DEPARTMENT OF LABOR R 655U H 2A Rule Regtext

User Manual: R-655U

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List of Subjects in 20 CFR Part 655

Administrative practice and procedure, Foreign workers, Employment,

Employment and training, Enforcement, Forest and forest products, Fraud, Health

professions, Immigration, Labor, Passports and visas, Penalties, Reporting and

recordkeeping requirements, Unemployment, Wages, Working conditions.

List of Subjects in 29 CFR Part 501

Administrative practice and procedure, Agriculture, Aliens, Employment,

Housing, Housing standards, Immigration, Labor, Migrant labor, Penalties,

Transportation, Wages.

List of Subjects in 29 CFR Part 780

Agricultural commodities, Agriculture, Employment, Forests and forest products,

Labor, Minimum wages, Nursery stock, Overtime pay, Wages.

List of Subjects in 29 CFR Part 788

Employment, Forests and forest products, Labor, Overtime pay, Wages.

For the reasons stated in the preamble, the Department Labor amends 20 CFR part

655 and 29 CFR parts 501, 780, and 788 as follows:

Title 20 -- EMPLOYEES' BENEFITS

PART 655--TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE

UNITED STATES

2. Amend part 655 to revise the authority citation for part 655 to read as follows:

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Authority: Section 655.0 issued under 8 U.S.C. 1101(a)(15)(E)(iii), 1101(a)(15)(H)(i)

and (ii), 1182(m), (n) and (t), 1184(c), (g), and (j), 1188, and 1288(c) and (d); sec.

3(c)(1), Pub. L. 101-238, 103 Stat. 2099, 2102 (8 U.S.C. 1182 note); sec. 221(a), Pub. L.

101-649, 104 Stat. 4978, 5027 (8 U.S.C. 1184 note); sec. 303(a)(8), Pub. L. 102-232, 105

Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 323(c), Pub. L. 103-206, 107 Stat. 2428; sec.

412(e), Pub. L. 105-277, 112 Stat. 2681 (8 U.S.C. 1182 note); sec. 2(d), Pub. L. 106-95,

113 Stat. 1312, 1316 (8 U.S.C. 1182 note); Pub. L. 109-423, 120 Stat. 2900; and 8 CFR

214.2(h)(4)(i).

Section 655.00 issued under 8 U.S.C. 1101(a)(15)(H)(ii), 1184(c), and 1188; and 8 CFR

214.2(h).

Subparts A and C issued under 8 CFR 214.2(h).

Subpart B issued under 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c), and 1188; and 8 CFR

214.2(h).

Subparts D and E authority repealed.

Subparts F and G issued under 8 U.S.C. 1288(c) and (d); and sec. 323(c), Pub. L. 103-

206, 107 Stat. 2428.

Subparts H and I issued under 8 U.S.C. 1101(a)(15)(H)(i)(b) and (b)(1), 1182(n) and

(t), and 1184(g) and (j); sec. 303(a)(8), Pub. L. 102-232, 105 Stat. 1733, 1748 (8 U.S.C.

1101 note); sec. 412(e), Pub. L. 105-277, 112 Stat. 2681; and 8 CFR 214.2(h).

Subparts J and K authority repealed.

Subparts L and M issued under 8 U.S.C. 1101(a)(15)(H)(i)(c) and 1182(m); sec. 2(d),

Pub. L. 106-95, 113 Stat. 1312, 1316 (8 U.S.C. 1182 note); Pub. L. 109-423, 120 Stat.

2900; and 8 CFR 214.2(h).

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3. Amend § 655.1 and revise to read as follows:

§ 655.1 Purpose and scope of subpart A.

This subpart sets forth the procedures governing the labor certification process for the

temporary employment of nonimmigrant foreign workers in the United States (U.S.) in

occupations other than agriculture or registered nursing.

4. Amend subpart B and revise to read as follows:

Subpart B--Labor Certification Process for Temporary Agricultural Employment in the

United States (H-2A Workers)

Sec.

655.90 Purpose and scope of subpart B.

655.92 Authority of ETA-OFLC.

655.93 Special procedures.

655.100 Overview of subpart B and definition of terms.

655.101 Applications for temporary employment certification in agriculture.

655.102 Required pre-filing recruitment.

655.103 Advertising requirements.

655.104 Contents of job offers.

655.105 Assurances and obligations of H-2A employers.

655.106 Assurances and obligations of H-2A Labor Contractors.

655.107 Receipt and processing of applications.

655.108 Offered wage rate.

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655.109 Labor certification determinations.

655.110 Validity and scope of temporary labor certifications.

655.111 Required departure.

655.112 Audits.

655.113 H-2A applications involving fraud or willful misrepresentation.

655.114 Petition for higher meal charges.

655.115 Administrative review and de novo hearing before an administrative law judge.

655.116 Job Service Complaint System; enforcement of work contracts.

655.117 Revocation of approved labor certifications.

655.118 Debarment.

655.119 Document retention requirements.

§ 655.90 Purpose and scope of subpart B.

This subpart sets out the procedures established by the Secretary of the United States

Department of Labor (the Secretary) to acquire information sufficient to make factual

determinations of:

(a) Whether there are sufficient able, willing, and qualified U.S. workers available to

perform the temporary and seasonal agricultural employment for which an employer

desires to import nonimmigrant foreign workers (H-2A workers); and

(b) Whether the employment of H-2A workers will adversely affect the wages and

working conditions of workers in the U.S. similarly employed.

§ 655.92 Authority of ETA-OFLC.

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Temporary agricultural labor certification determinations are made by the

Administrator, Office of Foreign Labor Certification (OFLC) in the Department of

Labor’s (the Department or DOL) Employment & Training Administration (ETA), who,

in turn, may delegate this responsibility to a designated staff member; e.g., a Certifying

Officer (CO).

§ 655.93 Special procedures.

(a) Systematic process. This subpart provides procedures for the processing of

applications from agricultural employers and associations of employers for the

certification of employment of nonimmigrant workers in agricultural employment.

(b) Establishment of special procedures. To provide for a limited degree of flexibility

in carrying out the Secretary's responsibilities under the Immigration and Nationality Act

(INA), while not deviating from statutory requirements, the Administrator, OFLC has the

authority to establish or to devise, continue, revise, or revoke special procedures in the

form of variances for processing certain H-2A applications when employers can

demonstrate upon written application to the Administrator, OFLC that special procedures

are necessary. These include special procedures in effect for the handling of applications

for sheepherders in the Western States (and adaptation of such procedures to occupations

in the range production of other livestock), and for custom combine crews. In a like

manner, for work in occupations characterized by other than a reasonably regular

workday or workweek, such as the range production of sheep or other livestock, the

Administrator, OFLC has the authority to establish monthly, weekly, or bi-weekly

adverse effect wage rates (AEWR) for those occupations for a statewide or other

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geographical area. Prior to making determinations under this section, the Administrator,

OFLC will consult with employer and worker representatives.

§ 655.100 Overview of subpart B and definition of terms.

(a) Overview (1) Application filing process. (i) This subpart provides guidance to

employers desiring to apply for a labor certification for the employment of H-2A workers

to perform agricultural employment of a temporary or seasonal nature. The regulations in

this subpart provide that such employers must file with the Administrator, OFLC an H-

2A application on forms prescribed by the ETA that describe the material terms and

conditions of employment to be offered and afforded to U.S. and H-2A workers. The

application must be filed with the Administrator, OFLC at least 45 calendar days before

the first date the employer requires the services of the H-2A workers. The application

must contain attestations of the employer's compliance or promise to comply with

program requirements regarding recruitment of eligible U.S. workers, the payment of an

appropriate wage, and terms and conditions of employment.

(ii) No more than 75 and no fewer than 60 calendar days before the first date the

employer requires the services of the H-2A workers, and as a precursor to the filing of an

Application for Temporary Employment Certification, the employer must initiate positive

recruitment of eligible U.S. workers and cooperate with the local office of the State

Workforce Agency (SWA) which serves the area of intended employment to place a job

order into intrastate and interstate recruitment. Prior to commencing recruitment an

employer must obtain the appropriate wage for the position directly from the ETA

National Processing Center (NPC). The employer must then place a job order with the

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SWA; place print advertisements meeting the requirements of this regulation; contact

former U.S. employees; and, when so designated by the Secretary, recruit in other States

of traditional or expected labor supply with a significant number of U.S. workers who, if

recruited, would be willing to make themselves available at the time and place needed.

The SWA will post the job order locally, as well as in all States listed in the application

as anticipated work sites, and in any additional States designated by the Secretary as

States of traditional or expected labor supply. The SWA will keep the job order open

until the end of the designated recruitment period. No more than 50 days prior to the first

date the employer requires the services of the H-2A workers, the employer will prepare

and sign an initial written recruitment report that it must submit with its Application for

Temporary Employment Certification. The recruitment report must contain information

regarding the original number of openings for which the employer recruited. The

employer’s obligation to engage in positive recruitment will end on the actual date on

which the H-2A workers depart for the place of work, or 3 days prior to the first date the

employer requires the services of the H-2A workers, whichever occurs first.

(iii) The Application for Temporary Employment Certification must be filed by mail

unless the Department publishes a Notice in the Federal Register requiring that

applications be filed electronically. Applications that meet threshold requirements for

completeness and accuracy will be processed by NPC staff, who will review each

application for compliance with the criteria for certification. Each application must meet

requirements for timeliness and temporary need and must provide assurances and other

safeguards against adverse impact on the wages and working conditions of U.S. workers.

Employers receiving a labor certification must continue to cooperate with the SWA by

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accepting referrals -- and have the obligation to hire qualified and eligible U.S. workers

who apply -- until the end of the designated recruitment period.

(2) Deficient applications. The CO will promptly review the application and notify

the applicant in writing if there are deficiencies that render the application not acceptable

for certification, and afford the applicant a 5 calendar day period (from date of the

employer’s receipt) to resubmit a modified application or to file an appeal of the CO's

decision not to approve the application as acceptable for consideration. Modified

applications that fail to cure deficiencies will be denied.

(3) Amendment of applications. This subpart provides for the amendment of

applications. Where the recruitment is not materially affected by such amendments,

additional positive recruitment will not be required.

(4) Determinations (i) Determinations. If the employer has complied with the criteria

for certification, including recruitment of eligible U.S. workers, the CO must make a

determination on the application by 30 days before the first date the employer requires

the services of the H-2A workers. An employer’s failure to comply with any of the

certification criteria or to cure deficiencies identified by the CO may lengthen the time

required for processing, resulting in a final determination less than 30 days prior to the

stated date of need.

(ii) Certified applications. This subpart provides that an application for temporary

agricultural labor certification will be certified if the CO finds that the employer has not

offered and does not intend to offer foreign workers higher wages, better working

conditions, or fewer restrictions than those offered and afforded to U.S. workers; that

sufficient U.S. workers who are able, willing, qualified, and eligible will not be available

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at the time and place needed to perform the work for which H-2A workers are being

requested; and that the employment of such nonimmigrants will not adversely affect the

wages and working conditions of similarly employed U.S. workers.

(iii) Fees. (A) Amount. This subpart provides that each employer (except joint

employer associations) of H-2A workers will pay the appropriate fees to the Department

for each temporary agricultural labor certification received.

(B) Timeliness of payment. The fee must be received by the CO no later than 30

calendar days after the granting of each temporary agricultural labor certification. Fees

received any later are untimely. A persistent or prolonged failure to pay fees in a timely

manner is a substantial program violation which may result in the denial of future

temporary agricultural labor certifications and/or program debarment.

(iv) Denied applications. This subpart provides that if the application for temporary

agricultural labor certification is denied, in whole or in part, the employer may seek

expedited review of the denial, or a de novo hearing, by an administrative law judge as

provided in this subpart.

(b) Transition of filing procedures from current regulations. (1) Compliance with

these regulations. Employers with a date of need for H-2A workers for temporary or

seasonal agricultural services on or after July 1, 2009 must comply with all of the

obligations and assurances required in this subpart.

(2) Transition from former regulations. Employers with a date of need for H-2A

workers for temporary or seasonal agricultural services prior to July 1, 2009 will file

applications in the following manner:

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(i) Obtaining required wage rate. An employer will not obtain an offered wage rate

through the NPC prior to filing an application, but will complete and submit Form ETA-

9142, Application for Temporary Employment Certification 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, along with the Application for Temporary

Employment Certification, directly to the NPC having jurisdiction over H-2A

applications.

(ii) Pre-filing activities. Activities required to be conducted prior to filing under the

final rule will be conducted post-filing during this transition period. The employer will

be expected to make attestations in its application applicable to its future activities

concerning recruitment, 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.

(iii) Acceptance of application. Upon receipt, the NPC will provide the employer with

the wage rate to be offered, at a minimum, by the employer, and will process the

application in a manner consistent with new § 655.107, issuing a notification of

deficiencies for any curable deficiencies within 7 calendar days.

(iv) Processing of application. Once the application and job order have been accepted,

the 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 that the SWA(s)

schedule an inspection of the housing, and provide instructions to the employer to

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commence positive recruitment in a manner consistent with § 655.102(d)(2)-(4). The

NPC will designate labor supply States during this period on a case-by-case basis. Such

designations must be based on information provided by State agencies or by other

sources, and will to the extent information is available take into account the success of

recent efforts by out-of-State employers to recruit in that State.

Administrative Law Judge (ALJ) means a person within the DOL’s Office of

Administrative Law Judges appointed pursuant to 5 U.S.C. 3105, or a panel of such

persons designated by the Chief Administrative Law Judge from the Board of Alien

Labor Certification Appeals (BALCA) established by part 656 of this chapter, which will

hear and decide appeals as set forth in § 655.115.

Administrator, OFLC means the primary official of the Office of Foreign Labor

Certification (OFLC), or the Administrator, OFLC 's designee.

Adverse effect wage rate (AEWR) means the minimum wage rate that the

Administrator, OFLC has determined must be offered and paid to every H-2A worker

employed under the DOL-approved Application for Temporary Employment

Certification in a particular occupation and/or area, as well as to U.S. workers hired by

employers into corresponding employment during the H-2A recruitment period, to ensure

that the wages of similarly employed U.S. workers will not be adversely affected.

Agent means a legal entity or person, such as an association of agricultural employers,

or an attorney for an association, that:

(1) Is authorized to act on behalf of the employer for temporary agricultural labor

certification purposes;

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(2) Is not itself an employer, or a joint employer, as defined in this paragraph (c) of

this section with respect to a specific application; and

(3) Is not under suspension, debarment, expulsion, or disbarment from practice before

any court or the Department, the Board of Immigration Appeals, the immigration judges,

or the Department of Homeland Security (DHS) under 8 CFR 292.3 or 1003.101.

Agricultural association means any nonprofit or cooperative association of farmers,

growers, or ranchers (including but not limited to processing establishments, canneries,

gins, packing sheds, nurseries, or other fixed-site agricultural employers), incorporated or

qualified under applicable State law, that recruits, solicits, hires, employs, furnishes,

houses or transports any worker that is subject to sec. 218 of the INA. An agricultural

association may act as the agent of an employer for purposes of filing an Application for

Temporary Employment Certification, and may also act as the sole or joint employer of

H-2A workers.

Application for Temporary Employment Certification means the Office of

Management and Budget (OMB)-approved form submitted by an employer to secure a

temporary agricultural labor certification determination from DOL. A complete

submission of the Application for Temporary Employment Certification includes both the

form and the employer’s initial recruitment report.

Area of intended employment means the geographic area within normal commuting

distance of the place (worksite address) of the job opportunity for which the certification

is sought. There is no rigid measure of distance which constitutes a normal commuting

distance or normal commuting area, because there may be widely varying factual

circumstances among different areas (e.g., average commuting times, barriers to reaching

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the worksite, quality of the regional transportation network, etc.). If the place of intended

employment is within a Metropolitan Statistical Area (MSA), including a multistate

MSA, any place within the MSA is deemed to be within normal commuting distance of

the place of intended employment. The borders of MSAs are not controlling in the

identification of the normal commuting area; a location outside of an MSA may be within

normal commuting distance of a location that is inside (e.g., near the border of) the MSA.

Attorney means any person who is a member in good standing of the bar of the highest

court of any State, possession, territory, or commonwealth of the U.S., or the District of

Columbia, and who is not under suspension, debarment, expulsion, or disbarment from

practice before any court or the Department, the Board of Immigration Appeals, the

immigration judges, or DHS under 8 CFR 292.3 or 1003.101. Such a person is permitted

to act as an agent or attorney for an employer and/or foreign worker under this subpart.

Certifying Officer (CO) means the person designated by the Administrator, OFLC to

make determinations on applications filed under the H-2A program.

Chief Administrative Law Judge means the chief official of the DOL Office of

Administrative Law Judges or the Chief Administrative Law Judge's designee.

Date of need means the first date the employer requires the services of H-2A worker as

indicated in the employer’s Application for Temporary Employment Certification.

Department of Homeland Security (DHS) means the Federal agency having control

over certain immigration functions that, through its sub-agency, United States Citizenship

and Immigration Services (USCIS), makes the determination under the INA on whether

to grant visa petitions filed by employers seeking H-2A workers to perform temporary

agricultural work in the U.S.

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DOL or Department means the United States Department of Labor.

Eligible worker means an individual who is not an unauthorized alien (as defined in

sec. 274A(h)(3) of the INA, 8 U.S.C. 1324a(h)(3)) with respect to the employment in

which the worker is engaging.

Employee means employee as defined under the general common law of agency.

Some of the factors relevant to the determination of employee status include: the hiring

party's right to control the manner and means by which the work is accomplished; the

skill required to perform the work; the source of the instrumentalities and tools for

accomplishing the work; the location of the work; the hiring party's discretion over when

and how long to work; and whether the work is part of the regular business of the hiring

party. Other applicable factors may be considered and no one factor is dispositive.

Employer means a person, firm, corporation or other association or organization that:

(1) Has a place of business (physical location) in the U.S. and a means by which it

may be contacted for employment;

(2) Has an employer relationship with respect to H-2A employees or related U.S.

workers under this subpart; and

(3) Possesses, for purposes of filing an Application for Temporary Employment

Certification, a valid Federal Employer Identification Number (FEIN).

Employment Standards Administration (ESA) means the agency within DOL that

includes the Wage and Hour Division (WHD), and which is charged with carrying out

certain investigative and enforcement functions of the Secretary under the INA.

Employment Service (ES) refers to the system of Federal and State entities responsible

for administration of the labor certification process for temporary and seasonal

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agricultural employment of nonimmigrant foreign workers. This includes the SWAs and

the OFLC, including the NPCs.

Employment and Training Administration (ETA) means the agency within the DOL

that includes OFLC.

Federal holiday means a legal public holiday as defined at 5 U.S.C. 6103.

Fixed-site employer means any person engaged in agriculture who meets the definition

of an employer as those terms are defined in this subpart who owns or operates a farm,

ranch, processing establishment, cannery, gin, packing shed, nursery, or other similar

fixed-site location where agricultural activities are performed and who recruits, solicits,

hires, employs, houses, or transports any worker subject to sec. 218 of the INA or these

regulations as incident to or in conjunction with the owner’s or operator’s own

agricultural operation. For purposes of this subpart, person includes any individual,

partnership, association, corporation, cooperative, joint stock company, trust, or other

organization with legal rights and duties.

H-2A Labor Contractor (H-2ALC) means any person who meets the definition of

employer under this paragraph (c) of this section and is not a fixed-site employer, an

agricultural association, or an employee of a fixed-site employer or agricultural

association, as those terms are used in this part, who recruits, solicits, hires, employs,

furnishes, houses, or transports any worker subject to sec. 218 of the INA or these

regulations.

H-2A worker means any temporary foreign worker who is lawfully present in the U.S.

to perform agricultural labor or services of a temporary or seasonal nature pursuant to

sec. 101(a)(15)(H)(ii)(a) of the INA, as amended.

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INA means the Immigration and Nationality Act, as amended, 8 U.S.C. 1101 et seq.

Job offer means the offer made by an employer or potential employer of H-2A workers

to eligible workers describing all the material terms and conditions of employment,

including those relating to wages, working conditions, and other benefits.

Job opportunity means a job opening for temporary, full-time employment at a place in

the U.S. to which a U.S. worker can be referred.

Joint employment means that where two or more employers each have sufficient

definitional indicia of employment to be considered the employer of an employee, those

employers will be considered to jointly employ that employee. Each employer in a joint

employment relationship to an employee is considered a joint employer of that employee.

Occupational Safety and Health Administration (OSHA) means the organizational

component of the Department that assures the safety and health of America's workers by

setting and enforcing standards; providing training, outreach, and education; establishing

partnerships; and encouraging continual improvement in workplace safety and health

under the Occupational Safety and Health Act, as amended.

Office of Foreign Labor Certification (OFLC) means the organizational component of

the ETA that provides national leadership and policy guidance and develops regulations

and procedures to carry out the responsibilities of the Secretary under the INA

concerning the admission of foreign workers to the U.S. to perform work described in

sec. 101(a)(15)(H)(ii)(a) of the INA, as amended.

Positive recruitment means the active participation of an employer or its authorized

hiring agent in recruiting and interviewing qualified and eligible individuals in the area

where the employer's job opportunity is located and any other State designated by the

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Secretary as an area of traditional or expected labor supply with respect to the area where

the employer's job opportunity is located, in an effort to fill specific job openings with

U.S. workers.

Prevailing means, with respect to practices engaged in by employers and benefits other

than wages provided by employers, that:

(1) Fifty percent or more of employers in an area and for an occupation engage in the

practice or offer the benefit; but only if

(2) This 50 percent or more of employers also employs in aggregate 50 percent or

more of U.S. workers in the occupation and area (including H–2A and non-H–2A

employers for purposes of determinations concerning the provision of family housing,

frequency of wage payments, and workers supplying their own bedding, but non-H–2A

employers only for determinations concerning the provision of advance transportation).

Prevailing hourly wage means the hourly wage determined by the SWA to be

prevailing in the area in accordance with State-based wage surveys.

Prevailing piece rate means that amount that is typically paid to an agricultural worker

per piece (which includes, but is not limited to, a load, bin, pallet, bag, bushel, etc.), to be

determined by the SWA according to a methodology published by the Department. As is

currently the case, the unit of production will be required to be clearly described; e.g., a

field box of oranges (1-1/2 bushels), a bushel of potatoes, and Eastern apple box (1-1/2

metric bushels), a flat of strawberries (twelve quarts), etc.

Representative means a person or entity employed by, or duly authorized to act on

behalf of, the employer with respect to activities entered into for, and/or attestations made

with respect to, the Application for Temporary Employment Certification.

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Secretary means the Secretary of the United States Department of Labor, or the

Secretary's designee.

Secretary of Homeland Security means the chief official of the United States

Department of Homeland Security (DHS) or the Secretary of Homeland Security's

designee.

Secretary of State means the chief official of the United States Department of State

(DOS) or the Secretary of State's designee.

State Workforce Agency (SWA) means the State government agency that receives

funds pursuant to the Wagner-Peyser Act to administer the public labor exchange

delivered through the State's One-Stop delivery system in accordance with the Wagner-

Peyser Act at 29 U.S.C. 49 et seq. Separately, SWAs receive ETA grants, administered

by OFLC, to assist them in performing certain activities related to foreign labor

certification, including conducting housing inspections.

Strike means a labor dispute wherein employees engage in a concerted stoppage of

work (including stoppage by reason of the expiration of a collective-bargaining

agreement) or engage in any concerted slowdown or other concerted interruption of

operation. Whether a job opportunity is vacant by reason of a strike or lock out will be

determined by evaluating for each position identified as vacant in the Application for

Temporary Employment Certification whether the specific vacancy has been caused by

the strike or lock out.

Successor in interest means that, in determining whether an employer is a successor

in interest, the factors used under Title VII of the Civil Rights Act and the Vietnam Era

Veterans' Readjustment Assistance Act will be considered. When considering whether

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an employer is a successor for purposes of § 655.118, the primary consideration will be

the personal involvement of the firm’s ownership, management, supervisors, and others

associated with the firm in the violations resulting in a debarment recommendation.

Normally, wholly new management or ownership of the same business operation, one in

which the former management or owner does not retain a direct or indirect interest, will

not be deemed to be a successor in interest for purposes of debarment. A determination

of whether or not a successor in interest exists is based on the entire circumstances

viewed in their totality. The factors to be considered include:

(1) Substantial continuity of the same business operations;

(2) Use of the same facilities;

(3) Continuity of the work force;

(4) Similarity of jobs and working conditions;

(5) Similarity of supervisory personnel;

(6) Similarity in machinery, equipment, and production methods;

(7) Similarity of products and services; and

(8) The ability of the predecessor to provide relief.

Temporary agricultural labor certification means the certification made by the

Secretary with respect to an employer seeking to file with DHS a visa petition to employ

one or more foreign nationals as an H-2A worker, pursuant to secs. 101(a)(15)(H)(ii)(a),

214(a) and (c), and 218 of the INA that:

(1) There are not sufficient workers who are able, willing, and qualified, and who will

be available at the time and place needed, to perform the agricultural labor or services

involved in the petition, and

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(2) The employment of the foreign worker in such agricultural labor or services will

not adversely affect the wages and working conditions of workers in the U.S. similarly

employed (8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184 (a) and (c), and 1188).

United States (U.S.), when used in a geographic sense, means the continental United

States, Alaska, Hawaii, the Commonwealth of Puerto Rico, and the territories of Guam,

the Virgin Islands, and, as of the transition program effective date, as defined in the

Consolidated Natural Resources Act of 2008, Pub.L. 110-229, Title VII, the

Commonwealth of the Northern Mariana Islands.

United States Citizenship and Immigration Services (USCIS) means the Federal

agency making the determination under the INA whether to grant petitions filed by

employers seeking H-2A workers to perform temporary agricultural work in the U.S.

United States worker (U.S. worker) means a worker who is

(1) A citizen or national of the U.S., or

(2) An alien who is lawfully admitted for permanent residence in the U.S., is admitted

as a refugee under sec. 207 of the INA, is granted asylum under sec. 208 of the INA, or is

an immigrant otherwise authorized (by the INA or by DHS) to be employed in the U.S.

Wages means all forms of cash remuneration to a worker by an employer in payment

for personal services.

Within [number and type] days means, for purposes of determining an employer’s

compliance with the timing requirements for appeals and requests for review, a period

that begins 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

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employer sends whatever communication is required by these rules back to the

Department, as evidenced by a postal mark or other similar receipt.

Work contract means all the material terms and conditions of employment relating to

wages, hours, working conditions, and other benefits, required by the applicable

regulations in Subpart B of 20 CFR part 655, Labor Certification for Temporary

Agricultural Employment of H-2A Aliens in the U.S. (H-2A Workers), or these

regulations, including those terms and conditions attested to by the H-2A employer,

which contract between the employer and the worker may be in the form of a separate

written document. In the absence of a separate written work contract incorporating the

required terms and conditions of employment, agreed to by both the employer and the

worker, the work contract at a minimum shall be the terms of the job order, as provided

in 20 CFR part 653, Subpart F, and covered provisions of the work contract shall be

enforced in accordance with these regulations.

(d) Definition of agricultural labor or services of a temporary or seasonal nature. For

the purposes of this subpart means the following:

(1) Agricultural labor or services, pursuant to sec. 101(a)(15)(H)(ii)(a) of the INA at 8

U.S.C. 1101(a)(15)(H)(ii)(a), is defined as:

(i) Agricultural labor as defined and applied in sec. 3121(g) of the Internal Revenue

Code of 1954 at 26 U.S.C. 3121(g);

(ii) Agriculture as defined and applied in sec. 3(f) of the Fair Labor Standards Act of

1938 (FLSA) at 29 U.S.C. 203(f) Work performed by H-2A workers, or workers in

corresponding employment, that is not defined as agriculture in sec. 3(f) is subject to the

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provisions of the FLSA as provided therein, including the overtime provisions in sec.

7(a)(29 U.S.C. 207(a);

(iii) The pressing of apples for cider on a farm;

(iv) Logging employment; or

(v) 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 where no H-2B workers are employed to perform the same work

at the same establishment; or

(vi) 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 and activities 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.

(2) An occupation included in either of the statutory definitions cited in paragraphs

(d)(1)(i) and (ii) of this section is agricultural labor or services, notwithstanding the

exclusion of that occupation from the other statutory definition.

(i) Agricultural labor. For purposes of paragraph (d)(1)(i) of this section means all

services performed:

(A) On a farm, in the employ of any person, in connection with cultivating the soil, or

in connection with raising or harvesting any agricultural or horticultural commodity,

including the raising, shearing, feeding, caring for, training, and management of

livestock, bees, poultry, and furbearing animals and wildlife;

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(B) In the employ of the owner or tenant or other operator of a farm, in connection

with the operation or maintenance of such farm and its tools and equipment, or in

salvaging timber or clearing land of brush and other debris left by a hurricane, if the

major part of such service is performed on a farm;

agricultural commodity in sec. 15(g) of the Agricultural Marketing Act, as amended at 12

U.S.C. 1141j, or in connection with the ginning of cotton, or in connection with the

operation or maintenance of ditches, canals, reservoirs, or waterways, not owned or

operated for profit, used exclusively for supplying and storing water for farming

purposes;

(D) (1) In the employ of the operator of a farm in 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, but only if such operator produced more than one-half of the

commodity with respect to which such service is performed;

(2) In the employ of a group of operators of farms (other than a cooperative

organization) in the performance of service described in paragraph (d)(2)(i)(D)(1) of this

section, but only if such operators produced all of the commodity with respect to which

such service is performed. For purposes of this paragraph, any unincorporated group of

operators will be deemed a cooperative organization if the number of operators

comprising such group is more than 20 at any time during the calendar quarter in which

such service is performed;

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(3) The provisions of paragraphs (d)(2)(i) (D)(1) and (2) of this section do not apply to

services performed in connection with commercial canning or commercial freezing or in

connection with any agricultural or horticultural commodity after its delivery to a

terminal market for distribution for consumption; or

(4) On a farm operated for profit if such service is not in the course of the employer's

trade or business and is not domestic service in a private home of the employer.

(E) For purposes of (d)(2)(i) of this section, the term farm includes stock, dairy,

poultry, fruit, fur-bearing animal, and truck farms, plantations, ranches, nurseries, ranges,

greenhouses or other similar structures used primarily for the raising of agricultural or

horticultural commodities, and orchards. See sec. 3121(g) of the Internal Revenue Code

of 1986 at 26 U.S.C. 3121(g).

(ii) Agriculture. For purposes of paragraph (d)(1)(ii) of this section agriculture means

farming in all its branches and among other things includes the cultivation and tillage of

the soil, dairying, the production, cultivation, growing, and harvesting of any agricultural

or horticultural commodities (including commodities as defined as agricultural

commodities in 12 U.S.C. 1141j(g)), the raising of livestock, bees, fur-bearing animals,

or poultry, and any practices (including any forestry or lumbering operations) performed

by a farmer or on a farm as an incident to or in conjunction with such farming operations,

including preparation for market, delivery to storage or to market or to carriers for

transportation to market. See 29 U.S.C. 203(f), as amended.

(iii) Agricultural commodity. For purposes of paragraph (d)(2)(ii) of this section

agricultural commodity includes, in addition to other agricultural commodities, crude

gum (oleoresin) from a living tree, and gum spirits of turpentine and gum rosin as

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processed by the original producer of the crude gum (oleoresin) from which derived.

Gum spirits of turpentine means spirits of turpentine made from gum (oleoresin) from a

living tree and gum rosin means rosin remaining after the distillation of gum spirits of

turpentine. See 12 U.S.C. 1141j(g), sec. 15(g) of the Agricultural Marketing Act, as

amended, and 7 U.S.C. 92.

(3) Of a temporary or seasonal nature. (i) On a seasonal or other temporary basis.

For the purposes of this subpart, of a temporary or seasonal nature means on a seasonal or

other temporary basis, as defined in the WHD's regulation at 29 CFR 500.20 under the

Migrant and Seasonal Agricultural Worker Protection Act (MSPA).

(ii) MSPA definition. The definition of on a seasonal or other temporary basis found

in MSPA is summarized as follows:

(A) Labor is performed on a seasonal basis where, ordinarily, the employment pertains

to or is of the kind exclusively performed at certain seasons or periods of the year and

which, from its nature, may not be continuous or carried on throughout the year. A

worker who moves from one seasonal activity to another, while employed in agriculture

or performing agricultural labor, is employed on a seasonal basis even though the worker

may continue to be employed during a major portion of the year.

(B) A worker is employed on other temporary basis where he or she is employed for a

limited time only or the worker’s performance is contemplated for a particular piece of

work, usually of short duration. Generally, employment which is contemplated to

continue indefinitely is not temporary.

foreman or other supervisory employee who is employed by a specific agricultural

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employer or agricultural association essentially on a year round basis; or (ii) the

employment of any worker who is living at his or her permanent place of residence, when

that worker is employed by a specific agricultural employer or agricultural association on

essentially a year round basis to perform a variety of tasks for his or her employer and is

not primarily employed to do field work.

(iii) Temporary. For the purposes of this subpart, the definition of “temporary” in

paragraph (d)(3) of this section refers to any job opportunity covered by this subpart

where the employer needs a worker for a position for a limited period of time, including,

but not limited to, a peakload need, which is generally less than 1 year, unless the original

temporary agricultural labor certification is extended pursuant to § 655.110.

§ 655.101 Applications for temporary employment certification in agriculture.

(a) Application Filing Requirements. (1) An employer that desires to apply for

temporary employment certification of one or more nonimmigrant foreign workers must

file a completed DOL Application for Temporary Employment Certification form and,

unless a specific exemption applies, the initial recruitment report. If an association of

agricultural producers files the application, the association must identify whether it is the

sole employer, a joint employer with its employer-member employers, or the agent of its

employer-members. The association must retain documentation substantiating the

employer or agency status of the association and be prepared to submit such

documentation to the CO in the event of an audit.

(2) If an H-2ALC intends to file an application, the H-2ALC must meet all of the

requirements of the definition of employer in § 655.100(b), and comply with all the

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assurances, guarantees, and other requirements contained in this part and in part 653,

subpart F, of this chapter. The H-2ALC must have a place of business (physical location)

in the U.S. and a means by which it may be contacted for employment. H-2A workers

employed by an H-2ALC may not perform services for a fixed-site employer unless the

H-2ALC is itself providing the housing and transportation required by § 655.104(d) and

655.104(h), or has filed a statement confirming that the fixed-site employer will provide

compliant housing and/or transportation, as required by § 655.106, with the OFLC, for

each fixed-site employer listed on the application. The H-2ALC must retain a copy of the

statement of compliance required by § 655.106(b)(6).

(3) An association of agricultural producers may submit a master application covering

a variety of job opportunities available with a number of employers in multiple areas of

intended employment, just as though all of the covered employers were in fact a single

employer, as long as a single date of need is provided for all workers requested by the

application and the combination of job opportunities is supported by an explanation

demonstrating a business reason for the combination. The association must identify on

the Application for Temporary Employment Certification, by name and address, each

employer that will employ H-2A workers. If the association is acting solely as an agent,

each employer will receive a separate labor certification.

(b) Filing. The employer may send the Application for Temporary Employment

Certification and all supporting documentation by U.S. Mail or private mail courier to the

NPC. The Department will publish a Notice in the Federal Register identifying the

address(es), and any future address changes, to which applications must be mailed, and

will also post these addresses on the DOL Internet Web site at

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http://www.foreignlaborcert.doleta.gov/. The form must bear the original signature of the

employer (and that of the employer's authorized attorney or agent if the employer is

represented by an attorney or agent). An association filing a master application as a joint

employer may sign on behalf of its employer members. The Department may also

require applications to be filed electronically in addition to or instead of by mail.

must be filed no less than 45 calendar days before date of need.

(d) Emergency situations. (1) Waiver of time period and required pre-filing activity.

The CO may waive the time period for filing and pre-filing wage and recruitment

requirements set forth in § 655.102, along with their associated attestations, for

employers who did not make use of temporary alien agricultural workers during the prior

year's agricultural season or for any employer that has other good and substantial cause

(which may include unforeseen changes in market conditions), provided that the CO can

timely make the determinations required by § 655.109(b).

(2) Employer requirements. The employer requesting a waiver of the required time

period and pre-filing wage and recruitment requirements must submit to the NPC a

completed Application for Temporary Employment Certification, a completed job offer

on the ETA Form 790 Agricultural and Food Processing Clearance Order, and a

statement justifying the request for a waiver of the time period requirement. The

statement must indicate whether the waiver request is due to the fact that the employer

did not use H-2A workers during the prior agricultural season or whether the request is

for other good and substantial cause. If the waiver is requested for good and substantial

cause, the employer’s statement must also include detailed information describing the

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good and substantial cause which has necessitated the waiver request. Good and

substantial cause may include, but is not limited to, such things as the substantial loss of

U.S. workers due to weather-related activities or other reasons, unforeseen events

affecting the work activities to be performed, pandemic health issues, or similar

conditions.

(3) Processing of Applications. The CO shall promptly transmit the job order, on

behalf of the employer, to the SWA serving the area of intended employment and request

an expedited review of the job order in accordance with § 655.102(e) and an inspection of

housing in accordance with § 655.104(d)(6)(iii). The CO shall process the application

and job order in accordance with § 655.107, issue a wage determination in accordance

with § 655.108 and, upon acceptance, require the employer to engage in positive

recruitment consistent with § 655.102(d)(2), (3), and (4). The CO shall require the SWA

to transmit the job order for interstate clearance consistent with § 655.102(f). The CO

shall specify a date on which the employer will be required to submit a recruitment report

in accordance with § 655.102(k). The CO will make a determination on the application

in accordance with § 655.109.

§ 655.102 Required pre-filing activity.

(a) Time of filing of application. An employer may not file an Application for

Temporary Employment Certification before all of the pre-filing recruitment steps set

forth in this section have been fully satisfied, except where specifically exempted from

some or all of those requirements by these regulations. Modifications to these

requirements for H-2ALCs are set forth in § 655.106.

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(b) General Attestation Obligation. An employer must attest on the Application for

Temporary Employment Certification that it will comply with all of the assurances and

obligations of this subpart and to performing all necessary steps of the recruitment

process as specified in this section.

Employment Certification must maintain documentation of its advertising and

recruitment efforts as required in this subpart and be prepared to submit this

documentation in response to a Notice of Deficiency from the CO prior to the CO

rendering a Final Determination, or in the event of an audit. The documentation required

in this subpart must be retained for a period of no less than 3 years from the date of the

certification. There is no record retention requirement for any application (and

supporting documentation) after the Secretary has made a final decision to deny the

application.

(d) Positive recruitment steps. An employer filing an application must:

(1) Submit a job order to the SWA serving the area of intended employment;

(2) Run two print advertisements (one of which must be on a Sunday, except as

provided in paragraph (g) of this section);

(3) Contact former U.S. employees who were employed within the last year as

described in paragraph (h) of this section; and

(4) Based on an annual determination made by the Secretary, as described in

paragraph (i) of this section, recruit in all States currently designated as a State of

traditional or expected labor supply with respect to each area of intended employment in

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which the employer's work is to be performed as required in paragraph (i)(2) of this

section.

(e) Job order. (1) The employer must submit a job order to the SWA serving the area

of intended employment no more than 75 calendar days and no fewer than 60 calendar

days before the date of need for intrastate and interstate clearance, identifying it as a job

order to be placed in connection with a future application for H-2A workers. If the job

opportunity is located in more than one State, the employer may submit a job order to any

one of the SWAs having jurisdiction over the anticipated worksites. Where 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 association on behalf of all employers that

will be duly named on the Application for Temporary Employment Certification.

Documentation of this step by the applicant is satisfied by maintaining proof of posting

from the SWA identifying the job order number(s) with the start and end dates of the

posting of the job order.

(2) The job order submitted to the SWA must satisfy all the requirements for

newspaper advertisements contained in § 655.103 and comply with the requirements for

agricultural clearance orders in 20 CFR part 653 Subpart F and the requirements set forth

in § 655.104.

(3) The SWA will review the contents of the job order as provided in 20 CFR part 653

Subpart F and will work with the employer to address any deficiencies, except that the

order may be placed prior to completion of the housing inspection required by 20 CFR

653.501(d)(6) where necessary to meet the timeframes required by statute and regulation.

However, the SWA must ensure that housing within its jurisdiction is inspected as

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expeditiously as possible thereafter. Any issue with regard to whether a job order may

properly be placed in the job service system that cannot be resolved with the applicable

SWA may be brought to the attention of the NPC, which may direct that the job order be

placed in the system where the NPC determines that the applicable program requirements

have been met. If the NPC concludes that the job order is not acceptable, it shall so

inform the employer using the procedures applicable to a denial of certification set forth

in § 655.109(e).

(f) Intrastate/Interstate recruitment. (1) Upon receipt and acceptance of the job order,

the SWA must promptly place the job order in intrastate clearance on its active file and

begin recruitment of eligible U.S. workers. The SWA receiving the job order under

paragraph (e) of this section 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. The SWA

must also transmit a copy of all active job orders to no fewer than three States, which

must include those States, if any, designated by the Secretary as traditional or expected

labor supply States (“out-of-State recruitment States”) for the area of intended

employment in which the employer's work is to be performed as defined in paragraph (i)

of this section.

(2) Unless otherwise directed by the CO, the SWA must keep the job order open for

interstate clearance until the end of the recruitment period, as set forth in § 655.102(f)(3).

Each of the SWAs to which the job order was referred must keep the job order open for

that same period of time and must refer each eligible U.S. worker who applies (or on

whose behalf an application is made) for the job opportunity.

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(3) (i) For the first 5 years after the effective date of this rule, the recruitment period

shall end 30 days after the first date the employer requires the services of the H-2A

workers, or on the last day the employer requires the services of H-2A workers in the

applicable area of intended employment, whichever is sooner (the 30-day rule). During

that 5-year period, the Department will endeavor to study the costs and benefits of

providing for continuing recruitment of U.S. workers after the H-2A workers have

already entered the country. Unless prior to the expiration of the 5-year period the

Department conducts a study and publishes a notice determining that the economic

benefits of such extended recruitment period outweigh its costs, the recruitment period

will, after the expiration of the 5-year period, end on the first date the employer requires

the services of the H-2A worker.

(ii) Withholding of U.S. workers prohibited. The provisions of this paragraph shall

apply so as long as the 30-day rule is in place.

(A) Complaints. Any employer who has reason to believe that a person or entity has

willfully and knowingly withheld U.S. workers prior to the arrival at the job site of H–2A

workers in order to force the hiring of U.S. workers during the 30-day rule under

paragraph (f)(3)(i) of this section may submit a written complaint to the CO. The

complaint must clearly identify the person or entity who the employer believes has

withheld the U.S. workers, and must specify sufficient facts to support the allegation

(e.g., dates, places, numbers and names of U.S. workers) which will permit an

investigation to be conducted by the CO.

(B) Investigations. The CO must immediately investigate the complaint. The

investigation must include interviews with the employer who has submitted the

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complaint, the person or entity named as responsible for withholding the U.S. workers,

and the individual U.S. workers whose availability has purportedly been withheld.

required by this paragraph, that the employer's complaint is valid and justified, the CO

shall immediately suspend the application of the 30-day rule under paragraph (f)(3)(i) of

this section to the employer. The CO's determination shall be the final decision of the

Secretary.

(g) Newspaper advertisements. (1) During the period of time that the job order is

being circulated by the SWA(s) for interstate clearance under paragraph (f) of this

section, the employer must place an advertisement on 2 separate days, which may be

consecutive, one of which must be a Sunday (except as provided in paragraph (g)(2) of

this section), in a 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. Both newspaper advertisements must

be published only after the job order is accepted by the SWA for intrastate/interstate

clearance.

(2) If the job opportunity is located in a rural area that does not have a newspaper with

a Sunday edition, the employer must, in place of a Sunday edition, advertise in the

regularly published daily edition with the widest circulation in the area of intended

employment.

(3) The newspaper advertisements must satisfy the requirements of §§ 655.103 and

655.104. The employer must maintain copies of newspaper pages (with date of

publication and full copy of ad), or tear sheets of the pages of the publication in which the

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advertisements appeared, or other proof of publication containing the text of the printed

advertisements and the dates of publication furnished by the newspaper.

(4) If a professional, trade or ethnic publication is more appropriate for the occupation

and the workers likely to apply for the job opportunity than a general circulation

newspaper, and is the most likely source to bring responses from able, willing, qualified,

and available U.S. workers, the employer may use a professional, trade or ethnic

publication in place of one of the newspaper advertisements, but may not replace the

Sunday advertisement (or the substitute required by paragraph (g)(2) of this section).

(h) Contact with former U.S. employees. The employer must contact by mail or other

effective means its former U.S. employees (except those who were dismissed for cause,

abandoned the worksite, or were provided documentation at the end of their previous

period of employment explaining the lawful, job-related reasons they would not be re-

contacted) employed by the employer in the occupation at the place of employment

during the previous year and solicit their return to the job. The employer must maintain

copies of correspondence signed and dated by the employer or, if other means are used,

maintain dated logs demonstrating that each worker was contacted, including the phone

number, e-mail address, or other means that was used to make contact. The employer

must list in the recruitment report any workers who did not return to the employ of the

employer because they were either unable or unwilling to return to the job or did not

respond to the employer's request, and must retain documentation, if provided by the

worker, showing evidence of their inability, unwillingness, or non-responsiveness.

(i) Additional positive recruitment. (1) Each year, the Secretary will make a

determination with respect to each State whether there are other States (“traditional or

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expected labor supply States”) in which there are a significant number of able and

qualified workers who, if recruited, would be willing to make themselves available for

work in that State, as well as which newspapers in each traditional or expected labor

supply State that the employer may use to fulfill its obligation to run a newspaper

advertisement in that State. Such determination must be based on information provided

by State agencies or by other sources within the 120 days preceding the determination

(which will be solicited by notice in the Federal Register), and will to the extent

information is available take into account the success of recent efforts by out-of-State

employers to recruit in that State. The Secretary will not designate a State as a traditional

or expected labor supply State if the State has a significant number of employers that are

recruiting for U.S. workers for the same types of occupations and comparable work. The

Secretary's annual determination as to traditional or expected labor supply States, if any,

from which applicants from each State must recruit will be published in the Federal

(2) Each employer must engage in positive recruitment in those States designated in

accordance with paragraph (i)(1) with respect to the State in which the employer’s work

is to be performed. Such recruitment will consist of one newspaper advertisement in

each State in one of the newspapers designated by the Secretary, published within the

same period of time as the newspaper advertisements required under paragraph (g) of this

section. An 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. The advertisement must refer

applicants to the SWA nearest the area in which the advertisement was placed.

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(j) Referrals of U.S. workers. SWAs may only refer for employment individuals for

whom they have verified identity and employment authorization through the process for

employment verification of all workers that is established by INA sec. 274A(b). SWAs

must provide documentation certifying the employment verification that satisfies the

standards of INA sec. 274A(a)(5) and its implementing regulations at 8 CFR 274a.6.

(k) Recruitment report. (1) No more than 50 days before the date of need the

employer must prepare, sign, and date a written recruitment report. The recruitment

report must be submitted with the Application for Temporary Employment Certification.

The recruitment report must:

(i) List the original number of openings for which the employer recruited;

(ii) Identify each recruitment source by name;

(iii) State the name and contact information of each U.S. worker who applied or was

referred to the job opportunity up to the date of the preparation of the recruitment report,

and the disposition of each worker;

(iv) Confirm that former employees were contacted and by what means; and

(v) If applicable, explain the lawful job-related reason(s) for not hiring any U.S.

workers who applied for the position.

(2) The employer must update the recruitment report within 48 hours of the date that is

the end of the recruitment period as specified in § 655.102(f)(3). This supplement to the

recruitment report must meet the requirements of paragraph (k)(1) of this section. The

employer must sign and date this supplement to the recruitment report and retain it for a

period of no less than 3 years. The supplement to the recruitment report must be

provided in the event of an audit.

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(3) The employer must retain resumes (if provided) of, and evidence of contact with

(which may be in the form of an attestation), each U.S. worker who applied or was

referred to the job opportunity. Such resumes and evidence of contact must be retained

along with the recruitment report and the supplemental recruitment report for a period of

no less than 3 years, and must be provided in response to a Notice of Deficiency or in the

event of an audit.

§ 655.103 Advertising requirements.

All advertising conducted to satisfy the required recruitment steps under § 655.102

before filing the Application for Temporary Employment Certification must meet the

requirements set forth in this section and at § 655.104 and must contain terms and

conditions of employment which are not less favorable than those that will be offered to

the H-2A workers. All advertising must contain the following information:

(a) The employer's name and location(s) of work, or in the event that a master

application will be filed by an association, a statement indicating that the name and

location of each member of the association can be obtained from the SWA of the State in

which the advertisement is run;

(b) The geographic area(s) of employment with enough specificity to apprise

applicants of any travel requirements and where applicants will likely have to reside to

perform the services or labor;

sufficient information to apprise U.S. workers of services or labor to be performed and

the anticipated period of employment of the job opportunity;

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(d) The wage offer, or in the event that there are multiple wage offers (such as where a

master application will be filed by an association and/or where there are multiple crop

activities for a single employer), the range of applicable wage offers and, where a master

application will be filed by an association, a statement indicating that the rate(s)

applicable to each employer can be obtained from the SWA;

(e) The three-fourths guarantee specified in § 655.104(i);

(f) If applicable, a statement that work tools, supplies, and equipment will be provided

at no cost to the worker;

(g) A statement that housing will be made available at no cost to workers, including

U.S. workers, who cannot reasonably return to their permanent residence at the end of

each working day;

(h) If applicable, a statement that transportation and subsistence expenses to the

worksite will be provided by the employer;

(i) A statement that the position is temporary and a specification of the total number of

job openings the employer intends to fill;

(j) A statement directing applicants to report or send resumes to the SWA of the State

in which the advertisement is run for referral to the employer;

(k) Contact information for the applicable SWA and the job order number.

§ 655.104 Contents of job offers.

(a) Preferential treatment of aliens prohibited. The employer's job offer must offer to

U.S. workers 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. Except where

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otherwise permitted under this section, no job offer may impose on U.S. workers any

restrictions or obligations that will not be imposed on the employer's H-2A workers.

(b) Job qualifications. Each 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.

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.

(d) Housing. (1) Obligation to provide housing. The employer must provide housing

at no cost to the worker, except for those U.S. workers who are reasonably able to return

to their permanent residence at the end of the work day. Housing must be provided

through one of the following means:

(i) Employer-provided housing. Employer-provided housing that meets the full set of

DOL OSHA standards set forth at 29 CFR 1910.142, or the full set of standards at §§

654.404 through 654.417 of this chapter, whichever are applicable under § 654.401; or

(ii) Rental and/or public accommodations. Rental or public accommodations or other

substantially similar class of habitation that meets applicable local standards for such

housing. In the absence of applicable local standards, State standards will apply. In the

absence of applicable local or State standards, DOL OSHA standards at 29 CFR

1910.142 will apply. Any charges for rental housing must be paid directly by the

employer to the owner or operator of the housing. The employer must document that the

housing complies with the local, State, or Federal housing standards. Such

documentation may include but is not limited to a certificate from a State Department of

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Health or other State or local agency or a statement from the manager or owner of the

housing.

(2) Standards for range housing. Housing for workers principally engaged in the

range production of livestock shall meet standards of DOL OSHA for such housing. In

the absence of such standards, range housing for sheepherders and other workers engaged

in the range production of livestock must meet guidelines issued by ETA.

(3) Deposit charges. Charges in the form of deposits for bedding or other similar

incidentals related to housing must not be levied upon workers. However, employers

may require workers to reimburse them for damage caused to housing, bedding, or other

property by the individual workers found to have been responsible for damage which is

not the result of normal wear and tear related to habitation.

(4) Charges for public housing. If public housing provided for migrant agricultural

workers under the auspices of a local, county, or State government is secured by the

employer, the employer must pay any charges normally required for use of the public

housing units (but need not pay for optional, extra services) directly to the housing's

management.

(5) Family housing. When it is the prevailing practice in the area of intended

employment and the occupation to provide family housing, family housing must be

provided to workers with families who request it.

(6) Housing inspection. In order to ensure that the housing provided by an employer

under this section meets the relevant standard:

(i) An employer must make the required attestation, which may include an attestation

that the employer is complying with the procedures set forth in § 654.403, at the time of

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filing the Application for Temporary Employment Certification pursuant to §

655.105(e)(2).

(ii) The employer must make a request to the SWA for a housing inspection no less

than 60 days before the date of need, except where otherwise provided under this part.

(iii) The 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 INA sec. 218(c)(3)(A),

which is 30 days before the employer’s date of need. SWAs must not adopt rules or

restrictions on housing inspections that unreasonably prevent inspections from being

completed in the required time frame, such as rules that no inspections will be conducted

where the housing is already occupied or is not yet leased. If the employer has attested to

and met all other criteria for certification, and the employer has made a timely request for

a housing inspection under this paragraph, and the SWA has failed to complete a housing

inspection by the statutory deadline of 30 days prior to date of need, the certification will

not be withheld on account of the SWA’s failure to meet the statutory deadline. The

SWA must in such cases inspect the housing prior to or during occupation to ensure it

meets applicable housing standards. If, upon inspection, the SWA determines the

supplied housing does not meet the applicable housing standards, the SWA must

promptly provide written notification to the employer and the CO. The CO will take

appropriate action, including notice to the employer to cure deficiencies. An employer’s

failure to cure substantial violations can result in revocation of the temporary labor

certification.

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(7) Certified housing that becomes unavailable. If after a request to certify housing

(but before certification), or after certification of housing, such housing becomes

unavailable for reasons outside the employer's control, the employer may substitute other

rental or public accommodation housing that is in compliance with the local, State, or

Federal housing standards applicable under paragraph (d)(1)(ii) of this section and for

which the employer is able to submit evidence of such compliance. The employer must

notify the SWA in writing of the change in accommodations and the reason(s) for such

change and provide the SWA evidence of compliance with the applicable local, State or

Federal safety and health standards, in accordance with the requirements of paragraph

(d)(1)(ii) of this section. The SWA must notify the CO of all housing changes and of any

noncompliance with the standards set forth in paragraph (d)(1)(ii) of this section.

Substantial noncompliance can result in revocation of the temporary labor certification

under § 655.117.

(e) Workers’ compensation. The employer must provide workers’ compensation

insurance coverage in compliance with State law covering injury and disease arising out

of and in the course of the worker’s employment. If the type of employment for which

the certification is sought is not covered by or is exempt from the State’s workers’

compensation law, the employer must provide, at no cost to the worker, insurance

covering injury and disease arising out of and in the course of the worker’s employment

that will provide benefits at least equal to those provided under the State workers’

compensation law for other comparable employment. The employer must retain for 3

years from the date of certification of the application, the name of the insurance carrier,

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the insurance policy number, and proof of insurance for the dates of need, or, if

appropriate, proof of State law coverage.

(f) Employer-provided items. Except as provided in this paragraph, the employer

must provide to the worker, without charge or deposit charge, all tools, supplies, and

equipment required to perform the duties assigned. The employer may charge the worker

for reasonable costs related to the worker's refusal or negligent failure to return any

property furnished by the employer or due to such worker's willful damage or destruction

of such property. Where it is a common practice in the particular area, crop activity and

occupation for workers to provide tools and equipment, with or without the employer

reimbursing the workers for the cost of providing them, such an arrangement will be

permitted, provided that the requirements of sec. 3(m) of the FLSA at 29 U.S.C. 203(m)

are met. Section 3(m) 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) Meals. The employer either must provide each worker with three meals a day or

must furnish free and convenient cooking and kitchen facilities to the workers that will

enable the workers to prepare their own meals. Where the employer provides the meals,

the job offer must state the charge, if any, to the worker for such meals. The amount of

meal charges is governed by § 655.114.

(h) Transportation; daily subsistence. (1) Transportation to place of employment. If

the employer has not previously advanced such transportation and subsistence costs to the

worker or otherwise provided such transportation or subsistence directly to the worker by

other means and if the worker completes 50 percent of the work contract period, the

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employer must pay the worker for reasonable costs incurred by the worker for

transportation and daily subsistence from the place from which the worker has departed

to the employer’s place of employment. For an H-2A worker coming from outside of the

U.S., the place from which the worker has departed is the place of recruitment, which the

Department interprets to mean the appropriate U.S. consulate or port of entry. When it is

the prevailing practice of non-H-2A agricultural employers in the occupation in the area

to do so, or when the employer extends such benefits to similarly situated H-2A workers,

the employer must advance the required transportation and subsistence costs (or

otherwise provide them) to U.S. workers. The amount of the transportation payment

must be no less (and is not required to be more) than the most economical and reasonable

common carrier transportation charges for the distances involved. The amount of the

daily subsistence payment must be at least as much as the employer would charge the

worker for providing the worker with three meals a day during employment (if

applicable), but in no event less than the amount permitted under paragraph (g) of this

section.

(2) Transportation from last place of employment to home country. If the worker

completes the work contract period, and the worker has no immediately subsequent H-2A

employment, the employer must provide or pay for the worker's transportation and daily

subsistence from the place of employment to the place from which the worker,

disregarding intervening employment, departed to work for the employer. For an H-2A

worker coming from outside of the U.S., the place from which the worker has departed

will be considered to be the appropriate U.S. consulate or port of entry.

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(3) Transportation between living quarters and worksite. The employer must provide

transportation between the worker's living quarters (i.e., housing provided or secured by

the employer pursuant to paragraph (d) of this section) and the employer's worksite at no

cost to the worker, and such transportation must comply with all applicable Federal, State

or local laws and regulations, and must provide, at a minimum, the same vehicle safety

standards, driver licensure, and vehicle insurance as required under 29 U.S.C. 1841 and

29 CFR part 500, subpart D. If workers' compensation is used to cover such

transportation, in lieu of vehicle insurance, the employer must either ensure that the

workers' compensation covers all travel or that vehicle insurance exists to provide

coverage for travel not covered by workers' compensation.

(i) Three-fourths guarantee. (1) Offer to worker. The employer must guarantee to

offer the worker employment for a total number of work hours equal to at least three-

fourths of the workdays of the total period beginning with the first workday after the

arrival of the worker at the place of employment or the advertised contractual first date of

need, whichever is later, and ending on the expiration date specified in the work contract

or in its extensions, if any. For purposes of this paragraph a workday means the number

of hours in a workday as stated in the job order and excludes the worker's Sabbath and

Federal holidays. The employer must offer a total number of hours to ensure the

provision of sufficient work to reach the three-fourths guarantee. The work hours must

be offered during the work period specified in the work contract, or during any modified

work contract period to which the worker and employer have mutually agreed and has

been approved by the CO. The work contract period can be shortened by agreement of

the parties only with the approval of the CO. In the event the worker begins working

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later than the specified beginning date of the contract, the guarantee period begins with

the first workday after the arrival of the worker at the place of employment, and

continues until the last day during which the work contract and all extensions thereof are

in effect. Therefore, if, for example, a work contract is for a 10-week period, during

which a normal workweek is specified as 6 days a week, 8 hours per day, the worker

would have to be guaranteed employment for at least 360 hours (e.g., 10 weeks x 48

hours/week = 480-hours x 75 percent = 360). If a Federal holiday occurred during the

10-week span, the 8 hours would be deducted from the total guaranteed. A worker may

be offered more than the specified hours of work on a single workday. For purposes of

meeting the guarantee, however, the worker will not be required to work for more than

the number of hours specified in the job order for a workday, or on the worker's Sabbath

or Federal holidays. However, all hours of work actually performed may be counted by

the employer in calculating whether the period of guaranteed employment has been met.

If the employer affords the U.S. or H-2A worker during the total work contract period

less employment than that required under this paragraph, the employer must pay such

worker the amount the worker would have earned had the worker, in fact, worked for the

guaranteed number of days.

(2) Guarantee for piece rate paid worker. If the worker will be paid on a piece rate

basis, the employer must use the worker's average hourly piece rate earnings or the

AEWR, whichever is higher, to calculate the amount due under the guarantee.

(3) Failure to work. Any hours the worker fails to work, up to a maximum of the

number of hours specified in the job order for a workday, when the worker has been

offered an opportunity to do so in accordance with paragraph (i)(1) of this section, and all

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hours of work actually performed (including voluntary work over 8 hours in a workday or

on the worker’s Sabbath or Federal holidays), may be counted by the employer in

calculating whether the period of guaranteed employment has been met. An employer

seeking to calculate whether the number of hours has been met must maintain the payroll

records in accordance with paragraph (j)(2) of this section.

(4) Displaced H-2A worker. The employer is not liable for payment under paragraph

(i)(1) of this section to an H-2A worker whom the CO certifies is displaced because of

the employer’s compliance with §655.105(d) with respect to referrals made after the

employer’s date of need. The employer is, however, liable for return transportation for

any such displaced worker in accordance with paragraph (h)(2) of this section.

(5) Obligation to provide housing and meals. Notwithstanding the three-fourths

guarantee contained in this section, employers are obligated to provide housing and

subsistence for each day of the contract period up until the day the workers depart for

other H-2A employment, depart to the place outside of the U.S. from which the worker

came, or, if the worker voluntarily abandons employment or is terminated for cause, the

day of such abandonment or termination.

(j) Earnings records. (1) The employer must keep accurate and adequate records with

respect to the workers' earnings, including but not limited to field tally records,

supporting summary payroll records, and records showing the nature and amount of the

work performed; the number of hours of work offered each day by the employer (broken

out by hours offered both in accordance with and over and above the three-fourths

guarantee at paragraph (i)(3) of this section); the hours actually worked each day by the

worker; the time the worker began and ended each workday; the rate of pay (both piece

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rate and hourly, if applicable); the worker's earnings per pay period; the worker's home

address; and the amount of and reasons for any and all deductions taken from the

worker's wages.

(2) Each employer must keep the records required by this part, including field tally

records and supporting summary payroll records, safe and accessible at the place or

places of employment, or at one or more established central recordkeeping offices where

such records are customarily maintained. All records must be available for inspection

and transcription by the Secretary or a duly authorized and designated representative, and

by the worker and representatives designated by the worker as evidenced by appropriate

documentation (an Entry of Appearance as Attorney or Representative, Form G-28,

signed by the worker, or an affidavit signed by the worker confirming such

representation). Where the records are maintained at a central recordkeeping office, other

than in the place or places of employment, such records must be made available for

inspection and copying within 72 hours following notice from the Secretary, or a duly

authorized and designated representative, and by the worker and designated

representatives as described in this paragraph.

(3) To assist in determining whether the three-fourths guarantee in paragraph (i) of

this section has been met, if the number of hours worked by the worker on a day during

the work contract period is less than the number of hours offered, as specified in the job

offer, the records must state the reason or reasons therefore.

(4) The employer must retain the records for not less than 3 years after the completion

of the work contract.

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(k) Hours and earnings statements. The employer must furnish to the worker on or

before each payday in one or more written statements the following information:

(1) The worker's total earnings for the pay period;

(2) The worker's hourly rate and/or piece rate of pay;

(3) The hours of employment offered to the worker (broken out by offers in

accordance with, and over and above, the guarantee);

(4) The hours actually worked by the worker;

(5) An itemization of all deductions made from the worker's wages;

and

(6) If piece rates are used, the units produced daily.

(l) Rates of pay. (1) If the worker is paid by the hour, the employer must pay the

worker at least the AEWR in effect at the time recruitment for the position was begun,

the prevailing hourly wage rate, the prevailing piece rate, or the Federal or State

minimum wage rate, whichever is highest, for every hour or portion thereof worked

during a pay period; or

(2)(i) If the worker is paid on a piece rate basis and the piece rate does not result at the

end of the pay period in average hourly piece rate earnings during the pay period at least

equal to the amount the worker would have earned had the worker been paid at the

appropriate hourly rate, the worker's pay must be supplemented at that time so that the

worker's earnings are at least as much as the worker would have earned during the pay

period if the worker had instead been paid at the appropriate hourly wage rate for each

hour worked;

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(ii) The piece rate must be no less than the piece rate prevailing for the activity in the

area of intended employment; and

(iii) If the employer who pays by the piece rate requires one or more minimum

productivity standards of workers as a condition of job retention, such standards must be

specified in the job offer and must be normal, meaning that they may not be unusual for

workers performing the same activity in the area of intended employment.

(m) Frequency of pay. The employer must state in the job offer the frequency with

which the worker will be paid, which must be at least twice monthly.

(n) Abandonment of employment or termination for cause. If the worker voluntarily

abandons employment before the end of the contract period, fails to report for

employment at the beginning of the contract period, or is terminated for cause, and the

employer notifies the Department and DHS in writing or by any other method specified

by the Department or DHS in a manner specified in a notice published in the Federal

the employer will not be responsible for providing or paying for the subsequent

transportation and subsistence expenses of that worker under paragraph (h) of this

section, and that worker is not entitled to the three-fourths guarantee described in

paragraph (i) of this section. An abandonment or abscondment shall be deemed to begin

after a worker fails to report for work at the regularly scheduled time for 5 consecutive

working days without the consent of the employer. Employees may be terminated for

cause, however, for shorter unexcused periods of time that shall not be considered

abandonment or abscondment.

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(o) Contract impossibility. If, before the expiration date specified in the work

contract, the services of the worker are no longer required for reasons beyond the control

of the employer due to fire, weather, or other Act of God that makes the fulfillment of the

contract impossible, the employer may terminate the work contract. Whether such an

event constitutes a contract impossibility will be determined by the CO. In the event of

such termination of a contract, the employer must fulfill a three-fourths guarantee for the

time that has elapsed from the start of the work contract to the time of its termination as

described in paragraph (i)(1) of this section. The employer must:

(1) Return the worker, at the employer's expense, 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), whichever the worker prefers. 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;

(2) Reimburse the worker the full amount of any deductions made from the worker’s

pay by the employer for transportation and subsistence expenses to the place of

employment; and

(3) Pay the worker for any costs incurred by the worker for transportation and daily

subsistence to that employer’s place of employment. Daily subsistence will be computed

as set forth in paragraph (h) of this section. The amount of the transportation payment

will be no less (and is not required to be more) than the most economical and reasonable

common carrier transportation charges for the distances involved.

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(p) Deductions. The employer must make all deductions from the worker's paycheck

that are required by law. The job offer must specify all deductions not required by law

which the employer will make from the worker's paycheck. All deductions must be

reasonable. However, an employer subject to the FLSA may not make deductions that

would violate the FLSA.

(q) Copy of work contract. The employer must provide to the worker, no later than on

the day the work commences, a copy of the work contract between the employer and the

worker. The work contract must contain all of the provisions required by paragraphs (a)

through (p) of this section. In the absence of a separate, written work contract entered

into between the employer and the worker, the job order, as provided in 20 CFR part 653,

Subpart F, will be the work contract.

§ 655.105 Assurances and obligations of H-2A employers.

An employer seeking to employ H-2A workers must attest as part of the Application

for Temporary Employment Certification that it will abide by the following conditions of

this subpart:

(a) The job opportunity is and will continue through the recruitment period to be open

to any qualified U.S. worker regardless of race, color, national origin, age, sex, religion,

handicap, or citizenship, and the employer has conducted and will continue to conduct

the required recruitment, in accordance with regulations, and has been unsuccessful in

locating sufficient numbers of qualified U.S. applicants for the job opportunity for which

certification is sought. Any U.S. workers who applied or apply for the job were or will

be rejected only for lawful, job-related reasons, and those not rejected on this basis have

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been or will be hired. In addition, the employer attests that it will retain records of all

rejections as required by § 655.119.

(b) The employer is offering terms and working conditions which are not less

favorable than those offered to the H-2A worker(s) and are not less than the minimum

terms and conditions required by this subpart.

certification is not vacant because the former occupant is on strike or being locked out in

the course of a labor dispute.

(d) The employer will continue to cooperate with the SWA by accepting referrals of

all eligible U.S. workers who apply (or on whose behalf an application is made) for the

job opportunity until the end of the recruitment period as specified in § 655.102(f)(3).

(e) During the period of employment that is the subject of the labor certification

application, the employer will:

(1) Comply with applicable Federal, State and local employment-related laws and

regulations, including employment-related health and safety laws;

(2) Provide for or secure housing for those workers who are not reasonably able to

return to their permanent residence at the end of the work day, without charge to the

worker, that complies with the applicable standards as set forth in § 655.104(d);

(3) Where required, has timely requested a preoccupancy inspection of the housing

and, if one has been conducted, received certification;

(4) Provide insurance, without charge to the worker, under a State workers'

compensation law or otherwise, that meets the requirements of § 655.104(e); and

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(5) Provide transportation in compliance with all applicable Federal, State or local

laws and regulations between the worker's living quarters (i.e., housing provided by the

employer under § 655.104(d)) and the employer's worksite without cost to the worker.

(f) Upon the separation from employment of H-2A worker(s) employed under the

labor certification application, if such separation occurs prior to the end date of the

employment specified in the application, the employer will notify the Department and

DHS in writing (or any other method specified by the Department or DHS) of the

separation from employment not later than 2 work days after such separation is

discovered by the employer. The procedures for reporting abandonments and

abscondments are outlined in § 655.104(n) of this subpart.

(g) The offered wage rate is the highest of the AEWR in effect at the time recruitment

is initiated, the prevailing hourly wage or piece rate, or the Federal or State minimum

wage, and the employer will pay the offered wage during the entire period of the

approved labor certification.

(h) The offered wage is not based on commission, bonuses, or other incentives, unless

the employer guarantees a wage paid on a weekly, bi-weekly, or monthly basis that

equals or exceeds the AEWR, prevailing hourly wage or piece rate, or the legal Federal

or State minimum wage, whichever is highest.

(i) The job opportunity is a full-time temporary position, calculated to be at least 30

hours per work week, the qualifications for which do 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.

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(j) The employer has not laid off and will not lay off any similarly employed U.S.

worker in the occupation that is the subject of the Application for Temporary

Employment Certification in the area of intended employment except for lawful, job

related reasons within 60 days of the date of need, or if the employer has laid off such

workers, it has offered the job opportunity that is the subject of the application to those

laid-off U.S. worker(s) and the U.S. worker(s) either refused the job opportunity or was

rejected for the job opportunity for lawful, job-related reasons.

(k) The employer has not and will not intimidate, threaten, restrain, coerce, blacklist,

or in any manner discriminate against, and has not and will not cause any person to

intimidate, threaten, restrain, coerce, blacklist, or in any manner discriminate against, any

person who has with just cause:

(1) Filed a complaint under or related to sec. 218 of the INA at 8 U.S.C. 1188, or this

subpart or any other Department regulation promulgated under sec. 218 of the INA;

(2) Instituted or caused to be instituted any proceeding under or related to sec. 218 of

the INA, or this subpart or any other Department regulation promulgated under sec. 218

of the INA;

(3) Testified or is about to testify in any proceeding under or related to sec. 218 of the

INA or this subpart or any other Department regulation promulgated under sec. 218 of

the INA;

(4) Consulted with an employee of a legal assistance program or an attorney on

matters related to sec. 218 of the INA or this subpart or any other Department regulation

promulgated under sec. 218 of the INA; or

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(5) Exercised or asserted on behalf of himself/herself or others any right or protection

afforded by sec. 218 of the INA, or this subpart or any other Department regulation

promulgated under sec. 218 of the INA.

(l) The employer shall not discharge any person because of that person's taking any

action listed in paragraphs (k)(1) through (k)(5) of this section.

(m) All fees associated with processing the temporary labor certification will be paid

in a timely manner.

(n) The employer will inform H-2A workers of the requirement that they leave the

U.S. at the end of the period certified by the Department or separation from the employer,

whichever is earlier, as required under § 655.111, unless the H-2A worker is being

sponsored by another subsequent employer.

(o) The employer and its agents have not sought or received payment of any kind from

the employee for any activity related to obtaining labor certification, including payment

of the employer's attorneys' fees, application fees, or recruitment costs. For purposes of

this paragraph, payment includes, but is not limited to, monetary payments, wage

concessions (including deductions from wages, salary, or benefits), kickbacks, bribes,

tributes, in kind payments, and free labor. This provision does not prohibit employers or

their agents from receiving reimbursement for costs that are the responsibility of the

worker, such as government required passport or visa fees.

(p) The employer has contractually forbidden any foreign labor contractor or recruiter

whom the employer engages in international recruitment of H-2A workers to seek or

receive payments from prospective employees, except as provided for in DHS regulations

at 8 CFR 214.2(h)(5)(xi)(A).

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(q) The applicant is either a fixed-site employer, an agent or recruiter, an H-2ALC (as

defined in these regulations), or an association.

§ 655.106 Assurances and obligations of H-2A Labor Contractors.

(a) The pre-filing activity requirements set forth in § 655.102 are modified as follows

for H-2ALCs:

(1) The job order for an H-2ALC may contain work locations in multiple areas of

intended employment, and may be submitted to any one of the SWAs having jurisdiction

over the anticipated work areas. The SWA receiving the job order shall promptly

transmit, on behalf of the employer, a copy of its active job order to all States listed in the

application as anticipated worksites, as well as those States, if any, designated by the

Secretary as traditional or expected labor supply States for each area in which the

employer’s work is to be performed. Each SWA shall keep the H-2ALC’s job order

posted until the end of the recruitment period, as set forth in § 655.102(f)(3), for the area

of intended employment that is covered by the SWA. SWAs in States that have been

designated as traditional or expected labor supply States for more than one area of

intended of employment that are listed on an application shall keep the H-2ALC’s job

order posted until the end of the applicable recruitment period that is last in time, and

may make referrals for job opportunities in any area of intended employment that is still

in an active recruitment period, as defined by § 655.102(f)(3).

(2) The H-2ALC must conduct separate positive recruitment under § 655.102(g)

through (i) for each area of intended employment in which the H-2ALC intends to

perform work, but need not conduct separate recruitment for each work location within a

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single area of intended employment. The positive recruitment for each area of intended

employment must list the name and location of each fixed-site agricultural business to

which the H-2ALC expects to provide H-2A workers, the expected beginning and ending

dates when the H-2ALC will be providing the workers to each fixed site, and a

description of the crops and activities the workers are expected to perform at such fixed

site. Such positive recruitment must be conducted pre-filing for the first area of intended

employment, but must be started no more than 75 and no fewer than 60 days before the

listed arrival date (or the amended date, if applicable) for each subsequent area of

intended employment. For each area of intended employment, the advertising that must

be placed in any applicable States designated as traditional or expected labor supply

States must be placed at the same time as the placement of other positive recruitment for

the area of intended employment in accordance with § 655.102(i)(2).

(3) The job order and the positive recruitment in each area of intended employment

may require that workers complete the remainder of the H-2ALC’s itinerary.

(4) An H-2ALC who hires U.S. workers during the course of its itinerary, and

accordingly releases one or more of its H-2A workers, is eligible for the release from the

three-quarters guarantee with respect to the released H-2A workers that is provided for in

§ 655.104(i)(4).

(5) An H-2ALC may amend its application subsequent to submission in accordance

with § 655.107(d)(3) to account for new or changed worksites or areas of intended

employment during the course of the itinerary in the following manner:

(i) If the additional worksite(s) are in the same area(s) of intended employment as

represented on the Application for Temporary Employment Certification, the H-2ALC is

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not required to re-recruit in those areas of intended employment if that recruitment has

been completed and if the job duties at the new work sites are similar to those already

covered by the application.

(ii) If the additional worksite(s) are outside the area(s) of intended employment

represented on the Application for Temporary Employment Certification, the H-2ALC

must submit in writing the new area(s) of intended employment and explain the reasons

for the amendment of the labor certification itinerary. The CO will order additional

recruitment in accordance with § 655.102(d).

(iii) For any additional worksite not included on the original application that

necessitates a change in housing of H-2A workers, the H-2ALC must secure the

statement of housing as described in paragraph (b)(6) of this section and obtain an

inspection of such housing from the SWA in the area of intended employment.

(iv) Where additional recruitment is required under paragraphs (a)(5)(i) or (a)(5)(ii) of

this section, the CO shall allow it to take place on an expedited basis, where possible, so

as to allow the amended dates of need to be met.

(6) Consistent with paragraph (a)(5) of this section, no later than 30 days prior to the

commencement of employment in each area of intended employment in the itinerary of

an H-2ALC, the SWA having jurisdiction over that area of intended employment must

complete the housing inspections for any employer-provided housing to be used by the

employees of the H-2ALC.

(7) To satisfy the requirements of § 655.102(h), the H-2ALC must contact all U.S

employees that worked for the H-2ALC during the previous season, except those

excluded by that section, before filing its application, and must advise those workers that

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a separate job opportunity exists for each area of intended employment that is covered by

the application. The employer may advise contacted employees that for any given job

opportunity, workers may be required to complete the remainder of the H-2ALC’s

itinerary.

(b) In addition to the assurances and obligations listed in § 655.105, H-2ALC

applicants are also required to:

(1) Provide the MSPA Farm Labor Contractor (FLC) certificate of registration number

and expiration date if required under MSPA at 29 U.S.C. 1801 et seq., to have such a

certificate;

(2) Identify the farm labor contracting activities the H-2ALC is authorized to perform

as an FLC under MSPA as shown on the FLC certificate of registration, if required under

MSPA at 29 U.S.C. 1801 et seq., to have such a certificate of registration;

(3) List the name and location of each fixed-site agricultural business to which the H-

2A Labor Contractor expects to provide H-2A workers, the expected beginning and

ending dates when the H-2ALC will be providing the workers to each fixed site, and a

description of the crops and activities the workers are expected to perform at such fixed

site;

(4) Provide proof of its ability to discharge financial obligations under the H-2A

program by attesting that it has obtained a surety bond as required by 29 CFR 501.8,

stating on the application the name, address, phone number, and contact person for the

surety, and providing the amount of the bond (as calculated pursuant to 29 CFR 501.8)

and any identifying designation utilized by the surety for the bond;

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(5) Attest that it has engaged in, or will engage in within the timeframes required by §

655.102 as modified by § 655.106(a), recruitment efforts in each area of intended

employment in which it has listed a fixed-site agricultural business; and

(6) Attest that it will be providing housing and transportation that complies with the

applicable housing standards in § 655.104(d) or that it has obtained from each fixed-site

agricultural business that will provide housing or transportation to the workers a written

statement stating that:

(i) All housing used by workers and owned, operated or secured by the fixed-site

agricultural business complies with the applicable housing standards in § 655.104(d); and

(ii) All transportation between the worksite and the workers' living quarters that is

provided by the fixed-site agricultural business complies with all applicable Federal,

State, or local laws and regulations and will provide, at a minimum, the same vehicle

safety standards, driver licensure, and vehicle insurance as required under 29 U.S.C. 1841

and 29 CFR part 500, subpart D, except where workers’ compensation is used to cover

such transportation as described in § 655.104(h)(3).

§ 655.107 Processing of applications.

(a) Processing. (1) Upon receipt of the application, the CO will promptly review the

application for completeness and an absence of errors that would prevent certification,

and for compliance with the criteria for certification. The CO will make a determination

to certify, deny, or issue a Notice of Deficiency prior to making a Final Determination on

the application. Applications requesting that zero job opportunities be certified for H-2A

employment because the employer has been able to recruit a sufficient number of U.S.

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workers must comply with other requirements for H-2A applications and must be

supported by a recruitment report, in which case the application will be accepted but will

then be denied. Criteria for certification, as used in this subpart, include, but are not

limited to, whether the employer has established the need for the agricultural services or

labor to be performed on a temporary or seasonal basis; made all the assurances and met

all the obligations required by § 655.105, and/or, if an H-2ALC, by § 655.106; complied

with the timeliness requirements in § 655.102; and complied with the recruitment

obligations required by §§ 655.102 and 655.103.

(2) Unless otherwise noted, any notice or request sent by the CO or OFLC to an

applicant requiring a response shall be sent by means normally assuring next-day

delivery, to afford the applicant sufficient time to respond. The employer’s response

shall be considered filed with the Department when sent (by mail, certified mail, or any

other means indicated to be acceptable by the CO) to the Department, which may be

demonstrated, for example, by a postmark.

(b) Notice of deficiencies. (1) If the CO determines that the employer has made all

necessary attestations and assurances, but the application fails to comply with one or

more of the criteria for certification in paragraph (a) of this section, the CO will promptly

notify the employer within 7 calendar days of the CO’s receipt of the application.

(2) The notice will:

(i) State the reason(s) why the application fails to meet the criteria for temporary labor

certification, citing the relevant regulatory standard(s);

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(ii) Offer the employer an opportunity to submit a modified application within 5

business days from date of receipt, stating the modification that is needed for the CO to

accept the application for consideration;

(iii) Except as provided for under paragraph (b)(2)(iv) of this section, state that the

CO's determination on whether to grant or deny the Application for Temporary

Employment Certification will be made no later than 30 calendar days before the date of

need, provided that the employer submits the requested modification to the application

within 5 business days and in a manner specified by the CO;

(iv) Where the CO determines the employer failed to comply with the recruitment

obligations required by §§ 655.102 and 655.103, offer the employer an opportunity to

correct its recruitment and conduct it on an expedited schedule. The CO shall specify the

positive recruitment requirements, request the employer submit proof of corrected

advertisement and an initial recruitment report meeting the requirements of § 655.102(k)

no earlier than 48 hours after the last corrected advertisement is printed, and state that the

CO's determination on whether to grant or deny the Application for Temporary

Employment Certification will be made within 5 business days of receiving the required

documentation, which may be a date later than 30 days before the date of need;

(v) Offer the employer an opportunity to request an expedited administrative review or

a de novo administrative hearing before an ALJ, of the Notice of Deficiency. The notice

will state that in order to obtain such a review or hearing, the employer, within 5 business

days of the receipt of the notice, must file by facsimile or other means normally assuring

next day delivery, a written request to the Chief Administrative Law Judge of DOL and

simultaneously serve a copy on the CO. The notice will also state that the employer may

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submit any legal arguments that the employer believes will rebut the basis of the CO's

action; and

(vi) State that if the employer does not comply with the requirements under

paragraphs (b)(2) (ii) and (iv) of this section or request an expedited administrative

judicial review or a de novo hearing before an ALJ within the 5 business days the CO

will deny the application in accordance with the labor certification determination

provisions in § 655.109.

deficiencies within the 7 calendar day timeframe set forth in paragraph (b)(1) of this

section, the date by which the CO's Final Determination is required by statute to be made

will be postponed by 1 day for each day that passes beyond the 5 business-day period

allowed under paragraph (b)(2)(ii) of this section to submit a modified application.

(2) Where the employer submits a modified application as required by the CO, and the

CO approves the modified application, the CO will not deny the application based solely

on the fact that it now does not meet the timeliness requirements for filing applications.

(3) If the modified application is not approved, the CO will deny the application in

accordance with the labor certification determination provisions in § 655.109.

(d) Amendments to applications. (1) Applications may be amended at any time

before the CO’s certification determination to increase the number of workers requested

in the initial application by not more than 20 percent (50 percent for employers

requesting less than 10 workers) without requiring an additional recruitment period for

U.S. workers. Requests for increases above the percent prescribed, without additional

recruitment, may be approved by the CO only when the request is submitted in writing,

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the need for additional workers could not have been foreseen, and the crops or

commodities will be in jeopardy prior to the expiration of an additional recruitment

period.

(2) Applications may be amended to make minor changes in the total period of

employment, but only if a written request is submitted to the CO and approved in

advance. In considering whether to approve the request, the CO will review the reason(s)

for the request, determine whether the reason(s) are on the whole justified, and take into

account the effect(s) of a decision to approve on the adequacy of the underlying test of

the domestic labor market for the job opportunity. If a request for a change in the start

date of the total period of employment is made after workers have departed for the

employer's place of work, the CO may only approve the change if the request is

accompanied by a written assurance signed and dated by the employer that all such

workers will be provided housing and subsistence, without cost to the workers, until work

commences. Upon acceptance of an amendment, the CO will submit to the SWA any

necessary modification to the job order.

(3) Other amendments to the application, including elements of the job offer and the

place of work, may be approved by the CO if the CO determines the proposed

amendment(s) are justified by a business reason and will not prevent the CO from making

the labor certification determination required under § 655.109. Requested amendments

will be reviewed as quickly as possible, taking into account revised dates of need for

work locations associated with the amendment.

(e) Appeal procedures. With respect to either a Notice of Deficiency issued under

paragraph (b) of this section, the denial of a requested amendment under paragraph (d) of

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this section, or a notice of denial issued under § 655.109(e), if the employer timely

requests an expedited administrative review or de novo hearing before an ALJ, the

procedures set forth in § 655.115 will be followed.

§ 655.108 Offered wage rate.

(a) Highest wage. To comply with its obligation under § 655.105(g), an employer

must offer a wage rate that is the highest of the AEWR in effect at the time recruitment

for a position is begun, the prevailing hourly wage or piece rate, or the Federal or State

minimum wage.

(b) Wage rate request. The employer must request and obtain a wage rate

determination from the NPC, on a form prescribed by ETA, before commencing any

recruitment under this subpart, except where specifically exempted from this requirement

by these regulations.

wage determination obtained from the NPC. Recruitment for this purpose begins when

the job order is accepted by the SWA for posting.

(d) Wage offer. The employer must offer and advertise in its recruitment a wage at

least equal to the wage rate required by paragraph (a) of this section.

(e) Adverse effect wage rate. The AEWR will be based on published wage data for

the occupation, skill level, and geographical area from the Bureau of Labor Statistics

(BLS), Occupational Employment Statistics (OES) survey. The NPC will obtain wage

information on the AEWR using the On-line Wage Library (OWL) found on the Foreign

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Labor Certification Data Center Web site (http://www.flcdatacenter.com/). This wage

shall not be less than the July 24, 2009 Federal minimum wage of $7.25.

(f) Wage determination. The NPC must enter the wage rate determination on a form it

uses, indicate the source, and return the form with its endorsement to the employer.

(g) Skill level. (1) Level I wage rates are assigned to job offers for beginning level

employees who have a basic understanding of the occupation. These employees perform

routine tasks that require limited, if any, exercise of judgment. The tasks provide

experience and familiarization with the employer’s methods, practices, and programs.

The employees may perform higher level work for training and developmental purposes.

These employees work under close supervision and receive specific instructions on

required tasks and results expected. Their work is closely monitored and reviewed for

accuracy.

(2) Level II wage rates are assigned to job offers for employees who have attained,

through education or experience, a good understanding of the occupation. These

employees perform moderately complex tasks that require limited judgment. An

indicator that the job request warrants a wage determination at Level II would be a

requirement for years of education and/or experience that are generally required as

described in the O*NET Job Zones.

(3) Level III wage rates are assigned to job offers for employees who have a sound

understanding of the occupation and have attained, either through education or

experience, special skills or knowledge. These employees perform tasks that require

exercising judgment and may coordinate the activities of other staff. They may have

supervisory authority over those staff. A requirement for years of experience or

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educational degrees that are at the higher ranges indicated in the O*NET Job Zones

would be an indicator that a Level III wage should be considered. Frequently, key words

in the job title can be used as indicators that an employer’s job offer is for an experienced

worker. Words such as lead, senior, crew chief, or journeyman would be indicators that a

Level III wage should be considered.

(4) Level IV wage rates are assigned to job offers for employees who have sufficient

experience in the occupation to plan and conduct work requiring judgment and the

independent evaluation, selection, modification, and application of standard procedures

and techniques. Such employees receive only minimal guidance and their work is

reviewed only for application of sound judgment and effectiveness in meeting the

establishment’s procedures and expectations. They generally have management and/or

supervisory responsibilities.

(h) Retention of documentation. An employer filing an Application for Temporary

Employment Certification must maintain documentation of its wage determination from

the NPC as required in this subpart and be prepared to submit this documentation with

the filing of its application. The documentation required in this subpart must be retained

for a period of no less than 3 years from the date of the certification. There is no record

retention requirement for applications (and supporting documentation) that are denied.

§ 655.109 Labor certification determinations.

(a) COs. The Administrator, OFLC is the Department’s National CO. The

Administrator, OFLC, and the CO(s) in the NPC(s) (by virtue of delegation from the

Administrator, OFLC), have the authority to certify or deny applications for temporary

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employment certification under the H-2A nonimmigrant classification. If the

Administrator, OFLC has directed that certain types of temporary labor certification

applications or specific applications under the H-2A nonimmigrant classification be

handled by the National OFLC, the Director(s) of the NPC(s) will refer such applications

to the Administrator, OFLC.

(b) Determination. No later than 30 calendar days before the date of need, as

identified in the Application for Temporary Employment Certification, except as

provided for under § 655.107(c) for modified applications, or applications not otherwise

meeting certification criteria by that date, the CO will make a determination either to

grant or deny the Application for Temporary Employment Certification. The CO will

grant the application if and only if: the employer has met the requirements of this subpart,

including the criteria for certification set forth in § 655.107(a), and thus the employment

of the H-2A workers will not adversely affect the wages and working conditions of

similarly employed U.S. workers.

by mail) of the labor certification determination.

(d) Approved certification. If temporary labor certification is granted, the CO must

send the certified Application for Temporary Employment Certification and a Final

Determination letter to the employer, or, if appropriate, to the employer's agent or

attorney. The Final Determination letter will notify the employer to file the certified

application and any other documentation required by USCIS with the appropriate USCIS

office and to continue to cooperate with the SWA by accepting all referrals of eligible

U.S. workers who apply (or on whose behalf an application is made) for the job

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opportunity until the end of the recruitment period as set forth in § 655.102(f)(3).

However, the employer will not be required to accept referrals of eligible U.S. workers

once it has hired or extended employment offers to eligible U.S. workers equal to the

number of H-2A workers sought.

(e) Denied certification. If temporary labor certification is denied, the Final

Determination letter will be sent to the employer by means normally assuring next-day

delivery. The Final Determination Letter will:

(1) State the reasons certification is denied, citing the relevant regulatory standards

and/or special procedures;

(2) If applicable, address the availability of U.S. workers in the occupation as well as

the prevailing benefits, wages, and working conditions of similarly employed U.S.

workers in the occupation and/or any applicable special procedures;

(3) Offer the applicant an opportunity to request an expedited administrative review,

or a de novo administrative hearing before an ALJ, of the denial. The notice must state

that in order to obtain such a review or hearing, the employer, within 7 calendar days of

the date of the notice, must file by facsimile (fax), telegram, or other means normally

assuring next day delivery, a written request to the Chief Administrative Law Judge of

DOL (giving the address) and simultaneously serve a copy on the CO. The notice will

also state that the employer may submit any legal arguments which the employer believes

will rebut the basis of the CO's action; and

(4) State that if the employer does not request an expedited administrative judicial

review or a de novo hearing before an ALJ within the 7 calendar days, the denial is final

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and the Department will not further consider that application for temporary alien

agricultural labor certification.

(f) Partial certification. The CO may, to ensure compliance with all regulatory

requirements, issue a partial certification, reducing either the period of need or the

number of H-2A workers being requested or both for certification, based upon

information the CO receives in the course of processing the temporary labor certification

application, an audit, or otherwise. The number of workers certified shall be reduced by

one for each referred U.S. worker who is qualified, able, available and willing. If a

partial labor certification is issued, the Final Determination letter will:

(1) State the reasons for which either the period of need and/or the number of H-2A

workers requested has been reduced, citing the relevant regulatory standards and/or

special procedures;

(2) If applicable, address the availability of U.S. workers in the occupation;

(3) Offer the applicant an opportunity to request an expedited administrative review,

or a de novo administrative hearing before an ALJ, of the decision. The notice will state

that in order to obtain such a review or hearing, the employer, within 7 calendar days of

the date of the notice, will file by facsimile or other means normally assuring next day

delivery a written request to the Chief Administrative Law Judge of DOL (giving the

address) and simultaneously serve a copy on the CO. The notice will also state that the

employer may submit any legal arguments which the employer believes will rebut the

basis of the CO's action; and

(4) State that if the employer does not request an expedited administrative judicial

review or a de novo hearing before an ALJ within the 7 calendar days, the denial is final

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and the Department will not further consider that application for temporary alien

agricultural labor certification.

(g) Appeal procedures. If the employer timely requests an expedited administrative

review or de novo hearing before an ALJ under paragraphs (e)(3) or (f)(3) of this section,

the procedures at § 655.115 will be followed.

(h) Payment of processing fees. A determination by the CO to grant an Application

for Temporary Employment Certification in whole or in part under paragraph (d) or (f) of

this section will include a bill for the required fees. Each employer of H-2A workers

under the Application for Temporary Employment Certification (except joint employer

associations, which shall not be assessed a fee in addition to the fees assessed to the

members of the association) must pay in a timely manner a non-refundable fee upon

issuance of the certification granting the application (in whole or in part), as follows:

(1) Amount. The application fee for each employer receiving a temporary agricultural

labor certification is $100 plus $10 for each H-2A worker certified under the Application

for Temporary Employment Certification, provided that the fee to an employer for each

temporary agricultural labor certification received will be no greater than $1,000. There

is no additional fee to the association filing the application. The fees must be paid by

check or money order made payable to "United States Department of Labor.” In the case

of H-2A employers that are members of an agricultural association acting as a joint

employer applying on their behalf, the aggregate fees for all employers of H-2A workers

under the application must be paid by one check or money order.

(2) Timeliness. Fees received by the CO no more than 30 days after the date the

temporary labor certification is granted will be considered timely. Non-payment of fees

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by the date that is 30 days after the issuance of the certification will be considered a

substantial program violation and subject to the procedures in § 655.115.

§ 655.110 Validity and scope of temporary labor certifications.

(a) Validity period. A temporary labor certification is valid for the duration of the job

opportunity for which certification is granted to the employer. Except as provided in

paragraph and (d) of this section, the validity period is that time between the beginning

and ending dates of certified employment, as listed on the Application for Temporary

Employment Certification. The certification expires on the last day of authorized

employment.

(b) Scope of validity. Except as provided in paragraphs (c) and (d) of this section, a

temporary labor certification is valid only for the number of H-2A workers, the area of

intended employment, the specific occupation and duties, and the employer(s) specified

on the certified Application for Temporary Employment Certification (as originally filed

or as amended) and may not be transferred from one employer to another.

requesting temporary labor certification as a joint employer, the certified Application for

Temporary Employment Certification will be granted jointly to the association and to

each of the association’s employer members named on the application. Workers

authorized by the temporary labor certification may be transferred among its certified

employer members to perform work for which the temporary labor certification was

granted, provided the association controls the assignment of such workers and maintains

a record of such assignments. All temporary agricultural labor certifications to

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associations may be used for the certified job opportunities of any of its employer

members named on the application. If an association is requesting temporary labor

certification as a sole employer, the certified Application for Temporary Employment

Certification is granted to the association only.

(2) Ineligible employer-members. Workers may not be transferred or referred to an

association's employer member if that employer member has been debarred from

participation in the H-2A program.

(d) Extensions on period of employment. (1) Short-term extension. An employer

who seeks an extension of 2 weeks or less of the certified Application for Temporary

Employment Certification must apply for such extension to DHS. If DHS grants the

extension, the corresponding Application for Temporary Employment Certification will

be deemed extended for such period as is approved by DHS.

(2) Long-term extension. For extensions beyond 2 weeks, an employer may apply to

the CO at any time for an extension of the period of employment on the certified

Application for Temporary Employment Certification for reasons related to weather

conditions or other factors beyond the control of the employer (which may include

unforeseen changes in market conditions), provided that the employer's need for an

extension is supported in writing, with documentation showing that the extension is

needed and that the need could not have been reasonably foreseen by the employer. The

CO will grant or deny the request for extension of the period of employment on the

Application for Temporary Employment Certification based on the available information,

and will notify the employer of the decision in writing. The employer may appeal a

denial for a request of an extension in accordance with the procedures contained in §

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655.115. The CO will not grant an extension where the total work contract period under

that application and extensions would be 12 months or more, except in extraordinary

circumstances.

(e) Requests for determinations based on nonavailability of able, willing, available,

eligible, and qualified U.S. workers. (1) Standards for requests. If a temporary labor

certification has been partially granted or denied based on the CO's determination that

able, willing, available, eligible, and qualified U.S. workers are available, and, on or after

30 calendar days before the date of need, some or all of those U.S. workers are, in fact,

no longer able, willing, eligible, qualified, or available, the employer may request a new

temporary labor certification determination from the CO. Prior to making a new

determination the CO will promptly ascertain (which may be through the SWA or other

sources of information on U.S. worker availability) whether specific able, willing,

eligible and qualified replacement U.S. workers are available or can be reasonably

expected to be present at the employer’s establishment within 72 hours from the date the

employer’s request was received. The CO will expeditiously, but in no case later than 72

hours after the time a complete request (including the signed statement included in

paragraph (e)(2) of this section) is received, make a determination on the request. An

employer may appeal a denial of such a determination in accordance with the procedures

contained in § 655.115.

(2) Unavailability of U.S. workers. The employer's request for a new determination

must be made directly to the CO by telephone or electronic mail, and must be confirmed

by the employer in writing as required by this paragraph. If the employer telephonically

or via electronic mail requests the new determination by asserting solely that U.S.

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workers have become unavailable, the employer must submit to the CO a signed

statement confirming such assertion. If such signed statement is not received by the CO

within 72 hours of the CO's receipt of the request for a new determination, the CO will

deny the request.

(3) Notification of determination. If the CO determines that U.S. workers have

become unavailable and cannot identify sufficient specific able, willing, eligible, and

qualified U.S. workers who are or who are likely to be available, the CO will grant the

employer's request for a new determination. However, this does not preclude an

employer from submitting subsequent requests for new determinations, if warranted,

based on subsequent facts concerning purported nonavailability of U.S. workers or

referred workers not being eligible workers or not able, willing, or qualified because of

lawful job-related reasons.

§ 655.111 Required departure.

(a) Limit to worker's stay. As defined further in DHS regulations, a temporary labor

certification limits the authorized period of stay for an H-2A worker. See 8 CFR

214.2(h). A foreign worker may not remain beyond his or her authorized period of stay,

as established by DHS, which is based upon the validity period of the labor certification

under which the H-2A worker is employed, nor beyond separation from employment

prior to completion of the H-2A contract, absent an extension or change of such worker's

status under DHS regulations.

(b) Notice to worker. Upon establishment of a program by DHS for registration of

departure, an employer must notify any H-2A worker that when the worker departs the

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U.S. by land at the conclusion of employment as provided in paragraph (a) of this section,

the worker must register such departure at the place and in the manner prescribed by

DHS.

§ 655.112 Audits.

(a) Discretion. The Department will conduct audits of temporary labor certification

applications for which certification has been granted. The applications selected for audit

will be chosen within the sole discretion of the Department.

(b) Audit letter. Where an application is selected for audit, the CO will issue an audit

letter to the employer/applicant. The audit letter will:

(1) State the documentation that must be submitted by the employer;

(2) Specify a date, no fewer than 14 days and no more than 30 days from the date of

the audit letter, by which the required documentation must be received by the CO; and

(3) Advise that failure to comply with the audit process may result in a finding by the

CO to:

(i) Revoke the labor certification as provided in § 655.117 and/or

(ii) Debar the employer from future filings of H-2A temporary labor

certification applications as provided in § 655.118.

CO may request supplemental information and/or documentation from the employer in

order to complete the audit.

(d) Audit violations. If, as a result of the audit, the CO determines the employer failed

to produce required documentation, or determines that the employer violated the

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standards set forth in § 655.117(a) with respect to the application, the employer’s labor

certification may be revoked under § 655.117 and/or the employer may be referred for

debarment under § 655.118. The CO may determine to provide the audit findings and

underlying documentation to DHS or another appropriate enforcement agency. The CO

shall refer any findings that an employer discouraged an eligible U.S. worker from

applying, or failed to hire, discharged, or otherwise discriminated against an eligible U.S.

worker, to the Department of Justice, Civil Rights Division, Office of Special Counsel for

Unfair Immigration Related Employment Practices.

§ 655.113 H-2A applications involving fraud or willful misrepresentation.

(a) Referral for investigation. If the CO discovers possible fraud or willful

misrepresentation involving an Application for Temporary Employment Certification the

CO may refer the matter to the DHS and the Department's Office of the Inspector General

for investigation.

(b) Terminated processing. If a court or the DHS determines that there was fraud or

willful misrepresentation involving an Application for Temporary Employment

Certification, the application will be deemed invalid. The determination is not

appealable. If a certification has been granted, a finding under this paragraph will be

cause to revoke the certification.

§ 655.114 Setting meal charges; petition for higher meal charges.

(a) Meal charges. Until a new amount is set under this paragraph an employer may

charge workers up to $9.90 for providing them with three meals per day. The maximum

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charge allowed by this paragraph (a) will be changed annually by the same percentage as

the 12 month percentage change for the Consumer Price Index for all Urban Consumers

for Food between December of the year just concluded and December of the year prior to

that. The annual adjustments will be effective on the date of their publication by the

Administrator, OFLC, as a Notice in the Federal Register. When a charge or deduction

for the cost of meals would bring the employee's wage below the minimum wage set by

the FLSA at 29 U.S.C. 206 (FLSA), the charge or deduction must meet the requirements

of 29 U.S.C. 203(m) of the FLSA, including the recordkeeping requirements found at 29

CFR 516.27.

(b) Filing petitions for higher meal charges. The employer may file a petition with the

CO to charge more than the applicable amount for meal charges if the employer justifies

the charges and submits to the CO the documentation required by paragraph (b)(1) of this

section.

(1) Required documentation. Documentation submitted must include the cost of

goods and services directly related to the preparation and serving of meals, the number of

workers fed, the number of meals served and the number of days meals were provided.

The cost of the following items may be included: food; kitchen supplies other than food,

such as lunch bags and soap; labor costs that have a direct relation to food service

operations, such as wages of cooks and dining hall supervisors; fuel, water, electricity,

and other utilities used for the food service operation; and other costs directly related to

the food service operation. Charges for transportation, depreciation, overhead and similar

charges may not be included. Receipts and other cost records for a representative pay

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period must be retained and must be available for inspection by the CO for a period of 1

year.

(2) Effective date for higher charge. The employer may begin charging the higher rate

upon receipt of a favorable decision from the CO unless the CO sets a later effective date

in the decision.

whole or in part, the employer may appeal the denial. Appeals will be filed with the

Chief Administrative Law Judge. ALJs will hear such appeals according to the

procedures in 29 CFR part 18, except that the appeal will not be considered as a

complaint to which an answer is required. The decision of the ALJ is the final decision

of the Secretary.

§ 655.115 Administrative review and de novo hearing before an administrative law

judge.

(a) Administrative review. (1) Consideration. Whenever an employer has requested

an administrative review before an ALJ of a decision by the CO: not to accept for

consideration an Application for Temporary Employment Certification; to deny an

Application for Temporary Employment Certification; to deny an amendment of an

Application for Temporary Employment Certification; or to deny an extension of an

Application for Temporary Employment Certification, the CO will send a certified copy

of the ETA case file to the Chief Administrative Law Judge by means normally assuring

next-day delivery. The Chief Administrative Law Judge will immediately assign an ALJ

(which may be a panel of such persons designated by the Chief Administrative Law

_______________

Judge from BALCA established by 20 CFR part 656, which will hear and decide the

appeal as set forth in this section) to review the record for legal sufficiency. The ALJ

may not remand the case and may not receive evidence in addition to what the CO used

to make the determination.

(2) Decision. Within 5 business days after receipt of the ETA case file the ALJ will,

on the basis of the written record and after due consideration of any written submissions

(which may not include new evidence) from the parties involved or amici curiae, either

affirm, reverse, or modify the CO's decision by written decision. The decision of the ALJ

must specify the reasons for the action taken and must be immediately provided to the

employer, the CO, the Administrator, OFLC, and DHS by means normally assuring next-

day delivery. The ALJ’s decision is the final decision of the Secretary.

(b) De novo hearing. (1) Request for hearing; conduct of hearing. Whenever an

employer has requested a de novo hearing before an ALJ of a decision by the CO: not to

accept for consideration an Application for Temporary Employment Certification; to

deny an Application for Temporary Employment Certification; to deny an amendment of

an Application for Temporary Employment Certification; or to deny an extension of an

Application for Temporary Employment Certification, the CO will send a certified copy

of the ETA case file to the Chief Administrative Law Judge by means normally assuring

next-day delivery. The Chief Administrative Law Judge will immediately assign an ALJ

(which may be a panel of such persons designated by the Chief Administrative Law

Judge from BALCA established by 20 CFR part 656 of this chapter, but which will hear

and decide the appeal as provided in this section) to conduct the de novo hearing. The

procedures in 29 CFR part 18 apply to such hearings, except that:

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(i) The appeal will not be considered to be a complaint to which an answer is required;

(ii) The ALJ will ensure that the hearing is scheduled to take place within 5 calendar

days after the ALJ’s receipt of the ETA case file, if the employer so requests, and will

allow for the introduction of new evidence; and

(iii) The ALJ’s decision must be rendered within 10 calendar days after the hearing.

(2) Decision. After a de novo hearing, the ALJ must affirm, reverse, or modify the

CO's determination, and the ALJ’s decision must be provided immediately to the

employer, CO, Administrator, OFLC, and DHS by means normally assuring next-day

delivery. The ALJ’s decision is the final decision of the Secretary.

§ 655.116 Job Service Complaint System; enforcement of work contracts.

(a) Complaints arising under this subpart may be filed through the Job Service

Complaint System, as described in 20 CFR part 658, Subpart E. Complaints which

involve worker contracts must be referred by the SWA to ESA for appropriate handling

and resolution, as described in 29 CFR part 501. As part of this process, ESA may report

the results of its investigation to the Administrator, OFLC for consideration of employer

penalties or such other action as may be appropriate.

(b) Complaints alleging that an employer discouraged an eligible U.S. worker from

applying, failed to hire, discharged, or otherwise discriminated against an eligible U.S.

worker, or discovered violations involving the same, may be referred to the U.S.

Department of Justice, Civil Rights Division, Office of Special Counsel for Unfair

Immigration Related Employment Practices (OSC), in addition to any activity,

investigation, and/or enforcement action taken by ETA or an SWA. Likewise, if OSC

_______________

becomes aware of a violation of these regulations, it may provide such information to the

appropriate SWA and the CO.

§ 655.117 Revocation of approved labor certifications.

(a) Basis for DOL revocation. The CO, in consultation with the Administrator, OFLC,

may revoke a temporary agricultural labor certification approved under this subpart, if,

after notice and opportunity for a hearing (or failure to file rebuttal evidence), it is found

that any of the following violations were committed with respect to that temporary

agricultural labor certification:

(1) The CO finds that issuance of the temporary agricultural labor certification was not

justified due to a willful misrepresentation on the application;

(2) The CO finds that the employer:

(i) Willfully violated a material term or condition of the approved temporary

agricultural labor certification or the H-2A regulations, unless otherwise provided under

paragraphs (a)(2)(ii) through (v) of this section; or

(ii) Failed, after notification, to cure a substantial violation of the applicable housing

standards set out in 20 CFR 655.104(d); or

(iii) Significantly failed to cooperate with a DOL investigation or with a DOL official

performing an investigation, inspection, or law enforcement function under sec. 218 of

the INA at 8 U.S.C. 1188, this subpart, or 29 CFR part 501 (ESA enforcement of

contractual obligations); or

(iv) Failed to comply with one or more sanctions or remedies imposed by the ESA for

violation(s) of obligations found by that agency, or with one or more decisions or orders

_______________

of the Secretary or a court order secured by the Secretary under sec. 218 of the INA at 8

U.S.C. 1188, this subpart, or 29 CFR part 501 (ESA enforcement of contractual

obligations).

(3) The CO determines after a recommendation is made by the WHD ESA in

accordance with 29 CFR 501.20, which governs when a recommendation of revocation

may be made to ETA, that the conduct complained of upon examination meets the

standards of paragraph (a)(1) or (2) of this section; or

(4) If a court or the DHS, or, as a result of an audit, the CO, determines that there was

fraud or willful misrepresentation involving the Application for Temporary Employment

Certification.

(b) DOL procedures for revocation. (1) The CO will send to the employer (and his

attorney or agent) a Notice of Intent to Revoke by means normally ensuring next-day

delivery, which will contain a detailed statement of the grounds for the proposed

revocation and the time period allowed for the employer's rebuttal. The employer may

submit evidence in rebuttal within 14 calendar days of the date the notice is issued. The

CO must consider all relevant evidence presented in deciding whether to revoke the

temporary agricultural labor certification.

(2) If rebuttal evidence is not timely filed by the employer, the Notice of Intent to

Revoke will become the final decision of the Secretary and take effect immediately at the

end of the 14-day period.

(3) If, after reviewing the employer's timely filed rebuttal evidence, the CO finds that

the employer more likely than not meets one or more of the bases for revocation under §

655.117(a), the CO will notify the employer, by means normally ensuring next-day

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delivery, within 14 calendar days after receiving such timely filed rebuttal evidence, of

his/her final determination that the temporary agricultural labor certification should be

revoked. The CO’s notice will contain a detailed statement of the bases for the decision,

and must offer the employer an opportunity to request a hearing. The notice must state

that, to obtain such a hearing, the employer must, within 10 calendar days of the date of

the notice file a written request to the, Chief Administrative Law Judge, United States

Department of Labor, 800 K Street, NW., Suite 400-N, Washington, DC 20001-8002,

and simultaneously serve a copy to the Administrator, OFLC. The timely filing of a

request for a hearing will stay the revocation pending the outcome of the hearing.

will send a certified copy of the ETA case file to the Chief Administrative Law Judge by

means normally assuring next-day delivery. The Chief Administrative Law Judge will

immediately assign an ALJ to conduct the hearing. The procedures in 29 CFR part 18

apply to such hearings, except that:

(i) The request for a hearing will not be considered to be a complaint to which an

answer is required;

(ii) The ALJ will ensure that the hearing is scheduled to take place within 15 calendar

days after the ALJ’s receipt of the ETA case file, if the employer so requests, and will

allow for the introduction of new evidence; and

(iii) The ALJ’s decision must be rendered within 20 calendar days after the hearing.

(2) Decision. After the hearing, the ALJ must affirm, reverse, or modify the CO's

determination. The ALJ’s decision must be provided immediately to the employer, CO,

_______________

Administrator, OFLC, DHS, and DOS by means normally assuring next-day delivery.

The ALJ’s decision is the final decision of the Secretary.

(d) Employer’s obligations in the event of revocation. If an employer's temporary

agricultural labor certification is revoked under this section, and the workers have

departed the place of recruitment, the employer will be responsible for:

(1) Reimbursement of actual inbound transportation and subsistence expenses, as if

the worker meets the requirements for payment under § 655.104(h)(1);

(2) The worker's outbound transportation expenses, as if the worker meets the

requirements for payment under § 655.104(h)(2);

(3) Payment to the worker of the amount due under the three-fourths guarantee as

required by § 655.104(i); and

(4) Any other wages, benefits, and working conditions due or owing to the worker

under these regulations.

§ 655.118 Debarment.

(a) The Administrator, OFLC may not issue future labor certifications under this

subpart to an employer and any successor in interest to the debarred employer, subject to

the time limits set forth in paragraph (c) of this section, if:

(1) The Administrator, OFLC finds that the employer substantially violated a material

term or condition of its temporary labor certification with respect to the employment of

domestic or nonimmigrant workers; and

(2) The Administrator, OFLC issues a Notice of Intent to Debar no later than 2 years

after the occurrence of the violation.

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(b) The Administrator, OFLC may not issue future labor certifications under this

subpart to an employer represented by an agent or attorney, subject to the time limits set

forth in paragraph (c) of this section, if:

(1) The Administrator, OFLC finds that the agent or attorney participated in, had

knowledge of, or had reason to know of, an employer’s substantial violation; and

(2) The Administrator, OFLC issues the agent or attorney a Notice of Intent to Debar

no later than 2 years after the occurrence of the violation.

3 years.

(d) For the purposes of this section, a substantial violation includes:

(1) A pattern or practice of acts of commission or omission on the part of the

employer or the employer's agent which:

(i) Are significantly injurious to the wages or benefits required to be offered under the

H-2A program, or working conditions of a significant number of the employer's U.S. or

H-2A workers; or

(ii) Reflect a significant failure to offer employment to all qualified domestic workers

who applied for the job opportunity for which certification was being sought, except for

lawful job-related reasons; or

(iii) Reflect a willful failure to comply with the employer's obligations to recruit U.S.

workers as set forth in this subpart; or

(iv) Reflect a significant failure to comply with the audit process in violation of §

655.112; or

_______________

(v) Reflect the employment of an H-2A worker outside the area of intended

employment, or in an activity/activities, not listed in the job order (other than an activity

minor and incidental to the activity/activities listed in the job order), or after the period of

employment specified in the job order and any approved extension;

(2) The employer's persistent or prolonged failure to pay the necessary fee in a timely

manner, following the issuance of a deficiency notice to the applicant and allowing for a

reasonable period for response;

(3) Fraud involving the Application for Temporary Employment Certification or a

response to an audit;

(4) A significant failure to cooperate with a DOL investigation or with a DOL official

performing an investigation, inspection, or law enforcement function under sec. 218 of

the INA at 8 U.S.C. 1188, this subpart, or 29 CFR part 501 (ESA enforcement of

contractual obligations); or

(5) A significant failure to comply with one or more sanctions or remedies imposed by

the ESA for violation(s) of obligations found by that agency (if applicable), or with one

or more decisions or orders of the Secretary or a court order secured by the Secretary

under sec. 218 of the INA at 8 U.S.C. 1188, this subpart, or 29 CFR part 501 (ESA

enforcement of contractual obligations); or

(6) A single heinous act showing such flagrant disregard for the law that future

compliance with program requirements cannot reasonably be expected.

(e) DOL procedures for debarment under this section will be as follows:

(1) The Administrator, OFLC will send to the employer, attorney, or agent a Notice of

Intent to Debar by means normally ensuring next-day delivery, which will contain a

_______________

detailed statement of the grounds for the proposed debarment. The employer, attorney or

agent may submit evidence in rebuttal within 14 calendar days of the date the notice is

issued. The Administrator, OFLC must consider all relevant evidence presented in

deciding whether to debar the employer, attorney, or agent.

(2) If rebuttal evidence is not timely filed by the employer, attorney, or agent, the

Notice of Intent to Debar will become the final decision of the Secretary and take effect

immediately at the end of the 14-day period.

(3) If, after reviewing the employer's timely filed rebuttal evidence, the Administrator,

OFLC determines that the employer, attorney, or agent more likely than not meets one or

more of the bases for debarment under § 655.118(d), the Administrator, OFLC will notify

the employer, by means normally ensuring next-day delivery, within 14 calendar days

after receiving such timely filed rebuttal evidence, of his/her final determination of

debarment and of the employer, attorney, or agent's right to appeal.

(4) The Notice of Debarment must be in writing, must state the reason for the

debarment finding, including a detailed explanation of the grounds for and the duration of

the debarment, and must offer the employer, attorney, or agent an opportunity to request

a hearing. The notice must state that, to obtain such a hearing, the debarred party must,

within 30 calendar days of the date of the notice, file a written request to the Chief

Administrative Law Judge, United States Department of Labor, 800 K Street, NW., Suite

400-N, Washington, DC 20001-8002, and simultaneously serve a copy to the

Administrator, OFLC. The debarment will take effect 30 days from the date the Notice

of Debarment is issued unless a request for a hearing is properly filed within 30 days

_______________

from the date the Notice of Debarment is issued. The timely filing of the request for a

hearing stays the debarment pending the outcome of the hearing.

(5)(i) Hearing. Within 10 days of receipt of the request for a hearing, the

Administrator, OFLC will send a certified copy of the ETA case file to the Chief

Administrative Law Judge by means normally assuring next-day delivery. The Chief

Administrative Law Judge will immediately assign an ALJ to conduct the hearing. The

procedures in 29 CFR part 18 apply to such hearings, except that the request for a hearing

will not be considered to be a complaint to which an answer is required;

(ii) Decision. After the hearing, the ALJ must affirm, reverse, or modify the

Administrator, OFLC 's determination. The ALJ’s decision must be provided

immediately to the employer, Administrator, OFLC, DHS, and DOS by means normally

assuring next-day delivery. The ALJ’s decision is the final decision of the Secretary,

unless either party, within 30 calendar days of the ALJ’s decision, seeks review of the

decision with the Administrative Review Board (ARB).

(iii) Review by the ARB.

(A) Any party wishing review of the decision of an ALJ must, within 30 days of the

decision of the ALJ, petition the ARB to review the decision. Copies of the petition must

be served on all parties and on the ALJ. The ARB must decide whether to accept the

petition within 30 days of receipt. If the ARB declines to accept the petition or if the

ARB does not issue a notice accepting a petition within 30 days after the receipt of a

timely filing of the petition, the decision of the ALJ shall be deemed the final agency

action. If a petition for review is accepted, the decision of the ALJ shall be stayed unless

and until the ARB issues an order affirming the decision. The ARB must serve notice of

_______________

its decision to accept or not to accept the petition upon the ALJ and upon all parties to the

proceeding in person or by certified mail.

(B) Upon receipt of the ARB’s notice to accept the petition, the Office of

Administrative Law Judges shall promptly forward a copy of the complete hearing record

to the ARB.

notify each party of:

(1) The issue or issues raised;

(2) The form in which submissions shall be made (i.e., briefs, oral argument, etc.); and

(3) The time within which such presentation shall be submitted.

(D) The ARB’s final decision must be issued within 90 days from the notice granting

the petition and served upon all parties and the ALJ, in person or by certified mail. If the

ARB fails to provide a decision within 90 days from the notice granting the petition, the

ALJ’s decision will be the final decision of the Secretary.

(f) Debarment involving members of associations. If the Administrator, OFLC

determines a substantial violation has occurred, and if an individual employer-member of

an agricultural association acting as a joint employer is determined to have committed the

violation, the debarment determination will apply only to that member of the association

unless the Administrator, OFLC determines that the association or other association

members participated in the violation, in which case the debarment will be invoked

against the complicit association or other association members.

(g) Debarment involving agricultural associations acting as joint employers. If the

Administrator, OFLC determines a substantial violation has occurred, and if an

_______________

agricultural association acting as a joint employer with its members is found to have

committed the violation, the debarment determination will apply only to the association,

and will not be applied to any individual employer-member of the association unless the

Administrator, OFLC determines that the member participated in the violation, in which

case the debarment will be invoked against any complicit association members as well.

An association debarred from the H-2A temporary labor certification program will not be

permitted to continue to file as a joint employer with its members during the period of the

debarment.

(h) Debarment involving agricultural associations acting as sole employers. If the

Administrator, OFLC determines a substantial violation has occurred, and if an

agricultural association acting as a sole employer is determined to have committed the

violation, the debarment determination will apply only to the association and any

successor in interest to the debarred association.

§ 655.119 Document retention requirements

(a) Entities required to retain documents. All employers receiving a certification of

the Application for Temporary Employment Certification for agricultural workers under

this subpart are required to retain the documents and records as provided in the

regulations cited in paragraph (c) of this section.

(b) Period of required retention. Records and documents must be retained for a period

of 3 years from the date of certification of the Application for Temporary Employment

Certification.

_______________

following documentation:

(i) Proof of recruitment efforts including:

(A) Job order placement as specified in § 655.102(e)(1);

(B) Advertising as specified in § 655.102(g)(3), or, if used, professional, trade, or

ethnic publications;

(D) Multi-state recruitment efforts (if required under § 655.102(i)) as specified in §

655.102(g)(3);

(ii) Substantiation of information submitted in the recruitment report prepared in

accordance with § 655.102(k)(2), such as evidence of non-applicability of contact of

former employees as specified in § 655.102(h);

(iii) The supplemental recruitment report as specified in § 655.102(k) and any

supporting resumes and contact information as specified in § 655.102(k)(3);.

(iv) Proof of workers' compensation insurance or State law coverage as specified in §

655.104(e);

(v) Records of each worker's earnings as specified in § 655.104(j);

(vi) The work contract or a copy of the Application for Temporary Employment

Certification as defined in 29 CFR 501.10 and specified in § 655.104(q);

(vii) The wage determination provided by the NPC as specified in § 655.108;

(viii) Copy of the request for housing inspection submitted to the SWA as specified in

§655.104(d); and

_______________

(2) In addition to the documentation specified in paragraph (c)(1) of this section, H-

2ALCs must also retain:

(i) Statements of compliance with the housing and transportation obligations for each

fixed-site employer which provided housing or transportation and to which the H-2ALC

provided workers during the validity period of the certification, unless such housing and

transportation obligations were met by the H-2ALC itself, in which case proof of

compliance by the H-2ALC must be retained, as specified in § 655.101(a)(5);

(ii) Proof of surety bond coverage which includes the name, address, and phone

number of the surety, the bond number of other identifying designation, the amount of

coverage, and the payee, as specified in 29 CFR 501.8; and

(3) Associations filing must retain documentation substantiating their status as an

employer or agent, as specified in § 655.101(a)(1).

Subpart C--[Removed and Reserved]

5. Subpart C is removed and reserved.

TITLE 29--LABOR

6. Revise part 501 to read as follows:

PART 501–ENFORCEMENT OF CONTRACTUAL OBLIGATIONS FOR

TEMPORARY ALIEN AGRICULTURAL WORKERS ADMITTED UNDER

SECTION 218 OF THE IMMIGRATION AND NATIONALITY ACT

_______________

Subpart A General Provisions

Sec.

501.0 Introduction.

501.1 Purpose and scope.

501.2 Coordination of intake between DOL agencies.

501.3 Discrimination prohibited.

501.4 Waiver of rights prohibited.

501.5 Investigation authority of Secretary.

501.6 Cooperation with DOL officials.

501.7 Accuracy of information, statements, data.

501.8 Surety bond.

501.10 Definitions.

Subpart B_Enforcement of Work Contracts

501.15 Enforcement.

501.16 Sanctions and Remedies--General.

501.17 Concurrent actions.

501.18 Representation of the Secretary.

501.19 Civil money penalty assessment.

501.20 Debarment and revocation.

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501.21 Failure to cooperate with investigations.

501.22 Civil money penalties--payment and collection.

Subpart C_Administrative Proceedings

501.30 Applicability of procedures and rules.

Procedures Relating to Hearing

501.31 Written notice of determination required.

501.32 Contents of notice.

501.33 Request for hearing.

Rules of Practice

501.34 General.

501.35 Commencement of proceeding.

501.36 Caption of proceeding.

Referral for Hearing

501.37 Referral to Administrative Law Judge.

501.38 Notice of docketing.

501.39 Service upon attorneys for the Department of Labor--number of copies.

Procedures Before Administrative Law Judge

501.40 Consent findings and order.

Post-Hearing Procedures

501.41 Decision and order of Administrative Law Judge.

Review of Administrative Law Judge's Decision

501.42 Procedures for initiating and undertaking review.

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501.43 Responsibility of the Office of Administrative Law Judges.

501.44 Additional information, if required.

501.45 Final decision of the Administrative Review Board.

Record

501.46 Retention of official record.

501.47 Certification.

Authority: 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c), and 1188.

Subpart A General Provisions

§ 501.0 Introduction.

These regulations cover the enforcement of all contractual obligation provisions

applicable to the employment of H-2A workers under sec. 218 of the Immigration and

Nationality Act (INA), as amended by the Immigration Reform and Control Act of 1986

(IRCA). These regulations are also applicable to the employment of United States (U.S.)

workers newly hired by employers of H-2A workers in the same occupations as the H-2A

workers during the period of time set forth in the labor certification approved by ETA as

a condition for granting H-2A certification, including any extension thereof. Such U.S.

workers hired by H-2A employers are hereafter referred to as engaged in corresponding

employment.

§ 501.1 Purpose and scope.

(a) Statutory standard. Section 218(a) of the INA provides that:

_______________

(1) A petition to import an alien as an H-2A worker (as defined in the INA) may not

be approved by the Secretary of the Department of Homeland Security (DHS) unless the

petitioner has applied to the Secretary of the United States Department of Labor

(Secretary) for a certification that:

(i) There are not sufficient workers who are able, willing, and qualified, and who will

be available at the time and place needed, to perform the labor or services involved in the

petition, and

(ii) The employment of the alien in such labor or services will not adversely affect the

wages and working conditions of workers in the U.S. similarly employed.

(2) [Reserved]

(b) Role of the Employment and Training Administration (ETA). The issuance and

denial of labor certification under sec. 218 of the INA has been delegated by the

Secretary to ETA, an agency within the U.S. Department of Labor (the Department or

DOL). In general, matters concerning the obligations of an employer of H-2A workers

related to the labor certification process are administered and enforced by ETA. Included

within ETA’s jurisdiction are issues such as whether U.S. workers are available, whether

adequate recruitment has been conducted, whether there is a strike or lockout, the

methodology for establishing AEWR, whether workers’ compensation insurance has

been provided, whether employment was offered to U.S. workers as required by sec. 218

of the INA and regulations at 20 CFR part 655, Subpart B, and other similar matters. The

regulations pertaining to the issuance and denial of labor certification for temporary alien

workers by the ETA are found in 20 CFR part 655, Subpart B.

_______________

Division (WHD). (1) The Secretary is authorized to take actions that assure compliance

with the terms and conditions of employment under sec. 218 of the INA, the regulations

at 20 CFR part 655, Subpart B, or these regulations, including the assessment of civil

money penalties and seeking injunctive relief and specific performance of contractual

obligations. See 8 U.S.C. 1188(g)(2).

(2) Certain investigatory, inspection, and law enforcement functions to carry out the

provisions of sec. 218 of the INA have been delegated by the Secretary to the ESA,

WHD. In general, matters concerning the obligations under a work contract between an

employer of H-2A workers and the H-2A workers and U.S. workers hired in

corresponding employment by H-2A employers are enforced by ESA, including whether

employment was offered to U.S. workers as required under sec. 218 of the INA or 20

CFR part 655, Subpart B, or whether U.S. workers were laid off or displaced in violation

of program requirements. Included within the enforcement responsibility of WHD are

such matters as the payment of required wages, transportation, meals, and housing

provided during the employment. The WHD has the responsibility to carry out

investigations, inspections, and law enforcement functions and in appropriate instances

impose penalties, recommend revocation of existing certification(s) or debarment from

future certifications, and seek injunctive relief and specific performance of contractual

obligations, including recovery of unpaid wages (either directly from the employer or in

the case of an H-2A Labor Contractors (H-2ALC), from the H-2ALC directly and/or

from the insurer who issued the surety bond to the H-2ALC as required by 20 CFR part

655, Subpart B and 29 CFR 501.8).

_______________

(d) Effect of regulations. The amendments to the INA made by Title III of the IRCA

apply to petitions and applications filed on and after June 1, 1987. Accordingly, the

enforcement functions carried out by the WHD under the INA and these regulations

apply to the employment of any H-2A worker and any other U.S. workers hired by H-2A

employers in corresponding employment as the result of any application filed with the

Department on and after June 1, 1987.

§ 501.2 Coordination of intake between DOL agencies.

Complaints received by ETA or any State Workforce Agency (SWA) regarding

contractual H-2A labor standards between the employer and the employee will be

immediately forwarded to the appropriate WHD office for appropriate action under these

regulations.

§ 501.3 Discrimination prohibited.

(a) No person shall intimidate, threaten, restrain, coerce, blacklist, discharge, or in any

manner discriminate against any person who has:

(1) Filed a complaint under or related to sec. 218 of the INA or these regulations;

(2) Instituted or caused to be instituted any proceedings related to sec. 218 of the INA

or these regulations;

(3) Testified or is about to testify in any proceeding under or related to sec. 218 of the

INA or these regulations;

(4) Exercised or asserted on behalf of himself or others any right or protection

afforded by sec. 218 of the INA or these regulations; or

_______________

(5) Consulted with an employee of a legal assistance program or an attorney on

matters related to sec. 218 of the INA, or to this subpart or any other Department

regulation promulgated pursuant to sec. 218 of the INA.

(b) Allegations of discrimination against any person under paragraph (a) of this

section will be investigated by the WHD. Where the WHD has determined through

investigation that such allegations have been substantiated, appropriate remedies may be

sought. The WHD may assess civil money penalties, seek injunctive relief, and/or seek

additional remedies necessary to make the employee whole as a result of the

discrimination, as appropriate, and may recommend to ETA debarment of any such

violator from future labor certification. Complaints alleging discrimination against U.S.

workers and immigrants based on citizenship or immigration status may also be

forwarded by the WHD to the Department of Justice, Civil Rights Division, Office of

Special Counsel for Immigration-Related Unfair Employment Practices.

§ 501.4 Waiver of rights prohibited.

No person shall seek to have an H-2A worker, or other U.S. worker hired in

corresponding employment by an H-2A employer, waive any rights conferred under sec.

218 of the INA, the regulations at 20 CFR part 655, Subpart B, or under these

regulations. Any agreement by an employee purporting to waive or modify any rights

inuring to said person under the INA or these regulations shall be void as contrary to

public policy, except that a waiver or modification of rights or obligations hereunder in

favor of the Secretary shall be valid for purposes of enforcement of the provisions of the

INA or these regulations. This does not prevent agreements to settle private litigation.

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§ 501.5 Investigation authority of Secretary.

(a) General. The Secretary, either pursuant to a complaint or otherwise, shall, as may

be appropriate, investigate and, in connection therewith, enter and inspect such places

(including housing) and such vehicles, and such records (and make transcriptions

thereof), question such persons and gather such information as deemed necessary by the

Secretary to determine compliance with contractual obligations under sec. 218 of the INA

or these regulations.

(b) Failure to cooperate with an investigation. Where any employer (or employer’s

agent or attorney) using the services of an H-2A worker does not cooperate with an

investigation concerning the employment of H-2A workers or U.S. workers hired in

corresponding employment, the WHD shall report such occurrence to ETA and may

recommend that ETA revoke the existing certification that is the basis for the

employment of the H-2A workers giving rise to the investigation, and the WHD may

recommend to ETA the debarment of the employer from future certification for up to 3

years. In addition, the WHD may take such action as may be appropriate, including the

seeking of an injunction and/or assessing civil money penalties, against any person who

has failed to permit the WHD to make an investigation.

that protects the confidentiality of any complainant or other person who provides

information to the Secretary in good faith.

(d) Report of violations. Any person may report a violation of the work contract

obligations of sec. 218 of the INA or these regulations to the Secretary by advising any

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local office of the SWA, ETA, WHD, or any other authorized representative of the

Secretary. The office or person receiving such a report shall refer it to the appropriate

office of DOL, WHD for the geographic area in which the reported violation is alleged to

have occurred.

§ 501.6 Cooperation with DOL officials.

All persons must cooperate with any official of the DOL assigned to perform an

investigation, inspection, or law enforcement function pursuant to the INA and these

regulations during the performance of such duties. The WHD will take such action as it

deems appropriate, including seeking an injunction to bar any failure to cooperate with an

investigation and/or assessing a civil money penalty therefore. In addition, the WHD will

report the matter to ETA, and the WHD may recommend to ETA the debarment of the

employer from future certification and/or recommend that the person’s existing labor

certification be revoked. In addition, Federal statutes prohibiting persons from

interfering with a Federal officer in the course of official duties are found at 18 U.S.C.

111 and 18 U.S.C. 1114.

§ 501.7 Accuracy of information, statements, data.

Information, statements and data submitted in compliance with provisions of the Act or

these regulations are subject to18 U.S.C. 1001, which provides, with regard to statements

or entries generally, that whoever, in any matter within the jurisdiction of any department

or agency of the U.S. knowingly and willfully falsifies, conceals or covers up by any

trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent

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statements or representations, or makes or uses any false writing or document knowing

the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not

more than $10,000 or imprisoned not more than 5 years, or both.

§ 501.8 Surety bond.

(a) H-2ALCs shall obtain a surety bond to assure compliance with the provisions of

this part and 20 CFR part 655, Subpart B for each labor certification being sought. The

H-2ALC shall attest on the application for labor certification that such a bond meeting all

the requirements of this section has been obtained and shall provide on the labor

certification application form information that fully identifies the surety, including the

name, address and phone number of the surety, and which identifies the bond by number

or other identifying designation.

(b) The bond shall be payable to the Administrator, Wage and Hour Division, United

States Department of Labor. It shall obligate the surety to pay any sums to the

Administrator, WHD, for wages and benefits owed to H-2A and U.S. workers, based on a

final decision finding a violation or violations of this part or 20 CFR part 655, Subpart B

relating to the labor certification the bond is intended to cover. The aggregate liability of

the surety shall not exceed the face amount of the bond. The bond shall be written to

cover liability incurred during the term of the period listed in the application for labor

certification made by the H-2ALC, and shall be amended to cover any extensions of the

labor certification requested by the H-2ALC. Surety bonds may not be canceled or

terminated unless 30 days’ notice is provided by the surety to the Administrator, WHD.

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2ALC will employ fewer than 25 employees, $10,000 for a labor certification for which a

H-2ALC will employ 25 to 49 employees, and $20,000 for a labor certification for which

a H-2ALC will employ 50 or more employees. The amount of the bond may be

increased by the Administrator, WHD after notice and an opportunity for hearing when it

is shown based on objective criteria that the amount of the bond is insufficient to meet

potential liabilities.

§ 501.10 Definitions.

(a) Definitions of terms used in this part. For the purpose of this part:

Administrative Law Judge (ALJ) means a person within the Department’s Office of

Administrative Law Judges appointed pursuant to 5 U.S.C. 3105, or a panel of such

persons designated by the Chief Administrative Law Judge from the Board of Alien

Labor Certification Appeals (BALCA) established by part 656 of this chapter, which will

hear and decide appeals as set forth at 20 CFR 655.115.

Administrator, WHD means the Administrator of the Wage and Hour Division

(WHD), ESA and such authorized representatives as may be designated to perform any of

the functions of the Administrator, WHD under this part.

Adverse effect wage rate (AEWR) means the minimum wage rate that the

Administrator of the Office of Foreign Labor Certification (OFLC) has determined must

be offered and paid to every H-2A worker employed under the DOL-approved

Application for Temporary Employment Certification in a particular occupation and/or

area, as well as to U.S. workers hired by employers into corresponding employment

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during the H-2A recruitment period, to ensure that the wages of similarly employed U.S.

workers will not be adversely affected.

Agent means a legal entity or person, such as an association of agricultural employers,

or an attorney for an association, that

(1) Is authorized to act on behalf of the employer for temporary agricultural labor

certification purposes;

(2) Is not itself an employer, or a joint employer, as defined in this section, with

respect to a specific application; and

(3) Is not under suspension, debarment, expulsion, or disbarment from practice before

any court or the Department, the Board of Immigration Appeals, the immigration judges,

or DHS under 8 CFR 292.3, 1003.101.

Agricultural association means any nonprofit or cooperative association of farmers,

growers, or ranchers (including but not limited to processing establishments, canneries,

gins, packing sheds, nurseries, or other fixed-site agricultural employers), incorporated or

qualified under applicable State law, that recruits, solicits, hires, employs, furnishes,

houses or transports any worker that is subject to sec. 218 of the INA. An agricultural

association may act as the agent of an employer for purposes of filing an H-2A

Application for Temporary Employment Certification, and may also act as the sole or

joint employer of H-2A workers.

Application for Temporary Employment Certification means the Office of

Management and Budget (OMB)-approved form submitted by an employer to secure a

temporary agricultural labor certification determination from DOL. A complete

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submission of the Application for Temporary Employment Certification includes the

form and the initial recruitment report.

Area of intended employment means the geographic area within normal commuting

distance of the place (worksite address) of the job opportunity for which the certification

is sought. There is no rigid measure of distance which constitutes a normal commuting

area, because there may be widely varying factual circumstances among different areas

(e.g., average commuting times, barriers to reaching the worksite, quality of the regional

transportation network, etc.). If the place of intended employment is within a

Metropolitan Statistical Area (MSA), including a multistate MSA, any place within the

MSA is deemed to be within normal commuting distance of the place of intended

employment. The borders of MSAs are not controlling in the identification of the normal

commuting area; a location outside of an MSA may be within normal commuting

distance of a location that is inside (e.g., near the border of) the MSA.

Department of Homeland Security (DHS) means the Federal agency having control

over certain immigration functions that, through its sub-agency, United States Citizenship

and Immigration Services (USCIS), makes the determination under the INA on whether

to grant visa petitions filed by employers seeking H-2A workers to perform temporary

agricultural work in the U.S.

DOL or Department means the United States Department of Labor.

Eligible worker means an individual who is not an unauthorized alien (as defined

in sec. 274A(h)(3) of the INA, 8 U.S.C. 1324a(h)(3)) with respect to the employment

in which the worker is engaging.

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