broad FLSA and MSPA definitions of ``employ'' insinuate broad legal 
concepts that add unnecessary confusion. The association further 
recommended that the Department eliminate the fourth criterion related 
to joint employment status in its proposed definition of ``employer'' 
and, instead, provide a separate definition of joint employer 
associations and the respective liabilities of the association and its 
joint employer members.
    The Department agrees with these comments and has, accordingly, 
removed the definition of ``employ'' as superfluous and created a 
separate definition of ``joint employment'' (using that portion of the 
definition of employer which discussed joint employers) to eliminate 
any confusion between the two terms. The definition of ``employer'' has 
also been revised. First, the Final Rule clarifies the proposal's 
statement that an employer must have a ``location'' within the U.S. to 
more specifically state that it must have a ``place of business 
(physical location) within the U.S.'' Second, out of recognition that 
some H-2A program users, such as H-2ALCs, are itinerant by nature, and 
that SWA referrals may thus occasionally need to be made to non-fixed 
locations, the Final Rule states that an employer must have ``a means 
by which it may be contacted for employment'' rather than a specific 
location ``to which U.S. workers may be referred.'' Finally, the Final 
Rule clarifies that an employer must have an employment relationship 
``with respect to H-2A employees or related U.S. workers under this 
subpart'' rather than less specifically referring to ``employees under 
this subpart,'' and deletes the references to specific indicia of an 
employment relationship because the applicable criteria are spelled out 
in greater detail in the definition of ``employee.'' The definition of 
``joint employer'' is modified slightly from the concept that appeared 
in the NPRM to clarify that the two or more employers must each have 
sufficient indicia of employment to be considered the employer of the 
employee in order to meet the test for joint employment.
Definition of ``farm labor contracting activity'' and ``Farm Labor 
Contractor (FLC)''
    The Department proposed adding definitions for ``farm labor 
contracting activity'' and ``Farm Labor Contractor (FLC)'' to this 
section. In the Final Rule, the Department has eliminated the 
definition for ``farm labor contracting activity'' and revised the 
definition for ``Farm Labor Contractor.'' The revised definition is now 
contained under the heading ``H-2A Labor Contractor.''
    A law firm commented that neither agents nor attorneys should be 
required to register as H-2A Labor Contractors. The commenter did not 
specifically address why it believed agents and attorneys would be 
required to register under the proposed definitions, so the Department 
is unable to respond to this point. As a general matter, however, an 
agent or attorney, if performing labor contracting activities as they 
appear in the revised definition of an H-2A Labor Contractor, would be 
required to register

[[Page 77116]]

as, and would be held to the standards of, an H-2A Labor Contractor.
    A group of farmworker advocacy organizations commented that the 
definition proposed for Farm Labor Contractor (H-2A Labor Contractor) 
would exclude recruiters of foreign temporary workers from the scope of 
the rule, making enforcement impossible. This organization pointed out 
that under the Migrant and Seasonal Agricultural Worker Protection Act 
(MSPA), H-2A workers are not migrant or seasonal agricultural workers 
and, therefore, a contractor recruiting workers to become H-2A visa 
holders would not fit within the proposed regulatory definition. The 
organization also commented that the reference to ``fixed-site'' 
employers in the ``farm labor contracting activity'' definition could 
present problems in some employment situations, such as employment for 
a custom harvester, where the employer would not have a fixed site. An 
association of growers/producers suggested the MSPA definitions for 
``farm labor contracting activity'' and ``Farm Labor Contractor'' 
should be used.
    In response to the comments, the Department has deleted the 
definition of ``agricultural employer'' and included a separate 
definition for ``fixed-site employer.'' The Department also deleted the 
definition of ``Farm Labor Contractor'' in the final regulation and 
replaced it with a new definition for ``H-2A Labor Contractor.'' This 
will differentiate the two terms since the definition of an ``H-2A 
Labor Contractor'' does not match the definition of a ``Farm Labor 
Contractor'' as used in MSPA, and the operational differences between 
the H-2A program and MSPA do not allow perfect parallels to be drawn 
between the two statutory schemes. The definition of ``farm labor 
contracting activity'' has been deleted as redundant since the 
activities have been made part of the definitions of ``fixed-site 
employer'' and ``H-2A Labor Contractor.''
Definition of ``joint employment''
    The Department included in its definition of ``employment'' a 
reference to what would constitute ``joint employment'' for purposes of 
the H-2A program. The Department received one comment suggesting the 
inclusion of the definition of ``joint employment'' within the 
definition of ``employment'' was confusing. The Department has 
accordingly removed the last phrase from the proposed definition of 
``employer'' and provided a separate definition for ``joint 
employment.''
Definition of ``prevailing''
    The Department proposed a revision to the definition of 
``prevailing'' to include, ``with respect to certain benefits other 
than wages provided by employers and certain practices engaged in by 
employers, that practice or benefit which is most commonly provided by 
employers (including H-2A and non-H-2A employers) for the occupation in 
the area of intended employment.'' This represented a change from the 
current rule, which does not refer to ``commonly provided'' practices 
or benefits but instead uses a percentage test (50 percent or more of 
employers in an area and for an occupation must engage in the practice 
or offer the benefit for it to be considered ``prevailing,'' and the 50 
percent or more of employers must also employ in aggregate 50 percent 
or more of U.S. workers in the occupation and area''). The Department 
received comments on the change, specifically inquiring whether the 
SWAs would continue to conduct prevailing wage and practice surveys, 
and requesting that if the Department intends to no longer require SWAs 
to conduct prevailing wage and practice surveys, the change should be 
discussed in the preamble.
    The Department has determined that, to provide greater clarity and 
for ease of administration, the definition of ``prevailing'' will 
revert to the definition in the current regulation that requires that 
50 percent or more of employers in an area and for an occupation engage 
in the practice or offer the benefit and that the 50 percent or more of 
the employers in an area must also employ in aggregate 50 percent or 
more of U.S. workers in the occupation and area.
    The Department notes it does not intend to change the provision on 
prevailing wage surveys currently undertaken by SWAs. The Department 
has included specific definitions for the terms ``prevailing piece 
rate'' and ``prevailing hourly rate,'' the two kinds of wage surveys 
that have traditionally been undertaken by SWAs, and has included 
express references to both types of surveys throughout the rule.
Definition of ``strike''
    The Department has been added to the Final Rule a definition for 
the term strike. The definition conforms to the changes explained in 
the discussion of Sec.  655.105(c), and clarifies that the Department 
will evaluate whether job opportunities are vacant because of a strike, 
lockout, or work stoppage on an individualized, position-by-position 
basis.
Definition of ``successor in interest''
    The Department's proposal included a debarment provision allowing 
for debarment of a successor in interest to ensure that violators are 
not able to re-incorporate to circumvent the effect of the debarment 
provisions. A national agricultural association commented that this 
provision as drafted could result in an innocent third party buying the 
farm of a debarred farmer and being subject to debarment, even though 
the successor is free of any wrongdoing, and thus the rule would place 
roadblocks on the sale of assets to innocent parties.
    The Department agrees with this commenter. We have addressed this 
issue by including a definition of ``successor in interest'' to make 
clear that the Department will consider the facts of each case to 
determine whether the successor and its agents were personally involved 
in the violations that led to debarment in determining whether the 
successor constitutes a ``successor in interest'' for purposes of the 
rule.
Definition of ``United States''
    The Consolidated Natural Resources Act of 2008, Public Law 110-229, 
Title VII (CNRA), applies the INA to the Commonwealth of the Northern 
Mariana Islands (CNMI) at the completion of the transition period as 
provided in the CNRA, which at the earliest, would be December 31, 
2014. Accordingly, the H-2A program will not apply to the CNMI until 
such time. However, the CNRA amends the definition of ``United States'' 
in the INA to include the CNMI. It should be noted that the amendment 
to the INA of the definition of ``United States'' does not take effect 
until the beginning of the transition period which could be as early as 
June 1, 2009, but may be delayed up to 180 days. Accordingly, the 
Department has included CNMI in the definition of ``United States'' 
with the following qualification: ``as of the transition program 
effective date, as defined in the Consolidated Natural Resources Act of 
2008, Public Law 110-229, Title VII.'' The Department will publish a 
notice in the Federal Register at such time that its regulations 
regarding the foreign labor programs described in the INA, including 
the H-2A program, will apply to the Commonwealth.
Definition of ``Within [number and type] days''
    The Department has added to the Final Rule a definition of the term 
within [number and type] days. The definition clarifies how the 
Department will calculate timing for meeting filing

[[Page 77117]]

deadlines under the rule where that term, in some formulation, appears. 
The definition specifies that a period of time described by the term 
``within [number and type] days'' will begin to run on the first 
business day after the Department sends a notice to the employer by 
means normally assuring next-day delivery, and will end on the day that 
the employer sends whatever communication is required by the rules back 
to the Department, as evidenced by a postal mark or other similar 
receipt.
Definition of ``Work contract''
    The Department has added to the Final Rule a definition of the term 
work contract. The definition was borrowed from the definition section 
of 29 CFR part 501 of the NPRM, with minor modifications made for 
purposes of clarification.
d. Definition of ``agricultural labor or services''
    The Department proposed changes to the definition of ``agricultural 
labor or services'' to clarify, as in the current regulation, that an 
activity that meets either the Internal Revenue Code (IRC) or the Fair 
Labor Standards Act (FLSA) definition of agriculture is considered 
agricultural labor or services for H-2A program purposes and, more 
significantly, to remove limitations on the performance of certain 
traditional agricultural activities which, when performed for more than 
one farmer, are not considered agricultural labor or services under the 
IRC or the FLSA, including packing and processing.
    The Department received several comments supporting these changes, 
with some specific suggestions for additional changes. A major trade 
association complimented the Department on providing ``bright line'' 
definitional guidance regarding the activities that constitute 
agricultural work to be covered by the H-2A program as distinct from 
the H-2B program. A number of these commenters mentioned that the 
Department's inclusion of packing and processing activities in work 
considered as agricultural provides an option for obtaining legal 
workers, especially in light of the numerical limitations on H-2B 
visas. One association of growers/producers supported the expansion of 
the current definition to include packing and processing but suggested 
that agricultural employers who have previously used the H-2B program 
for packing or processing operations be allowed to continue using the 
H-2B program. Another association of growers/producers suggested that 
the definition be changed to allow product that is moving from on-farm 
production directly to the end consumer be included as permissible work 
for H-2A workers, and suggested that the definition provide that it is 
a permissible activity for H-2A workers to work on production of a 
purchased crop when the crop is purchased by a farm because of weather 
damage to that farm's crops in a particular year.
    The Department appreciates the general support for the proposed 
changes and has retained them in the final regulation. Regarding 
packing and processing activities, the proposed definition includes as 
agricultural activities ``handling, planting, drying, packing, 
packaging, processing, freezing, grading, storing or delivering to 
storage or to market or to a carrier for transportation to market, in 
its unmanufactured state, any agricultural or horticultural commodity 
while in the employ of the operator of a farm.'' In response to the 
request to allow employers who have used the H-2B program for packing 
or processing operations to continue using the H-2B program, the 
Department has revised the definition to clarify that while the 
Department cannot permit H-2A workers and H-2B workers to 
simultaneously perform the same work at the same establishment, the 
distinctions between establishments at which operations of this nature 
should be performed by H-2A workers and those at which the operations 
should be performed by H-2B workers are too fine for the Department to 
reasonably distinguish between them with sufficient precision to 
establish a bright line test. The Department will therefore defer to 
operators as to whether the ``handling, planting, drying, packing, 
packaging, processing, freezing, grading, storing or delivering'' 
operations at their particular establishment are more properly governed 
by the H-2A or the H-2B program, but will not accept applications for 
both kinds of workers to simultaneously perform the same work at the 
same establishment.
    The Department agrees with the comment that H-2A workers should be 
permitted to work in the production of a purchased crop, as well as 
work in processing or packing a farm product that is moving from on-
farm production directly to the end consumer. Moreover, the Department 
believes such activities are permitted by the definition in the 
proposed rule and therefore the provision requires no additional 
language in the Final Rule.
    The Department has clarified the Final Rule to reflect existing 
law, which provides that work performed by H-2A workers, or workers in 
corresponding employment, which is not defined as agriculture under 
Section 3(f) of the Fair Labor Standards Act, 29 U.S.C. 203(f), is 
subject to the provisions of the FLSA as provided therein, including 
the overtime provisions in Section 7(a)(29 U.S.C. 207(a)).
Incidental Activities
    The Department also proposed clarifications to reflect that work 
activity of the type typically performed on a farm and incident to the 
agricultural labor or services for which an H-2A labor certification 
was approved may be performed by an H-2A worker. A number of 
commenters, including a professional association, a major trade 
association, and several associations of growers/producers supported 
this change, stating that it was positive and would provide more 
flexibility for employers. A major trade association commented this 
change would allow employers to include duties in H-2A certified job 
opportunities that reflect the actual duties performed by farm workers 
and further commented that, ``[p]resumably the provision will cover a 
farm worker who engages in incidental employment in the farm's roadside 
retail stand, a farm worker who assists in managing `pick your own' 
activities, and a farm worker who occasionally drives a tractor pulling 
a hay wagon for a hay ride, to cite a few examples of incidental 
activities customarily performed by farm workers that have been 
disallowed in the past.'' This commenter's understanding of the 
Department's interpretation is correct.
    One association of growers/producers commented that allowing H-2A 
workers to perform duties typically performed on a farm benefits the 
employee as well as the employer. A trade association commented that 
being able to use workers in other jobs not listed on the contract is 
needed, particularly when weather prevents field work.
    The Department has revised the wording in the definition of 
``agricultural labor or services'' provided in Sec.  655.100(d)(1)(vi) 
to provide additional clarity for employers. The definition now reads: 
``Other work typically performed on a farm that is not specifically 
listed on the Application for Temporary Employment Certification and is 
minor (i.e., less than 20 percent of the total time worked on the job 
duties that are listed on the Application for Temporary Employment 
Certification) and incidental to the agricultural labor or services for 
which the H-2A worker was sought.'' The Department recognizes that, due 
to the unpredictable nature of weather

[[Page 77118]]

conditions and agricultural work itself, employers need some 
flexibility in assigning tasks, and that it would be difficult if not 
impossible to list all potential minor and incidental job 
responsibilities of H-2A workers on the Application for Temporary 
Employment Certification. The proposed amendment of the definition is 
intended to recognize the reality of working conditions at agricultural 
establishments and ensure that an H-2A worker's performance of minor 
and incidental activity does not violate the terms and conditions of 
the worker's H-2A visa status. The further revision to the definition 
will assist employers in determining whether activities or work not 
included on the Application for Temporary Employment Certification can 
reasonably be considered as minor and incidental.
Inclusion of Other Occupations
    The Department proposed to include logging employment in its 
definition of ``agricultural labor or services'' for purposes of the H-
2A program. Two commenters voiced their support for this inclusion; we 
received no comments in opposition. The Department also sought comments 
as to whether there are other occupations that should be included 
within the definition of agriculture used in the H-2A program. The 
Department received several suggestions of other industries that should 
be considered, including livestock and dairy producers, fisheries, 
nurseries, greenhouses, landscapers, poultry producers, wine 
businesses, equine businesses, turf grass growers, mushroom producers, 
maple syrup producers, and employers engaging in seasonal food 
processing as well as growers who operate processing and packing 
plants.
    Of those requesting expansion of the definition to include other 
occupations, representatives of the dairy industry submitted the most 
comments. A major trade association and a number of associations of 
growers/producers commented that the dairy industry is unable to use 
the H-2A agricultural worker visa program and that this exclusion is 
unfair. They stated dairy farmers need and deserve the same access to 
legal foreign workers as other sectors of the agricultural industry. 
The association suggested that H-2A visas for dairy workers should last 
at least three years rather than one. Two trade association commenters 
stated they understood the importance under the statutory definition of 
H-2A workers needing to be temporary or seasonal, but not why the jobs 
themselves needed to be temporary or seasonal. A farm bureau provided 
comments suggesting dairy and livestock operations should be allowed to 
designate seasonal jobs within their operations for which H-2A workers 
could be employed. This association commented that current worker 
patterns suggest typical milkers stay in their positions for 9 to 10 
months and then voluntarily leave, but return to seek a job after 2 to 
3 months.
    The Department also received comments from an association of 
growers/producers and from two individual employers requesting that 
reforestation work be considered as agricultural labor. These 
commenters assert that there are reforestation activities including 
planting, weed control, herbicide application and other unskilled tasks 
related to preparing the site and cultivating the soil and that workers 
who perform these tasks deserve consideration for eligibility for H-2A 
visas, as do workers who perform the same or similar tasks in 
cultivating other agricultural and horticultural commodities on many of 
the same farms. These commenters also pointed out that workers 
performing reforestation tasks for farmers or on farms are clearly 
agricultural employees under the FLSA and, additionally, believed the 
Internal Revenue Code supports their position for considering 
reforestation work performed on a farm or for a farmer as agricultural 
labor or services.
    Following review of the comments discussed above, the Department 
has decided the definition of agriculture should not be further 
expanded at this time and no additional activities have been selected 
for inclusion as agricultural activities beyond those included in the 
NPRM. In most cases where there was the suggestion for the inclusion of 
a particular industry or activity in the definition of agriculture 
there was not strong support for the inclusion by representatives of 
that industry, as indicated by the number and source of the comments 
received. For example, one commenter supported adding maple syrup 
harvesting and ancillary activities to the definition of agricultural 
labor. The suggestion did not come from someone actually involved in 
the maple syrup industry, however, but rather from a State Workforce 
Agency. While the Department appreciates the input of such commenters, 
it would be inappropriate to impose on those industries (most of which 
currently qualify for the H-2B program rather than the H-2A program) 
changes that the industry itself did not seek.
    The two exceptions to this pattern in the comments were the dairy 
industry and the reforestation industry, both of which, as discussed 
above, submitted comments evidencing industry-based support. The 
Department's analysis of the comments from the dairy industry, however, 
indicates it is not the program's definition of agriculture, which 
already includes dairy activities, that presents a potential barrier to 
the industry's use of the H-2A program, but rather the statutory 
requirement for the work to be temporary or seasonal in nature.
    The H-2A program, by statute, provides a means for agricultural 
employers to employ foreign workers on a temporary basis. Many dairy-
related job needs, however, appear to be year-round and permanent in 
nature.
    While the H-2A program is specially designed for agricultural 
employers, they are not limited to using only the H-2A program. The 
employment-based permanent visa program is also open to agricultural 
employers with a permanent need for which they are unable to secure 
U.S. workers. At the same time, year-round operations are permitted to 
seek certification to utilize H-2A workers for seasonal or temporary 
jobs within their industries when they can substantiate the temporary 
or seasonal nature of the jobs. The Department recognizes that an 
employer may have both permanent and temporary jobs in the same 
occupation. However, employers should be aware that the Department does 
not typically approve subsequent applications requesting foreign 
workers for the same position when, taken together, those applications 
would cover a continuous period of time in excess of 10 months, unless 
exceptional circumstances are present.
    The comments from the reforestation industry, while thoughtful, 
represented the input of only two individual employers and a single 
employer association who do not necessarily provide a representative 
sample of the entire reforestation industry. The Department is 
reluctant to overturn the regulatory practices of several decades and 
impose the significant obligations of an H-2A employer on an entire 
industry without significant input from that industry. While the 
Department is willing to further explore whether to include the 
reforestation industry in the definition of agriculture, it does not 
believe a decision to do so is warranted at this time.
``On a seasonal or other temporary basis''
    The Department proposed a definition of the key terms ``on a 
seasonal or other temporary basis'' in the definition of

[[Page 77119]]

agricultural labor or services in the NPRM that continued the 
interpretation of the current regulation. We received several comments 
related to the phrase ``on a seasonal or other temporary basis.'' A 
trade association suggested the rule borrow the temporary and seasonal 
concepts from the Migrant and Seasonal Agricultural Workers Protection 
Act (MSPA) definitions that are appropriate in an H-2A context without 
incorporating the MSPA regulations and related judicial precedent. It 
was the association's belief that this approach would allow an H-2A 
worker to be admitted for longer than a 10-month period. An association 
of growers/producers suggested the definition of temporary or seasonal 
should apply to the worker rather than the job and also that year-round 
farming operations/nurseries should be allowed to access a workforce to 
provide year-round services by rotating ``shifts'' of workers with 
different contract/visa periods. Another trade association also 
suggested the definition and interpretation of temporary and seasonal 
could be expanded.
    The Department does not agree that the definition of temporary or 
seasonal should focus on the worker rather than the job. The INA is 
clear that the employer must have a need for foreign labor to undertake 
work of a temporary or seasonal nature for which it cannot locate U.S. 
workers. The Department's position has traditionally been that job 
opportunities that are permanent in nature do not qualify for the H-2A 
program. The controlling factor is the employer's temporary need, 
generally less than 1 year, and not the nature of the job duties. See 
Matter of Artee Corp., 18 I&N Dec. 366 (Comm. 1982); see also Global 
Horizons, Inc. v. DOL, 2007-TLC-1 (November 30, 2006) (upholding the 
Department's position that a failure to prove a specific temporary need 
precludes acceptance of temporary H-2A application); see also 11 U.S. 
Op. Off. Legal Counsel 39 (1987). An H-2A worker could, however, be 
employed continuously by successive H-2A employers having a temporary 
need for the worker's services and thus be employed and remain in the 
U.S. for a period beyond one year.
    In addition, the Department has made several edits to the 
Definitions section of the NPRM to provide consistency with other 
changes to the regulatory text and to clarify the Final Rule. For 
example, the definition of ``Application for Temporary Employment 
Certification'' has been amended to help ensure the public has a clear 
understanding of what this regulation requires. Other definitions, such 
as ``temporary agricultural labor certification determination'' and 
``unauthorized alien,'' have been eliminated because they are not used 
in this regulation. We have also made non-substantive changes to 
provide clarity and to comport with plain English language 
requirements.
Section 655.101 Applications for Temporary Employment Certification in 
Agriculture
(a) Instituting an Attestation-based Process
    The Department proposed instituting an application requiring 
employers to attest to their adherence to the obligations of the H-2A 
program. The Department received several comments in favor of the new 
process, several opposed, and others generally in favor but suggesting 
changes to the process as outlined in the Department's proposal.
    Some commenters believed that attestations to future events should 
not be required, and that attestations should be made under the 
``applicant's best knowledge and belief'' standard and not the ``under 
penalty of perjury'' standard because applicants cannot know what will 
happen in the future.
    The Department believes that the attestations the Final Rule 
requires employers to make do not require employers to predict future 
events, but rather represent straightforward commitments to comply with 
program requirements. Such compliance is fully in the control of the 
employer. It is, therefore, not necessary to delete or modify the 
manner in which attestations are made.
(1) Support for an Attestation-based Process
    Those commenters who favored the shift to an attestation-based 
process generally believed the new process would make the H-2A 
application more efficient and less burdensome for employers. One State 
government agency commented that the process would enable the SWAs to 
focus on job orders, referrals, and housing inspections while relieving 
them of the burden to review the applications themselves. Another 
commenter supported the shift but encouraged the Department to ensure 
the ``Administrator * * * acquires the agricultural expertise necessary 
to provide training and guidance to those who are reviewing and 
overseeing the operating of a program that is critical to future U.S. 
agricultural production.''
    The Department appreciates support for its proposed process. As of 
June 1, 2008, the Department has centralized the Federal processing of 
all applications for H-2A temporary foreign workers in the Chicago 
National Processing Center. This centralization will enhance the 
Department's ability to handle the expected increases in the usage of 
the H-2A program and ensure consistency in application of program 
requirements. The Department recognizes the unique needs and timeframes 
associated with this program and anticipates that centralization will 
lead to the development of greater expertise to meet those needs and 
timeframes. It also believes that centralized processing of 
applications will facilitate the identification of areas where program 
training should be enhanced and that the centralized environment will 
maximize the effectiveness of such training.
    An association of growers/producers supported the attestation-based 
process but found the process, as described in the proposed regulation, 
confusing and duplicative. This commenter requested that all of the 
attestation requirements be consolidated into one rule clearly stating 
which facts are to be verified.
    The Department appreciates the commenter's suggestion about 
consolidation of the attestation requirements and, as provided in the 
proposal, has retained the comprehensive listing of the requirements in 
Sec.  655.105, ``Assurances and Obligations of H-2A Employers'' and 
Sec.  655.106, ``Assurances and Obligations of H-2A Labor 
Contractors.'' It was not clear if this commenter was requesting a 
consolidated listing of the attestations required by both the 
Departments of Labor and Homeland Security. The Department of Labor is 
including in the comprehensive lists only those attestations that DOL 
requires. The commenter did not include specific examples of 
duplication or confusing information and the Department, therefore, is 
unable to provide any further response.
(2) Legality of the Attestation-based Process
    Several of the commenters who opposed the change asserted an 
attestation-based process conflicts with the statutory mandate in 
Section 218 of the INA (8 U.S.C. 1188). These commenters interpreted 
the INA to require the Department to make a determination based upon an 
active verification of the H-2A application. One group commented that 
the attestation process violates the statute's Congressional mandate. 
Two organizations expressed the belief that the certification process 
has always been understood to require active

[[Page 77120]]

oversight by the Department of the employer's recruitment and hiring of 
U.S. workers as well as the details of the job offer. One commenter, an 
advocacy organization, voiced the opinion that the statutory standard 
is not whether the employer has made adequate assurances that it has or 
will meet the obligations of the H-2A program but is whether the 
employer has actually met them. Another commenter opined that labor 
certifications were not meant to be attestation-based and that this 
approach will dramatically reduce government oversight of this program. 
These commenters believe that the Secretary will not be able to certify 
that wages and working conditions have not been adversely affected and 
that this regulation is contrary to the statute.
    The attestation-based process implemented by the Final Rule is not 
inconsistent with any statutory requirements, but rather is a 
reasonable means selected by the Department to fulfill its statutory 
responsibilities. The Department does not interpret Section 218 of the 
INA to specify a particular methodology that the Department must employ 
to determine that all of the statutory criteria have been met, and 
indeed, various aspects of the Department's methodology have changed 
through the years. The attestation-based system, backed by audits, that 
is implemented by the Final Rule is an acceptable means, within the 
reasonable discretion of the Secretary, for the Department to ensure 
that the statutory criteria for certification are met and that program 
requirements are satisfied. Similar approaches have been used by the 
Department in other contexts (such as approval of permanent labor 
certifications) to fulfill its statutory responsibilities. Indeed, as 
discussed in greater detail in various sections below, under the 
statutory time limits for filing applications and issuing 
certifications the Department typically makes certification 
determinations on applications prior to the completion of many of the 
recruitment requirements and without any direct observation or 
inspection by the Department or its SWA agents that rental housing 
secured by employers complies with all of the applicable legal 
standards.
    No system for review and approval of applications, of course, is 
foolproof, and the statute prescribes appropriate penalties for 
situations in which the terms of approved labor certifications are 
later violated. See 8 U.S.C. 1188(b)(2)(A). There will always be bad 
actors who attempt to circumvent program requirements. Employers 
sometimes violate program requirements under the current H-2A 
application process, and the Department has also detected violations in 
other foreign worker programs it administers. Under the final rule, the 
Department will have more enforcement tools at its disposal than ever 
before to deal with such violations. The Department believes that the 
attestation-based process fully complies with all statutory 
requirements and, when utilized in concert with a strong audit and 
review process, represents the best means for the Department to deploy 
its limited resources in a manner that ensures that statutory timelines 
are met and that the program's integrity is maintained.
(3) Protections for U.S. Workers in an Attestation-based Process
    Several commenters believed the proposed attestation-based process 
would not provide adequate protections for U.S. and H-2A workers 
because it would reduce the oversight responsibilities of the 
Department. Some of these commenters also said the current system 
should be maintained to ensure that the Department oversees worker 
protection, especially in the areas of housing and wages. An 
organization commented that while this change may ease the application 
process for employers it ignores the damage that could be caused by 
false attestations and a lack of active oversight of the job terms, 
recruitment, and hiring of U.S. workers. A farmworker advocacy 
organization questioned the change to an attestation-based process 
claiming there is a long history of labor abuse in agriculture and 
saying they believed that when ``self-inspection procedures'' are 
implemented they are generally based upon a prior record of compliance 
and an accompanying determination that resources would be better 
utilized in another pursuit. Another farmworker advocacy organization 
commented that the attestation-based process, as proposed, would 
further remove and diminish the Department's role in assuring all 
reasonable efforts to locate U.S. workers had been exhausted before 
foreign guest workers could be certified. Another commenter voiced 
concern that the proposed process would eliminate the current process 
of follow-up correspondence that has been instrumental in ensuring that 
employers have actually undertaken the required recruitment steps. A 
worker advocacy organization commented the proposed process, with its 
emphasis on meeting paper requirements, would be ``ill suited to deal 
with the inherent disparities in bargaining power between U.S. 
agricultural employers and impoverished workers from the developing 
world.''
    The Department believes these commenters' concerns, while not 
invalid, are substantially resolved by the safeguards that have been 
built into the new process. The new program model emphasizes compliance 
through enforcement mechanisms such as audits, revocation of approved 
certifications, and debarment from the program. In light of these 
enforcement tools, employers will have a substantial incentive to be 
truthful in their representations that they cannot find U.S. workers 
willing to engage in agricultural work at the appropriate wage, because 
good-faith compliance with program obligations is necessary to maintain 
continued access to a legal nonimmigrant workforce. Because the rule 
requires pre-filing recruitment, the Department will also have an 
opportunity to review recruitment reports and (through its SWA 
partners) to conduct housing inspections before applications are 
approved. Job orders must also be reviewed, approved, and circulated by 
the SWAs before labor certifications can be granted, making it 
impossible for even bad actor employers to entirely circumvent the 
program's core recruitment requirements. Finally, it is worth noting 
that the bulk of the program's requirements, including requirements to 
pay workers at prescribed rates, maintain housing conditions, and 
provide transportation that complies with applicable safety 
requirements, have always been, and must necessarily be, enforced by 
the Department after the labor certification has been granted.
    Although not a factor in our evaluation of the comments here, the 
Department also notes that many commenters who opposed the attestation-
based system in this rulemaking, claiming that it will adversely affect 
U.S. workers, have enthusiastically endorsed proposed legislation 
before the U.S. Congress that would in fact mandate that the Department 
adopt an attestation-based application system in the H-2A program. 
Those organizations in their comments on this rulemaking made no 
attempt to explain their contradictory public positions regarding the 
merits of an attestation-based application system.
(4) Improvements for Employers in an Attestation-based Process
    Several commenters questioned whether the proposed process would 
yield a simplified process for employer applicants. These commenters 
believed the new process requires the same amount of paperwork and only 
relieves employers of submitting documentation while at the same time 
imposes

[[Page 77121]]

additional requirements including post-filing audits, increased 
penalties, and a five-year records retention requirement. Several 
commenters were concerned that the attestation-based process would lead 
to increased liabilities for employers.
    The Department does not believe that employers, attorneys, and 
agents wishing to comply with program obligations will be adversely 
affected by the institution of an attestation-based process. The 
process is designed to give employers specific notice of the assurances 
they are making to the Department and what their obligations are. Once 
the employer is on notice of those assurances, it is better able to 
understand what it must do to comply with H-2A requirements and to 
conform its conduct to those requirements.
    A trade association of agricultural employers agreed with the shift 
to an attestation-based process but believed the process as outlined in 
the proposed regulations was not a true attestation-based process and 
recommended the process used in the H-1B program serve as a model. 
Other commenters also recommended use of a process similar to the one 
used in the H-1B program. Several commenters also suggested that the 
Department combine the Application for Temporary Employment 
Certification with the I-129 petition for simultaneous submission to 
the Departments of Labor and Homeland Security.
    In response to the proposals to convert the proposed attestation-
based process into a process modeled after the H-1B labor condition 
application, the statutory differences between the two programs are 
sufficiently substantial to make such an idea impractical. In the H-1B 
program, the Department is statutorily limited to reviewing the 
attestations made by an employer for ``completeness and obvious 
inaccuracies.'' 8 U.S.C. 1182(n)(1)(G)(ii). The Department believes the 
different H-2A statutory language suggests that a different application 
and review process is appropriate for the H-2A program. The Department 
appreciates the suggestion that simultaneous submissions to the 
Department and DHS could lead to further application efficiencies for 
employers. However, the Department believes that the complexity of the 
current statutory requirements for the H-2A program would make it 
unworkable to combine the Department's application with the petition 
submitted to DHS. A proposal presented by the Department several years 
ago to employ such a process in the H-2B program for temporary 
nonagricultural workers was met with significant opposition. To attempt 
to undertake a similar process with the significantly more complex H-2A 
program does not appear feasible at this time.
    Some commenters appeared not to understand the proposed attestation 
process. The Department received comments stating that it is not clear 
what should be included with the attestation. The Department has 
accordingly clarified in the Final Rule that the application must be 
accompanied by the prevailing wage determinations obtained in 
anticipation of the recruitment for the application as well as the 
initial recruitment report. The employer will be required to keep all 
other supporting documentation in case of an audit, which means the 
employer should keep all records relating to compliance with the H-2A 
program, including advertising, job orders, recruitment logs/reports, 
and housing inspection requests. To eliminate any lingering confusion 
over document retention requirements, the Department has spelled these 
out in a new regulatory section (Sec.  655.119) in this Final Rule.
(b) SWA Involvement/Application Submission
    The NPRM revised the application submission requirements by 
proposing to have employers submit applications only to the NPC rather 
than to both the NPC and SWA as currently required. Most of the 
comments received about this proposal were in favor of it, but a few 
commenters expressed concerns about the reduced role for SWAs. One 
person commented that eliminating the SWA involvement would leave 
employers who seek assistance and guidance from the government in 
completing applications more disposed to making errors and would 
increase their potential liability. A farmworker advocacy organization 
commented that SWA knowledge has proven useful to workers in the past 
and that the advantage of SWA involvement is the detailed knowledge 
their experienced staff can bring to bear about local agricultural 
practices and the use of agricultural labor in their area. The 
commenter also believed that the proposed process, which requires the 
employer to place a job order with the SWA, means that the SWA must 
take on faith that the employer's job offer is consistent with the 
terms of the H-2A application because the SWA will no longer receive a 
copy of the application. This organization recommended that 
applications should be filed with the SWA as well as the NPC so the SWA 
could advise the NPC if the application did not appear legitimate. A 
growers and producers association believed retaining responsibility for 
the substantive review by the NPC staff could remain a problem because 
of their lack of expertise related to agriculture.
    A State governor suggested the process could be improved by 
eliminating the Department from the process. The governor believes the 
States know their agricultural industry better, can resolve issues more 
quickly, and are in the best position to identify and enforce sanctions 
against fraud. Conversely, a professional association of immigration 
attorneys recommended the SWA be eliminated from the recruitment 
process and, alternatively, the employer handle all recruitment for the 
positions, including accepting applications received as a result of a 
job order placed by the SWA in the interstate and intrastate system.
    The Department remains committed to modernizing the application 
process and continues to believe the submission of applications 
directly to the NPC is the most effective way of accomplishing this 
goal. Eliminating the SWAs' participation in the application review 
process will provide more efficient review of applications, as well as 
greater consistency of review. The Department disagrees that NPC staff 
have insufficient knowledge of the agricultural industry; to the 
contrary, NPC reviewers who have handled H-2A applications have, in 
some cases, more experience with such applications than many SWA staff.
    The SWAs will, moreover, continue to play an important role in the 
H-2A application process. SWAs will be responsible for posting job 
orders, both intrastate and interstate, under Sec.  655.102(e) and (f) 
and 20 CFR Part 653, thus reducing the risk for employers to make 
mistakes with respect to job descriptions, minimum requirements, and 
other application particulars. SWAs will review the job offer, its 
terms and conditions, any special requirements, and the justifications 
therefor. As part of their duties to post job orders pursuant to 20 CFR 
Part 653, SWAs will also refer eligible workers to employers as well as 
conduct housing inspections and follow up on deficiencies in the job 
order. Finally, SWAs will continue an active role in conducting 
prevailing hourly wage, prevailing piece rate, and prevailing practice 
surveys.
    Two commenters noted potential coordination or communication issues 
could result when the SWA did not also receive the application. One 
commenter was concerned there would be no assurance that the job order 
posted by

[[Page 77122]]

the SWA would be the same as that on the application. The other 
commenter pointed out the proposed regulations provided that the SWA 
receive a copy of the notice of deficiency when one was issued, but the 
SWA would not have a copy of the submitted application and thus could 
have inadequate information to be of assistance to the involved 
employer. An association of growers/producers recommended the 
Department provide training to H-2A employers about the need to send a 
formal request to the SWA to request a housing inspection and also 
recommended the Department notify the SWA when an application was 
received for processing so the SWA could, in turn, contact the 
employer.
    The Department appreciates the concerns about the need for 
communication between the NPC and the SWA and reiterates that there was 
never any intent to eliminate the SWA from all H-2A activity. As 
discussed above, SWAs remain an integral partner in key respects: The 
placing of the intrastate/interstate job orders, conducting prevailing 
hourly wage, prevailing piece rate, and prevailing practice surveys, 
referring eligible workers, and conducting housing inspections, all 
activities for which SWAs will continue to receive grants from the 
Department. Moreover, nothing in the regulations precludes the 
Department from contacting SWAs, where there is reason to believe that 
it is necessary, to verify that the terms in the employer's Application 
for Temporary Employment Certification are consistent with the terms of 
the job offer.\2\ However, SWAs will no longer process H-2A 
applications. Accordingly, to minimize confusion about roles and 
responsibilities, the Department has removed from Sec.  655.107(a)(3) 
(Sec.  655.107(b) of the Final Rule) the provision requiring that SWAs 
be sent deficiency notices.
---------------------------------------------------------------------------

    \2\ There is also no prohibition preventing a SWA from 
contacting the Department to ensure that the employer's job order 
and Application for Temporary Employment Certification are 
consistent. As a practical matter, a SWA will rarely be able to do 
so before posting a job order, because Applications for Temporary 
Employment Certification generally are not filed with the Department 
under the Final Rule until at least 15 days after the job order has 
been submitted to the SWA. Communication between SWAs and the 
Department has always been essential to identifying and putting a 
stop to deceitful employer behavior, however, and the Department 
expects that such communication will continue under the Final Rule.
---------------------------------------------------------------------------

(c) Electronic Filing
    The Department invited comments on the concept of a future 
electronic filing process for the H-2A program and received comments 
supporting the concept, although some also included suggestions for on-
line training, the establishment of a toll-free help line, and an 
outreach and education component. A trade association recommended that 
a paper-based option should also remain available. One commenter noted 
that the Department did not provide an effective date for the 
electronic filing process.
    The Department appreciates the support for electronic filing and is 
in the process of developing a system that will include the ability to 
complete and submit an application form online with sufficient security 
(PIN numbers, features to deter fraud and maintain system integrity, 
electronic notifications, etc.). The Department is aware of the need to 
provide outreach and training prior to the implementation of electronic 
filing and will involve user groups in these efforts. Additionally, the 
Department will ensure an adequate notice process and timeframe for 
transitioning to a new or revised electronic application system.
(d) H-2A Labor Contractor Applications
    The Final Rule has been clarified slightly to more clearly state 
the obligations of H-2A Labor Contractors in filing applications. The 
proposed rule stated that H-2ALCs must have a place of business in the 
United States ``to which U.S. workers may be referred.'' Because H-
2ALCs may be mobile, however, and because referrals during the season 
may need to be made to whatever location an H-2ALC is working at rather 
than to the physical location of the H-2ALC's place of business, the 
final rule has been modified to state that H-2ALCs must have a place of 
business in the United States ``and a means by which it may be 
contacted for employment.'' This slightly modified requirement will 
ensure that referrals can be made to H-2ALCs during the course of a 
season (where such referrals are provided for by the Final Rule), and 
that U.S. workers will have a means of contacting the H-2ALC to secure 
employment. All other changes made to the paragraph on filing 
requirements for H-2ALCs were purely stylistic and made for purposes of 
clarity.
(e) Master Applications
    Both the current and proposed regulations require an association of 
agricultural producers filing an application to identify whether the 
association is the sole employer, a joint employer with its employer-
members, or the agent of its employer-members. Although the current 
regulations do not specifically describe a ``master application'' that 
can be filed by associations, they are clearly contemplated by 8 U.S.C. 
1188(d), and the Department has permitted them to be filed as a matter 
of practice. See 52 FR 20496, 20498 (Jun. 1, 1987) (cited in ETA 
Handbook No. 398).
    The Department received several comments objecting to the omission 
of a provision in the NPRM for the filing of master applications. An 
association of growers/producers commented that the Department should 
encourage agricultural employers in small commodity groups or large 
associations of employers to jointly participate in the H-2A program, 
as this will make processing more efficient for both the Department and 
farmers. Another association of growers/producers stated that using an 
association application is the only possible solution for the H-2A 
program to accommodate growers who need harvest workers for a short 
period of time (one month or less). A major trade association also 
commented that the master application significantly reduces the 
paperwork and bureaucratic burden for the associations and its members, 
as well as for the Department.
    A major trade association and other associations of growers/
producers recommended that the Department retain and improve the master 
application process and fully incorporate it into the H-2A regulatory 
structure. The association recommended the master application also be 
simplified as part of the new H-2A application process. It recommended 
the regulations include the essential components of the master 
application process that has been followed in practice, including the 
filing of one application on behalf of multiple employers seeking 
workers in virtually the same occupation, permitting the association to 
place the required advertisements and conduct the required positive 
recruitment on behalf of all participants but without the listing of 
every individual employer in the advertisement as currently required, 
permitting referral of workers to the association, and allowing the 
association to place workers in the job opportunities. The association 
further recommended the master application process also apply to 
applications filed by associations acting as agents.
    The statute governing the H-2A program requires that agricultural 
associations be permitted to file H-2A applications, see 8 U.S.C. 
1188(d), and that they be permitted to do so either as agents or as 
employers, see 8 U.S.C. 1188(c)(3)(B)(iv) and (d)(2). Consequently, the 
Department has, as a matter of longstanding practice,

[[Page 77123]]

accepted master applications from agricultural associations. In 
response to the comments received on this subject, the Department has 
decided to include specific language concerning such applications in 
the regulation text at Sec.  655.101(a)(3).
    The basic theory behind master applications is that agricultural 
associations should be able to file a single H-2A application on behalf 
of all their employer members in essentially the same manner that a 
single employer controlling all the work sites and all the job 
opportunities included in the application would. Two important 
limitations apply to such applications. First, all the workers 
requested by the application must be requested for the same date of 
need. If an agricultural association needs workers at different times, 
it must file a separate Application for Temporary Employment 
Certification for each date of need, just as a single employer would. 
Second, the combination of job duties and opportunities that are listed 
in the application must be supported by a legitimate business reason, 
which must be provided as part of the application. The purpose of this 
limitation is to prevent agricultural associations from creating 
undesirable combinations of job duties and opportunities for the sole 
purpose of discouraging U.S. workers from applying for the jobs. So 
long as a legitimate business reason exists supporting the combination 
presented, however, the Department will deem it acceptable. An 
acceptable business reason for a combination of job duties and 
opportunities could include, for example, the efficiencies that closely 
proximate employers expect to gain from having access to a flexible, 
readily available pool of workers, even though the employers in 
question do not grow the same crops, which may be necessary for 
agricultural employers to deal with uncertain and weather-dependent 
planting and harvesting times.
    The Department is aware that this may mean that at times a U.S. 
worker wishing to perform only one type of job duty, such as picking 
asparagus, may be required to perform an additional job duty, such as 
harvesting tobacco, in order to secure an agricultural job with that 
association. It is not at all uncommon, however, for jobs in the United 
States to include multiple job duties, some of which workers may view 
as more desirable than others. Indeed, many job opportunities offered 
under the current H-2A regulations include multiple job duties, some of 
which may be more desirable than others. There is nothing in the 
statute governing the H-2A program indicating that Congress intended to 
require agricultural employers to allow prospective workers to 
selectively choose which job duties they want to perform and which job 
duties they do not, with regard to a particular job opportunity. The 
Department is requiring that combinations of job duties be supported by 
a legitimate business reason to prevent the deliberate and unnecessary 
discouragement of U.S. workers from applying for job opportunities, but 
the Department does not believe that further restrictions on job duty 
combinations are warranted or necessary to fulfill the statutory 
criteria for certification.
(f) Timeliness of Filing Application
    As required by statute, the provision stating a completed 
application is not required to be filed more than 45 calendar days 
before the date of need was retained in the proposed rule. The 
Department has continued that requirement in Sec.  655.101(c). The 
Department received some suggestions for changes to the proposed 
timeframes for submitting applications. Two commenters suggested the 
Department should at least provide the employer with the option of 
applying not more than 45 days before the date of need, undertaking the 
recruitment after the application has been accepted, and continuing to 
accept referrals under the 50 percent rule.
    The Department may not require an application to be filed more than 
45 calendar days before the date of need under 8 U.S.C. 1188(c). The 
Department does not agree with the suggestion for offering employers 
the option of applying not more than 45 days prior to the date of need, 
doing post-acceptance recruitment, and continuing to accept referrals 
under the 50 percent rule. Given the need to maintain consistency in 
the program's requirements, the Department cannot offer varying options 
for recruitment timeframes.
(g) Emergency Situations
    The NPRM did not contain the current regulatory provision 
(currently found at Sec.  655.101(f)(2)) allowing the Administrator/
OFLC to waive the required timeframe for application submission for 
employers who did not use the H-2A program during the prior 
agricultural season or for any employer for good and substantial cause. 
The Department received a number of comments objecting to its 
elimination. A major trade association stated the elimination would 
preclude many employers from legalizing their workforce simply because 
their decision to join the program was made too late to meet the 
required timeframes. Another major trade association commented that a 
provision allowing filing after the deadline is even more essential 
because the de facto deadline for meeting requirements under the final 
regulation is further in advance of the date of need than the current 
requirement. One association of growers/producers cited the situation 
following Hurricane Katrina when many employers needed to secure 
additional H-2A workers as an example of the need for an emergency 
application process.
    Most of those requesting that the provision for an emergency 
application be reinstated also commented that if an emergency 
application is filed in an area of intended employment and for a job 
opportunity for which other employers have previously been certified 
for the same time frame, the emergency application should be certified 
immediately. These commenters also suggested that post-application 
recruitment could be extended for emergency applications to ensure that 
their availability would not create an incentive to avoid the pre-
filing recruitment efforts.
    The Department agrees that a provision allowing the Certifying 
Officer (CO) to waive the required timeframe for submission of 
applications in emergency situations is necessary and has included such 
a provision in the Final Rule at Sec.  655.101(d). The provision, which 
substantially replicates the current regulatory provision governing 
emergency situations, requires submission of a completed application, 
except for the initial recruitment report that would otherwise be 
required, and a statement of the emergency situation giving rise to the 
waiver request. The emergency situation giving rise to a request for a 
waiver may include a lack of experience with the H-2A program 
obligations (including housing and transportation requirements) or for 
other good and substantial cause. The Department anticipates that 
employers who were non-users of the program during the previous year 
may fail to meet the filing deadline due to miscalculation of the time 
needed to complete the application. The Department will entertain 
waiver requests from employers in this situation but will consider them 
only after first verifying that the employer did not use the program 
during the prior year.
    The Department is not providing an explicit definition of good and 
substantial cause in order to preserve flexibility when faced with 
unanticipated situations or conditions.

[[Page 77124]]

We have provided some examples in the regulatory text to assist 
employers in determining what might constitute sufficient cause 
warranting a waiver. One example provided is a dramatic change in the 
weather conditions resulting in a substantial change to the anticipated 
date of need for H-2A workers with significant attendant crop loss 
unless the waiver is granted. However, the employer must be able to 
demonstrate that the situation or condition leading to the request for 
a waiver was genuinely outside of the control of the employer.
    The Department is requiring, in the Final Rule, that the employer 
who requests a waiver must conduct some recruitment as a condition for 
obtaining that waiver. The employer will be required to submit a job 
order to the relevant SWA(s) and conduct positive recruitment from the 
time of filing the application until the date that is 30 days after the 
employer's date of need. The SWA must transmit the job offer for 
interstate clearance as in a normal application process. We have also 
added a provision that requires the CO to specify a date upon which the 
employer must submit a recruitment report consistent with the 
requirements of this part.
    The Department recognizes that the suggestions that waivers be 
approved if other applications for similar occupations and dates of 
need in the same geographic locations have been previously certified 
are intended to expedite the process. However, each application is 
unique and the Department must consider each request on its own merits, 
and therefore does not believe it should commit to approving requests 
solely because there have been prior approvals for employers with 
similar job opportunities and dates of need in the same area.
    Finally, the Department made changes in Sec.  655.101 to conform to 
other changes made to the rule. Such changes include, but are not 
limited to, changes to clarify a potential electronic filing of future 
applications. In addition, the Department has made non-substantive 
changes to enhance readability.
Section 655.102 Required Pre-Filing Activity
    The Department has changed the title of this section from 
``Required Pre-filing Recruitment'' to ``Required Pre-filing Activity'' 
to include the activities other than recruitment that are discussed in 
this section.
(a) Section 655.102(a) Time of Filing of Application
    The NPRM proposed requiring that applications be filed at least 45 
days before the employer's date of need (as required by statute) with a 
pre-filing recruitment period commencing no more than 120 days prior to 
the date of need and not less than 60 days prior to the date of need. 
The Department received a number of comments on the change to a pre-
filing recruitment framework and the related timing for that 
recruitment.
    The Department received multiple comments opposing this proposed 
timeframe; several commenters were generally opposed to the expanded 
timeframe and others raised more specific concerns. Several commenters 
questioned the Department's legal authority for a shift to pre-filing 
recruitment. The Department also received comments arguing that the 
proposed pre-filing recruitment requirement has the effect of moving 
the deadline for filing an application. Several commenters argued that 
the proposed requirement that employers begin recruitment earlier than 
they are required to file applications would be inconsistent with the 
Congressionally set timeframes and thus beyond the Department's 
statutory authority.
    The Department disagrees strongly with the premise that its revised 
recruitment steps are a violation of the statute. The INA is clear that 
the Department may not require an application for labor certification 
to be filed more than 45 days prior to the date of need. See 8 U.S.C. 
1188(c)(1). The statute is silent on how the Department implements the 
certification process: It does not specify when the recruitment of U.S. 
workers should take place, whether prior to or subsequent to filing. 
The INA clearly contemplates at 8 U.S.C. 1188 that recruiting U.S. 
workers is a separate activity from filing and considering 
applications, and the statute does not provide any express timeframes 
during which recruitment must be conducted. There is thus nothing in 
the statute that prevents the Department from requiring employers to 
recruit before filing an application, much as it requires that 
recruitment be conducted prior to the filing of an application in other 
immigration programs. The Department has determined that program 
integrity would be improved by being able to review a preliminary 
recruitment report at the time the application is filed, a requirement 
that is consistent with both the intent and the language of the 
statute.
    Several commenters opined that it was not feasible for employers to 
make accurate assessments of timeframes and the number of workers 
needed so far in advance and many questioned how effective an early 
recruitment period would be in helping employers to locate U.S. workers 
who would still be available at the time the work actually began. 
Additionally, many commenters believed the earlier recruitment would 
not benefit U.S. agricultural workers seeking employment because it is 
inconsistent with the traditional job-seeking patterns of these 
workers.
    Some commenters expressed concern that extending the recruitment 
time would either not increase the number of U.S. worker applicants for 
a position, or would increase the number of U.S. workers who applied 
for a position but would not translate into more actual workers taking 
the jobs, as many would not report to work. A trade association also 
commented that the employer is put at risk because, by the time the 
jobs begin, U.S. applicants may have long since changed their minds or 
accepted other employment. A State government agency commented that 
most agricultural workers would not make a commitment to a job so far 
in advance of the start date. One individual employer believed the 
proposed pre-filing recruitment would actually have the opposite effect 
the Department anticipates because U.S. workers would be reluctant to 
make commitments so far in advance of the start date. An employer 
association recommended that the final regulation specifically permit 
employers to ask workers identified during the recruitment process to 
attest to or affirm their intentions to actually report to work to 
perform the jobs.
    An association of growers/producers shared its data from the 2006-
2007 season which shows only 9 percent of U.S. applicants applied 
during the first 15 days of the current 45-day recruitment period and 
questioned whether a longer timeframe would yield additional 
applicants. The association also reported 83 percent of the applicants 
who applied during the initial 15-days of the recruitment period failed 
to report for work on the date of need, as compared to a 60 percent 
failure-to-report rate for applicants who applied during the last 30 
days of recruitment leading up to the date of need.
    Some commenters stated that the current recruitment timeframes are 
adequate for identifying and hiring U.S. workers and others advocated 
alternate timeframes. Commenters presented a number of options for the 
recruitment timeframe, including the current

[[Page 77125]]

timeframe, and options ranging between 90 to 75 days prior to the date 
of need for beginning recruitment and 60 to 45 days prior to the date 
of need for filing the application. In the words of one trade 
association, which was representative of the comments received on this 
point: ``For the sector for which H-2A is predominantly applicable--
fruits and vegetables--the ability to predict months in advance when 
labor will be required is simply impossible.''
    The Department takes seriously its twin obligations, consistent 
with all H-2A statutory requirements, to ensure both that an adequate 
workforce is available to U.S. agricultural producers and that U.S. 
workers have a meaningful opportunity to apply for all open 
agricultural job opportunities. The Department believes it can best 
fulfill its statutory responsibilities by requiring employers to 
recruit in advance of filing, which will enable employers to submit 
preliminary recruitment reports with their applications, giving the 
Department better information than it has ever had before about the 
availability of U.S. workers before the Department is required by the 
tight statutory timeframes to make a determination on an application. 
The current pattern of forcing positive recruitment combined with the 
Department's near simultaneous evaluation of the application into a 
substantially narrow window of only 15 days is simply inadequate to 
address these workforce and program integrity needs. Based on the 
comments received, however, the Department has come to believe that 
requiring employers to seek and secure a workforce 120 days in advance 
of need may not be practicable, given the substantial likelihood that 
over such an extended period variables such as weather conditions, 
competition from other industries for available workers, and 
competition among farms and crops could intervene and result in 
increased labor uncertainty for employers.
    The Final Rule accordingly shortens the pre-filing recruitment 
period described in the NPRM. Employers will be required to initiate 
recruitment no more than 75 days prior and no less than 60 days prior 
to the anticipated date of need. Reducing the pre-filing recruitment 
time period in this manner from the time period that was proposed, 
while simultaneously adjusting the Department's proposal by extending 
the referral period beyond the date of need (discussed further below), 
will ensure U.S. workers have access to these job opportunities, and 
enable employers to recruit effectively for U.S. workers without 
adversely affecting planting and harvesting schedules. This revised 
recruitment schedule, which is closer in time to the employer's actual 
date of need, also addresses the commenters' concerns about the job 
search patterns of likely U.S. workers. The Department declines, at 
this time, to implement any requirement that U.S. workers affirm in 
writing their intent to show up for work when needed, as that is a 
contractual matter between the worker and the employer. The Department 
notes that it has afforded employers some flexibility in the Final Rule 
in Sec.  655.110(e), ``Requests for determinations based on 
nonavailability of able, willing, and qualified U.S. workers,'' to 
address situations where U.S. workers have failed to appear as 
promised.
(b) Section 655.102(b) General Attestation Obligation
(1) General Comments Regarding the Attestations
    A group of farmworker advocacy organizations commented on the 
language in the proposed regulation that states ``the employer shall 
attest that it will continue to cooperate with the SWA by accepting 
referrals of all eligible U.S. workers who apply.'' The organization 
stated it is the employer's duty to hire all qualified U.S. workers who 
apply and believed the proposed language did not make this clear.
    An association of growers requested that the language describing 
the time period for acceptance of referrals be modified by adding the 
word ``first'' before ``begin to depart'' because not all foreign 
workers depart on the same date. A professional association requested 
the regulation be changed to permit employers to stop local recruitment 
efforts no more than five days prior to the date of need rather than 
three days as proposed. This change was requested to accommodate the 
actual transit time required for workers to arrive from abroad. As 
discussed in more detail below, the points made by these commenters 
have been rendered moot by changes made to this provision.
(2) The ``50 Percent Rule'' and the Cessation of Recruitment
    The Department sought comments on program users' experience with 
the ``50 percent rule,'' which requires employers of H-2A workers to 
hire any qualified U.S. worker who applies to the employer during the 
first 50 percent of the period of the H-2A work contract. We received 
numerous comments and several commenters offered alternative 
approaches.
    Several commenters questioned the Department's authority to make 
changes to the 50 percent rule, citing the 1986 IRCA amendments which 
added the 50 percent rule to the INA as a temporary 3-year statutory 
requirement, pending the findings of a study that the Department was 
required to conduct regarding its continuation. In 1990, pursuant to 
what is now INA Sec.  218(c)(3)(B)(iii), ETA published an Interim Final 
Rule to continue the 50 percent requirement. See 55 FR 29356, July 19, 
1990. That rule was never finalized.
    As the Department stated in the NPRM, since the 1990 publication of 
the Interim Final Rule continuing the 50 percent rule, it has gained 
substantial experience and additional perspective calling into question 
whether the Department's 1990 decision was in fact supported by the 
data contained in the 1990 study, and whether the rule is in fact a 
necessary, efficient and effective means of protecting U.S. workers 
from potential adverse impact resulting from the employment of foreign 
workers.
    The Department received several comments in support of retaining 
the 50 percent rule as it is currently administered. Commenters 
asserted that the rule is an important method for granting U.S. workers 
job preference over foreign temporary workers and creates an incentive 
for pre-season recruitment of U.S. workers. Some commenters stated 
their belief that many U.S. workers gain jobs under the 50 percent rule 
and that its elimination would deprive many U.S. workers of jobs 
unfairly, although these commenters did not provide any data to support 
their assertion.
    Several commenters believed that few employers have had to lay off 
H-2A workers under the 50 percent rule, and that the rule has enabled 
many U.S. workers to secure jobs, and that elimination of the rule 
would unfairly deprive them of those jobs. The commenters believed that 
by eliminating this rule, the Department may keep U.S. farmworkers from 
applying for jobs they would otherwise be able to take. Other 
commenters believed that for those U.S. workers who learn of an H-2A 
job, the proposal would eliminate the protections that safeguard 
against employers rejecting qualified U.S. workers.
    One commenter argued that the 50 percent rule provides an incentive 
that should be maintained to create an attractive working environment, 
and that it is critical to the integrity of the H-2A program. The 
commenter asserted that it prevents growers from engaging in practices 
that are tolerated by H-2A workers only because of their greater 
economic vulnerability and in turn

[[Page 77126]]

ensures that labor standards are not driven down for U.S. workers 
unable to compete with H-2A workers who have no choice but to endure 
such conditions.
    While one commenter admitted that they could not provide data 
regarding the cost and benefits of the 50 percent rule, they expressed 
the belief that employers will hire fewer domestic workers without it, 
thereby adversely affecting an already vulnerable population. A number 
of commenters noted that the elimination of the 50 percent rule would 
make it more difficult for traditional farm workers who move with crops 
along the traditional migrant streams to secure jobs. The commenter 
believed that U.S. workers will be ``absolutely foreclosed'' from much 
if not most H-2A related employment if they cannot be hired just 
before, at, and past the date of need. An obligation to continue to 
hire U.S. workers after the departure of any foreign workers to the 
U.S. for employment was viewed by the commenter as critical to 
maintaining and developing a U.S. agricultural workforce.
    Finally, another commenter observed that the 50 percent rule has 
served as an important tool for ensuring that the H-2A program does not 
adversely affect U.S. workers, and that at a time of increasing 
unemployment, the Department should not choose this particular moment 
to abandon these long-standing labor protections for U.S. workers.
    Several other commenters argued the 50 percent rule should be 
abolished. These commenters argued that H-2A users have long considered 
the 50 percent rule to be unfair and unreasonable. They observed that 
no other temporary or permanent worker program has an even remotely 
corresponding requirement. Commenters also observed that the 50 percent 
rule was purportedly designed to enable domestic workers to accept 
agricultural employment opportunities, but that its costs outweigh its 
benefits. Commenters shared experiences that many of the domestic 
workers who apply under the 50 percent rule do so to maintain 
government benefits under the Unemployment Insurance program (the UI 
program requires unemployed workers to show that they have actively 
sought employment each week in order to continue benefits). They also 
found that while the rule does not actually provide substantial 
additional employment to domestic workers, it creates needless 
insecurity and uncertainty for H-2A workers who are employed under H-2A 
contracts.
    A commenter from a state agency asserted that the elimination of 
the rule would relieve the SWA from having to track these H-2A job 
orders and would remove unnecessary burdens on employers. The commenter 
believed that there is no tangible evidence that the rule produces the 
desired results of increasing employment of domestic workers:

    My experience is that it is rare for [U.S.] workers to search 
our Internet postings for agricultural positions in the middle of a 
growing season. Employers find this requirement confusing and 
worrisome. Smaller employers have expressed concern that they could 
lose their fully trained and settled foreign worker(s), suddenly 
disrupting their operation. Unfortunately, their experience is that 
U.S. workers who drop in during a season have a tendency to not stay 
till the end of the contract period. If this practice had 
historically produced significant results, the government-mandated 
grower investment of time and money might be justifiable, but it has 
not.

    One commenter stated that there is no need for the 50 percent rule 
where recruiting indicates that there are no or few local workers. The 
commenter also found no need for the rule in situations where the 
employers typically hire a large number of local workers. The commenter 
went on to argue that if the Department wants to retain the rule, it 
should do so only as a condition of approval of an application where 
there is evidence indicating that there are a relatively large number 
of local workers but the employer has indicated that it intends to hire 
few if any local workers.
    A number of commenters observed that all available data support the 
view that relatively few U.S. workers desire employment in agriculture. 
They argued that it necessarily follows from this fact that the 50 
percent rule provides almost no benefit to U.S. workers, yet its 
presence dissuades employers from participating in the program because 
of the uncertainty it creates. These commenters concluded that the rule 
should be abandoned. One commenter believed that if the Department 
wished to retain the rule, it should reserve the right to do so on a 
case by case basis, as a condition of approval for an application where 
the CO and SWA believed that insufficient local recruiting has been 
accomplished. The Department believes that this idea may have some 
merit, but has not devised a means to implement it at this time.
    A number of agricultural employers commented that the rule 
requiring H-2A employers to hire any qualified U.S. worker during the 
first 50 percent of the H-2A work contract makes it very difficult for 
a producer to manage labor supply and costs over the life of the 
contract. Commenters from state agencies found that the features of the 
rule are seldom completely understood by the growers who need the H-2A 
program, adding to their impression that the entire process is 
complicated and rife with red tape. Another State commenter found the 
rule to be antiquated and ineffective.
    Another commenter observed that the rule has been disruptive and 
non-productive for both workers and employers and that its elimination 
will provide much-needed stability in the workforce obtained by the 
employer. A commenter found that a cost-benefit analysis of the 
situation indicates that continuing to recruit U.S. workers beyond the 
date of need results in no corresponding benefit. One farmer observed,

    It's just not right that after I have made the best attempt to 
hire domestic workers that once halfway through the season I be 
forced to replace a trained H-2A worker. I really would prefer to 
hire local workers and keep that wage money at home, if I could find 
them.

    Commenters from various farm bureaus around the country argued that 
under current conditions, the 50 percent rule is without foundation. 
They argued that anecdotal evidence shows that few, if any, employees 
referred for employment after the employer's date of need apply for or 
maintain their work status. They believed that agricultural employers, 
especially those with perishable crops, must be able to operate with 
greater certainty. Once an operation begins, the success of the work 
effort is the product of coordinated teamwork. Employers are willing to 
make strong recruitment efforts before the date of need, but they seek 
certainty and continuity once the work period has begun.
    A commenter from a farming association found that the actual 
benefits of the 50 percent rule for domestic workers are, to all 
practical intent, illusory. The commenter strongly supported 
eliminating the rule entirely, arguing that such an approach would 
result in a substantial improvement in program operations. The 
commenter argued that while the Department has a statutory obligation 
to protect the rights of U.S. workers when implementing the program, it 
is necessary to strike a balance between the priority given to U.S. 
workers and the rights of employers, who have met all of the legal 
obligations that attach to employing H-2A workers. It went on to argue:

    The current 50 percent rule, while seemingly a provision to 
protect U.S.

[[Page 77127]]

workers, is more disruptive to farm operations and a disincentive to 
program participation than it is a true protection for workers. 
There is no reason to mandate that a grower's obligations to find 
and recruit eligible U.S. workers should extend past the recruitment 
period; imposing such an obligation serves only to disrupt 
operations of the producer and does little to protect U.S. workers * 
* *. The fact is, and all available data support this view, 
relatively few U.S. workers desire employment in agriculture * * *. 
The work is arduous, episodic, taxing, requires relatively little 
skill and virtually no education. Within the U.S. economy the pay--
while increasing--is relatively low. These jobs provide tremendous 
economic opportunity for migrant workers but are not perceived as 
offering the same benefit to U.S. workers. In fact, approximately 10 
million individuals in the U.S. economy today choose to work in jobs 
which pay them less than they could earn in agriculture. The 50 
percent rule provides virtually no benefit to U.S. workers yet its 
presence has clearly been a disincentive to program participation. 
It should be abandoned.

    Other commenters offered alternatives to the 50 percent rule 
including a 25 percent rule, recognizing that referrals after the date 
of need may serve a useful purpose but extending through 50 percent of 
the contract completion might be too long. One farming association 
suggested that the obligation to accept domestic referrals should 
terminate not later than three days before the date of need.
    A number of state agencies suggested that SWAs should leave job 
orders open for 30 days after the date of need and employers should be 
required to offer employment to any qualified and eligible U.S. workers 
who are referred during that time, also recognizing that the current 50 
percent of the contract period is too long and perhaps too uncertain to 
manage.
    Another commenter similarly recommended that employers be required 
to begin recruitment no more than 60 days prior to the date of need and 
continue until between one and 30 days after the date of need, with 
adjustments made according to the expected duration of the job 
opportunity. Under this commenter's proposal, the determination of the 
end date for recruitment should be no earlier than the date of need, 
but the 50 percent rule should be revisited and adjusted to lessen its 
potential negative impact on the agricultural employer's workforce. 
Finally, another commenter suggested a continued obligation of 50 
percent of the work period or 30 days, whichever is longer.
    It is clear to the Department from these comments that many view 
the current 50 percent rule as a substantially burdensome requirement 
that does not provide a corresponding benefit to U.S. workers.\3\ 
Others see the rule as benefiting U.S. workers by providing them 
expanded job opportunities. Based on the comments it has received and 
its substantial experience in operating the H-2A program, the 
Department believes that the 50 percent rule clearly does provide some 
benefits to U.S. workers, but that the rule creates substantial 
uncertainty for employers in managing their labor supply and labor 
costs during the life of an H-2A contract and serves as a substantial 
disincentive to participate in the program.
---------------------------------------------------------------------------

    \3\ In December 2007, the Department commissioned a survey of 
stakeholder representatives to evaluate the effectiveness of the 50 
percent rule as a mechanism to minimize adverse impacts of the H-2A 
program on U.S. farm workers. The Department had conducted a similar 
study of the impact of the 50 percent rule in 1990, but upon 
reviewing that study as part of the H-2A review which led to this 
recent NPRM the Department concluded that it was of limited utility 
because it covered only two states--Virginia and Idaho--and because, 
given the significant changes that have occurred in the field of 
agricultural employment over the last two decades, it was 
substantially out of date. The surveyors for the new study conducted 
interviews with a number of stakeholders to gather information on 
the impact of the 50 percent rule and how it is currently working. 
The surveyors queried a far more representative sample of entities 
affected by the 50 percent rule than the 1990 study had, including 
employers, state workforce agencies, and farm worker advocacy 
organizations.
    While the new study identified a diversity of opinion about the 
value and effectiveness of the current 50 percent rule, the 
researchers found that the rule ``plays an insignificant role in the 
program overall, hiring-wise, and has not contributed in a 
meaningful way to protecting employment for domestic agricultural 
workers.'' See ``Findings from Survey of Key Stakeholders on the H-
2A `50 Percent Rule','' HeiTech Services, Inc. Contract Number: 
DOLJ069A20380, April 11, 2008. The researchers estimated that the 
number of agricultural hires resulting from referrals to employers 
during the 50 percent rule period was exceedingly small, with H-2A 
employers hiring less than 1 percent of the legal U.S. agricultural 
workforce through the 50 percent rule. All of the categories of 
surveyed stakeholders, including employers, state workforce 
agencies, and even farm worker assistance and advocacy 
organizations, reported that U.S. workers hired under the 50 percent 
rule typically do not stay on the job for any length of time when 
hired, frequently losing interest in the work when they learn about 
the job requirements. Many of the survey respondents, including 
representatives from each of the three groups, suggested that the 
rule should be either eliminated or modified.
    The Department did not specifically rely on either of the two 
surveys in crafting the Final Rule. It does, however, believe that 
the information provided adds some additional depth to the 
discussion contained in this preamble. Accordingly, it has posted 
the studies on the Department's Web site.
---------------------------------------------------------------------------

    Based on the comments it received, the Department has decided to 
modify the rule. The requirements of 8 U.S.C. 1188(c)(3)(B)(iii) were 
fully satisfied when the Department promulgated interim final 
regulations on July 19, 1990. Nevertheless, the language of that 
provision suggests that when issuing regulations dictating whether 
agricultural employers should be required to hire U.S. workers after H-
2A workers have already departed for the place of employment, the 
Department should weigh the ``benefits to United States workers and 
costs to employers.'' After considering its own experience and the 
experience of its SWA agents, the Department agrees, on balance, with 
those commenters who argued that the costs of the 50 percent rule 
outweigh any associated benefits the rule may provide to U.S. workers. 
It is beyond dispute that the obligation to hire additional workers 
mid-way through a season is disruptive to agricultural operations and 
makes it difficult for agricultural employers to be certain that they 
will have a steady, stable, properly trained, and fully coordinated 
work force. It is also apparent from the comments received that the 
current rule is poorly understood by employers, difficult for the SWAs 
to administer, and a disincentive for employers to use the H-2A 
program. Finally, the rule requires agricultural employers to incur 
additional unpredictable and unnecessary expenses, forcing them to 
choose between either hiring a greater number of workers than they 
actually need to complete their work part-way through a season, or 
discharging some or all of their H-2A workers, in which case the 
employer will lose its entire investment in those workers and will be 
required to incur the immediate additional expense to transport the 
workers back to their home countries. It is for all of these reasons 
that no other permanent or temporary worker program administered by the 
Department contains such a burdensome requirement, even though most of 
these programs are subject to similar statutory or regulatory 
requirements that the Secretary certify (1) that there are not 
sufficient workers in the United States who are able, willing, and 
qualified to perform the labor or services needed and (2) that the 
employment of the aliens in such labor or services will not adversely 
affect the wages and working conditions of workers in the United States 
similarly employed.
    It is clear to the Department that the current 50-percent rule does 
provide some benefits to U.S. workers, since at least some U.S. workers 
secure jobs through referrals made pursuant to the rule. The number of 
such hires, however, appears to be quite small. Moreover, the comments 
indicate that many workers hired pursuant to the 50-

[[Page 77128]]

percent rule do not complete the entire work period, adding costs to 
employers and further diminishing the total economic benefits derived 
from the rule by U.S. workers. It is also relevant that under the Final 
Rule, the period of time that a job order is posted by a SWA prior to 
an employer's dates of need has been substantially expanded from the 
current rule, which will provide U.S. workers with more up-front 
information about agricultural job opportunities, rendering mandatory 
post-date-of-need hiring less necessary.
    In sum, after considering the best information currently available, 
the Department has concluded that the benefits of the 50-percent rule 
to U.S. workers are not, on balance, sufficient to outweigh its costs. 
The Department has also determined that modifying or eliminating the 
50-percent rule would not compromise the Department's ability to ensure 
that U.S. workers are not adversely affected by the hiring of H-2A 
workers, just as the absence of a 50-percent rule from the other 
permanent and temporary worker programs administered by the Department 
has never been thought to compromise the Department's ability to ensure 
that U.S. workers are not adversely affected by the hiring of foreign 
workers under those programs. If it is true, as some commenters 
suggested, that some U.S. agricultural workers simply drift from 
employer to employer without paying attention to actual advertising 
about agricultural job opportunities, the Department is confident that 
farm worker advocacy and assistance organizations will help to spread 
the word about advertised agricultural job openings, much as they do 
today. The available hiring and referral data strongly suggest, 
however, that such workers only rarely secure their jobs through the 
50-percent rule today. It is also worth noting that to the extent 
workers can identify agricultural job openings before those jobs have 
started, they will gain the additional benefit of a longer period of 
employment.
    Despite these conclusions, the Department is concerned that the 
sudden and immediate elimination of the 50-percent rule might prove 
disruptive to the access of some U.S. workers to agricultural 
employment opportunities. If some U.S. workers have become accustomed 
to the ability to secure H-2A-related employment after the jobs have 
already started, those workers may benefit from a transition period 
that will allow those workers to adjust their employment patterns. A 
transition period would also allow the Department to collect additional 
data about the costs and benefits of mandatory post-date-of-need hiring 
under the new rule structure over a period of several years, allowing 
the Department to assure itself that its initial conclusions regarding 
the rule are sound.
    For these reasons, the Department has created a five-year 
transitional period under the Final Rule during which mandatory post-
date-of-need hiring of qualified and eligible U.S. worker applicants 
will continue to be required of employers for a period of 30 days after 
the employer's date of need. In determining precisely what form 
mandatory hiring should take during this transitional period, the 
Department considered all of the various options presented by 
commenters. Several commenters suggested limiting the period during 
which employers are required to engage in mandatory post-date-of-need 
hiring to 30 days. The Department has adopted this suggestion as the 
transitional period rule, both for ease of administration and to 
minimize the extent to which the various costs and considerations 
outlined above will burden employers during the transition. The 
Department believes that the use of this 30-day post-date-of-need 
mandatory hiring period during the five-year transition period will 
allow a smooth adjustment of the expectations of U.S. workers and will 
provide the Department additional time to collect data on the effect of 
the rule. At the end of the transition period, the mandatory post-date-
of-need hiring requirements under the Final Rule will expire, and 
employers will only be required to accept referrals of U.S. workers 
until the first date the employer requires the services of H-2A 
workers. However, the Department intends to conduct a study of the 
impact of this transitional 30-day rule on U.S. workers and on 
employers during the five-year transition period, and under the rule 
retains the ability to indefinitely extend the 30-day rule by notice 
published in the Federal Register should the Department's study 
determine that the rule's benefits outweigh its costs.
    We believe this framework addresses the concerns of many of the 
commenters, both for and against continuation of the 50-percent rule, 
and strikes an appropriate balance between the concerns of agricultural 
employers and the need to protect U.S. workers' access to the 
employment opportunities under the H-2A program. Having a set period of 
time during the transition period, not tied to a percentage of the 
contract length, will provide employers more predictability and be 
easier to administer for employers, workers and SWAs making referrals. 
The language of Sec.  655.102(b) as originally proposed implied that 
mandatory post-date-of-need hiring would no longer be required by the 
H-2A regulations. The language creating the transitional 30-day 
mandatory hiring period outlined above may be found at Sec.  
655.102(f)(3) of the Final Rule.
    To the extent that the 30-day rule applies, the employer would 
require similar safeguards as under the 50-percent rule so long as the 
employer continues to have an affirmative obligation to hire U.S. 
workers beyond the date of need. Accordingly, the Department has 
included a provision in Sec.  655.102(f)(3)(ii) of the Final Rule on 
the prohibition of withholding of U.S. workers. The provision is 
similar to the provision in Sec.  655.106(g) of the current 
regulations, but has been modified to reflect the centralization of the 
application process with the NPC. Under the final rule, the CO, and not 
the SWA, receives and investigates the complaint and makes a 
determination whether the application of the 30-day rule should be 
suspended with respect to the employer.
(c) Section 655.102(c) Retention of Documentation
    The Department proposed in the NPRM a 5-year retention requirement 
for all H-2A applications and their supporting documents. The vast 
majority of commenters who provided observations on this provision 
voiced concern with the proposed 5-year document retention period and 
recommended 3 years, stating that they did not have adequate staff to 
comply with the requirement or that it is not an industry standard and 
not legally consistent with other regulations and might even discourage 
use of the H-2A program. The Department has reconsidered its position 
and has changed the retention requirement to 3 years.
    One commenter suggested that all record retention requirements and 
periods be combined into one section of the amended regulations to 
provide program participants with clearer guidance for these 
obligations. The Department agrees and has added a new Sec.  655.119 to 
the regulatory text. The new section lists all the document retention 
requirements.
    Another commenter requested that the Department add a sentence to 
the rule indicating that the employer is not liable for eliminating 
records after the retention period expires. The Department has not 
added an express provision to this effect, as we believe the cessation 
of the employer's

[[Page 77129]]

responsibility to retain the records after the retention period expires 
is self-evident. The Department suggests, however, that there may be 
some benefits to employers keeping records beyond the required 3-year 
period; if the employer later faces an allegation of fraud or some 
other alleged violation that has a statute of limitations of longer 
than 3 years, retained documents may help the employer defend itself. 
Indeed, if a proceeding or investigation relating to the retained 
records has already been initiated, it should be understood that the 
employer is obligated to retain the records that are the subject of the 
proceeding or investigation until it has come to a conclusion.
    One commenter requested that the Department allow applicants who 
are denied certification to discard records 180 days after the denial. 
The Department has decided to eliminate the requirement to retain 
records pertaining to denied certifications in its entirety. If an 
application is denied on grounds of fraud or malfeasance, the 
Department expects that it will have already obtained copies of any 
documents necessary to prove the fraud or malfeasance during the 
process of denying the certification, and thus the retention of such 
documents by the employer would be needlessly duplicative. Under the 
Final Rule, any employer who has been denied certification can discard 
the records immediately upon receiving the denial notice, or, if the 
employer appeals the decision, whenever the decision to deny 
certification becomes final. If the denial is ultimately overturned on 
appeal and certification is granted, the application of course becomes 
subject to the document retention requirements for approved cases.
    A SWA requested that we define who is responsible for monitoring 
the documentation and ensuring compliance. This Final Rule places 
responsibility squarely with the employer to maintain the 
documentation. The NPC, through the audit function as well as the other 
enforcement tools at its disposal, will ensure compliance. SWAs would 
not be responsible for monitoring documentation or ensuring compliance 
with this provision.
(d) Section 655.102(d) Positive Recruitment Steps
    The Department proposed ``positive recruitment'' steps including 
posting a job order with the SWA serving the area of intended 
employment; placing three print advertisements; contacting former U.S. 
employees who were employed within the last year; and recruiting in 
additional States designated by the Secretary as States of traditional 
or expected labor supply.
    Many commenters, primarily employers and employer associations, 
expressed concerns with the specific proposed pre-filing recruitment 
steps. Many argued that the proposed longer recruitment period and 
increased advertising would simply increase the cost of the recruiting 
effort without increasing the benefits and that the increased steps 
were duplicative. These commenters believe that their workforce 
shortage problem is not due to a lack of awareness of available jobs, 
but rather is because of a lack of willing and available U.S. workers. 
They suggested that rules be promulgated to use only the current state 
employment service system and not require agricultural employers to 
perform a substantial prolonged search for U.S. workers before being 
able to apply for an H-2A labor certification. According to these 
commenters, the time required in the current rules is sufficient to 
identify and notify the U.S. work force of the availability of 
particular jobs.
    Requiring pre-filing recruitment is, in the Department's view, 
essential to the integrity of an attestation-based process. Only with 
sufficient time for adequate recruitment can the Department ensure that 
the potential U.S. worker pool is apprised of the job opportunity in 
time to access that opportunity. The current recruitment time frame, in 
which employers file applications 45 days prior to the date of need, 
recruit for 15 days thereafter, and in which a CO must adjudicate the 
application no later than 30 days prior to need, has proven unworkable. 
COs are today certifying the absence of U.S. workers based on, at best, 
a handful of days of recruitment activity, which is insufficient to 
apprise U.S. workers of job opportunities through either the SWA 
employment service system or other positive recruitment activities.
    The belief of some commenters that the time allotted in the present 
regulatory scheme for recruiting is sufficient to canvass the potential 
U.S. workforce is, in the Department's view, incorrect. The Department 
has heard significant concerns voiced by the farmworker advocate 
community that there is an inability to access job opportunities within 
the short recruitment period provided in the current system. The 
Department takes seriously these concerns about the length of the 
recruitment, particularly in light of the Department's modification of 
the 50 percent rule (discussed above with respect to Sec.  655.102(b)) 
and the possibility that it will be phased out entirely after a period 
of five years. The movement of the recruitment period to a time prior 
to the filing of the application provides a clear and well-defined time 
for the employer to make available and for the U.S. farmworker to 
access job opportunities, and provides the Department with better 
information with which to make its certification determination. The 
establishment of a 30-day post-date-of-need referral period for the 
next five years further ensures that the expectations of workers will 
not be unduly disrupted.
    A trade association recommended SWAs be removed from the 
recruitment process altogether, and only be involved in the inspection 
of worker housing and workplace conditions after approval of the labor 
certification and visa and the commencement of work. A State agency 
representative recommended the SWAs receive copies of the ETA-750 
(Application for Temporary Employment Certification) and ETA-790 not 
for review but to ensure the SWA would have access to accurate 
information.
    The Department notes that it is statutorily prohibited at this time 
from amending the Wagner-Peyser regulations to remove SWAs from the H-
2A process. See Public Law 110-161, Division G, Title I, Section 110. 
Nor does it believe such a step would be beneficial at this time. SWAs 
provide an effective means of completing many required activities, such 
as inspections of employer-provided housing. SWAs are also integral to 
the process of receiving and posting agricultural job orders. The 
Department declines to require that SWAs also receive the form ETA-750, 
as they will receive far more significant information in the form ETA-
790 job clearance order request.
    A group of farmworker advocacy organizations also claimed that the 
proposed changes to the recruitment process were inconsistent with INA 
requirements, portions of the Wagner-Peyser Act, and MSPA. The 
organization believed the proposed regulations changed the standards 
for employer recruitment efforts to the detriment of U.S. workers and 
did not address recruitment violations that had been uncovered in the 
past. Specifically, the organization objected to the elimination of the 
standard for positive recruitment based on comparable efforts of other 
employers and the H-2A applicant employer as found in the current 
regulation at Sec.  655.105(a). This organization was also concerned 
about the elimination of the current provision requiring that ``[w]hen 
it is the prevailing practice in the area of employment and for the 
occupation for

[[Page 77130]]

non-H-2A agricultural employers to secure U.S. workers through farm 
labor contractors and to compensate farm labor contractors with an 
override for their services, the employer shall make the same level of 
effort as non-H-2A agricultural employers and shall provide an override 
which is no less than that being provided by non-H-2A agricultural 
employers.'' 20 CFR 655.103(f). The organization made several 
recommendations for revisions regarding recruitment, including 
preserving the burden on the employer (under Departmental review) to 
identify and positively recruit in locations with potential sources of 
labor, and the obligation to work with the SWA to do so; retaining 
current regulatory provisions requiring that employers engage in the 
same kind and degree of recruitment for U.S. workers as they utilize 
for foreign workers; and requiring adequate compensation of farm labor 
contractors who find U.S. workers. Additionally, it recommended 
preserving the role of SWAs contained in the current regulations and 
detailed in the internal Departmental H-2A Program Handbook.
    Other commenters expressed concern that the Department's proposal 
to reduce the scope and type of required recruitment efforts while 
increasing the length of time to perform recruitment was primarily 
intended to streamline the program, but would not actually benefit U.S. 
workers. These commenters disagreed with the proposed rule's 
elimination of the current regulatory requirement to contact farm labor 
contractors, labor organizations, nonprofits and similar organizations 
to recruit domestic employees. If the Department seeks to revise the 
current recruitment practices, in the opinion of these commenters, it 
would be more effective to maintain or increase current recruitment 
standards, while giving agricultural employers additional time within 
which to meet their obligations; otherwise the Department is reducing 
opportunities for U.S. workers.
    One commenter suggested that the Department bolster word-of-mouth 
recruitment because it is, in the commenter's opinion, the only way 
that U.S. workers find out about jobs in the agricultural sector and it 
encourages free-market competition as long as the information is 
accurate. This commenter believes too many H-2A employers do not 
provide accurate information to U.S. workers because it is in their 
best interests to hire H-2A workers who must stay tied to that employer 
for the entire agricultural season.
    While the Department appreciates the concerns expressed, it 
believes these concerns are misplaced in light of the recruitment 
methods that the Department will be requiring employers to undertake 
under the Final Rule. The Department will continue, and in some 
respects expand, those core positive recruitment requirements that have 
a proven track-record of providing cost-effective information to U.S. 
workers about available job opportunities. For example, the Final Rule 
retains the current requirement that employers run two newspaper 
advertisements in the area of intended employment, but expands that 
requirement, as laid out more fully in Sec.  655.102(g), by requiring 
that one of the advertisements be placed on a Sunday, which typically 
is the newspaper edition that has the highest circulation. The 
Department declines, however, to continue obscure and difficult-to-
administer provisions requiring employers and the Department to 
abstractly measure the amount of ``effort'' that employers put into 
their domestic positive recruitment, or to determine precisely what the 
prevailing practice is in a given area with respect to the payment of 
labor contractor override fees. Provisions that call for the 
measurement of employer effort require the Department to make highly 
subjective judgments and are extremely difficult to enforce. Moreover, 
the Department's program experience has shown that most of the 
discontinued recruitment methods cited by commenters--radio ads and 
contacting fraternal organizations, for example--substantially add to 
the burden of using the program, but add little to the total amount of 
information about agricultural job opportunities that is made available 
to U.S. workers through the positive recruitment methods that are 
required by the Final Rule. The elimination of specific requirements to 
contact entities such as fraternal organizations does not mean that 
interested entities will be entirely deprived of information about open 
agricultural job opportunities. Rather, it means that interested 
entities should pay attention to newspaper advertisements and SWA job 
orders.
    The Department appreciates the suggestion that it should develop 
methods for encouraging word-of-mouth as a recruitment tool, and that 
word-of-mouth is frequently a successful way for U.S. workers to learn 
about job opportunities. We do not believe that word-of-mouth 
recruitment can effectively be mandated by regulation, however. Rather, 
the Department anticipates that word-of-mouth communication will be 
instigated by the positive recruitment efforts that the Final Rule 
requires, particularly through the assistance of farm worker assistance 
and advocacy organizations, which can spread the word about available 
job openings.
    The Department takes seriously its statutory obligation to 
determine whether there are sufficient numbers of U.S. workers who are 
able, available, willing, and qualified to perform the labor or 
services involved in the petition and to ensure that U.S. workers' 
wages and working conditions are not adversely affected by the hiring 
of H-2A workers. The Department believes that the positive recruitment 
methods it has selected for inclusion in the Final Rule--the use of 
newspaper advertisements, the state employment service system, contact 
with former workers, and recruitment in traditional or expected labor 
supply States--provide notice of job opportunities to the broadest 
group of potential applicants in an efficient and cost-effective 
manner, while avoiding burdening employers with requirements that have 
proven costly and at times difficult to administer without yielding 
clear benefits. The Department notes that employers stand to gain a 
great deal from recruiting eligible U.S. workers rather than incurring 
the considerable time and expense of securing foreign workers from 
thousands of miles away. The various provisions of these regulations, 
including wage, housing, and transportation requirements, ensure that 
it is virtually always more expensive for employers to hire H-2A 
workers than it is for them to hire U.S. workers outside the H-2A 
program. Thus, employers have significant incentives to use the 
positive recruitment methods prescribed by these regulations to maximum 
effect, and the Department is confident that these methods will 
adequately spread the word to U.S. workers about available job 
opportunities. The Department expects that many employers will also 
engage in additional recruitment efforts that can, in the absence of 
rigid and overly prescriptive regulatory requirements, be flexibly 
tailored to the particular circumstances of local labor markets.
(e) Section 655.102(e) Job Order
    Proposed Sec.  655.102(e) required that, prior to filing its 
application with the NPC, the employer place a job order, consistent 
with 20 CFR part 653, with the SWA serving the area of intended 
employment. The NPRM also required the job order to be placed at least 
75 but no more than 120 days prior to the anticipated date of need.

[[Page 77131]]

    Several commenters focused on the requirements for placement of the 
job order. Three commenters posited that the rule would create problems 
for program users by establishing requirements for acceptable job 
offers that are subject to the Department's discretion, while employers 
would have to conduct the recruitment before the terms and conditions 
of the employer's job offer have been reviewed and approved by the 
Department. According to these commenters, the rule is silent on what 
happens if, after the employer conducts the pre-filing recruitment, the 
Department does not approve the employer's job offer. Under the current 
program, the recruitment would be considered invalid, and the employer 
would be required to revise the job offer and repeat the recruitment. 
This situation, according to these commenters, introduces an 
unacceptable degree of uncertainty and risk into the process. A trade 
association further commented that, because there will be no prior 
approval of the job offer by the NPC, all SWAs would be independently 
interpreting and making decisions about the job offers, and believed 
that such a process would lead to inconsistencies among SWAs. The 
association was also concerned there would be inconsistency between 
what a local SWA employee would accept and what the CO would later find 
acceptable. The association recommended retaining the existing process 
as an option for employers.
    The Department requires that the employer submit an acceptable job 
order (current form ETA-790) to the appropriate SWA for posting in the 
intrastate and interstate clearance system. The ETA-790 describes the 
job and terms and conditions of the job offer: the job duties and 
activities, the minimum qualifications required for the position (if 
any), any special requirements, the rate of pay (piece rate, hourly or 
other), any applicable productivity standards, and whether the employee 
is expected to supply tools and equipment. This form is submitted to 
the SWA for acceptance prior to the employer's beginning positive 
recruitment. As long as the employer's advertisements do not depart 
from the descriptions contained in the accepted job order, the 
advertisements will be deemed acceptable by the Department. Thus, 
employers should place advertisements after the form ETA-790 has been 
accepted for intrastate/interstate clearance, eliminating any chance 
that recruitment will later be rejected by the NPC due to problems with 
the job offer and corresponding advertisements.
    The Department also does not anticipate significant problems in 
uniform decision making among SWAs. SWAs will be, as they have been for 
some time, the primary arbiter of whether job descriptions and job 
orders are acceptable. In response to comments on the subject, however, 
the Department has clarified in the text of the rule that employers may 
seek review by the NPC of a SWA rejection, in whole or in part, of a 
job description or job order. The regulations have also been revised to 
permit the NPC to direct the SWA to place the job order where the NPC 
determines that the applicable program requirements have been met and 
to provide the employer with an opportunity for review if the NPC 
concludes that the job order is not acceptable. This modification 
renders concrete what has long been the informal practice with respect 
to H-2A related job orders, as the NPC has worked hand-in-hand with the 
SWAs to ensure that job orders comply with applicable requirements. It 
is also implicit in the status of the SWAs as agents of the Department, 
assisting the Department in the fulfillment of its statutory 
responsibilities.
    One trade association noted that the job order must be filed in 
compliance with part 653, and that Sec.  653.501 requires that the 
employer give an assurance of available housing as part of the job 
offer. This commenter opined that this would be impossible to do since 
employers cannot guarantee the availability of housing that far in 
advance for purposes of using the proposed housing voucher. The 
Department's disposition of the proposed housing voucher, discussed 
below, renders this comment moot.
    The same commenter noted that Sec.  653.501(d)(6) requires that the 
SWA staff determine whether the housing to be provided by the employer 
meets all of the required standards before accepting a job order, and 
argued that this would be an impossible task 120 days before the actual 
date of need, as the proposed rule purported to allow. As explained 
above in the discussion of Sec.  655.102(a), the Department has amended 
the timeframe for recruitment by moving the first date for advertising 
and placement of the job order to no more than 75 days and no fewer 
than 60 days prior to the date of need. Moreover, in response to the 
comments received, the Department has specified in the Final Rule that 
SWAs should place job orders into intrastate and interstate clearance 
prior to the completion of the housing inspections required by 20 CFR 
653.501(d)(6) where necessary to meet the timeframes required by the 
governing statute and regulations. This will maximize the time that job 
orders are posted, providing better information to workers. The Final 
Rule further directs SWAs that have posted job orders prior to 
completing a housing inspection to complete the required inspections as 
expeditiously as possible thereafter. This provision is consistent with 
the current regulations, which already permit job orders to be posted 
prior to the completion of a housing inspection pursuant to Sec.  
654.403. If a SWA notes violations during a subsequent housing 
inspection, and the employer does not cure the violations after being 
provided a reasonable opportunity to do so, the corresponding job order 
may be revoked. With these amendments, the Department believes it has 
adequately addressed the concerns contained in this comment.
    In addition, a group of farmworker organizations objected to the 
use of the language ``place where the work is contemplated to begin'' 
in describing which SWA should receive a job order when there are 
multiple work locations within the same area of intended employment and 
the area of intended employment is found in more than one State. It 
believed this language would allow employers to choose where they 
wanted to recruit U.S. workers simply by ``contemplating'' that the 
work would begin in an area unlikely to have U.S. workers. The 
Department received other comments that supported this requirement. 
After considering these comments, the Department has revised the 
language of the provision to state that an employer can submit a job 
order ``to any one of the SWAs having jurisdiction over the anticipated 
worksites.'' The revised language affords employers some flexibility in 
determining where to initially send job orders, but it does not allow 
employers to use this flexibility to avoid recruitment obligations, as 
Sec.  655.102(f) provides that the SWA that receives the job order 
``will promptly transmit, on behalf of the employer, a copy of its 
active job order to all States listed in the job order as anticipated 
worksites.'' Thus, no matter where the job order is initially sent, the 
scope of required recruitment will be the same, covering all areas in 
which anticipated worksites are located.
    A sentence has also been added to the Final Rule, simply as a 
procedural direction to the SWAs, that ``[w]here a future master 
application will be filed by an association of agricultural employers, 
the SWA will prepare a single job order in the name of the

[[Page 77132]]

association on behalf of all employers that will be duly named on the 
Application for Temporary Employment Certification.''
(f) Section 655.102(f) Intrastate/Interstate Recruitment
    The proposed regulation instructs the SWA receiving an employer's 
job order to transmit a copy to all States listed as anticipated 
worksites and, if the worksite is in one State, to no fewer than three 
States. Each SWA receiving the order must then place the order in its 
intrastate clearance system and begin referral of eligible U.S. 
workers.
    The Department received some general comments regarding the 
referral process for U.S. workers. One group of farmworker advocacy 
organizations expressed concern about the lack of referrals by SWAs to 
H-2A employers in the past and believed the proposed regulation would 
not cure this deficiency. One association of agricultural employers 
expressed concern regarding the ability of the SWAs to adequately 
handle the referral process.
    The Department believes these concerns are misplaced, especially 
under a modernized system in which SWA responsibilities with respect to 
each H-2A application is reduced. A core function of the SWA system is 
the clearance and placement of job orders and the referral of eligible 
workers to the employers who placed those job orders. Past program 
experience demonstrates the occurrence of a sufficient number of 
referrals to sustain this requirement.
    One SWA commented that although the NPRM states the purpose of 
removing the SWA is to remove duplication of effort, one important 
duplicative effort is retained--the requirement for sending job orders 
to other labor supply States and neighboring States. This agency 
suggested that if the job orders are uploaded to the national labor 
exchange program, then the transmittal of job orders to other States is 
unnecessarily duplicative. Other commenters recommended all 
agricultural job orders be posted in an automated common national job 
bank.
    The Department acknowledges the potential benefits of a national 
online system for posting job offers. However, automating interstate 
job clearance would require regulatory reforms that the Department is 
currently constrained from undertaking by Congress. See Public Law 110-
161, Division G, Title I, Section 110. There is currently no online 
national exchange organized under the auspices of the Department to 
which such jobs could be posted. The Department's former internet-based 
labor exchange system, America's Job Bank, was disbanded in 2007 
because the private sector provides much more cost-effective and 
efficient job search databases than the federal government can provide. 
The Department, however, does not wish to impose mandatory 
participation in such job databases on SWAs or employers at this time. 
Because the Department already has an existing system in place for 
handling interstate job orders, and given the current legal and 
operational constraints of changing that system, the Department has 
determined that the only feasible and prudent approach at this time is 
to continue to require SWAs to process the interstate job orders in 
accordance with 20 CFR Part 653.
    An association of growers/producers opposed the requirement for 
transmitting job orders to additional States and recommended the job 
orders be circulated only in the State where the job is located. This 
association also suggested that any out of State notifications should 
list only the location of the job offer and never list the employer's 
name.
    The Department's circulation of the job order to any States that 
are designated by the Secretary as labor supply States is required by 
statute. Section 218(b)(4) of the INA prohibits the Secretary from 
issuing a labor certification after determining that the employer has 
not ``made positive recruitment efforts within a multi-state region of 
traditional or expected labor supply where the Secretary finds that 
there are a significant number of qualified United States workers who, 
if recruited, would be willing to make themselves available for work at 
the time and place needed.'' The interstate recruitment must be 
conducted ``in addition to, and shall be conducted within the same time 
period as, the circulation through the interstate employment service 
system of the employer's job offer.'' The Department does not have the 
ability to eliminate or alter the requirement absent Congressional 
amendment.
    At the same time, the Department does not read the statutory 
language to require the Secretary to designate traditional or expected 
labor supply States with respect to all States in which H-2A 
applications may be filed. Rather, the Department believes that the 
statutory language is most reasonably read to require the Secretary to 
make a determination for each area (which the Secretary has elected to 
do on a State-by-State basis) whether, with respect to agricultural job 
opportunities in that area, there are other areas (which the Secretary 
has also elected to examine at the State-by-State level) in which 
``there are a significant number of qualified United States workers 
who, if recruited, would be willing to make themselves available for 
work at the time and place needed.'' In other words, the Department 
reads the statute as contemplating that with respect to agricultural 
job opportunities in certain States at certain times, as a factual 
matter there simply will not be other States in which there are ``a 
significant number of qualified United States workers who, if 
recruited, would be willing to make themselves available for work at 
the time and place needed.'' Under this reading of the statute, the 
word ``where'' in 8 U.S.C. 1188(b)(4) essentially means ``if'': If the 
Secretary determines that the statutory criteria have been met, then 
she is required by the statute to designate the area of traditional or 
expected labor supply, but if the Secretary determines that the 
statutory criteria have not been met, then the requirement is simply 
inapplicable. This sensible reading of the statute comports with the 
realities of the agricultural sector: The pattern of seasonal migrant 
work has clearly changed over time, and in some cases older patterns 
have become well-established while others have fallen away. The 
changeable nature of the agricultural labor flow, which is highly 
dependent upon weather patterns, crop distribution, the availability of 
transportation, and even the price of gasoline, are all recognized 
under this system of flexible, fact-specific designations by the 
Secretary.
    A group of farmworker advocacy organizations pointed out that the 
proposed regulations do not provide a timeframe for how long the local 
SWA can wait before placing the H-2A job order into interstate 
clearance, and only require the SWA to ``promptly transmit'' the job 
offer. The Department does not believe that its requirement of 
``prompt'' transmission requires further clarification, however. 
Posting job orders is one of the core functions of the SWAs, and the 
Department is confident the SWAs will continue to act responsibly in 
promptly transmitting and posting job orders as they have in the past.
    The organization was also concerned about the clarity of the 
instructions to be followed by SWAs for circulating job orders among 
other States. The proposed regulations require the SWA to transmit a 
copy of the open job order to all States listed in the employer's 
application as anticipated worksites or, if the employer's anticipated 
worksite is

[[Page 77133]]

within a single State, to no fewer than three States, including those 
designated as traditional or expected labor supply States. However, the 
organization believed the proposed regulation would be read to not 
require any additional job order circulation by the SWA if the employer 
has anticipated worksites in two States, and thus would provide less 
circulation of job orders and no contact of labor supply States in such 
situations. The Department agrees and has clarified the language of 
Sec.  655.102(f)(1) by removing the phrase, ``If the employer's 
anticipated worksite location(s) is contained within the jurisdiction 
of a single State'' to make clear that job orders with locations in 
more than one State must be circulated to any traditional or expected 
labor supply States designated by the Secretary for either of the work 
locations.
    An attorney for an association of growers/producers suggested the 
H-2A process could be further improved by allowing State officials to 
affirm that employers need agricultural workers in their State. The 
Department believes it cannot implement such an affirmation process, as 
similar processes for determining the unavailability of U.S. workers 
have been found to be insufficient for the factual determination 
required by the Secretary. See First Girl, Inc. v. Reg. Manpower Admin. 
DOL, 361 F. Supp. 1339 (N.D. Ill. 1973) (availability of U.S. workers 
could not be determined by generic listing of available workers listed 
with state agency).
    A public legal service firm recommended that the Department require 
employers to circulate all job orders in Texas, which they said is a 
traditional agriculture labor surplus state. If the commenter's factual 
assertions about labor availability in Texas are correct, the 
Department would expect that Texas will frequently be designated as a 
labor supply State. The Department is cognizant of the changeable 
nature of worker flows, however, and therefore does not wish to require 
the mandatory inclusion of one or more specific States in the 
designation process. It is subject to question, for example, whether 
significant numbers of agricultural workers in Texas would be willing 
to accept seasonal employment in Alaska or Hawaii. Rather, the 
Department will rely on annually updated information in designating 
labor supply States to ensure the accuracy of the assertions that farm 
workers are indeed available in the purported labor supply State and 
that recruitment there for out of State jobs would not take needed 
workers away from open agricultural jobs in the labor supply State. In 
response to these concerns, however, the Department notes it will 
announce, at least 120 days in advance of the Secretary's annual 
designation, an opportunity for the public to offer information 
regarding States to be designated.
    Finally, a group of farmworker advocacy organizations expressed 
concern regarding the content of job orders placed by agricultural 
associations. It objected to the placement of job orders with a range 
of applicable wage offers with a statement that ``the rate applicable 
to each member can be obtained from the SWA.''
    In promulgating this rule, the Department made no changes to 
current practice. An association is permitted to pay a different wage 
for each of its members, should it choose to do so, as long as that 
wage meets the criteria established in the regulations (now found at 
Sec.  655.108). U.S. workers seeking a job opportunity from or within 
an association can acquire from the SWA a list of member locations and 
the wages associated with each so that the worker can make a fully 
informed decision as to which job, if any, the worker wishes to apply.
    We made several minor edits that are consistent with the above 
discussion to the language of Sec.  655.102(f) for purposes of clarity. 
Some language was also moved to other sections or deleted, again for 
purposes of clarity and without substantive effect. Section 
655.102(f)(3), which describes the recruitment period during which 
employers are required to accept referrals of U.S. workers, was added 
to the rule for reasons described at length in the discussion of the 50 
percent rule under Sec.  655.102(b).
(g) Section 655.102(g) Newspaper Advertisements
    The Department proposed that in addition to the placement of a job 
order with the SWA, employers be required to place three advertisements 
(rather than the current two) with a newspaper or other appropriate 
print medium. Most who commented on this suggestion believed the 
additional advertising would result in additional costs without any 
additional benefits. An association of growers/producers stated: 
``Additional newspaper advertising is a very expensive alternative of 
recruiting workers in today's world and should not be the only method 
allowed.''
    A trade association also questioned the expansion of the 
advertising requirements in the proposed regulations and commented that 
newspapers are not a usual or even occasional source of labor market 
information for farm workers. The association and other commenters 
referenced the National Agricultural Worker Survey (NAWS) which 
reported that percent of seasonal crop workers (both legal and illegal) 
learn about jobs from a friend or relative or already know about the 
existence of the job (although how such knowledge is attained was not 
reported). The association further commented that the proportion of 
workers who learn about their jobs from a ``help wanted'' ad was 
apparently too small even to warrant inclusion in the report. Several 
of these commenters suggested it would be more efficient to simply 
allow for posting to the SWA's job bank which is more practical, less 
expensive, and reaches applicants more readily.
    A few employers objected to the very concept of newspaper 
advertising. One employer objected to having to advertise in a 
newspaper, commenting that newspaper advertisement is ``not only 
expensive, but doesn't find any hiding sheep shearers.'' Another 
employer objected to the increase in required newspaper advertising for 
U.S. workers ``when it is clear that local workers are simply not 
available for seasonal jobs.'' Many commenters were particularly 
concerned that increasing the number of ads from two to three in 
addition to requiring that one be placed in a Sunday edition would 
greatly increase employer costs. One trade association commented that 
it is likely that in the typical situation an employer's advertising 
costs would increase by three to four times under the proposed 
regulations, adding hundreds to thousands of dollars to the employers' 
application costs. That commenter did not provide data supporting this 
conclusion, however.
    Several commenters were in favor of the proposal to increase 
advertising and expressed support for the additional ad in the 
expectation it would provide additional notice to the target 
population. An association of growers/producers supported the increase 
in advertisements from two to three, believing it would enhance the 
ability of an eligible U.S. worker to identify and apply for 
agricultural job openings before the job begins. A farmworker/community 
advocacy organization agreed that requiring three instead of two 
advertisements would be a step toward improving the recruitment of U.S. 
workers.
    The Department appreciates that a newspaper ad frequently may not, 
of itself, result in significant numbers of U.S. workers applying for 
employment. However, such advertising has been required for decades and 
remains the central mechanism by which jobs are

[[Page 77134]]

advertised, especially to workers who may have only limited access to 
the Internet. The ads may not necessarily be seen by all farmworkers, 
but may be, and indeed are, seen by those who participate in the 
greater farm work community and who can pass along a description of the 
jobs ads through ``word-of-mouth.'' Newspaper advertising remains, 
along with the state employment service system network, an objective 
mechanism by which notice of upcoming farm work can be assessed by the 
Department and communicated to those who are interested.
    The study referenced by many commenters suggesting that most 
referrals in the agricultural sector take place through word-of-mouth 
rather than through newspaper advertisements was actually conducted by 
the Department, and, as noted above, the Department acknowledges that 
word-of-mouth frequently results in U.S. workers learning about job 
opportunities. However, the Department believes it would be nearly 
impossible to effectively implement and enforce a word-of-mouth 
regulatory standard. The Department believes the combination of job 
orders and required newspaper advertisements are cost-effective, easily 
administrable, and readily enforceable, and will make job information 
available in ways that will result in word-of-mouth referrals.
    Although it may be true that few agricultural workers themselves 
read such advertisements, others do read them, including farm labor 
advocacy organizations, community organizations, faith-based 
organizations, and others who seek out such opportunities on behalf of 
their constituents. The newspaper becomes a very visible source of 
information for such organizations that are in turn able to spread the 
word to workers. Through publication to this wide audience, the 
information ultimately reaches those for whom it is intended.
    The Department appreciates the substantial concern raised by a 
number of commenters regarding the placement of multiple ads and has 
thus revised its proposal on the number of ads that must be placed in 
the area of intended employment. The Department has decided to revert 
from the proposed three to the existing rule's requirement for two ads. 
The Department is retaining its proposal, however, to require that one 
of the newspaper advertisements be run on a Sunday, as that is 
typically the newspaper edition with the broadest circulation and that 
is most likely to be read by job-seekers.
    In response to the various comments about the proposed advertising 
requirements, the Department is also slightly modifying the language of 
Sec.  655.102(g)(1) to provide some limited flexibility in selecting 
the newspaper in which the job advertisement should be run. The Final 
Rule clarifies that the newspaper must have a ``reasonable 
distribution.'' Thus, advertisements need not be placed in the New York 
Times, even if the New York Times is the newspaper of highest 
circulation in a given area, but also cannot be placed in a local 
newspaper with such a small distribution that it is unlikely to reach 
local agricultural workers. The Final Rule also clarifies that the 
newspaper must be ``appropriate to the occupation and the workers 
likely to apply for the job opportunity,'' but deletes the modifier 
requiring that the newspaper must be the ``most'' appropriate. This 
change was made out of a recognition that in many areas there are 
multiple newspapers with a reasonable distribution and that are likely 
to reach U.S. workers interested in applying for agricultural job 
opportunities, and that as long as these criteria are met, an 
employer's positive recruitment should not be invalidated. If an 
employer is uncertain whether a particular newspaper satisfies these 
criteria, it can seek guidance from the local SWA or the NPC.
    The Final Rule also instructs employers not to place the required 
newspaper advertisements until after the job order has been accepted by 
the SWA for intrastate/interstate clearance; this replaces the time 
frame contained in the NPRM and shifts the initiation of recruitment 
back to the submission to and clearance by the SWA of the job order. 
This ensures that advertisements reflect the job requirements and 
conditions accepted by the SWA and minimizes the risk that employers' 
advertisements will later be determined to be invalid by the NPC.
    One commenter suggested that a better alternative to employer-
placed advertisements would be for the Department to maintain an up-to-
date database listing advertisements for farming and ranching jobs and 
directing interested workers to contact the SWA in the States where the 
jobs were located. The commenter believed this approach would expand 
the ability of U.S. workers to select more varied jobs in a larger 
geographic area. The Department does not disagree; however, as noted 
above, amending the current job order clearance process is not an 
option at this time.
    A private citizen commented that the SWA, not the employer, is in 
the best position to know which newspaper is most likely to reach U.S. 
workers, and that the SWA should, therefore, continue to have a role in 
determining where advertising is conducted. Nothing, of course, 
prevents an employer from consulting with the SWA regarding the most 
appropriate publication in which to place advertising and thus ensure 
compliance with the regulations, particularly in instances in which a 
professional, trade or ethnic publication is more appropriate than a 
newspaper of general circulation. In fact, a representative of a State 
government agency suggested the advertising requirements should be 
limited to local area media and trade publications where available, and 
that the specific publications should be agreed to by the employer and 
the SWA based on the potential for attracting candidates and historical 
experience. While we are not incorporating this suggestion for 
coordination into the regulation as a requirement, we note that the 
regulation at Sec.  655.102(g)(1) already requires the ads to be placed 
in the ``newspaper of general circulation serving the area of intended 
employment that has a reasonable distribution and is appropriate to the 
occupation and the workers likely to apply for the job opportunity.''
(h) Section 655.102(h) Contact With Former U.S. Workers
    The Department proposed that employers be required to contact by 
mail former U.S. workers as part of the recruitment process. A group of 
farmworker organizations objected to the requirement and commented: 
``if DOL had intended to come up with the least effective way of 
contacting former employees, it could not have selected a better method 
than by mail.'' This organization was concerned because they claimed a 
majority of farm workers are not literate in English or their primary 
language and, therefore, might not understand the written communication 
and the regulation does not require the written communication to be in 
any language other than English. The organization also recommended 
contact by telephone or through crew leaders or foremen as alternative 
methods of contact. In response, we have modified this provision in the 
Final Rule to permit employers to also contact former U.S. workers 
through alternative effective means, and document those means in some 
manner (telephone bills or logs, for example).
    Additionally, the organization believes many workers would be 
missed by the proposed mailing effort because the proposed regulation 
limits the requirement to contacting former

[[Page 77135]]

workers ``employed by the employer in the occupation at the place of 
employment, during the previous year'' and does not require that H-
2ALCs contact a growers' former workers who did not work for the H-2ALC 
during the previous season. The Department declines to adopt a 
requirement that employers contact workers who did not work for them 
during the previous season, as such a requirement would be quite 
impractical, and the other positive recruitment requirement methods 
included in the Final Rule are intended to reach such workers. It is 
not at all clear how H-2ALCs would even gain access to the necessary 
contact information for former employees of other employers, and in the 
judgment of the Department such a requirement would be excessively 
burdensome.
    One association of growers/producers suggested the proposed rule be 
modified to allow employers the ability to deny work to employees hired 
in previous years who demonstrated an unsatisfactory work history/ethic 
even if the worker was not terminated for cause. A trade association 
and other commenters expressed concern about former employees who were 
the subject of no-match letters from the Social Security Administration 
and requested a safe harbor or common sense exception in such 
situations.
    The Department appreciates that employers that do not participate 
in the H-2A program generally are not required to rehire employees who 
have a poor work history. The Department also appreciates that 
employers frequently may allow short-term workers who prove to be poor 
performers to finish their job terms if it is easier and, in light of 
potential litigation risks, less costly than firing them. There is a 
countervailing concern, however, that if the Department allowed 
employers to reject former workers who completed their previous job 
term on the alleged ground that the workers were actually poor 
performers, it would open the door for bad actor employers to reject 
former workers on the basis of essentially pretextual excuses. The 
Department has therefore decided to address employers' concerns about 
poorly performing workers by creating an exception allowing employers 
not to contact certain poor performers, but only in the narrow 
circumstance where the employer provided the departing employee at the 
end of the employee's last job with a written explanation of the 
lawful, job-related reasons for which the employer intends not to 
contact the worker during the next employment season. The employer must 
retain a copy of the documentation provided to the worker for a period 
of 3 years, and must make the documentation available to the Department 
upon request. The Department will review the propriety of the 
employer's non-contact in such situations on a case-by-case basis. The 
Department believes that the insertion of this provision is responsive 
to the comment in that it relieves employers from the burden of being 
required to rehire truly poorly performing workers, while ensuring that 
workers who will not be recontacted are aware of the employer's 
intentions and reasons well in advance of the next employment season 
and have the opportunity to bring reasons they regard as pretextual to 
the Department's attention.
    With respect to the comment about no-match letters, we note that 
employers are not required to hire a worker who cannot demonstrate 
legal eligibility to work. Receipt of a no-match letter may give rise 
to a duty on the employer's part to inquire about work eligibility, but 
the letter in and of itself is not sufficient legal justification to 
refuse to hire a U.S. worker.
    One trade association expressed concern about the related 
requirement for documenting contact with former employees and stated, 
``This requirement could reasonably be interpreted to mean that the 
employer must maintain a copy of its correspondence with each former 
employee demonstrating that it had been mailed. The only practical way 
to do this would be to send each letter by certified mail or some other 
means providing evidence of attempt to deliver. Such a requirement 
would be unnecessarily burdensome and costly.'' The association 
recommended this be simplified by requiring the employer to keep a copy 
of the form of the letter sent and a statement attesting to the date on 
which it was sent and to whom. Additionally, the association questioned 
what kind of documentation would demonstrate that the employee ``was 
non-responsive to the employer's request.'' The association suggested 
the employer's recruitment report should be sufficient to document 
which employees were responsive and requiring documentation of non-
responsiveness is unreasonable.
    The Department does not intend this requirement to be overly 
burdensome to employers and agrees that copies of form letters together 
with the employer's attestation that the letters were mailed to a list 
of former employees would be sufficient to meet the requirements of 
this provision. The Department also agrees that the recruitment report 
can be used to sufficiently document the non-responsiveness of former 
employees. The Department inserted language into the Final Rule 
clarifying the Department's expectations regarding the type of 
documentation that should be maintained.
(i) Section 655.102(i) Additional Positive Recruitment
(1) Designation of Traditional or Expected Labor Supply States
    In the NPRM, the Department continued to impose on employers the 
requirement that the employer make ``positive recruitment efforts 
within a multi-state region of traditional or expected labor supply 
where the Secretary finds that there are a significant number of 
qualified U.S. workers who, if recruited, would be willing to make 
themselves available for work at the time and place needed,'' as 
mandated by 8 U.S.C. 1188(b)(4). The Department proposed that each year 
the Secretary would make a determination with respect to each State in 
which employers sought to hire H-2A workers whether there are other 
States in which there a significant number of eligible, able and 
qualified workers who, if recruited, would be willing to make 
themselves available for work in that State. The Department also 
proposed to continue the current regulatory provision stating that the 
Secretary will not designate a State as a State of traditional or 
expected labor supply if that State had a significant number of local 
employers recruiting for U.S. workers for the same types of 
occupations. The Department proposed to publish an annual determination 
of labor supply States to enable applicable employers to conduct 
recruitment in those labor supply States prior to filing their 
application. The Department received several comments on this 
provision.
    A group of farmworker advocacy organizations opined that the 
Department's proposal contravenes the H-2A statutory requirements 
regarding positive recruitment. The organization believes the 
Department's proposal will result in employers not competing with one 
another for migrant workers and workers not receiving job information 
even though a particular job in another State may offer a longer 
season, a higher wage, or better work environment. Another farmworker 
advocacy organization commented that it makes no sense in a market 
economy which recognizes competition as good to stop requiring 
employers to recruit for farmworkers in areas where other employers are 
seeking farmworkers. A labor organization commented that this

[[Page 77136]]

provision demonstrates a lack of understanding of farmworker 
recruitment and what it believes is an inappropriate desire to ease the 
recruitment obligations for growers at the expense of U.S. farmworkers. 
This organization recommended the current positive recruitment rules 
should be retained and enforced. A U.S. Senator was concerned that the 
NPRM would cost American workers jobs because they would not have 
access to information about jobs in other areas.
    Employers seeking farmworkers are statutorily required to recruit 
out-of-State if the Secretary has determined that other States contain 
a significant number of workers who, if recruited, would be willing to 
pick up and move in order to perform the work advertised in accordance 
with all of its specifications. The commenters referenced above appear 
to believe that the Department's proposal is a new regulatory 
provision. That is incorrect. The current regulations at 20 CFR 
655.105(a), which have been in place for 20 years, specify that 
Administrator, OFLC should ``attempt to avoid requiring employers to 
futilely recruit in areas where there are a significant number of local 
employers recruiting for U.S. workers for the same types of 
occupations.'' This longstanding provision reflects two judgments on 
the part of the Department. First, it reflects the Department's reading 
that 8 U.S.C. 1188(b)(4) was intended to require out-of-State 
advertising only in areas with a surplus labor supply, and was not 
intended to deleteriously impact farmers in certain areas by 
instituting federal program requirements that would draw away their 
local workers. Second, it reflects the Department's judgment that where 
a ``significant'' number of local employers are already recruiting U.S. 
workers in a given area for the same types of occupations, there is 
already significant competition for workers in that area and the 
addition of further out-of-State advertising would likely be futile. 
The Department's program experience in applying this limitation over a 
long period of time leads it to believe that it has worked well in 
practice to aid program administration and avoid the imposition of 
unnecessary program expense. The Department notes that this limitation 
does not mean that out-of-state recruitment will cease in States where 
workers are being locally recruited, since SWAs will continue to have 
discretion to post job orders in those States where appropriate.
    Several commenters sought more information on the methodology that 
would be used in making the determinations about labor supply States. A 
group of farmworker/community advocacy organizations voiced its concern 
that ``The annual survey is flawed in many respects and not designed to 
identify sources of labor at the time of need.'' The organization was 
also concerned about the timing and specificity of the survey to be 
used. A representative of a State Workforce Agency requested additional 
information about the designation of labor supply States for the 
logging industry in her State. A trade association commented that ``the 
same types of occupations'' should mean something more than merely 
agricultural work. An individual commenter believed that just because 
an employer in a State may request H-2A workers for a certain crop 
activity for a certain time period should not mean that State should 
not be considered a labor supply State for other crop activities and 
time periods.
    The Department has addressed many of these concerns by modifying 
the provision to allow for notice to be published in the Federal 
Register at least 120 days before the announcement of the annual 
determination, allowing anyone to provide the Department with 
information they believe will assist the Secretary in making her 
determination about labor supply states. The Department will consider 
all timely submissions made in response to this notice. In addition to 
the information presented by the public, the Department expects that it 
will continue to consult SWAs, farmworker organizations, agricultural 
employers and employer associations, and other appropriate interested 
entities. As discussed above, the ``same types of occupations'' 
language in the Final Rule has been carried over from the current 
regulations, and the Department intends to apply the term in the same 
manner that it has in the past. The Department agrees that the phrase 
is not intended to lump all agricultural work together as the ``same 
type of occupation.''
(2) Required Out-of-State Advertising
    The Department proposed that each employer would be required to 
engage in positive recruitment efforts in any State designated as a 
labor supply State for the State in which the employer's work would be 
performed. This recruitment obligation would consist of one newspaper 
advertisement in each designated State.
    Several commenters felt the newspaper advertisement requirements 
were too burdensome on employers and that the additional time and 
expense of recruiting in traditional or expected labor supply States 
should be borne by the Department rather than the employer. An 
association of growers/producers recommended that the regulation only 
require SWAs to send the job orders to those States designated as labor 
supply States as they do now. A United States Senator recommended that 
after the employer has satisfied the intrastate recruitment 
requirements and has attested that insufficient domestic workers are 
available, the burden of proof that U.S. workers are unavailable should 
shift to the Department.
    The Department does not consider a requirement to place a single 
out-of-state advertisement in each designated labor supply state to be 
unjustifiably onerous on employers and is of the opinion at this time 
that the potential benefit to be gained in locating eligible and 
available U.S. workers outweighs the costs of the advertising. This is 
required in the current program and the Department has received little 
negative feedback on the burden of such advertising. The Department 
does not agree that this is an expense the Department should bear, 
beyond the expense of the interstate agricultural clearance system that 
the Department already finances. The INA at sec. 218(b)(4) is clear 
that it is an employer who must engage in such out-of-state positive 
recruitment, not the Department.
    Several associations of growers/producers commented that placing 
newspaper advertisements should be limited to no more than three 
States, to avoid the possibility that the Department could require 
recruitment in 50 States and the additional territories because the 
language in the companion recruitment provision for SWAs at Sec.  
655.102(f) reads ``no fewer than 3 States.'' A United States Senator 
also endorsed a limit on the number of States in which an employer is 
required to recruit and suggested the Department should provide a means 
of indemnifying employers from liability associated with mandatory out-
of-State advertising.
    The Department anticipates the number of States to be so designated 
will be no more than three for any one State, but that the number of 
States designated will vary by State. In some cases, no State or only 
one or two States may meet the relevant criteria. In response to these 
comments, the Department has added to the Final Rule language 
specifying that ``[a]n employer will not be required to conduct 
positive recruitment in more than three States designated in accordance 
with paragraph (i)(1) for each area of intended employment listed on 
the employer's application.'' This is

[[Page 77137]]

generally consistent with past practice concerning required out-of-
State recruitment, as employers have only very rarely been required to 
conduct advertising in more than three States of traditional or 
expected labor supply. Providing this modest cap will provide employers 
with needed certainty regarding expected advertising costs.
    A farmworker advocacy organization believed the requirement should 
be for three advertisements, not one, in each designated State and also 
recommended that the Department require that the language predominant 
among agricultural workers in the region be used. A representative of a 
State government agency commented that the proposed regulations were 
not clear as to how an employer's ad in another State would be handled. 
The individual commented that the advertising instructions indicate 
interested applicants should contact the SWA, but asserted that this 
procedure would not work well for an ad placed out of State and 
recommended the ads placed out of State should advise applicants to 
contact the employer directly. Another commenter recommended the 
newspaper ads in other States should direct all applicants to the SWA 
and the SWA should then refer them to the employer's SWA. An 
association of growers/producers recommended the required newspaper 
advertisements should contain only the job specifications and the SWA 
contact information.
    The Department agrees that more clarity on the mechanics of out-of-
state recruitment is appropriate. The Department has added language to 
the regulation to clarify that one advertisement is to be placed in 
each State identified for the area of intended employment as a 
traditional or expected labor supply State. The Department declines to 
require more than one ad in each State, which would be a significant 
departure from the advertising requirements under the current 
regulations and would add additional program expense. In response to 
comments, and out of recognition that employers often will not be well-
versed in the characteristics of out-of-State newspapers, the 
Department has included language in the Final Rule specifying that its 
annual Federal Register notice will not only announce the designation 
of labor supply States, but will also specify the acceptable newspapers 
in the designated States that employers may utilize for their required 
out-of-State advertisements. In no case will an employer be required to 
place an ad in more than one newspaper in a labor supply State. In 
response to comments, the Final Rule has also been modified to specify 
that ads should refer interested employees to the SWA nearest the area 
in which the advertisement was placed. The SWA will then refer eligible 
individuals to the SWA of the employer's State. The Department believes 
these procedures will provide a workable advertisement-and-referral 
system to provide farmworkers information about available jobs and to 
supply needed labor to prospective users of the H-2A program.
(j) Section 655.102(j) Referrals of Verified Eligible U.S. Workers
    The Department proposed to require SWAs to ``refer for employment 
only those individuals whom they have verified through the completion 
of a Form I-9 are eligible U.S. workers.'' These provisions are 
consistent with the Department's statutory mandate. Although the INA 
prohibits the referral of workers where it is known that they are 
unauthorized to work in the United States, this rule clarifies and 
spells out the Department's expectations. Based upon comments received 
and the Department's experience with this requirement, which has been 
in effect administratively since the issuance of TEGL 11-07, Change 1 
on November 14, 2007, and with respect to which ETA has provided recent 
training webinars for SWAs, the Department believes that SWAs should be 
required to verify the identity and employment authorization of 
referred workers by completing USCIS Form I-9 in accordance with DHS 
regulations at 8 CFR 274a.2 and 274a.6. The NPRM, ETA's written 
guidance, and an opinion by the Solicitor of Labor, all of which have 
been shared with SWAs over the past year, explain both the rationale 
for the SWA verification requirement.
    Comments on this subject were received from a national association 
representing state agencies, 12 individual SWAs, several civil rights 
and labor advocacy organizations, members of Congress, and numerous 
employer groups and individual employers. Commenters supporting the 
proposal generally cited the longstanding need for a reliable 
employment service system that is based on affirmative verification and 
refers only workers who are authorized to work in the U.S. Commenters 
opposing the proposal raised a variety of legal, programmatic, 
resource-related, and policy-based concerns.
    Many commenters considered the employment verification requirement 
to be a change in policy after decades of contrary Departmental 
interpretation. Another argued that the requirement runs afoul of the 
Department's FY08 Appropriations Act, Public Law 110-161, Division G, 
Title I, Section 110, in which Congress prohibited ETA from finalizing 
or implementing any rule under the Wagner-Peyser or Trade Assistance 
Acts until each is reauthorized.
    The Department has always required that SWAs fulfill the 
requirements of the INA to refer only eligible workers by verifying 
their employment authorization. Recent instructions by the Department 
(including TEGL 11-07, Change 1) have clarified the way that employment 
verification is required to be accomplished. To the extent that these 
requirements were thought by some to represent a shift in Departmental 
policy, they are now being clearly stated in the Department's 
regulations. The Department has not reviewed the H-2A regulations 
comprehensively since the current program's inception in 1986. After a 
top-to-bottom review of the program requested by the President in 
August 2007, the Department is revising and modifying a number of 
established practices based on program experience, years of feedback 
from stakeholders, and changing economic conditions.
    As discussed in the NPRM our clarification of SWAs' obligation to 
affirmatively verify employment eligibility is in direct response to 
longstanding concerns about the reliability of SWA referrals. The 
referral of workers not authorized to work undermines the integrity of 
the H-2A program, can harm U.S. workers, and can disrupt business 
operations.
    Many commenters argued that the requirement is inconsistent with 
INA provisions at 8 U.S.C. 1324a, and DHS regulations at 8 CFR 274a.6, 
which permit but do not require SWAs to verify employment eligibility 
for individuals they refer. The USCIS regulations expressly permit SWAs 
to verify the identity and employment authorization of workers before 
making referrals, and certainly do not prohibit such verification. See 
8 CFR 274a.6. The Acting General Counsel of DHS has issued an 
interpretive letter stating that while the USCIS regulations do not 
require SWAs to verify the eligibility of workers before referring 
them, those regulations do not prevent other agencies with independent 
authority from imposing such a requirement. See November 6, 2007 letter 
from Gus P. Coldebella, DHS Acting General Counsel, to Gregory F. 
Jacob, Senior Advisor to the Secretary of Labor. The Department is now 
exercising its independent statutory authority under

[[Page 77138]]

the INA to require through regulation that SWAs verify employment 
eligibility of referrals. Further, to ensure that the regulated 
community has appropriate notice of the specific requirement, and to 
ensure a standard process for verification remains in place consistent 
with the procedures already approved by Congress, we have clarified in 
the regulatory text that states must at a minimum use the I-9 process 
for purposes of verification. The Department also strongly suggests 
(but does not require), as it did in the NPRM, that States utilize the 
DHS-administered E-Verify system. State agencies with procedures that 
do not comply with the minimum requirements of the Form I-9, however, 
such as verification through scanned documents transmitted over the 
Internet, must revise their processes to ensure that agricultural 
referrals are made only as a result of in-person verification.
    The INA requires that employers execute a Form I-9 for all new 
employees. Some commenters interpreted the NPRM to shift this employer 
responsibility to SWAs. A subset of these commenters raised concern 
that removing responsibility for verification from agricultural 
employers alone would be unfair to other, non-agricultural employers 
who would still be required to complete the Form I-9 form.
    This Final Rule does not govern employment eligibility 
verification, nor does it seek to change, for purposes of H-2A labor 
certification, the basic responsibility of employers under the INA. As 
we strongly cautioned in the NPRM, a SWA's responsibility to perform 
threshold, pre-referral verification exists separate from an employer's 
independent obligation under the Immigration Reform and Control Act of 
1986 to verify the identity and employment authorization of every 
worker to whom it has extended a job offer. However, the governing 
statute does permit employers to rely on an employment verification 
conducted by the SWA to fulfill their statutory responsibilities. The 
INA--at sec. 274A(a)(5)--exempts employers from the verification 
requirement and provides a ``safe harbor'' from legal liability to 
employers, regardless of industry, who unwittingly hire an unauthorized 
worker where the hire is based on a SWA referral made in compliance 
with 8 CFR 274a.6, requiring appropriate documentation from the SWA 
certifying that verification has taken place. As discussed more fully 
below, the Department requires in this Final Rule that SWAs provide 
documentation meeting the requirements of sec. 274A(a)(5) of the INA 
and 8 CFR 274a.6 to each employer at the time the SWA refers the 
verified worker to the employer. Employers must retain a copy of the 
SWA certificate of verification just as it would retain a copy of Form 
I-9. Employers must still verify employment eligibility for workers who 
do not have a state certification that complies with all of the 
applicable statutory and regulatory requirements.
    Some commenters were concerned that employers who hire SWA-referred 
workers may seek to hold SWAs responsible for referring unauthorized 
workers. The Department expects that any referrals a SWA makes to 
individual employers will comply with the requirements of Federal law, 
including those established in this Final Rule. For example, the 
preamble to the proposed rule directs SWAs to provide all referred 
employees with adequate documentation that verification of their 
employment has taken place, and clarifies that employers may invoke 
``safe harbor'' protection only where the documentation complies with 
all statutory and regulatory requirements. We have clarified in the 
Final Rule the SWA's obligation to complete Form I-9 and provide 
evidence of such completion by providing the employer with a 
certification that complies with the DHS requirements for such 
certificate at 8 CFR 274a.6. However, employers have no obligation to 
hire a job applicant, whether or not referred by the SWA, who does not 
present the employer with appropriate documentation evidencing the 
applicant's work eligibility. As stated in the NPRM, an employer will 
not be penalized by the Department for turning away applicants who are 
not authorized to work. Additionally, as long as a SWA complies with 
the process established by DHS for State Workforce Agencies and 
undertakes good faith efforts to establish the employment eligibility 
of referred workers, it will not incur any potential liability. 
Although the Department certainly intends to hold SWAs responsible for 
complying with all program requirements, just as it has in the past, 
the Department is not aware of any basis under which SWAs could be held 
liable to third parties for failing to properly perform their 
employment verification responsibilities in the absence of willful or 
malicious conduct.
    Many commenters raised a concern that these new procedures would 
have an unlawful, disparate impact on a protected class, or at least 
make states vulnerable to legal claims of disparate impact that would 
require the expenditure of significant resources to defend. More 
specifically, these commenters felt that to the extent the verification 
process is not applied to non-agricultural workers, it would have a 
disparate impact on agricultural workers, many of whom are Hispanic, 
and that could be perceived as unlawful discrimination on the basis of 
race or ethnicity. Some commenters were concerned that states would be 
forced to expend significant resources to defend lawsuits or, 
alternatively, that in order to protect against lawsuits, would be 
forced to apply the verification procedures to all job referrals.
    The requirement to verify employment eligibility does not violate 
constitutional prohibitions against disparate impact. The eligibility 
requirement is established by statute and is similar to verification 
requirements to gain access to other similar public benefits. See, 
e.g., Section 432, Personal Responsibility and Work Opportunity 
Reconciliation Act of 1996, Public Law 104-193, 110 Stat. 2105 
(employment eligibility verification requirement for most federal 
public benefits for needy families). As this regulation governs the H-
2A foreign labor certification program, the clarification made here is 
limited to that program and to agricultural job referrals, but the 
Department proposed an analogous provision in the H-2B NPRM published 
on May 22, 2008, seeking to extend the same procedural employment 
verification requirements to that program. More generally, the 
clarification of the requirement in this regulation does not mean the 
Department's policy is limited only to agricultural referrals, as the 
Department's expectation is that SWAs will do what they can, including 
exercising their authority under 8 U.S.C. 1324a, to avoid expending 
public resources to refer unauthorized workers to any job 
opportunities, regardless of program area. The employment verification 
provisions included in this regulation are part of a much broader, 
concerted effort--one that includes regulation, written guidance, and 
outreach and education--to address longstanding weaknesses in the 
system and to strengthen the integrity of foreign labor certification 
activities.
    Some commenters opined that the employment eligibility verification 
requirement presents an obstacle to employment for, and will reduce the 
pool of, the U.S. workers it is designed to protect. For example, these 
commenters stated that States are increasingly moving toward web-based 
employment services. The commenters believe an in-person verification 
requirement will require potentially

[[Page 77139]]

onerous visits by job seekers who they believe currently could be 
referred to work without ever visiting a workforce center. The 
commenters stated that, especially in the larger States, this will 
present a greater and perhaps insurmountable hurdle for a larger number 
of U.S. workers, who will be discouraged from travelling great 
distances to obtain a job referral.
    In practice, an in-person verification requirement will not 
significantly change the operation of referrals in most States. In the 
Department's program experience, States often require that agricultural 
job applicants visit the workforce center to receive information on the 
terms and conditions of the job, which must be provided prior to 
referral. See 20 CFR 653.501(f) (placement of the form within local 
offices). While we do not disagree that an in-person verification 
requirement may impact the decisions of a limited number of otherwise 
eligible workers, at this juncture the impact is speculative and does 
not outweigh the significant value of verification. Moreover, it is a 
problem that SWAs may be able to adjust to by designating or creating 
additional in-person locations where eligibility can be verified. This 
is not a problem unique to SWAs given that workers often must travel 
great distances to reach a prospective employer, who then (absent a SWA 
certification) would be required to verify work eligibility. Although 
employment eligibility verification does require some amount of time 
and effort, Congress has determined that simple convenience must cede 
to the overarching goal of achieving a legal workforce and the 
Department has drafted its regulations accordingly.
    Commenters opposing the eligibility provision uniformly complained 
that the verification requirement would add potentially significant 
workload and strain the already inadequate resources of many State 
Workforce Agencies. Many saw it as an unfunded federal mandate in 
violation of the Unfunded Mandates Reform Act. More than one referred 
to the Department's recent inclusion of the requirement as a condition 
for receiving further labor certification grant funding.
    As stated in the preamble to the NPRM, the Department is not 
insensitive to the resource constraints facing state agencies in their 
administration of the H-2A program. However, as we stated in the NPRM, 
we do not believe that the requirement will result in a significant 
increase in workload or administrative burden. We have provided 
training to SWAs to meet their obligations in this context and will 
continue to do so.
    In addition, notwithstanding funding limitations, there is a 
strong, longstanding need for a consistent and uniform verification 
requirement at the state government level. Verification is a statutory 
responsibility of the Department and the SWAs under the INA and the 
Wagner-Peyser Act, and the Department has further determined employment 
verification is a logical and necessary condition for the issuance of 
foreign labor certification grants to states. Precisely to ensure that 
available federal funding supports verification activities, the 
Department has added the verification requirement as an allowable cost 
under the foreign labor certification grant agreement. While cognizant 
of the challenges posed by funding limitations, we expect states to 
comply as they do with other regulatory requirements and other terms 
and conditions of their grant.
    Commenters raised a number of concerns with the use of E-Verify, 
including potential system problems, delays and inaccuracies. The 
Department strongly encourages state agencies to use the system, which 
provides an additional layer of accuracy and security over and above 
the basic I-9 process, but it has not mandated use of E-Verify. SWAs 
can comply with this Final Rule without the use of E-Verify.
    One commenter pointed out that the regulation does not describe the 
penalties to SWAs for non-compliance or delayed compliance with this 
requirement, or the implications for H-2A employers who may seek 
services from SWAs that are not in compliance with the requirement. For 
instance, the commenter inquired whether, if the Department were to 
suspend Foreign Labor Certification grant funding, employers would be 
required to accept referrals funded exclusively by Wagner-Peyser 
funding. The commenter also inquired whether the SWA in an employer's 
state would be required to verify the work eligibility of a worker that 
was referred to it by a non-compliant out-of-State SWA. As the 
verification requirement is implemented, the Department's guidance will 
evolve in response to the experience of the regulated community and our 
own. We do note that these problems already exist under the 
Department's current regulations and policies, and the Department is 
working through them as they arise. The problems are substantially 
alleviated by the fact that virtually every State and territory 
administering the H-2A program has already agreed to come into 
compliance with the employment eligibility verification requirements 
established by current Departmental policies, minimizing the chance 
that a State will need to be de-funded due to non-compliance or that 
non-compliant referrals will be made by out-of-State SWAs. 
Nevertheless, we do not discount the importance of the questions posed 
by the commenter, but see them as issues of implementation that should 
be addressed, as they arise, through appropriate guidance.
    In addition, we note that the SWA may not refuse to make a referral 
and the employer may not refuse to accept a referral because of an E-
Verify tentative nonconfirmation (TNC), unless the job seeker decides 
not to contest the TNC. SWAs and employers may not take any adverse 
action, such as delaying a referral or start date, against a job seeker 
or referred worker based on the fact that E-Verify may not yet have 
generated a final confirmation of employment eligibility.
(k) Section 655.102(k) Recruitment Report
    The Department proposed requiring employers to submit an initial 
recruitment report with their applications and to supplement that 
report with a final recruitment report documenting all recruitment 
activities related to the job opportunity that took place subsequent to 
the filing of the application. The Department proposed that the initial 
recruitment report to be filed with the application be prepared not 
more than 60 days before the date of need, and that the supplemental, 
final report be completed within 48 hours of the date H-2A workers 
depart for the worksite or 3 days prior to the date of need, whichever 
is later. Many individuals and members of agricultural associations 
expressed concern that recruitment reports will not simplify the 
application process and will instead inflict an undue burden on 
employees of small farms. Some agricultural associations argued that 
having two recruitment reports will double the work for employers and 
stated that the supplemental report is not justified because of its 
limited utility in resolving compliance issues.
    The Department disagrees that a supplemental recruitment report 
will have limited benefit, given the Department's intended use of 
supplemental reports in the event of an audit. The supplemental 
recruitment report will provide assurance to the Department that an 
employer has complied with all of its obligations with respect to the 
domestic workforce. Compliance throughout the program, including after 
filing of an application,

[[Page 77140]]

is necessary for the appropriate enforcement of the H-2A program and 
its requirements. By requiring a supplemental report, the Department is 
not requiring a duplicative effort but is in fact effectively requiring 
employers to split the current comprehensive total report (of all 
referrals that are required to be reported) into two smaller, more 
manageable reports. The Department does not believe that this splitting 
of the comprehensive total report will require significantly more 
effort on the part of employers.
    Several commenters specifically mentioned the timing of the 
recruitment report as the biggest problem with the requirement. One 
farm association noted that since the initial application cannot be 
submitted without the recruitment report, and the recruitment report 
must be prepared not more than 60 days prior to the date of need, the 
application itself cannot be filed until 60 days ahead of time. In 
order to rectify this issue, the commenter believed the application 
itself should be required to be filed not more than 60 days prior to 
the date of need. Another farm association suggested that the timeline 
for the recruitment report be moved up to no later than 45 days before 
the date of need, rather than 60 days before the date of need. The 
Department also received comments in support of the supplemental 
recruitment reports.
    The Department has learned through experience that if recruitment 
is begun no more than 45 days before the date of need, it is virtually 
impossible for the Department to receive an adequate recruitment report 
by the time it is statutorily required to make a certification 
determination 30 days before the date of need. As discussed above, we 
have in response to comments amended the timeframe for pre-filing 
recruitment to reflect a recruitment period closer to the date the 
workers are needed. In addition, in accordance with the revisions to 
the time frame specified in Sec.  655.102(e) for submitting job orders, 
the original proposal regarding the timing of the filing of recruitment 
reports has been revised in the Final Rule and now provides that the 
initial recruitment report may not be prepared more than 50 days prior 
to the employer's date of need. The Final Rule also revises the 
proposed timing for the completion of the supplemental recruitment 
report, and now requires the employer to update the recruitment report 
within 2 business days following the last date that the employer is 
required to accept referrals; that is, the end of the recruitment 
period as specified in Sec.  655.102(f)(3). With respect to employers 
who wish to file an Application for Temporary Employment Certification 
prior to 50 days before the date of need, they are welcome to do so to 
initiate processing of the application, but the application will not be 
considered to be complete, and thus eligible for a final determination, 
until the initial recruitment report is submitted.
    Finally, the Department has made additional clarifying edits to the 
regulatory text. These edits are to ensure this provision comports with 
other sections of this Final Rule, to improve readability, and to 
clarify its requirements. These include the deletion of the redundant 
phrase ``who applied or was referred to the job opportunity'' which 
appeared twice in the NPRM paragraph (k)(2) (which is now (k)(1)(iii)); 
simplifying the reference to the contents of the supplemental 
recruitment report through the use of cross-references; and placing the 
paragraph regarding the updating of recruitment reports before the 
paragraph regarding document retention requirements. In addition, the 
Department has added a requirement that the recruitment report must 
contain the original number of openings advertised. This last addition 
will enable the Department to grant an employer a partial certification 
in the event it can meet part but not all of its need through the 
recruitment of U.S. workers.
Section 655.103 Advertising Requirements
    The Department proposed detailed instructions for the content of 
the newspaper advertisements to be placed by employers as part of the 
required pre-filing recruitment in Sec.  655.103. A few comments were 
received on the specific contents of the ads. Other comments regarding 
the rule's advertising requirements are discussed in the section of the 
preamble pertaining to Sec.  655.102(g).
    An association of growers/producers commented that the advertising 
requirements are inefficient and wasteful, particularly when ``numerous 
virtually identical ads are appearing at the same time.'' Another 
association suggested that employers be allowed to advertise jobs by 
simply referencing the job order placed with the SWA, and suggested 
that employers should not be required to include all of the detailed 
information contained in the proposed regulation. Another association 
suggested that if more than one grower is simultaneously recruiting in 
an area covered by only one newspaper, their ads should be combined and 
placed by the SWA. The association suggested that the names of the 
growers could all be provided in the ad, but applicants would be 
directed to the SWA to get additional information about the jobs and 
referrals to the employers.
    The Department has considered but declines to adopt these 
suggestions at this time. The Final Rule significantly clarifies the H-
2A advertising requirements. The Department believes that it has struck 
a careful and appropriate balance, based on its program experience, 
between the expense of advertising to employers and workers' need for 
basic job information when considering whether to pursue advertised 
employment opportunities.
    The Final Rule contains several clarifying and conforming changes 
to the proposed text for Sec.  655.103, none of which are substantive. 
The Final Rule also paraphrases in Sec.  655.103 the equal treatment 
requirement already stated in Sec.  655.104(a). Section 655.103 
requires that an employer's recruitment ``must contain terms and 
conditions of employment which are not less favorable than those that 
will be offered to the H-2A workers.''
Section 655.104 Contents of Job Offers
(a) Section 655.104(a) Preferential Treatment of Aliens
    The Department's proposed regulation stated: ``The employer's job 
offer shall offer no less than the same benefits, wages, and working 
conditions that the employer is offering, intends to offer, or will 
provide to H-2A workers.'' A group of farmworker advocacy organizations 
opposed the removal of the words ``U.S. worker'' from this section of 
the rule. This commenter believes that the proposed wording allows 
employers to treat U.S. workers less favorably than H-2A workers.
    While the Department does not agree that the new wording would have 
allowed employers to treat U.S. workers any less favorably than H-2A 
workers, the words ``U.S. worker'' have been reinserted.
(b) Section 655.104(b) No Less Than Minimum Offered
    The NPRM proposed that the ``job duties and requirements specified 
in the job offer shall be consistent with the normal and accepted 
duties and requirements of non-H2A employers in the same or comparable 
occupations and crops in the area of intended employment and shall not 
require a combination of duties not normal to the occupation.'' Several 
commenters expressed concern that the proposed requirements would prove 
unworkable,

[[Page 77141]]

unadministrable, and exceedingly difficult for employers to comply 
with, as what is ``normal'' and ``accepted'' are substantially 
subjective determinations. All of the commenters who provided input on 
this provision suggested that the Department should not second guess an 
employer's business decision regarding an occupation's job duties when 
they are unique to that employer. These commenters believe that the 
Department's proposal would give the Department more discretion to deny 
an application than is contemplated by the statute.
    The Department agrees with the basic thrust of these comments. 
Section 218(c)(3)(A) of the INA requires the Department, when 
determining whether an employer's asserted job qualifications are 
appropriate, to apply ``the normal and accepted qualifications required 
by non-H-2A employers in the same or comparable occupations and 
crops.'' There is a substantial difference, however, between job duties 
and job qualifications; job qualifications typically describe the 
minimum skills and experience that an employee must have to secure a 
job, while job duties describe the tasks that qualified workers are 
expected to perform. The Department agrees that, as a general matter, 
employers are in a far better position than the Department to assess 
what job duties workers at a particular establishment in a particular 
area can reasonably be required to perform in an H-2A eligible 
position.
    The Department is therefore altering this provision to conform more 
closely to the language of the statute, and is limiting the restriction 
in Sec.  655.104(b) to job qualifications. The Department is aware that 
this may mean that at times a U.S. worker wishing to perform one type 
of job duty, such as picking asparagus, may be required by an employer 
to perform an additional job duty, such as harvesting tobacco, in order 
to secure an agricultural job. It is not at all uncommon, however, for 
jobs in the United States to include multiple job duties, some of which 
workers may view as more desirable than others. There is nothing in the 
statute governing the H-2A program indicating that Congress intended to 
require agricultural employers to allow prospective workers to 
selectively choose which job duties they want to perform and which job 
duties they do not, with regard to a particular job opportunity. In the 
Final Rule, this provision states that ``[e]ach job qualification 
listed in the job offer must not substantially deviate from the normal 
and accepted qualifications required by employers that do not use H-2A 
workers in the same or comparable occupations and crops.''
    The Department is sensitive, however, that in certain circumstances 
a listed job duty may act as a de facto job qualification, because the 
listed duty requires skills or experience that agricultural workers may 
not typically possess. When such circumstances arise, the Department 
reserves the right to treat the listed job duty as a job qualification, 
and to apply the ``normal'' and ``accepted'' standard that is set forth 
in the statute and restated in the regulations in determining whether 
the qualification is appropriate.
    One commenter suggested that this provision should be made 
consistent with those in the PERM regulations at 20 CFR 656.17. The 
Department declines to apply the PERM standard to the H-2A program, as 
that standard is based on a substantially different statutory 
structure. The Department is confident that the revised standard for 
Sec.  655.104(b) that is set forth in the Final Rule, which hews 
closely to the language of sec. 218(c)(3)(A) of the INA, is 
appropriately tailored to the H-2A program and will prove workable in 
practice.
(c) Section 655.104(c) Minimum Benefits
    A group of farmworker advocacy organizations pointed out that 
proposed Sec.  655.104 does not correlate exactly to current Sec.  
655.102(b). Specifically, in this commenter's opinion the proposed 
section does not require the employer to pay the worker at least the 
adverse effect wage rate in effect at the time the work is performed, 
the prevailing hourly wage rate, or the legal federal or State minimum 
wage rate, whichever is highest, for every hour or portion thereof 
worked during a pay period as required in the current regulation. 
According to this commenter, under the proposed rule, H-2A workers 
would have only contract law as their primary enforcement tool. With 
proposed Sec.  655.104(c) stating that every job offer must include the 
wage provisions listed in paragraphs (d) through (i) of this section 
but no longer requiring precisely what the current Sec.  
655.102(b)(9)(i) requires, this commenter argued that workers will be 
left at a disadvantage if the employer fails to specify the required 
wage provisions in the work contract.
    The Department appreciates this commenter's analysis. However, we 
do not agree that the employer will no longer be bound to pay the 
employee the wage promised, nor that the only enforcement tool 
available is through contract law. Under the new program the employer's 
attestation required under Sec.  655.105(g) is an enforceable program 
requirement. The failure of an employer to comply with any program 
requirement subjects the employer to the Department's enforcement 
regime.
    A commenter pointed out the illogical consequences of rigid rules 
governing wages for agricultural workers. It is the commenter's 
contention that the Department should add a phrase at the end of Sec.  
655.104(c) that would not force employers to pay the NPC prescribed 
wage until the date of need and instead would allow employers to pay 
U.S. workers a mutually agreed upon wage between the time they recruit 
the workers and the date the H-2A workers are needed in order to train 
the U.S. worker and retain them until and throughout the period of the 
H-2A contract. The commenter reports that if they do not offer those 
U.S. workers employment immediately, they will most likely not be 
available when the H-2A work begins. The commenter believes that any 
employment prior to the date of need and prior to the date that foreign 
H-2A workers arrive should not be governed by the H-2A contract or its 
wage provisions.
    The Department agrees that the H-2A required wage takes effect on 
the effective start date of the H-2A contract period. However, the 
Department does not believe that any changes to the regulatory text 
need to be made under this section because Sec.  655.105(g) provides 
that the requirement to pay the offered wage applies only during the 
valid period of the approved labor certification. U.S. workers who are 
hired in response to H-2A recruitment and who perform work for an 
employer before the date of need specified in the H-2A labor 
certification are not required by these regulations (but may be 
required by contract) to be paid the H-2A wage until the period of the 
H-2A contract begins, without regard to the type of work performed.
    A group of farmworker advocacy organizations argued that under the 
proposed rule, employers would no longer be required to disclose in job 
offers their obligation to provide housing to workers. That is 
incorrect. Section 655.104(c) provides that ``[e]very job offer 
accompanying an H-2A application must include each of the minimum 
benefit, wage, and working condition provisions listed in paragraphs 
(d) through (q) of this section.'' Paragraph (d) of that section 
provides, in turn, that ``[t]he employer must provide housing at no 
cost to the worker, except for those U.S. workers who are reasonably 
able to return to

[[Page 77142]]

their permanent residence at the end of the work day.''
(d) Section 655.104(d) Housing
    Section 218(c)(4) of the INA requires employers to furnish housing 
in accordance with specific regulations. The employer may fulfill this 
obligation by providing housing which meets the applicable Federal 
standards for temporary labor camps or providing housing which meets 
the local standards for rental and/or public accommodations or other 
substantially similar class of housing. In the absence of local 
standards, the rental and/or public accommodations or other 
substantially similar class of housing must meet State standards, and 
in the absence of State standards, such housing must meet Federal 
temporary labor camp standards. By statute, the determination of 
whether employer-provided housing meets the applicable standards must 
be made no later than 30 days before the date of need. The Department 
proposed three changes to the current housing requirements.
    First, the Department proposed allowing employers to request 
housing inspections no more than 75 and no fewer than 60 days before 
the date of need. The Department further proposed that the NPC would, 
as required by statute, make determinations on H-2A applications 30 
days before the employer's date of need, even if the housing referenced 
in the application had not yet been physically inspected by the SWA, so 
long as (1) the employer requested a housing inspection within the time 
frame specified by the regulations and (2) the SWA failed to conduct 
the inspection for reasons beyond the employer's control. Under the 
Department's proposal, SWAs would have the authority and the 
responsibility under such circumstances to conduct post-certification 
housing inspections prior to or during occupancy. If such a post-
certification housing inspection identified deficiencies that the 
employer failed to act promptly to correct, the proposal provided that 
the SWA would inform the NPC of the deficiencies in writing so that the 
NPC could take appropriate corrective action, potentially including 
revocation of the labor certification. The Department proposed these 
changes in part to alleviate the problems SWAs currently face in trying 
to conduct large numbers of required housing inspections during the 
short 15-day window provided by the statute between the time that 
applications are required to be filed (45 days before the date of need) 
and the time that the Department is required to make a determination on 
the application (30 days before the date of need). The changes were 
also intended to avoid penalizing employers for the failure of SWAs to 
comply with their legal duty to meet the timeframes established by the 
statute.
    The Department heard from a number of SWAs on the issue of timely 
housing inspections, many of which declared their ability to conduct 
housing inspections within the 15-day window. One SWA acknowledged that 
at times delays may occur in conducting housing inspections, but 
attributed those delays to incomplete or inaccurate information being 
provided to inspectors. This SWA suggested that providing a copy of the 
job order with the housing inspection request would alleviate the 
problem of inspectors investigating the wrong housing. Finally, an 
anonymous commenter tied the delays in housing inspections to a lack of 
funding at the state level.
    The Department recognizes that many SWAs conduct housing 
inspections in advance of the statutory deadline of 30 days before the 
date of need, but cannot ignore the fact that SWA delays in conducting 
housing inspection have in many instances resulted in labor 
certification determinations being made by the Department outside of 
the statutorily required timeframes. This result is not acceptable to 
the Department or to employers seeking H-2A certification. As one 
employer commenter stated:

[u]ntimely housing inspections are one of the most common reasons 
for delays in making labor certification determinations. Therefore, 
the provision in the proposed regulations for making a pre-
application housing inspection, and the provision that certification 
will not be delayed if a timely housing inspection is not made, and 
that occupancy of the housing is permitted, are important 
improvements in the program.

    While employers and employer associations favored the proposed 
conditional labor certifications, several commenters representing 
employer interests had concerns with the proposed requirement that 
housing inspections be requested no fewer than 60 days before the date 
of need. Employers stated that in some parts of the U.S., housing may 
still be winterized 60 days before the date of need and therefore may 
be unavailable for inspection, or unable to pass inspection. In certain 
areas, inspection agencies require that the employer rent the housing 
before an inspection is conducted and the earlier time frame for 
requesting an inspection requires employers to pay an additional month 
or two of rent for the housing, substantially adding to the cost of 
providing housing. Other growers stated that current inspection 
procedures prohibit the inspection of occupied housing and therefore 
this proposal would require that regulations be adjusted to permit 
inspection of occupied housing. Some said that the earlier time frame 
for requesting housing inspections may be before many farmers plant 
their crops, let alone know the dates of the harvest.
    Commenters representing employer interests also included questions 
concerning implementation of the proposal. Many argued that employers 
should be provided a specific and reasonable period of time for 
abatement of violations found in post-determination inspections 
conducted by SWAs, and that employers who correct violations within the 
specified period should not be penalized for the violations. One 
employer association argued that ``the fact that employers continue to 
face consequences for having deficient housing will prevent any adverse 
effects for workers.'' Employers also questioned the proposed 
requirement that housing inspection requests be made in writing, and 
some employers recommended that the Department provide training to SWA 
staff on conducting housing inspections of occupied housing. Finally, 
one employer commented that in the state in which he operates, the 
state's Department of Health conducts inspections of temporary labor 
camps and that to require SWAs to conduct these inspections would 
result in confusion.
    Employee advocacy organizations and state agencies expressed 
concern that the granting of pre-inspection labor certification 
determinations could potentially result in cases where housing is not 
inspected prior to occupancy, which in turn could result in workers 
being housed in substandard conditions. Several commenters objected to 
this proposed revision stating that pre-occupancy housing inspections 
are an effective incentive for employers to take corrective action, 
thus ensuring that workers are housed in safe and sanitary housing. 
Other commenters urged the Department to continue the requirement that 
housing be inspected before workers arrive.
    A few comments from both organizations representing employer 
interests and from organizations representing employee interests 
questioned the Department's legal authority to establish a requirement 
that housing inspections be requested more than 45 days before the date 
of need, which is the earliest date that the

[[Page 77143]]

Department may under the statute require applications to be filed. One 
commenter asserted that the proposed changes contradict the 
Department's Wagner-Peyser regulations requiring that the housing be 
inspected to determine compliance with applicable housing safety and 
health standards before a job order can be posted (and, thus, before 
the housing can be occupied).
    The Department has carefully considered the comments and has 
determined that the framework of the Department's original proposal 
strikes an appropriate balance between the need to ensure that housing 
for H-2A workers meets all applicable safety and health standards, that 
agricultural employers are able to secure H-2A workers in a timely 
manner, and that the Department complies with the statutory requirement 
to render a determination no fewer than 30 days before the date of 
need. To ensure that SWAs have adequate time to complete housing 
inspections before the statutory deadline of 30 days before the date of 
need, the Final Rule requires employers to request housing inspections 
no fewer than 60 days before the date of need, except when the 
emergency provisions contained in Sec.  655.101(d) are used. The 
Department is eliminating in the Final Rule the proposed restriction on 
housing inspections being requested more than 75 days before date of 
need. Eliminating this restriction will provide SWAs additional 
flexibility to manage the workload of completing required inspections 
with respect to those cases where an employer's housing is ready for 
inspection well in advance of the date of need.
    The INA at 8 U.S.C. 1188(c)(3)(A) expressly requires the Secretary 
of Labor to make a determination on an employer's application for 
temporary labor certification no fewer than 30 days before the 
employer's date of need. The INA also requires that the Secretary make 
a determination as to whether employer-provided housing meets the 
applicable housing standards by the same deadline--no fewer than 30 
days before the employer's date of need. Although the Department has 
delegated its statutory housing inspection responsibilities to the 
SWAs, the statutory deadline applicable to that responsibility 
continues to apply. This is made explicit by Sec.  655.104(d)(6)(iii) 
of the Final Rule, which states that ``[t]he SWA must make its 
determination that the housing meets the statutory criteria applicable 
to the type of housing provided prior to the date on which the 
Secretary is required to make a certification determination under sec. 
218(c)(3)(A) of the INA, which is 30 days before the employer's date of 
need.''
    Some commenters read the language of sec. 218(c)(4) of the INA as 
prohibiting the Secretary from making a determination on an employer's 
application for temporary labor certification until the employer's 
housing has been physically inspected. The Department strongly 
disagrees with that interpretation. The language of sec. 218(c)(4) is 
not phrased as a limitation on the Secretary's duty under sec. 
218(c)(3)(A) to make determinations on applications no later than 30 
days before the employer's date of need. In fact, the language of sec. 
218(c)(4) does not require that housing inspections be completed prior 
to the Secretary's certification determination, although Congress 
certainly could have phrased the requirement that way had it wanted to 
do so. Instead, the language of sec. 218(c)(4) is most naturally read 
as imposing a statutory duty on the Department to complete required 
housing inspections ``prior to the date specified in paragraph 
(3)(A)''--which, as noted previously, is 30 days before the employer's 
date of need. The provision does not specify what consequence should 
follow in the event that the Department fails to comply with this 
mandate. Presumably, however, if Congress had intended that the primary 
consequence of the government's failure to meet its statutory 
responsibility to complete housing inspections in a timely manner would 
be to penalize employers by releasing the Department from its 
independent statutory responsibility to make determinations on 
applications no later than 30 days before the employer's date of need--
a deadline that was indisputably established to ensure that employers 
can secure needed H-2A workers in a timely fashion without undue delays 
caused by the government--it would have said so explicitly.
    Of course, the Department greatly prefers that housing inspections 
be conducted prior to certification, as this gives the Department the 
strongest possible assurance that ``the employer has complied with the 
criteria for certification'' as required by sec. 218(c)(3)(A)(i) of the 
INA. To this end, the Final Rule requires that employers make requests 
for housing inspections no fewer than 60 days before the employer's 
date of need, ensuring that SWAs have adequate time to meet the 
statutory deadline for conducting housing inspections. Moreover, SWAs 
remain under an express statutory and regulatory mandate to complete 
housing inspections by 30 days before the employer's date of need, an 
obligation that the Department expects SWAs will not take lightly. The 
Department therefore believes that under the Final Rule, post-
certification housing inspections will be the very rare exception 
rather than the rule.
    The Department has never read sec. 218(c)(3)(A)(i), however, as 
requiring that the government directly observe for itself that the 
employer has satisfied all of the statutory criteria for certification. 
For example, under the current regulations a substantial portion of 
required recruitment takes place after a certification has been made, 
and SWAs typically do not conduct pre-certification inspections of 
rental housing or public accommodations secured by employers pursuant 
to sec. 218(c)(4). It is important to note that under the Final Rule 
employers are required to provide or secure housing that meets all 
applicable standards, and that a certification cannot be granted, with 
or without an inspection, unless the employer has attested that its 
housing fully complies with those standards. Sanctions and penalties 
may be imposed for violations of the attestation requirements and the 
housing standards, including revocation of a labor certification, 
regardless of whether a pre-certification housing inspection was 
conducted.
    As to commenters who argued that it is unacceptable that housing 
might in some rare circumstances be occupied by H-2A workers before it 
is inspected, the Department notes that under MSPA, U.S. workers often 
occupy agricultural housing before it is inspected, and the Department 
has not seen any data indicating that this arrangement has caused harm 
to U.S. workers. The Department does not believe that H-2A workers will 
be harmed by this rule when being afforded the same level of protection 
that Congress has afforded to U.S. workers. Moreover, the Department 
believes that any chance that H-2A workers would be placed in 
substandard housing under the Final Rule--a possibility that can never 
fully be guarded against as a practical matter, and occurs on occasion 
even under the current rule--is minimized by the fact that a 
certification cannot be granted unless the employer has attested that 
its housing fully complies with all applicable standards. If this 
attestation is later shown to be false, the employer risks substantial 
penalties, including the possibility of a revoked labor certification 
and/or debarment.
    The Department is not persuaded by employers' arguments for 
specific language allowing employers in all cases to abate housing 
violations

[[Page 77144]]

without penalties where the housing has already been occupied. 
Penalties for failing to meet the applicable standards help ensure 
compliance. As with all Department investigations to determine 
compliance with Federal safety and health standards for housing, 
however, the employer is as a matter of practice provided a reasonable 
opportunity to correct or abate any violations that are found. This 
also is true when the SWA or other state agency conducts the 
inspection. Time frames for abatement are directly related to the 
severity of the violation and its potential impact on the safety and 
health of the workers. Therefore, language in this regulation 
specifying an abatement period for the correction of housing violations 
is unnecessary. Current regulations at 29 CFR 501.19(b) and the Final 
Rule at Sec. Sec.  655.117 and 655.118 address the factors considered 
by the Department in determining the appropriateness of penalties and 
sanctions. The Department will continue to ensure that the penalties 
assessed and sanctions imposed for violations of housing safety and 
health standards are appropriate to the violation.
    The Department is cognizant that requiring employers to request 
housing inspections no fewer than 60 days before the date of need may 
present a challenge to some employers. However, we believe that overall 
this requirement will be beneficial to employers, workers and the SWAs 
by allowing more time for the SWAs to schedule and conduct pre-
occupancy housing inspections, and more time for employers to correct 
any deficiencies prior to the arrival of the workers. The Department 
expects that SWAs will continue to work with employers on the 
scheduling of housing inspections and that SWAs will endeavor to 
minimize the expense to the SWA and maximize the benefit to the 
employer and workers by avoiding scheduling inspections of facilities 
at times that they are not winterized or otherwise unlikely to pass 
inspection. In response to comments about obstacles that currently 
exist in some jurisdictions to securing timely housing inspections, the 
Department has also included an instruction to SWAs in the Final Rule 
not to adopt rules or restrictions that would inhibit their ability to 
conduct inspections by 30 days before the date of need, such as 
requirements that rental housing already be formally leased by the 
employer before the SWA will conduct an inspection, or rules that 
occupied housing will not be inspected. It is solely the employer's 
responsibility, however, to ensure that the SWA has access to the 
housing to be inspected so that the inspection may take place. For the 
reasons set forth in the discussion of Sec.  102(a) concerning the 
Final Rule's pre-filing recruitment requirements, the Department does 
not agree that the statute prohibits the Department from requiring that 
housing inspection requests be submitted to SWAs prior to the date that 
applications must be submitted to the NPC.
    The Department also disagrees that the possibility that some 
housing inspections will take place after certification under the Final 
Rule violates the Wagner-Peyser regulations. The current regulations at 
20 CFR 654.403 already permit job orders to be posted prior to the 
completion of a housing inspection. If an SWA identifies violations 
during a subsequent housing inspection, and the employer does not cure 
the violations after being provided a reasonable opportunity to do so, 
the corresponding job order may be revoked. Although some commenters 
expressed the view that the regulatory process under Sec.  654.403 is 
more protective of workers because Sec.  654.403(e) requires that the 
SWA ``shall assure that the housing is inspected no later than the date 
by which the employer has promised to have its housing in compliance 
with the requirements of this subpart,'' that provision is actually 
less protective of workers than the Final Rule. The Final Rule 
unequivocally recapitulates the statutory requirement that housing 
inspections be completed no later than 30 days before the employer's 
date of need, a date that is actually earlier than that required by the 
conditional access provisions set forth in Sec.  654.403. Thus, both 
the Final Rule and Sec.  654.403 contain clear mandates for pre-
occupancy inspections. Significantly, however, Sec.  654.403 does not 
specify any particular consequence if an SWA fails in its duty to 
conduct the required pre-occupancy inspection; under that provision, it 
is only if the SWA fulfills its duty to conduct the required inspection 
and finds violations that the employer's job order is removed from 
clearance. Thus, in specifying that the Department will adhere to its 
statutory obligation to make certification determinations on 
applications no later than 30 days before the employer's date of need 
even where an SWA has failed in its statutory duty to conduct the 
required housing inspection in a timely fashion, the Department is not 
depriving workers of any protections that they have under Sec.  
654.403. Both provisions fundamentally depend on SWAs to protect 
workers by fulfilling their responsibilities under the law--and the 
Department notes that in its experience, the SWAs take those 
responsibilities very seriously.
    The Department is retaining the proposed requirement that the 
employer's request for housing inspections must be in writing. This 
requirement provides the employer with the documentation necessary to 
demonstrate that their request for a housing inspection was made within 
the required time frame.
    While the Department refers to the SWAs as the entities responsible 
for making housing inspections related to labor certification 
determinations, the Department does not intend to limit the flexibility 
afforded SWAs in fulfilling this requirement. For example, some SWAs 
have agreements with other State agencies for conducting housing 
inspections and it is not the Department's intention to change such 
arrangements.
    Finally, in response to concerns that SWA staff is not sufficiently 
trained to conduct inspections of occupied housing, the Department 
anticipates that there will be additional training of SWA staff on the 
conduct of housing inspections.
    The Department's second housing-related proposal was the creation 
of a housing voucher as an additional option employers could use to 
meet the H-2A housing requirements. The Department did not explain in 
detail in the NPRM how such a voucher program would work, but instead 
requested suggestions and comment from the public about how the program 
should be constructed and operated. The Department's NPRM did, however, 
propose to include several safeguards in the voucher program to ensure 
that workers would be provided housing meeting the applicable safety 
and health standards, including requirements that the voucher could not 
be used in an area where the Governor of the State has certified that 
there is inadequate housing available in the area of intended 
employment. Other safeguards included the provision that the voucher 
could only be redeemed for cash paid by the employer to a third party, 
that the housing obtained with the voucher had to be within a 
reasonable commuting distance of the place of employment and that 
workers could ``pool'' their vouchers to secure housing (e.g., to 
secure a house instead of a motel room) but that such pooling may not 
result in a violation of the applicable safety and health standards. 
The Department also included as a safeguard the requirement that if 
acceptable housing could not be obtained with the voucher, the employer 
would be required to provide

[[Page 77145]]

housing meeting the applicable safety and health standards to the 
worker. The Department requested comments on whether such a program 
would adequately balance the needs of employers and workers and how 
such a program should operate. The Department received a number of 
comments from employers, employer associations, employee advocacy 
organizations and State agencies on the housing voucher option.
    A number of comments from stakeholders representing both employer 
and employee interests led us to conclude that the proposal was not 
well understood. Several commenters stated that ``the voucher program 
would effectively eliminate the requirement that all housing for H-2A 
workers must meet health and safety standards.'' Some employer 
associations stated that they supported the concept of ``using vouchers 
to provide housing in lieu of actually providing housing'' while 
another commenter asserted that the housing voucher option would 
``undermine Congressional intent by eliminating the requirement that 
employers provide non-local workers with free housing that meets the 
basic safety and health standards.''
    While noting a few concerns with the proposal (e.g., the employer's 
responsibility for violations of safety and health standards at housing 
obtained by the voucher), employers and employer associations generally 
praised the Department for the much needed flexibility a voucher 
program would create. Some commenters opined that the use of housing 
vouchers would ``greatly stimulate H-2A participation'' and ``would 
encourage others to use legal workers.'' Other commenters stated that 
the H-2A current requirement to provide housing to workers is a serious 
impediment to program participation and that the implementation of a 
housing voucher option would make the H-2A program more usable and 
effective.
    Comments from individuals and organizations representing employee 
interests criticized the voucher option, stating that the proposed 
safeguards were illusory and provided no substantive protections to 
workers. Virtually all criticism of the proposal, including from SWAs, 
misunderstood the Department's position and assumed health and safety 
standards would not apply to housing obtained with a voucher. Many 
commenters argued that the voucher idea ``ignores the reality of the 
situation for both U.S. and H-2A workers'' in that many farmworkers, 
particularly H-2A workers, do not have the resources to conduct a long-
distance housing search, such as access to the Internet, knowledge of 
the area, and language difficulties. Several found it unreasonable to 
expect that a worker will travel from another country, or even across 
the State, for employment and be able to quickly find a motel or 
landlord that will accept vouchers for a short-term stay.
    The comments received from SWAs on the housing voucher option were 
generally opposed to the proposal and also reflected a misunderstanding 
of the Department's proposal. One SWA cited concerns that a voucher 
would eliminate established standards that ensure safety and healthful 
conditions of housing. Another SWA argued that ``[t]he use of vouchers 
and the failure to cover the full cost of housing reflects an 
unrealistic understanding of the housing market for seasonal workers.'' 
Another SWA suggested that it would be impossible for the Governor to 
determine whether there was inadequate housing available in the area 
since the SWAs would not be the recipient of the labor condition 
applications, and therefore, would not know the number of workers in 
need of housing.
    Some commenters criticized the Department's proposal on the grounds 
that many basic questions about how the voucher would function were not 
adequately addressed in the NPRM, including the lack of: A mechanism 
for determining the amount or value of the voucher; a definition of 
``reasonable commuting distance;'' criteria to be used in determining 
whether the employer made a good faith effort to assist the worker in 
identifying, locating and securing housing in the area of intended 
employment; and standards to be used in the Governor's certification of 
insufficient housing for migrant workers and H-2A workers in the area 
of intended employment. Other commenters took issue with the 
Department's proposal to allow workers to ``pool'' the vouchers, 
claiming that such pooling would result in workers overpaying for 
overcrowded and/or substandard housing. Several commenters questioned 
the Department on the rationale for not allowing the voucher to be 
redeemed for cash by the employee to a third party.
    The requirement that employers furnish housing that meets 
applicable safety and health standards is a statutory requirement in 
the INA. The Department does not have authority to waive this statutory 
requirement, nor did the Department intend to do so in proposing a 
voucher option. In proposing a voucher option, the Department sought 
comment on how best to provide much needed flexibility to employers in 
fulfilling their obligation to furnish housing while ensuring that 
workers are not housed in substandard conditions. After reviewing the 
comments received on this proposal, the Department is persuaded that it 
should drop the proposal at this time because it would be extremely 
difficult to implement. The extent to which the Department's proposal 
was misunderstood by commenters on all sides also caused the Department 
concern that, if implemented, the proposal would result in numerous 
program violations and become a substantial enforcement problem. If, in 
the future, the Department is able to design an effective, enforceable 
and viable alternative, it will develop a proposal and request public 
comment.
    We are sympathetic to the concerns of many growers and employer 
associations who supported the proposal and noted that the cost of 
providing housing is a major deterrent for many to participate in the 
H-2A program and that in many parts of the country, restrictive 
building and zoning codes can prevent growers from building housing to 
accommodate workers. The Department notes that many of these problems 
can be overcome by employers under the statute and the Final Rule by 
securing ``housing which meets the local standards for rental and/or 
public accommodations or other substantially similar class of 
habitation.'' These options do not require employers to build and 
furnish their own housing. As is noted in ETA Handbook No. 398, there 
is nothing to preclude an employer who does not actually own housing on 
his/her property from renting non-commercial housing from other 
individuals or entities. If there are areas where rental and public 
accommodation options, including non-commercial housing, are not 
readily available, it is difficult to imagine how workers could have 
secured housing in those areas through the use of a voucher, such that 
the voucher program would not have been viable in those areas anyway.
    Third, the Department proposed in the NPRM to clarify and codify 
additional limited flexibility under certain circumstances to make 
post-certification changes to housing. The Department's current policy 
\4\ allows the employer to substitute rental or public accommodations 
for certified housing in the event that certified housing becomes 
unexpectedly unavailable for reasons

[[Page 77146]]

outside of the employer's control. The employer is required to notify 
the SWA in writing of the housing change and the qualifying reason(s) 
for the change, and provide evidence that the substituted housing meets 
the applicable safety and health standards. The SWA may inspect the 
substitute housing to determine compliance with applicable safety and 
health standards. The NPRM sought to clarify and codify this policy and 
included a provision for the SWA to notify the CO of any housing 
changes and the results of housing inspections conducted on substitute 
housing. Employer commenters and commenters representing employer 
interests universally favored the clarification in the proposal:
---------------------------------------------------------------------------

    \4\ Training and Employment Guidance Letter 11-07, Change 1 
(November 14, 2007).

    The inclusion of language that permits employers to use 
substitute housing in the event that their approved housing becomes 
unavailable for reasons beyond their control will be beneficial for 
the obvious reason that in the rare circumstances where this occurs, 
---------------------------------------------------------------------------
an employer has a housing option without being in violation.

    Commenters on behalf of employees questioned the Department's 
authority to propose such a change and thought the proposed change 
would result in workers being housed in substandard housing saying:

    [T]his change is not permitted by the statute [INA 218(c)(4)] 
and would encourage potentially fraudulent ``bait and switch'' 
tactics perpetrated by H-2A employers with respect to employer-
provided housing.

Commenters also questioned which standards are the applicable standards 
to the substitute housing.

    The Department maintains that this additional limited flexibility 
with respect to substitute housing is the best approach in those rare 
circumstances where the certified housing becomes unavailable for 
reasons beyond the employer's control. The Department believes that the 
requirements that the substitute housing be rental or other public 
accommodations and that the employer provide evidence that the new 
housing meets the applicable safety and health standards offer workers 
the necessary protections. Indeed, the proposal in no way lessens the 
applicable housing standards, as substitute housing must meet the 
standards that typically apply to H-2A housing of the same type. 
Failure to create a substitute housing provision could leave H-2A 
employers in the untenable position of having workers arrive at the 
worksite and having no permissible place to house them. Therefore, the 
Department has included this provision in the Final Rule. This Final 
Rule specifically references the applicable standards to which rental 
or public accommodation housing, including substitute housing, is 
subject.
    The Department has made several modifications to this provision in 
the Final Rule for purposes of clarity and to conform the standard to 
the structure of the rest of the Final Rule. First, the proposal states 
that the unavailability provision would apply in ``situations in which 
housing certified by the SWA later becomes unavailable.'' To ensure 
that the full range of applicable situations is covered, the Final Rule 
provides that the unavailability provision applies where housing 
becomes unavailable ``after a request to certify housing (but before 
certification), or after certification of housing.'' There is no reason 
to exclude housing that has not yet been inspected from the scope of 
the provision, since the initially designated housing has become 
unavailable anyway. Second, the phrase ``applicable housing standards'' 
has been replaced in the Final Rule with ``the local, State, or Federal 
housing standards applicable under paragraph (d)(1)(ii) of this 
section,'' which is more specific. Third, the phrase ``in accordance 
with the requirements of paragraph (d)(1)(ii) of this section'' has 
been added to the end of the second sentence of the provision, and the 
phrase ``from the appropriate local or State agency responsible for 
determining compliance'' has accordingly been deleted as unnecessary; 
as noted in the discussion of paragraph (d)(1)(ii), that paragraph has 
been separately modified to reflect the evidentiary standard that is 
currently in place in ETA Handbook No. 398. For the same reason, the 
proposal's admonition that SWAs ``should make every effort to inspect 
the accommodations prior to occupation, but may also conduct 
inspections during occupation, to ensure that they meet applicable 
housing standards'' has been removed in the Final Rule. As current ETA 
Handbook No. 398 explains at page II-15, ``[i]f DOL standards are not 
applicable, no pre-occupancy inspections need be conducted, and the 
employer need only document to the RA's satisfaction that the housing 
complies with the local or State standards which apply to the 
situation.'' To the extent that some SWAs may typically inspect rental 
or public accommodation housing despite the fact that they are not 
required by these rules to do so, they should make every effort to 
inspect substitute housing prior to occupation.
    The Department received comments on other housing-related issues 
for which no changes were proposed. A number of commenters noted that 
the text of proposed Sec.  655.104(d)(1)(i) referred to employer-owned 
housing, whereas the current regulation at Sec.  655.102(b)(1)(i) and 
the preamble to the proposed rule referenced employer-provided housing. 
The Department did not intend to change the current requirements for 
employer-provided housing and has corrected this inadvertent reference 
to ``employer-owned'' housing in the regulatory text.
    A group of farmworker advocacy organizations commented that, in its 
view, all rental and/or public accommodations should be required by the 
Department, at a minimum, to meet the Federal standards for temporary 
labor camps. The commenter asserted that State and local standards for 
rental and/or public accommodation housing may in many instances be 
grossly inadequate, and that the application of Federal minimum 
standards is therefore essential. The Department does not believe, 
however, that it has the authority under the INA to impose such a 
minimum requirement. Section 218(c)(4) of the INA expressly provides 
that to satisfy their housing obligation employers may, at their 
option, either ``provide housing meeting applicable Federal standards 
for temporary labor camps'' or ``secure housing which meets the local 
standards for rental and/or public accommodations or other 
substantially similar class of habitation.'' An employer that secures 
rental and/or public accommodations that meet all of the applicable 
local standards has satisfied its housing obligation under the statute. 
The statute provides that rental and/or public accommodation housing 
does not need to meet Federal temporary labor camp standards unless 
there are no ``applicable local or State standards.'' The Department is 
not at liberty to issue regulations that are inconsistent with the 
structure of employer housing obligations under the INA.
    A few commenters urged the Department to relieve employers in 
certain border communities (e.g., Yuma, AZ) of the requirement to 
provide housing to H-2A workers from Mexico who are able to commute 
back to their homes across the border on a daily basis. According to 
one association commenter, Yuma, Arizona employers have traditionally 
attracted tens of thousands of seasonal workers daily, approximately 
half of whom reside in the U.S. while the other half choose to maintain 
their residences in Mexico. This association believes that requiring 
employers in such instances to provide housing and transportation not 
only hinders participation but ignores reality.

[[Page 77147]]

The INA at sec. 218(c)(4) requires employers to provide housing to all 
H-2A workers. The Department does not believe it has a legal basis upon 
which to permit employers to employ H-2A workers without providing 
those workers with housing. Of course, there is no statutory 
requirement that workers actually reside in the employer-provided 
housing. So, an H-2A worker who resides within commuting distance of a 
home across the border could presumably return home each night if the 
worker wanted to, provided the employer didn't require its workers to 
reside in specific housing as a condition of the work agreement. 
Nevertheless, the employer would be required by statute to make 
appropriate housing available to the worker.
    Some commenters suggested that U.S. Department of Agriculture sec. 
514 Farm Labor Housing Loans should be made available for the 
construction of housing used for H-2A workers. The Department has no 
authority to allocate Farm Labor Housing Loans, but has passed along 
the comment to the USDA.
    Several commenters raised specific concerns about the attestation 
process as related to housing for agricultural workers. These 
commenters believe that the attestation process will lead to abuses in 
housing because there is no process in place for establishing 
compliance with the housing inspection request. Pursuant to the Final 
Rule, housing inspections are still required to be completed by SWAs. 
The Department believes that the extended timeframes for required pre-
certification housing inspections will give the housing inspectors more 
time to complete inspections and should actually lead to more thorough 
inspections that in turn will help ensure violations are corrected.
    So as not to inadvertently alter the availability of the 
conditional access provisions of Sec.  654.403, which were cited 
favorably by some commenters, the Department has added language to 
Sec.  655.104(d)(6)(i) clarifying that the required attestation ``may 
include an attestation that the employer is complying with the 
procedures set forth in Sec.  654.403.''
    Finally, the Department notes it has made several non-substantive 
changes to the text of Sec.  655.104(d) to provide clarity. For 
example, the NPRM noted the obligation to provide housing to those 
workers who are not reasonably able to return to their permanent 
residence ``within the same day.'' The Department has amended this 
phrase to ``at the end of the work day'' to clarify that a work day may 
go beyond the same 24-hour period (for example, a late shift may not 
necessarily end within the same day but would still be considered part 
of the same work day after which an H-2A worker could not be reasonably 
expected to return to the home residence). For the same reason, the 
term ``without charge'' has been amended to read ``at no cost to the 
worker,'' in order to ensure clarity and understanding. The Department 
has also included language in Sec.  655.104(d)(1)(ii) to clarify the 
kind of documentation that employers are expected to retain if they 
secure rental and/or public accommodations for their workers to show 
that the accommodations comply with the applicable legal standards. The 
language is taken directly from ETA Handbook No. 398, which provides at 
page I-26 that such documentation ``may be in the form of a certificate 
from the local or State Department of Health office or a statement from 
the manager or owner of the housing.'' In addition, non-substantive 
changes have been made to comport with plain English standards (for 
example, the use of active voice, such as the change in Sec.  
655.104(d)(6)(iii) to read ``The SWA is required by Section 218(c)(4) 
of the INA to make its determination''). Finally, a provision that is 
in the current regulation regarding charges for public housing, which 
was inadvertently omitted from the NPRM and whose absence was noted by 
several commenters, has been restored.
(e) Section 655.104(e) Workers' compensation
    The NPRM proposed to continue the current requirement that the job 
offer must contain a statement promising that workers' compensation 
insurance will be provided. This is a statutory requirement. The INA at 
Section 218(b)(3) requires the employer to provide the Secretary with 
satisfactory assurances that ``if the employment for which 
certification is sought is not covered by State workers' compensation 
law, the employer will provide, at no cost to the worker, insurance 
covering injury and disease arising out of and in the course of the 
worker's employment which will provide benefits at least equal to those 
provided under the State workers' compensation law for comparable 
employment.'' One commenter noted the State of Washington has an 
unusual Worker's Compensation statute that requires workers to 
contribute 50 percent of the premium unless the employer is self-
insured, whereas the NPRM required the employer to provide such 
insurance at no cost to the worker. The intent of the workers' 
compensation provision in the INA is to ensure that no worker is left 
without insurance in those States that exclude agricultural work from 
coverage. In fact, Section 218(b)(3) provides that if ``employment for 
which the certification is sought is not covered by State workers' 
compensation law, the employer will provide, at no cost to the worker, 
insurance covering injury and disease arising out of and in the course 
of the workers' employment which will provide benefits at least equal 
to those provided under the State workers' compensation law for 
comparable employment'' (emphasis added). Where the employment in 
question is covered by State workers' compensation law, but subject to 
certain rules applied by the State, the statutory provision is 
inapplicable. Therefore, the Department has modified language in Sec.  
655.104(e) to clarify that the employer should follow State law, but if 
the State excludes the type of employment for which the certification 
is being sought, then the employer must purchase the insurance at no 
cost to the worker.
    Other commenters complained that the Department no longer requires 
submission of proof of Worker's Compensation Insurance. These 
commenters believe that employers circumvent this requirement by having 
inadequate coverage or by allowing the coverage to lapse after 
receiving certification, or by not buying it at all because State law 
does not require it. The Department is confident that the attestation-
based application system will allow the Department to enforce these 
provisions because these attestations are made under penalty of 
perjury. If it is revealed during an audit that an employer 
fraudulently claimed to have met all program requirements, the employer 
would be subject to penalties, including debarment from the program.
    Other changes made to the language of this provision were non-
substantive, and made for purposes of clarification, or (as in the case 
of the recordkeeping language) to conform to changes made elsewhere in 
the rule.
(f) Section 655.104(f) Employer-Provided Items
    The NPRM proposed to continue the current requirement that 
employers provide workers with ``all tools, supplies, and equipment 
required'' to perform the duties of the job. The NPRM allowed employers 
to require workers to provide tools or equipment where the employer can 
demonstrate such a practice was ``common'' in the area of employment.
    The Department received one comment relating to its proposal, 
asserting that the Department should

[[Page 77148]]

not have deleted the current language mandating approval from the 
Department if employers seek to require employees to purchase any tools 
and equipment because it is common practice to do so. The ``common 
practice'' standard is not new, but has been carried over from the 
current regulation. Whether a common practice exists will still be a 
determination of fact to be decided by the Department and not by the 
employer. The only change in this determination is that the employer 
will now bear the burden of proof in the event of an audit or 
investigation to show that the practice claimed is common. In 
determining whether a practice is ``common'' in a particular area, the 
Department will apply a simple mathematical formula. If an employer can 
demonstrate that 25 percent of non-H-2A workers in the crop activity 
and occupation in the particular area are required to provide tools or 
equipment, the Department will consider the practice to be ``common.'' 
This simple standard will be relatively easy to administer, and will 
ensure that employers have fair notice of their legal obligations.
    Clarifying language was also inserted referencing the requirements 
of sec. 3(m) of the Fair Labor Standards Act, 29 U.S.C. 203(m) (FLSA), 
which does not permit deductions for tools or equipment primarily for 
the benefit of the employer that reduce an employee's wage below the 
wage required under the minimum wage, or, where applicable, the 
overtime provisions of the FLSA.
(g) Section 655.104(g) Meals
    Section 655.104 (g) concerns the provision of meals to workers and 
the amount employers may charge workers for meals each day. Although 
the Department proposed no changes to this section, a few comments were 
received stating that the amount allowed to be charged/reimbursed does 
not reflect the true cost of the employer's providing or the worker's 
purchase of meals. Section 655.114 provides for annual adjustments of 
the previous year's allowable meal charges based upon Consumer Price 
Index (CPI) data. Each year the maximum charges allowed are adjusted 
from the charges allotted the previous year by the same percentage as 
the twelve-month percent change in the CPI for all Urban Consumers for 
Food (CPI-U for Food) between December of the year just concluded and 
December of the year prior to that. The Department reminds employers of 
their ability to petition for higher meal charges, a practice that has 
been continued in the Final Rule in Sec.  655.114. The amount of the 
meal charge, which in the NPRM was listed in Sec.  655.104(g), has for 
purposes of clarity been listed instead in Sec.  655.114.
(h) Section 655.104(h) Transportation
    Existing regulations at Sec.  655.102(b)(5) require employers to 
provide or pay for workers' daily subsistence and transportation from 
the place from which the worker has come to the place of employment. 
The employer is to advance these costs to the worker when it is the 
prevailing practice of non-H-2A employers in the occupation and area to 
do so. If the employer has not advanced transportation and subsistence 
costs or otherwise provided or paid for these costs and the worker 
completes 50 percent of the work contract period, the employer is 
required to reimburse the worker for these costs at that time. The 
Department proposed no change to this requirement, but sought comments 
and information on the costs and benefits to employers and workers of 
continuing to require employers to pay for the workers' inbound and 
outbound (return) subsistence and transportation costs.
    The Department received several comments on this requirement. Some 
comments from employers and employer associations advocated that 
employers and employees should share the costs of workers' inbound 
subsistence and transportation. These commenters argued that both 
employees and employers benefit from the H-2A employment relationship 
and therefore should share the costs. Others suggested that the 
employees should bear the full cost of their inbound subsistence and 
transportation, arguing that the inbound travel employment once they 
are in the country. Some commenters also noted that no other 
nonimmigrant work-related program requires employers to pay for the 
workers' inbound subsistence and transportation.
    Comments from employee advocates urged the Department to continue 
the requirement that employers provide or pay for workers inbound 
subsistence and transportation costs, asserting that inbound 
subsistence and transportation costs:

[a]re necessary for many reasons--to attract U.S. workers; to 
encourage employers to fully employ the workers in whom they have 
invested and to recruit only those workers needed; * * * and, 
because farmworkers wages are so low, to prevent farmworkers from 
becoming even more deeply indebted (and more exploitable) or from 
seeking low-cost transportation that is often unregulated and 
deadly.

    While there was disagreement among commenters on the current 
requirement that employers pay inbound subsistence and transportation, 
there was agreement that employers should continue to pay for workers' 
outbound transportation. Employer and worker advocate commenters agreed 
that payment of outbound travel is a critical means to help ensure that 
workers depart the U.S. at the end of their H-2A contract.
    Many comments addressed the timing of reimbursement to workers for 
inbound subsistence and transportation costs. Most commenters 
referenced the appellate court's decision in Arriaga v. Florida Pacific 
Farms, L.L.C., 305 F.3d 1228 (11th Cir. 2002), which held that growers 
violated the minimum wage provisions of the FLSA by failing to 
reimburse farmworkers during their first workweek for travel expenses 
(and visa and immigration fees) paid by the workers employed by the 
growers under the H-2A program. Under the FLSA, pre-employment expenses 
incurred by workers that are properly business expenses of the employer 
and primarily for the benefit of the employer are considered ``kick-
backs'' of wages to the employer and are treated as deductions from the 
employees' wages during the first workweek. 29 CFR 531.35. Such 
deductions must be reimbursed by the employer during the first workweek 
to the extent that they effectively result in workers' weekly wages 
being below the minimum wage. 29 CFR 531.36. Although the employer in 
the Arriaga case did not itself make direct deductions from the 
workers' wages, the Court held that the costs incurred by the workers 
amounted to ``de facto deductions'' that the workers absorbed, thereby 
driving the workers' wages below the statutory minimum. The Eleventh 
Circuit reasoned that the transportation and visa costs incurred by the 
workers were primarily for the benefit of the employer and necessary 
and incidental to the employment of the workers and stated that 
``[t]ransportation charges are an inevitable and inescapable 
consequence of having H-2A foreign workers employed in the United 
States; these are costs which arise out of the employment of H-2A 
workers.'' Finally, the court held that the growers' practices violated 
the FLSA minimum wage provisions, even though the H-2A regulations 
provide that the transportation costs need not be repaid until the 
workers complete 50 percent of the contract work period. The Eleventh 
Circuit noted that the H-2A regulations require employers to comply 
with applicable federal laws, and in accepting the contract orders in 
this case, the ETA Regional Administrator informed the growers in 
writing that their obligation

[[Page 77149]]

to pay the full FLSA minimum wage is not overridden by the H-2A 
regulations.
    Comments from employers recommended continuing the Department's 
requirement that workers be reimbursed at the 50 percent point of the 
work contract, stating that the current policy appropriately balances 
the interests of employers and employees by creating an incentive for 
employees to complete at least half of the contract. Many employers 
urged the Department not to require immediate reimbursement to workers 
and that the Department:

should explicitly state that an employer of H-2A workers does not 
have an obligation under the INA, the Fair Labor Standards Act 
(``FLSA''), or DOL regulations to reimburse a worker's in-bound 
transportation expense until the 50 percent point of the work 
contract and that if a worker's payment of inbound transportation 
and subsistence costs reduces his/her first week's wage below the 
minimum wage, such reduction does not result in a violation of the 
FLSA.

    Employee advocates, on the other hand, pressed the Department to 
require employers to comply with the FLSA which, they state, requires 
the reimbursement of costs at the beginning of employment when those 
costs are for the benefit of the employer and effectively reduce the 
workers' weekly income below the minimum wage. Another employee 
advocate suggested that the Department consider requiring H-2A 
employers to advance to workers inbound costs and to pay referral fees 
to domestic labor contractors to encourage the movement of low-wage 
U.S. workers to labor shortage areas.
    After due consideration of the comments, the Department has 
determined to continue the current policy of requiring employers to 
provide or pay for workers' inbound and outbound subsistence and 
transportation and the corresponding requirement for reimbursement of 
such inbound costs upon the worker's completion of 50 percent of the 
work contract period. Thus, reimbursement at the 50 percent point is 
all that the Final Rule requires pursuant to the Department's 
rulemaking authority under the INA. Moreover, the Department believes 
that the better reading of the FLSA and the Department's own 
regulations is that relocation costs under the H-2A program are not 
primarily for the benefit of the employer, that relocation costs paid 
for by H-2A workers do not constitute kickbacks within the meaning of 
29 CFR 531.35, and that reimbursement of workers for such costs in the 
first paycheck is not required by the FLSA.
    The FLSA requires employers to pay their employees set minimum 
hourly wages. 29 U.S.C. 206(a). The FLSA allows employers to count as 
wages (and thus count toward the satisfaction of the minimum wage 
obligation) the reasonable cost of ``furnishing [an] employee with 
board, lodging, or other facilities, if such board, lodging, or other 
facilities are customarily furnished by such employer to his 
employees.'' 29 U.S.C. 203(m). The FLSA regulations provide that 
``[t]he cost of furnishing `facilities' found by the Administrator to 
be primarily for the benefit or convenience of the employer will not be 
recognized as reasonable [costs within the meaning of the statute] and 
may not therefore be included in computing wages.'' 29 CFR 531.3(d)(1). 
The FLSA regulations further provide examples of various items that the 
Department has deemed generally to be qualifying facilities within the 
meaning of 29 U.S.C. 203(m), see 29 CFR 531.32(a), as well as examples 
of various items that the Department has deemed generally not to be 
qualifying facilities, see 29 CFR 531.3(d)(2), 29 CFR 531.32(c).
    Separate from the question whether items or expenses furnished or 
paid for by the employer can be counted as wages paid to the employee, 
the FLSA regulations contain provisions governing the treatment under 
the FLSA of costs and expenses incurred by employees. The regulations 
specify that wages, whether paid in cash or in facilities, cannot be 
considered to have been paid by the employer and received by the 
employee unless they are paid finally and unconditionally, or ``free 
and clear.'' 29 CFR 531.35. Thus, ``[t]he wage requirements of the Act 
will not be met where the employee `kicks-back' directly or indirectly 
to the employer or to another person for the employer's benefit the 
whole or part of the wage delivered to the employee. This is true 
whether the `kick-back' is made in cash or in other than cash. For 
example, if the employer requires that the employee must provide tools 
of the trade that will be used in or are specifically required for the 
performance of the employer's particular work, there would be a 
violation of the Act in any workweek when the cost of such tools 
purchased by the employee cuts into the minimum or overtime wages 
required to be paid him under the Act.'' Id. The regulations treat 
employer deductions from an employee's wages for costs incurred by the 
employer as though the deductions were a payment from the employee to 
the employer for the items furnished or services rendered by the 
employer, and applies the standards set forth in the ``kick-back'' 
provisions at 29 CFR 531.35 to those payments. Thus, ``[d]eductions for 
articles such as tools, miners' lamps, dynamite caps, and other items 
which do not constitute `board, lodging, or other facilities' '' are 
illegal ``to the extent that they reduce the wages of the employee in 
any such workweek below the minimum required by the Act.'' 29 CFR 
531.36(b).
    In sum, where an employer has paid for a particular item or 
service, under certain circumstances it may pursuant to 29 U.S.C. 
203(m) count that payment as wages paid to the employee. On the other 
hand, when an employee has paid for such an item or service, an 
analysis under 29 CFR 531.35 is required to determine whether the 
payment constitutes a ``kick-back'' of wages to the employer that 
should be treated as a deduction from the employee's wages.
    The Arriaga court seems to have assumed that all expenses 
necessarily fall into one of these two categories--that either they 
qualify as wages under 29 U.S.C. 203(m) or they constitute a ``kick-
back'' under 29 CFR 531.35. See Arriaga, 305 F.3d at 1241-42 (stating 
that if a payment ``may not be counted as wages'' under 29 U.S.C. 
203(m), then ``the employer therefore would be required to reimburse 
the expense up to the point the FLSA minimum wage provisions have been 
met'' under 29 CFR 531.35 and 29 CFR 531.36). That is incorrect. For 
example, if an employer were to give an employee a valuable item that 
was not ``customarily furnished'' to his or her employees, the employer 
would not be able to count the value of that item as wages under 29 
U.S.C. 203(m) unless the employer ``customarily furnished'' the item to 
his or her employees. Nevertheless, since the employee paid nothing for 
that item, it clearly would not constitute a ``kick-back'' of wages to 
the employer that would have to be deducted from the employee's wages 
for purposes of determining whether the employer met its minimum wage 
obligations under 29 U.S.C. 206(a). Similarly, if a grocery employee 
bought a loaf of bread off the shelf at the grocery store where he or 
she worked as part of an arms-length commercial transaction, the 
payment made by the employee to the employer would not constitute a 
``kick-back'' of wages to the employer, nor would the loaf of bread 
sold by the employer to the employee be able to be counted toward the 
employee's wages under 29 U.S.C. 203(m). Both parties would presumably 
benefit equally from such a transaction--it would neither be primarily 
for the benefit of the employer, nor would it be primarily for the 
benefit of the employee.

[[Page 77150]]

    Expenses paid by an employer that are primarily for the employer's 
benefit cannot be counted toward wages under 29 U.S.C. 203(m). See 29 
CFR 531.3(d). Similarly, expenses paid by an employee cannot constitute 
a ``kick-back'' unless they are for the employer's benefit. See 29 CFR 
531.35. An analysis conducted under 29 U.S.C. 203(m) determining that a 
particular kind of expense is primarily for the benefit of the employer 
will thus generally carry through to establish that the same kind of 
expense is primarily for the benefit of the employer under 29 CFR 
531.35. Each expense, however, must be analyzed separately in its 
proper context.
    The question at issue here is whether payments made by H-2A 
employees for the cost of relocating to the United States, whether paid 
to a third party transportation provider or paid directly to the 
employer, constitutes a ``kick-back'' of wages within the meaning of 29 
CFR 531.35. If the payment does constitute a ``kick-back,'' then the 
payment must, as the Arriaga court decided, be counted as a deduction 
from the employee's first week of wages under the FLSA for purposes of 
determining whether the employer's minimum wage obligations have been 
met.
    The Department does not believe that an H-2A worker's payment of 
his or her own relocation expenses constitutes a ``kick-back'' to the 
H-2A employer within the meaning of 29 CFR 531.35. It is a necessary 
condition to be considered a ``kick-back'' that an employee-paid 
expense be primarily for the benefit of the employer. The Department 
need not decide for present purposes whether an employee-paid expense's 
status as primarily for the benefit of the employer is a sufficient 
condition for it to qualify as a ``kick-back,'' because the Department 
does not consider an H-2A employee's payment of his or her own 
relocation expenses to be primarily for the benefit of the H-2A 
employer.
    Both as a general matter and in the specific context of guest 
worker programs, employee relocation costs are not typically considered 
to be ``primarily for the benefit'' of the employer. Rather, in the 
Department's view, an H-2A worker's inbound transportation costs either 
primarily benefit the employee, or equally benefit the employee and the 
employer. In either case, the FLSA and its implementing regulations do 
not require H-2A employers to pay the relocation costs of H-2A 
employees. Arriaga misconstrued the Department's regulations and is 
wrongly decided.
    As an initial matter, any weighing of the relative balance of 
benefits derived by H-2A employers and employees from inbound 
transportation costs must take into account the fact that H-2A workers 
derive very substantial benefits from their relocation. Foreign workers 
seeking employment under the H-2A nonimmigrant visa program often 
travel great distances, far from family, friends, and home, to accept 
the offer of employment. Their travel not only allows them to earn 
money--typically far more money than they could have in their home 
country over a similar period of time--but also allows them to live and 
engage in non-work activities in the U.S. These twin benefits are so 
valuable to foreign workers that these workers have proven willing in 
many instances to pay recruiters thousands of dollars (a practice that 
the Department is now taking measures to curtail) just to gain access 
to the job opportunities, at times going to great lengths to raise the 
necessary funds. The fact that H-2A farmworkers travel such great 
distances and make such substantial sacrifices to obtain work in the 
United States indicates that the travel greatly benefits those 
employees. Many of the comments received by the Department support this 
conclusion.
    Most significantly, however, the Department's regulations 
explicitly state that ``transportation furnished employees between 
their homes and work where the travel time does not constitute hours 
worked compensable under the Act and the transportation is not an 
incident of and necessary to the employment'' are qualifying 
``facilities'' under 29 U.S.C. 203(m). 29 CFR 531.32(a). As qualifying 
facilities, such expenses cannot by definition be primarily for the 
benefit of the employer. 29 CFR 531.32(c). The wording of the 
regulation does not distinguish between commuting and relocation costs, 
and in the context of the H-2A program, inbound relocation costs fit 
well within the definition as they are between the employee's home 
country and the place of work.
    The Arriaga court ruled that H-2A relocation expenses are primarily 
for the benefit of the employer in part because it believed that under 
29 CFR 531.32, ``a consistent line'' is drawn ``between those costs 
arising from the employment itself and those that would arise in the 
ordinary course of life.'' 305 F.3d at 1242. The court held that 
relocation costs do not arise in the ordinary course of life, but 
rather arise from employment. Id. Commuting costs and relocation costs 
cannot be distinguished on those grounds, however. Both kinds of 
expenses are incurred by employees for the purpose of getting to a work 
site to work. Moreover, an employee would not rationally incur either 
kind of expense but for the existence of the job. Both the employer and 
the employee derive benefits from the employment relationship, and, 
absent unusual circumstances, an employee's relocation costs to start a 
new job cannot be said to be primarily for the benefit of the employer.
    That is not to say that travel and relocation costs are never 
properly considered to be primarily for the benefit of an employer. The 
regulations state that travel costs will be considered to be primarily 
for the benefit of the employer when they are ``an incident of and 
necessary to the employment.'' 29 CFR 531.32(c). This might include, 
for example, a business trip, or an employer-imposed requirement that 
an employee relocate in order to retain his or her job. Relocation 
costs to start a new job will rarely satisfy this test, however.
    In a literal sense it may be necessary to travel to a new job 
opportunity in order to perform the work, but that fact, without more, 
does not render the travel an ``incident'' of the employment. Inbound 
relocation costs are not, absent unusual circumstances, any more an 
``incident of * * * employment'' than is commuting to a job each day. 
Indeed, inbound relocation costs are quite similar to commuting costs 
in many respects, which generally are not considered compensable. Cf. 
DOL Opinion Letter WH-538 (August 5, 1994) (stating that travel time 
from home to work is ``ordinary home-to-work travel and is not 
compensable'' under the FLSA); Vega ex rel. Trevino v. Gasper, 36 F.3d 
417 (5th Cir. 1994) (finding travel to and from work and home not 
compensable activity under Portal-to-Portal Act). In fact, there is no 
reason to believe that the drafters of 29 U.S.C. 203(m) and 206(a) ever 
intended for those provisions to indirectly require employers to pay 
for their employees' relocation and commuting expenses. To qualify as 
an ``incident of * * * employment'' under the Department's regulations, 
transportation costs must have a more direct and palpable connection to 
the job in question than merely serving to bring the employee to the 
work site.
    Taking the Arriaga court's logic to its ultimate conclusion would 
potentially subject employers across the U.S. to a requirement to pay 
relocation expenses for all newly hired employees--or at least to pay 
relocation expenses for all newly hired foreign employees, since 
international relocation is perhaps less ``ordinary'' than 
intranational

[[Page 77151]]

relocation. That simply cannot be correct. The language of 29 U.S.C. 
203(m) and 206(a) and their implementing regulations provide a very 
thin reed on which to hang such a seismic shift in hiring practices, 
particularly so many years after those provisions have gone into 
effect. Nor does the fact that H-2A workers are temporary guest workers 
change the equation. Even assuming that H-2A workers derive somewhat 
less benefit from their jobs because they are only temporary, that fact 
alone would not render the worker's relocation expenses an ``incident'' 
of the temporary job. If it did, ski resorts, camp grounds, shore 
businesses, and hotels would all be legally required to pay relocation 
costs for their employees at the beginning of each season--again, a 
result that is very difficult to square with the language and purpose 
of 29 U.S.C. 203(m) and 29 CFR 531.35.
    A stronger argument could be made, perhaps, that employers derive a 
greater-than-usual benefit from relocation costs when they hire foreign 
guest workers such as H-2A workers, because employers generally are not 
allowed to hire guest workers unless they have first attempted but 
failed to recruit U.S. workers. Thus, such employers have specifically 
stated a need to hire non-local workers. Given the substantially 
greater benefit that foreign guest workers generally derive from work 
opportunities in the United States than they do from employment 
opportunities in their home countries, however, the Department believes 
that this at most brings the balance of benefits between the employer 
and the worker into equipoise. Moreover, the employer's need for non-
local workers does nothing to transform the relocation costs into an 
``incident'' of the job opportunity in a way that would render the 
employee's payment of the relocation expenses a ``kick-back'' to the 
employer. If it did, courts would soon be called upon every time an 
employer hired an out-of-state worker to assess just how great the 
employer's need for the out-of-state employee was in light of local 
labor market conditions. Conversely, the courts would also have to 
inquire into the employee's circumstances, and whether the employee had 
reasonably comparable job prospects in the area from which the employee 
relocated. Again, the Department does not believe such a result is 
consistent with the text or the intent of the FLSA or the Department's 
implementing regulations.
    It is true, of course, that H-2A employers derive some benefit from 
an H-2A worker's inbound travel. To be compensable under the FLSA, 
however, the question is not whether an employer receives some benefit 
from an item or paid-for cost, but rather whether they receive the 
primary benefit. Significantly, despite the fact that employers nearly 
always derive some benefit from the hiring of state-side workers as 
well, such workers' relocation costs generally have not been considered 
to be ``primarily for the benefit of the employer.'' That is so because 
the worker benefits from the travel either more than or just as much as 
the employer.
    The Department obligated H-2A employers to pay H-2A workers' 
transportation costs not because it believed that the workers were 
entitled to such payments under the FLSA, but rather in the discharge 
of its responsibilities under the INA to insure the integrity of the H-
2A program. The Department carefully crafted its regulation to give H-
2A workers a strong incentive to complete at least 50 percent of their 
work contract. The practical effect of the Arriaga decision, however, 
is to require H-2A employers to pay for H-2A workers' inbound 
transportation costs without any reciprocal guarantee that the workers 
will continue to work for the employer after the first workweek. The 
Department believes that the payment of such transportation costs 
unattached to a reciprocal guarantee that the needed work will 
ultimately be performed substantially diminishes the benefit of the 
travel to the employer, and certainly would not allow the travel to be 
considered primarily for the employer's benefit.
    In sum, the Department believes that the costs of relocation to the 
site of the job opportunity generally is not an ``incident'' of an H-2A 
worker's employment within the meaning of 29 CFR 531.32, and is not 
primarily for the benefit of the H-2A employer. The Department has 
publicly stated that ``in enforcing the FLSA for H-2A workers, the 
Department's general policy is to ensure that workers receive 
transportation reimbursement by the time they complete 50 percent of 
their work contract period (or shortly thereafter) rather than 
insisting upon reimbursement at the first pay period.'' The Department 
continues to believe that this is the appropriate interpretation of the 
interplay between the H-2A program regulations and the FLSA in regards 
to transportation reimbursement. The Department states this as a 
definitive interpretation of its own regulations and expects that 
courts will defer to that interpretation.
    The current regulation uses the phrase ``place from which the 
worker has departed'' to describe the beginning point from which 
employers are required to provide or pay for inbound transportation and 
subsistence, and, if the worker completes the work contract period, the 
ending point to which employers are required to provide or pay for 
outbound transportation and subsistence. This phrase has at times been 
interpreted by the Department to mean the worker's ``home,'' or the 
place from which the worker was recruited. Most recently, the phrase 
was addressed in ETA Training and Employment Guidance Letter No. 23-01, 
Change 1 (August 2, 2002): `` `Home' is where the worker was originally 
recruited.'' While the Department proposed no changes to this 
regulatory language or interpretation, comments were received on this 
point. One agricultural association suggested that the Department 
clarify that transportation from and back to the place from which the 
worker came to work should be considered to require transportation from 
or to the site of the U.S. Consulate that issued the visa. This 
commenter stated:

    For the past 20 years the phrase ``from the place from which the 
worker has come to work for the employer to the place of 
employment,'' has meant payment of transportation from the location 
of the U.S. Consulate which issued the H-2A visa to the place of 
employment of the petitioning employer. Although the Department in 
its memoranda refers to ``place of recruitment'' its examples of how 
this rule works speaks only of transportation from and back to the 
worker's home country. There is no mention of the worker's village. 
This interpretation is in line with the INA and DHS regulations 
which do not allow a worker to enter the U.S. until that foreign 
worker has an H-2A visa. Thus, the worker cannot ``come to work for 
the employer'' until he or she has an H-2A visa. It is at the point 
that the worker has the H-2A visa that he or she is eligible to go 
to work for the employer.

    The Department finds this to be a compelling argument. It is the 
Department's program experience that workers, particularly H-2A 
workers, gather in groups for processing and transfer to the U.S. The 
logical gathering point for these workers is at the U.S. Consulate 
location where the workers receive their visa. In most countries that 
send H-2A workers to the U.S., such processing is usually centrally 
located (in Monterrey, Mexico, for example, rather than in Mexico City 
or another Consulate location). Designating the Consulate location 
where the visa is issued provides the Department with an 
administratively consistent place from which to calculate charges and

[[Page 77152]]

obligations. We have therefore made corresponding changes in the 
regulatory text to clarify that the ``place from which the worker has 
departed'' for foreign workers outside of the U.S. is the appropriate 
U.S. Consulate or port of entry.
    Finally, the Department sought to clarify that minimum safety 
standards required for employer provided transportation between the 
worker's living quarters (provided or secured by the employer pursuant 
to INA sec. 218(c)(4)) and the worksite are the standards contained in 
MSPA (29 U.S.C. 1841). The Department does not seek to apply MSPA to H-
2A workers and has no authority to do so. This clarification is 
intended to remove any ambiguity concerning the appropriate minimum 
vehicle safety standards for H-2A employers and should simplify 
compliance for those H-2A employers that also employ MSPA workers.
    Other changes to the language of the proposed provision--most 
significantly, the notation that an employer's return transportation 
obligation under Sec.  655.104(h)(2) applies where ``the worker has no 
immediately subsequent H-2A employment''--are non-substantive and have 
been made for purposes of clarification.
(i) Section 655.104(i) Three-Fourths Guarantee
    The Department chose, in the NPRM, to continue the so-called 
``three-fourths guarantee,'' by which it ensures that H-2A workers are 
offered a certain guaranteed number of hours of work during the 
specified period of the contract, and that if they are not offered 
enough hours of work, that they are paid as though they had completed 
the specified minimum number of work hours. In doing so, the Department 
suggested some minor changes to make the guarantee easier to apply in 
practice.
    One grower association objected to the continuation of the three-
fourths guarantee. They stated that it needs to be eliminated because 
it is arcane, is seldom understood by the growers, and complicates the 
system by creating more ``red tape'' for the growers. Other commenters 
supported the rule, but commented on the nuances of the changes made to 
the rule under the NPRM. A few commenters expressed the view that the 
guarantee deters employers from over-recruiting, which may create an 
oversupply of workers and drive wages down, and also assures long-
distance migrants that attractive job opportunities exist. However, 
some commenters also believe that the guarantee requirement results in 
employer abuses, such as employers misrepresenting the length of the 
season. They suggested the Department add language to allow workers to 
collect the three-fourths guarantee ``based on the average number of 
hours worked in a particular crop region and upon a showing of having 
worked through the last week in which the employer offered work to a 
full complement of his workforce.''
    The Department believes the rule provides essential protection for 
both U.S. and H-2A workers, in that it ensures their commitment to a 
particular employer will result in real jobs that meet their reasonable 
expectations. The Department also believes the rule is not easy to 
abuse or circumvent, as it is based on a simple mathematical 
calculation. For those employers that might try to evade their 
responsibilities, the Department has enforcement measures and penalties 
to act as a deterrent.
    Changing the three-fourths guarantee to be based on a per-crop 
harvest calculation using an average of hours worked rather than a 
contract period would make it nearly impossible to track and enforce 
the guarantee. To require employers to keep track of workers on a per-
crop basis and allow the workers to collect money based on the three-
fourths guarantee when the U.S. workers transition from one employer to 
another during the peak harvesting times appears patently unfair and 
the Department is not willing to create such an option.
    Two commenters also suggested that the Department take out the 
reference to ``work hours'' and return the term ``workday'' because the 
commenters believed that the employer might otherwise submit job orders 
based on a ``bogus'' hourly work day or work week. The Department 
believes that this concern is misplaced. The new terminology proposed 
by the Department is no more susceptible to abuse than the old 
terminology is; under either phrasing, employer fraud requires 
submitting false calculations of work. The Department purposely added 
the sentence with ``work hours'' and kept the old references to 
``workday'' in the NPRM to make the formula for calculation of the 
total amount guaranteed easier to understand and calculate. The end 
result is the same under either phrasing, however.
    A farm bureau requested that we insert language at the end of Sec.  
655.104(i)(1) to protect employers from the costs resulting from U.S. 
workers who voluntarily abandon employment in the middle of the 
contract period and then return at the end of the contract period or 
from those U.S. workers who show up in the middle of the contract 
period. This commenter does not believe that an employer should have 
any liability under the three-fourths guarantee rule for such 
unreliable employees. The guarantee has never applied to workers who 
voluntarily abandon employment or who never show up for the work, 
provided notice of such abandonment or no-show is provided to DOL 
within the time frames for reporting an abandonment that are set forth 
in Sec.  655.104(n). The Department has further clarified that 
provision in the Final Rule by defining abandonment of the job as the 
worker failing to report for work for 5 consecutive days.
    Farmworker advocates expressed concern that the Department would 
not enforce this provision. The Department appreciates the concerns 
raised and assures the public it intends to enforce this provision 
fully, as it intends to implement the entire rule.
    Another commenter requested clarification on what hours an employer 
may count toward the three-fourths guarantee when an employee 
voluntarily works more than the contract requires. The commenter asked 
for language to be inserted into Sec.  655.104(i)(3) stating that all 
hours of work actually performed including voluntary work over and 
above the contract requirement can be counted by the employer. The 
Department believes that this principle was already made clear by Sec.  
655.104(i)(1), but it has added the requested language for purposes of 
clarification.
    In proposed Sec.  655.104(i)(4) the Department sought to reiterate 
the employer's obligation to provide housing and meals to workers 
during the entire contract period, notwithstanding the three-fourths 
guarantee. The proposed paragraph, while properly entitled ``Obligation 
to provide housing and meals,'' inadvertently discussed an obligation 
to provide meals and transportation. Two comments were received on this 
paragraph. One employer association suggested that the text of the 
paragraph be revised to reflect that employers are not obligated to 
provide housing to workers who quit or are terminated for cause. One 
employee advocacy organization commented that the clarification that 
the employer is not allowed to shut down the labor camp or the camp 
kitchen during the contract period is a positive change. The Department 
has modified the paragraph to clarify that it is the employer's 
obligation to provide housing and meals during the contract period that 
is not affected by the three-fourths guarantee,

[[Page 77153]]

and to clarify that employers are not obligated to provide housing to 
workers who voluntarily abandon employment or are terminated for cause.
    Finally, in the NPRM the Department inadvertently deleted some 
qualifying phrases from this provision that are contained in the 
current regulation, and has accordingly in the Final Rule reverted to 
the language of the current regulation. Section 655.104(i)(3) discusses 
an employee's failure to work in the context of calculating whether the 
period of guaranteed employment has been met. The Final Rule reinserts 
the phrase currently in the regulations at Sec.  655.102(b)(6)(iii) 
permitting an employer to count ``all hours of work actually performed 
(including voluntary work over 8 hours in a workday or the worker's 
Sabbath or Federal Holidays).'' The Final Rule also reinserts as Sec.  
655.104(i)(4) the statement found in the current regulation at Sec.  
655.102(b)(6)(iv) that an employer is not liable for payment of the 
three-quarters guarantee to an H-2A worker whom the CO certifies has 
been displaced because of the employer's compliance with its obligation 
under these rules, where applicable, to accept referrals of U.S. 
workers after its date of need.
(j) Section 655.104(j) Records
    The NPRM proposed continuing the ``keeping of adequate and accurate 
records'' with respect to the payment of workers, making only minor 
modifications to the current regulation. The Department received 
several comments specific to the provisions of this section.
    A commenter requested that the Department eliminate the requirement 
for employers to provide information to the worker through the worker's 
representative upon reasonable notice. The Department does not believe 
this requirement should be eliminated because it is the Department's 
goal to encourage the availability of information to workers. Another 
commenter suggested refinements to the provision, including suggesting 
that a ``worker's representative'' be defined and documented in some 
manner so as to prevent the theft of information under the guise of 
disclosure to worker's representatives, and also to require disclosure 
of records within five days instead of upon ``reasonable'' notice.
    The Department agrees that it did not clarify in sufficient detail 
how a designated worker's representative should be identified so as to 
prevent unauthorized disclosure of records, and it accordingly has 
added language to the Final Rule stating that appropriate documentation 
of a designation of representative status must be provided to the 
employer.
    Instead of changing the term ``reasonable'' notice in the Final 
Rule to refer to a specific number of days, however, the Department has 
instead decided to adopt in Sec.  655.104(j)(2) of the Final Rule the 
standard for production of records that is currently found at 29 CFR 
516.7 and that the WHD uses under the FLSA. The Secretary can already 
request most H-2A records kept pursuant to this rule under the FLSA, 
and having one standard will help to avoid confusion in the regulated 
community.
(k) Section 655.104(k) Hours and Earnings Statements
    The Department did not receive any comments on this section. 
However, the Department made non-substantive punctuation changes to the 
provision in the Final Rule to reflect plain language standards.
(l) Section 655.104(l) Rates of Pay
    In the NPRM, the Department proposed to require employers to pay 
the highest of the adverse effect wage rate, the prevailing wage rate, 
or the Federal, State, or local minimum wage. The Final Rule retains 
this requirement, with some minor non-substantive clarifications to the 
text of the provision; comments specific to the issue of actual rates 
that will be required and the timing of their application are dealt 
with in the discussion of Sec.  655.108.
    Because this provision discusses the use of piece rates, several 
commenters took the opportunity to suggest changes to how piece rates 
are treated within the H-2A program. Worker advocates argued for 
reinstitution of the pre-1986 rules regarding piece rate adjustments. 
Some employers argued that the Department should not attempt to 
regulate piece rates at all. As the NPRM did not propose changes to the 
now long-standing procedures for the regulation of piece rates, the 
Department did not adopt any of these suggested changes in the Final 
Rule.
    The NPRM proposed a modest change to the regulation governing 
productivity standards. Under existing regulations, an employer who 
pays on a piece rate basis and utilizes a productivity standard as a 
condition of job retention must utilize the productivity standard in 
place in 1977 or the first year the employer entered the H-2A system 
with certain exceptions and qualifications. The NPRM proposed to 
simplify this provision by requiring that any productivity standard be 
no more than that normally required by other employers in the area.
    No commenter explicitly opposed the change in the methodology by 
which acceptable productivity standards are determined, but several 
employers asked for additional flexibility to be allowed to use a 
productivity standard even if the majority of employers in the area do 
not utilize one. We believe the ``normal'' standard, which the 
Department will retain in the Final Rule, will provide adequate 
flexibility for employers while ensuring that the wages and working 
conditions of U.S. workers are not adversely affected by the use of 
productivity rates not normal in the area of intended employment. 
Clarifying language has been added to the provision supplying the 
Department's interpretation of the term ``normal'' to mean ``not 
unusual.'' The Department has long applied this meaning of the term 
``normal'' In the H-2A context. See, e.g., ETA Handbook No. 398 at II-7 
(``The terms `normal' and `common', although difficult to quantify, for 
H-2A certification purposes mean situations which may be less than 
prevailing, but which clearly are not unusual or rare.''); id. at I-40 
(noting that the Department will carefully examine job qualifications, 
which are required by statute to be ``normal'' and ``accepted,'' if the 
qualifications are ``unusual''). It is also within the range of 
generally accepted meanings of the term. See, e.g., Black's Law 
Dictionary 1086 (8th ed. 2004) (``The term describes not just forces 
that are constantly and habitually operating but also forces that 
operate periodically or with some degree of frequency. In this sense, 
its common antonyms are unusual and extraordinary.''); Webster's 
Unabridged Dictionary 1321 (2d ed. 2001) (supplying ``not abnormal'' as 
one of several definitions). Thus, ``normal'' does not require that a 
majority of employers in the area use the same productivity standard. 
If there are no other workers in the area of intended employment that 
are performing the same work activity, the Department will look to 
workers outside the area of intended employment to assess the normality 
of an employer's proposed productivity standard.
    With respect to other provisions in the NPRM, some commenters 
argued that the Department is required by statute to use a 
``prevailing'' standard with respect to all practices permitted by the 
regulations. These commenters argued that the use of anything less than 
a ``prevailing practice'' standard necessarily adversely affects U.S. 
workers. The Department disagrees. The Department notes that with 
respect to

[[Page 77154]]

many types of practices, it may not even be possible to determine what 
the ``prevailing'' practice is. For example, there may be a wide range 
of productivity standards used by employers in a given area, none of 
which is used by 50 percent of employers or with respect to 50 percent 
of workers. Furthermore, many practices are not readily susceptible to 
averaging: For example, with respect to practices regarding the 
frequency with which workers are paid, some employers may pay workers 
at the end of each week, others at the end of every two weeks, and 
others twice a month. If one third of employers used each method, which 
practice would be ``prevailing''?
    The Department has examined each type of employment practice and 
each type of working condition that is addressed by this rule to 
determine what parameters or limits are necessary to ensure that U.S. 
workers will not be adversely affected. With respect to productivity 
standards, the Department has determined that a range of practices are 
acceptable, and that it is unlikely that U.S. workers will be adversely 
affected if H-2A employers use a productivity standard that is not 
unusual for non-H-2A employers to apply to their U.S. workers. The 
Department will not, however, certify applications containing unusual 
productivity standards that are clearly prejudicial to U.S. workers.
(m) Section 655.104(m) Frequency of Pay
    The Department proposed in the NPRM to continue the requirement of 
the current regulation that the employer must state in the job offer 
the rate of frequency that the worker is to be paid, based upon 
prevailing practice in the area but in no event less frequently than 
twice a month. The Department received one comment on this provision 
noting that weekly or daily earnings are ``always'' the prevailing 
practice in agriculture, never bi-weekly, and that the Department 
should accordingly require weekly payment. After considering this 
comment, the Department has determined that it would be difficult, and 
not at all cost-effective, to use surveys to determine the frequency 
with which employers in a given area typically pay their employees. The 
Department has therefore decided to retain the minimum requirement that 
employees must be paid at least twice monthly, but has dropped the 
reference to the use of prevailing practices. The Department notes that 
this modest change affects only the frequency with which workers are 
paid, and not the amount to which they are entitled.
(n) Section 655.104(n) Abandonment of Employment
    The NPRM included a provision stating that the employer is not 
required to pay the transportation and subsistence expenses of 
employees who abandon employment, provided the employer notifies the 
Department or DHS within 2 workdays of abandonment. One association of 
farm employers argued that this requirement was unreasonable in that 
the typical practice is termination 3 days beyond the abandonment or 
``no show'' of the worker. An employer opined that this requirement 
should create an obligation on the part of the Department to help 
employers locate and pursue remedies against employees who voluntarily 
abandon employment without returning to their home country.
    The Department acknowledges the need for clarification in the 
provision to ensure that the requirement begins to run only when the 
abandonment or abscondment is discovered. The Department has therefore 
added language to the provision clarifying that the employer must 
notify DOL and DHS no later than 2 workdays ``after such abandonment or 
abscondment occurs.'' The Department has added further clarification to 
ensure that employers must meet the identical standards for 
notification to DOL as to DHS, so that a worker is deemed to have 
absconded when the worker has not reported for work for a period of 5 
consecutive work days without the agreement of the employer. The 
Department has extended this standard to a worker's failure to report 
at the beginning of a work contract. This is intended to clarify for 
the employer that the same standard of reporting applies for both 
agencies. The Department declines to include provisions prescribing new 
employer remedies against workers who abandon the job, but notes that 
abandonment of a job may result in a worker being ineligible to return 
to the H-2A program.
(o) Section 655.104(o) Contract Impossibility
    The current and proposed regulations contain a provision that 
allows an employer to ask permission from the Department to terminate 
an H-2A contract if there is an extraordinary, unforeseen, catastrophic 
event or ``Act of God'' such as a flood or hurricane (or other severe 
weather event) that makes it impossible for the business to continue.
    One commenter noted that the proposed regulation eliminates a 
current requirement that ``the employer will make efforts to transfer 
the worker to other comparable employment acceptable to the worker,'' 
and stated that U.S. workers, in particular, would benefit from such an 
effort. The Department declines to adopt this suggestion, as it 
believes the workers themselves will be in a better position to find 
alternative job opportunities than an employer whose business 
enterprise has been substantially impacted by an Act of God. In 
response to this comment, the Department has, however, added language 
to the Final Rule specifying that the H-2A worker may choose whether 
the employer terminating the H-2A contract should pay to transport them 
``to the place from which the worker (disregarding intervening 
employment) came to work for the employer, or transport the worker to 
the worker's next certified H-2A employer (but only if the worker can 
provide documentation supporting such employment).'' The limitation 
providing that a worker who requests transportation to the next 
employer must provide documentation of that employment will help to 
ensure that H-2A workers who do not have subsequent employment inside 
the United States return to the country from which they came to the 
United States rather than remaining in the United States illegally.
    To conform to similar changes made elsewhere in the rule, the Final 
Rule clarifies that ``for an H-2A worker coming from outside of the 
U.S., the place from which the worker (disregarding intervening 
employment) came to work for the employer is the appropriate U.S. 
consulate or port of entry.''
    Other changes to the language of the proposed rule are non-
substantive and have been made for purposes of clarifying the provision 
or to conform to changes made elsewhere in the Final Rule.
(p) Section 655.104(p) Deductions
    The Department, in the NPRM, proposed requiring employers to make 
assurances in their application that they will make all deductions from 
the workers' paychecks that are required by law. A group of farmworker 
advocacy organizations asserted that the Department was skirting its 
responsibility under Arriaga by allowing ``reasonable'' deductions to 
be taken from a worker's paycheck without any mention of the FLSA. This 
commenter believes that the Department inappropriately removed 
clarifying language in the current regulation that

[[Page 77155]]

``an employer subject to the Fair Labor Standards Act (FLSA) may not 
make deductions which will result in payments to workers of less than 
the federal minimum wage permitted by the FLSA.'' This commenter opined 
that workers under the H-2A program are entitled to full coverage under 
the FLSA, and that the Department should not make regulatory changes 
which suggest otherwise. By eliminating this language from the rule, 
this commenter believes the Department would effectively undermine the 
rights of farm workers to be paid the minimum wage free and clear of 
costs imposed on them for inbound transportation and visa costs, as 
established by case law.
    The Department does not agree with this commenter's 
characterization of the applicability of the FLSA to H-2A workers, 
including regarding inbound transportation. Nevertheless, we have 
returned the deleted language to the Final Rule to clarify that 
employers must of course comply with all statutory requirements 
applicable to them.
(q) Section 655.104(q) Copy of Work Contract
    The NPRM contained the provision found in the current regulation 
specifying that a copy of the work contract must be provided to the 
worker no later than the date the work commences. One group of 
farmworker advocacy organizations pointed out that this proposed 
regulation does not require that the work contract be given to the 
employee in the employee's native language and believed that these 
regulations as proposed are contrary to the requirements in MSPA for 
domestic workers. The Department has decided to make no substantive 
changes to this provision. Employers seeking to hire H-2A workers, as 
with all employers seeking to recruit agricultural workers under the 
Wagner/Peyser system, must file a Form ETA 790 with the SWA. This Form 
provides the necessary disclosures for MSPA purposes. The form itself 
is bilingual. In addition, section 10(a) of the Form specifically 
requires that the summary of the material job specifications be 
completed by the employer in both English and Spanish. The changes made 
to the language of the provision in the Final Rule are non-substantive 
and were made to provide better clarity.
Section 655.105 Assurances and Obligations of H-2A Employers
    The Department proposed instituting an application requiring 
employers to attest to their adherence to the obligations of the H-2A 
program. The Department received many comments expressing approval of 
the new attestation-based process, and others opposed to such a change. 
Still other commenters expressed general approval of the new 
attestation-based approach but suggested changes to the attestations 
and the process of submitting such attestations.
    The Department received two comments regarding the substantive 
obligations imposed on employers through the attestations. One 
commenter requested that the Department add another attestation that 
employers will not confiscate workers' passports. Another commenter 
requested that the Department impose substantial penalties on employers 
who lure H-2A workers away from contract jobs before the termination of 
their contracts. This commenter believes that such a practice 
victimizes both the employer, who loses laborers, and the employee, who 
loses status under U.S. law when they prematurely terminate a contract.
    The Department is not aware that the confiscation of passports is a 
widespread practice among agricultural employers hiring H-2A workers. 
However, where evidence of such practice is found, it would likely 
indicate the presence of other practices prohibited by the H-2A 
regulations, such as the withholding of pay and other program 
entitlements. In such situations, the Department possesses mechanisms 
under this Final Rule to investigate and take appropriate action 
against such unscrupulous employers, both through program actions 
including revocation and debarment and through direct enforcement with 
civil fines and debarment.
    On the subject of changes of employment, the proposed companion 
regulation to the Department's NPRM, issued by USCIS at 73 FR 8230, 
Feb. 13, 2008, underscored that H-2A workers are free to move between 
H-2A certified jobs, and proposed to provide even greater mobility 
toward that end. The ability of workers to move to new H-2A employment 
when the current H-2A contract is completed is not something the 
Department wishes to discourage. A worker who abandons a job before its 
conclusion must be reported to DOL and DHS, and, depending on the 
reason for the abandonment, such abandonment may result in a violation 
of H-2A status and the consequent inability to commence employment with 
another employer. Such abandonment may also adversely affect a worker's 
future eligibility to participate in the H-2A program.
    One commenter requested that we allow substitution of H-2A workers 
at the port of entry without having to file a new petition. An 
Application for Temporary Employment Certification is filed without the 
names of the foreign workers. Substitution of workers is permitted by 
the DHS companion rule.
(a) Section 655.105(a)
    The attestation obligation set forth in Sec.  655.105(a) in the 
NPRM requires the employer to assure the Department that the job 
opportunity is open to any U.S. worker and that the employer conducted 
(or will conduct) the required recruitment, and was still unsuccessful 
in locating qualified U.S. applicants in sufficient numbers to fill its 
need. This assurance was criticized by a farm bureau because it 
believes that it is impossible for employers to state they ``will 
conduct'' recruitment as required in the regulations and at the same 
time attest that they were unsuccessful in finding any U.S. workers. 
The Department has clarified this language in the Final Rule to enable 
employers to attest that the employer ``has been'' unsuccessful in 
locating U.S. workers sufficient to fill the stated need.
    One group of advocacy organizations believes the Department should 
retain the language from the current Sec.  655.103(c), which states: 
``Rejections and terminations of U.S. workers. No U.S. worker will be 
rejected for or terminated from employment for other than a lawful job-
related reason, and notification of all rejections or terminations 
shall be made to the SWA.'' (Emphasis supplied.) This commenter 
requests that the provision against termination should be added to the 
assurance found in the new Sec.  655.105(a), specifically where it 
states: ``Any U.S. workers who applied for the job were rejected for 
only lawful, job-related reasons.''
    The Department declines to add language regarding terminations at 
this location in the regulations. The provision at issue is an 
attestation by an employer regarding the hiring of U.S. workers, not 
their termination. The termination of U.S. workers for inappropriate 
reasons is already covered under the regulations by the prohibition in 
Sec.  655.105(j), discussed below.
    The Department added several clarifications and conforming changes 
to the text of the proposed provisions. First, the Department added 
language clarifying that the employer must attest that it will keep the 
job opportunity open to qualified U.S. workers ``through the 
recruitment period,'' which is defined at Sec.  655.102(f)(3). Second, 
the Department added language clarifying that the employer must attest 
that it has

[[Page 77156]]

hired and will hire all U.S. workers who apply for the job and are not 
rejected for lawful, job-related reasons. Third, and relatedly, the 
Department added language stating that an employer must attest that 
``it will retain records of all rejections as required by Sec.  
655.119.'' Other changes to the language of the provision were minor 
and non-substantive, and made for purposes of providing additional 
clarity.
(b) Section 655.105(b)
    The Department proposed in the NPRM that employers be required to 
offer terms and conditions that are ``normal to workers similarly 
employed'' and ``which are not less favorable than those offered to the 
H-2A workers.'' One commenter believed that this standard is not 
sufficiently protective of the wages and working conditions of U.S. 
farmworkers to meet the statutory precondition that the employment of 
foreign workers will not adversely affect the wages and working 
conditions of U.S. workers. According to this commenter, a practice 
applying to a small percentage of workers may still be considered 
``normal.'' This commenter opined that this criterion violates the 
statute, because requiring anything less than the prevailing practices 
of non-H-2A employers with respect to job terms will necessarily harm 
U.S. workers, either by putting downward pressure on wages and 
conditions and/or by facilitating job offers that are meant to deter 
U.S. workers from applying and accepting work.
    For reasons that have already been discussed above, the Department 
disagrees. Where the Department has identified particular terms or 
working conditions that have an important impact on U.S. workers--such 
as wages or the obligation to provide tools--it has inserted provisions 
addressing them directly. Not every term or condition attaching to a 
job, however, threatens to negatively impact the wages and working 
conditions of U.S. workers simply because it is not a ``prevailing'' 
condition. An employer may, for example, be the only employer in the 
area that grows a particular crop, or that requires the use of a 
particular tool. Such requirements generally do not threaten to 
adversely affect U.S. workers and are not improper for employers to 
impose. Moreover, as noted above, it is often very difficult, if not 
impossible, to determine what the ``prevailing practice'' is with 
respect to certain types of job terms and working conditions. Other 
specific provisions in the regulations safeguard against job 
qualifications, terms, and working conditions that are deliberately 
designed by employers to discourage U.S. workers from applying for job 
openings.
    Because the Department has indicated in the Final Rule the specific 
standard (i.e., ``common,'' ``normal,'' ``prevailing'') that applies to 
each type of covered job term and working condition, the Department has 
deleted language from the proposed rule that might have been understood 
to apply a catch-all requirement to all job terms and working 
conditions that they be ``normal to workers similarly employed in the 
area of intended employment.'' Retaining this language would have 
resulted, in some instances, in application of different standards to 
the same job requirements, potentially creating substantial confusion. 
The deleted language might also have been misconstrued as applying to 
job terms and working conditions that are not elsewhere addressed in 
the Final Rule. The Department never intended for the deleted language 
to apply to such peripheral job requirements; those job terms and 
working conditions that the Department considers to be central to H-2A 
work and to preventing an adverse effect on U.S. workers--such as 
wages, housing, transportation, tools, and productivity requirements--
have each been specifically addressed elsewhere in the Final Rule. The 
Final Rule retains the requirement that employers must offer job terms 
and working conditions that ``are not less than the minimum terms and 
conditions required by this subpart.'' This language ensures that 
employers must attest to their adherence to the standard specified in 
the Final Rule for each covered job term and working condition.
(c) Section 655.105(c)
    The Department proposed in the NPRM to continue to require that the 
employer submitting an application attest that the job opportunity 
being offered to H-2A workers is not vacant because the former 
occupants are on strike or locked out in the course of a labor dispute 
involving a work stoppage. The language of the proposed provision has 
been modified in the Final Rule by reverting to the language in the 
current regulation at Sec.  655.103(a), which provides that the 
employer must assure the Department that ``[t]he specific job 
opportunity for which the employer is requesting H-2A certification is 
not vacant because the former occupant is on strike or being locked out 
in the course of a labor dispute.'' The Department is reverting to the 
current regulatory language to clarify that the Department will 
evaluate whether job opportunities are vacant because of a strike, 
lockout, or work stoppage on an individual case-by-case basis. As the 
Department's current ETA Handbook No. 398 explains at page II-23, the 
Department must ensure that ``the specific positions vacant because of 
the dispute will not be included in any otherwise positive H-2A 
certification determination or redetermination.''
    The purpose of the strike/lock-out provision is to ensure that 
striking U.S. workers are not replaced with temporary foreign workers, 
thereby adversely affecting such workers. However, if an agricultural 
employer needs twenty workers, and only ten of the positions are vacant 
because workers are on strike, the employer should not be prohibited 
from hiring H-2A workers to fill the ten job openings that are not 
strike-related. Hiring foreign workers to fill positions of U.S. 
workers that are on strike is likely to adversely affect the U.S. 
workers, but hiring H-2A workers to fill positions that are not vacant 
because of a strike would not. The language of this provision in the 
Final Rule is also more consistent with the Department's statutory 
authority to withhold a labor certification where granting the 
certification would adversely affect the wages and working conditions 
of U.S. workers.
    Comments regarding the NPRM's labor dispute provisions, which 
overlap with the contents of Sec.  655.109(b)(4)(i) of the NPRM, are 
addressed in the discussion of that section below.
(d) Section 655.105(d)
    The NPRM included a provision that required the employer to attest 
it would continue to cooperate with the SWA by accepting referrals of 
all eligible and qualified U.S. workers who apply (or on whose behalf 
an application is made) for the job opportunity until the date the H-2A 
workers departed or three days prior to the date of need, whichever was 
later. The language of the provision in the Final Rule has been 
modified to render it consistent with Sec.  655.102(f)(3), which 
specifies that employers must continue to accept referrals until the 
``end of the recruitment period'' as defined in that provision.
    The only comment that the Department received on this section is 
discussed in greater detail under the Department's discussion of the 50 
percent rule in Sec.  655.102(b), above.
(e) Section 655.105(e)
    No comments were received on Sec.  655.105(e)(1) regarding the 
attestation promising to comply with all labor laws. Comments received 
on Sec.  655.105(e)(2)

[[Page 77157]]

pertaining to the housing attestation are addressed in the discussion 
of Sec. Sec.  655.102(e) and 655.104(d). Comments received on Sec.  
655.105(e)(3) pertaining to the workers' compensation attestation are 
addressed in the discussion of Sec.  655.104(e). Finally, comments 
received with respect to Sec.  655.105(e)(4) about the transportation 
attestation are addressed in the discussion of Sec.  655.104(h) and the 
comments received in connection with Sec.  655.105(e)(4) regarding 
worker protections are addressed in the discussion of the section on 
revocation at Sec.  655.117. Several minor non-substantive 
modifications have been made to the text of the provision for purposes 
of clarity and to conform to changes made elsewhere in the Rule.
(f) Section 655.105(f)
    Several comments were received on Sec.  655.105(f), which as 
published in the NPRM required employers to notify the Department and 
DHS within 48 hours if an H-2A worker leaves the employer's employ 
prior to the end date stipulated on the labor certification. The 
commenters thought that 48 hours was not enough time to accomplish this 
especially in light of DHS' requirement that proof of notification be 
kept for up to one year. The commenters thought it was unfair to 
require the employer to comply with this requirement and incur the 
added expense of sending the notice by certified mail. One commenter 
went on to say that such notice is not needed in all cases. The 
commenter cited the example of an employee transferring to another 
employer with approval to do so by the Department and DHS and asks why 
the employer should still be required to provide notification in such 
cases. According to this commenter, notification should only be 
required if the H-2A worker absconds from the work site.
    The notification is necessary in all circumstances because the 
early separation of a worker impacts not only the rights and 
responsibilities of the employer and worker but also implicates DOL's 
and DHS's enforcement responsibilities. For instance, an employer would 
no longer be responsible for providing or paying for the subsequent 
transportation and subsistence expenses or the ``three-fourths 
guarantee'' for a worker who has separated prior to the end date 
stipulated on the labor certification, either through voluntary 
abandonment or termination for cause. There is no requirement that the 
notification be made by certified mail, however. A file copy of a 
letter sent by regular U.S. mail, with notation of the posting date, 
will suffice. In addition, the Department revised the notification 
requirement in the Final Rule to reflect that a report must be made no 
later than 2 workdays after the employee absconds, which, consistent 
with DHS, has been defined as 5 consecutive days of not reporting for 
work. The text of this provision has been modified accordingly.
    The Department also received comments on this section relating to 
notification when H-2A workers leave their home country for the first 
place of intended employment. The Department believes those comments 
pertain to requirements in the DHS NPRM published February 13, 2008 
rather than the Department's NPRM of the same date.
(g) Section 655.105(g) Offered Wage Assurances
    Comments received pertaining to the offered wage are addressed in 
the response to comments on Sec.  655.108. The Department added 
language to the text of this provision in the Final Rule to clarify 
that, as a matter of enforcement policy, the adverse effect wage rates 
that are in effect at the time that recruitment is initiated will 
remain valid for the entire period of the associated work contract. 
This enforcement policy will honor the settled expectations of workers 
and employers regarding their respective earnings and costs under an H-
2A work contract and will avoid surprises that might give rise to 
disputes. It will also be an easy rule for the Department to 
administer, particularly when calculating payments due under the three-
quarters guarantee. Because H-2A contracts never last more than a year, 
locking in wage rates for the duration of a contract in this manner 
will not significantly prejudice workers or employers in the event that 
wage rates happen to rise or fall during the middle of a work contract.
(h) Section 655.105(h) Wages Not Based on Commission
    Comments pertaining to the offered wage are addressed in the 
response to comments on Sec.  655.108.
(i) Section 655.105(i)
    The NPRM contained an assurance requiring the employer to attest 
that it was offering a full-time temporary position whose 
qualifications are consistent with the ``normal and accepted 
qualifications required by non-H-2A employers in the same or comparable 
occupations or crops.'' This was a continuation of current obligations.
    The Department received several comments relevant to this 
provision. One commenter opined that the Department should scrutinize 
employer applications that offer U.S. workers a 30-hour work week 
arguing that such a requirement is not normal and is meant to dissuade 
U.S. workers from applying when in reality H-2A workers would work 50-
60 hours a week. The commenter argues, under the new rule, it will 
become impossible for the Department to deny an application because the 
standard for what is ``normal'' is so lax.
    The word ``normal'' in Sec.  655.105(i) does not refer to the 
requirement that the jobs be full-time, but rather to the 
qualifications provision in that section. Thirty hours a week is the 
minimum to be considered full-time employment in the H-2A program and 
the Department has, as a clarification, provided that definition of 
full-time in this section in the Final Rule. Moreover, other provisions 
in these regulations (see, e.g., Sec. Sec.  655.103, 655.105(b)) 
prohibit giving H-2A workers more favorable job terms than were 
advertised to U.S. workers, which include the number of hours of 
employment.
    Another commenter noted that requirements that the job duties be 
normal to the occupation and not include a combination of duties not 
normal to the occupation has led to frequent disputes, particularly in 
specialty areas of agriculture. This commenter noted that there is a 
distinction between restrictive requirements that are clearly contrived 
for the purpose of disqualifying domestic workers and those directly 
designed to producing specialized products, utilizing unusual 
production techniques or otherwise seeking to distinguish their 
products in the marketplace.
    The Department agrees that the INA was not meant to require 
employers to adhere to timeworn formulas for production in the H-2A or 
any other employment-based category, and that job duties for which 
there is a legitimate business reason are permissible. The requirement 
that job qualifications be ``normal'' and ``accepted,'' however, is 
statutory and cannot be altered. Section 218(c)(3)(A) of the INA 
requires the Department, when determining whether an employer's 
asserted job qualifications are appropriate, to apply ``the normal and 
accepted qualifications required by non-H-2A employers in the same or 
comparable occupations and crops.'' For the reasons provided in the 
discussion of Sec.  655.104(b) of the Final Rule above, the Department 
has deleted the phrase ``in that they shall not require a combination 
of duties not normal to the

[[Page 77158]]

occupation'' from the NPRM to conform to the language of the statute.
    In the Final Rule, the language of this provision has been modified 
in one additional respect to conform to the language of Sec.  
655.104(b). The provision now states that job qualifications must not 
``substantially deviate from the normal and accepted qualifications 
required by employers that do not use H-2A workers in the same or 
comparable occupations or crops.''
(j) Section 655.105(j) Layoffs
    The Department in its NPRM added a new provision prohibiting 
employers from hiring H-2A workers if they laid off workers within a 
stated time frame, unless such laid-off workers were offered and 
rejected the H-2A positions. Two commenters saw the new provision on 
layoffs as unnecessary and unworkable. One commenter saw this as 
contrary to the section on unforeseeable events and also illogical 
because many employers request a contract period of ten months. This 
would mean that employers would be unable to lay off workers at the end 
of one season, because the new season begins within 60 days and the 
proposed 75-day requirement will not have lapsed. Another commenter 
suggested a change to the language in this section to include a caveat 
that such layoffs shall be permitted where the employer also attests 
that it will offer or has offered the opportunity to the laid-off U.S. 
worker(s) beginning on the date of need, and said U.S. worker(s) either 
refused the job opportunity or were rejected for the job opportunity 
for lawful, job-related reasons.
    The Department agrees, in general, with the changes proposed by the 
commenters. We have accordingly modified the language of the provision 
in the Final Rule to limit the effect of the provision to 60 days on 
either side of an employer's date of need. This modification is also 
consistent with the revised timetables for recruitment in the Final 
Rule. This 120-day protective period will provide U.S. workers 
important protections during the period of time that H-2A workers are 
being recruited and through the beginning of the work season, which is 
the period of time that U.S. workers are most vulnerable to layoffs 
related to the hiring of H-2A workers, while avoiding most of the 
problems cited by the commenters. We also agree that a laid off worker 
must be qualified for the opportunity and that U.S. workers may only be 
rejected for lawful, job-related reasons, a limitation that preserves 
an employer's right to reject those workers it knows to be unreliable.
(k) Sections 655.105(k) and (l) Retaliation and Discharge
    One commenter reasoned that the Department has weakened its own 
enforcement ability by eliminating the word ``discharge'' from the list 
of prohibited retaliatory acts against a worker who files a complaint 
or testifies against the employer, consults with an attorney, or 
asserts any rights on behalf of himself/herself or other workers.
    The Department believes it has, in fact, strengthened its 
enforcement ability by addressing discharge separately in Sec.  
655.105(l). By making this a separate assurance, the employer 
acknowledges even more obviously the prohibition against discharge as 
retaliation.
    One group of farmworker advocacy organizations commented that the 
NPRM's proposed language requiring employers to attest that they will 
not discharge any person ``for the sole reason'' that they engaged in 
protected activity under Sec.  655.105(k) would substantially weaken 
the anti-retaliation language in the current regulations. The 
Department agrees with this commenter that a ``sole reason'' standard 
would impose an inappropriately high burden on retaliation claimants. A 
retaliation claimant should only be required to prove that protected 
activity was a contributing factor to the discharge. Thus, the 
Department has modified the language of Sec.  655.105(l) to require 
employers to attest that they will not discharge any person ``because 
of'' protected activity under Sec.  655.105(k).
    Section 655.104(k)(4) provides that an employer may not retaliate 
against an employee who has consulted with an employee of a legal 
assistance program. This provision does not, however, provide employees 
license to aid or abet trespassing on an employer's property, including 
by persons offering advocacy or legal assistance. No matter how 
laudable the intent of those offering advocacy or legal services, an 
employee does not have the legal right to grant others access to the 
private property of an employer without the employer's permission. A 
farm owner is entitled to discipline employees who actively aid and 
abet those who engage in illegal activity such as trespassing. Absent 
any evidence of a workers' actively aiding or abetting such activity, 
however, an employer's adverse action against an employee in response 
to that employee meeting with a representative of an advocacy or legal 
services organization, particularly on the worker's own time and not on 
the employer's property, would be viewed as retaliation.
    Several minor non-substantive modifications were made to the text 
of the provision for purposes of clarity and style.
(l) Section 655.105(m) Timeliness of Fee Payment
    The Department received one comment on this section and has 
addressed it in the comments on Sec.  655.118 on debarment, below.
(m) Section 655.105(n) Notification of Departure Requirements
    The Department did not receive any comments on this provision. For 
purposes of simplicity, and to avoid any potential conflict with DHS's 
regulations, the phrase ``another employer and that employer has 
already filed and received a certified Application for Temporary 
Employment Certification and has filed that certification in support of 
a petition to employ that worker with DHS'' has been deleted from the 
Final Rule and replaced with the terms ``another subsequent employer.'' 
This change is non-substantive; subsequent employers still cannot 
legally employ H-2A workers without an approved labor certification.
(n) Section 655.105(o) and New Section 655.105(p) Prohibition on Cost-
Shifting
    The Department included in the NPRM a provision prohibiting 
employers from shifting costs for activities related to obtaining labor 
certification to the worker and further requiring the employer to 
contractually forbid its agents from accepting money from the H-2A 
worker for hiring him or her. The Department received several comments 
in relation to this provision.
    A State Workforce Agency expressed concern that this prohibition 
will create another disincentive for U.S. employers to use the program 
because it gives the impression that workers will be able to request 
reimbursement from the employer for any monies paid to a recruiter. The 
Department notes in response that the H-2A rule does not require the 
employer to reimburse the H-2A worker for any recruitment-related fees 
he or she may pay. Rather, with an exception discussed below, the rule 
requires the employer to contractually forbid any foreign recruiters it 
hires from charging the H-2A worker any fees in order to be hired or 
considered for employment. This may mean that employers are required to 
pay foreign recruiters more than they do today for the services that 
they render, but the Department considers this a necessary step toward 
preventing


[[Continued on page 77159]]



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