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US DOL Issues Final Rule on H-2A Workers

On October 12, 2022, the U.S. Department of Labor (DOL) published the final rule, “Temporary Agricultural Employment of H-2A Nonimmigrants in the United States”, which goes into effect on November 14, 2022.

The H-2A Program

The H-2A temporary agricultural program allows agricultural employers who anticipate a shortage of domestic workers to bring nonimmigrant foreign workers to the US to perform agricultural labor or services of a “temporary” or “seasonal nature.” Employment is considered to be of a seasonal nature where it is tied to a certain time of year by an event or pattern, such as a short annual growing cycle and requires labor levels above what is necessary for ongoing operations. Employment is of a temporary nature when the employer’s need to fill the position with a temporary worker will, except in extraordinary circumstances, last no longer than one year.

Key Highlights of the Final Rule

This final rule amends the DOL’s regulations governing the H-2A program to improve program protections for workers and enhance enforcement against fraud and abuse, while modernizing the H-2A application and temporary labor certification process. Among other changes and clarifications, key highlights of the final rule include:

  • A new methodology for calculating surety bond obligations for H-2A labor contractors (H-2ALCs);
  • Clarification on the term “rental and/or public accommodations”;
  • Requiring that rental and/or public accommodations meet standards addressing key health and safety issues; and
  • Clarification that employer-provided meals must be provided in a timely and sanitary manner and that these meals must be nutritionally and calorically adequate.

Next Steps for Employers

Employers with H-2A workers are encouraged to review the final rule in its entirety to ensure that their recruitment and employment practices align with these changes.

It is also recommended that employers seek the assistance of their labor and employment attorney and/or an immigration attorney for additional guidance on the H-2A program and this final rule.

Additional information about the H-2A program and related worker protections is also available on the DOL’s H-2A: Temporary Agricultural Employment of Foreign Workers webpage.

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