Labor Department publishes a final rule to amend H-2A visa program 

By: Sydney Sheffield

The United States Department of Labor has published a final rule to amend the H-2A visa program. The final rule, Temporary Agricultural Employment of H-2A Nonimmigrants in the United States, is effective as of November 14, 2022. 

The H-2A program allows employers to address temporary labor needs by employing foreign agricultural workers when there are not sufficient workers who are able, willing, qualified, and available, and when doing so will not adversely affect the wages and working conditions of workers similarly employed in the US. After the department proposed changes to the H-2A program’s regulations in a Notice of Proposed Rulemaking in July 2019, tens of thousands of comments were submitted and reviewed. 

“By improving H-2A program regulations, we are strengthening worker protections, meeting our core mission,” said Secretary of Labor Marty Walsh. “Today’s new rule makes several improvements to enhance the integrity of the H-2A program and provide employers and other stakeholders greater clarity.”  

 The new rule will:  

• Improve safety and health protections for workers housed in rental or public accommodations

• Streamline and update bond requirements for labor contractors to better hold them accountable and clarifies joint-employer status for employers and associations

• Clarify the housing certification process to allow state and local authorities to conduct housing inspections

• Establish explicit authority to debar attorneys and agents for their misconduct, independent of an employer’s violations

• Make electronic filing mandatory for most applications to improve employers’ processing efficiency

• Modernize the methodology and procedures for determining the prevailing wage to allow state workforce agencies to produce more prevailing wage findings

Last year, many from the agricultural industry testified before the Senate Judiciary Committee, regarding the final rule. National Pork Producers Council (NPPC) President Jen Sorenson said, “Current visa programs designed for seasonal agriculture—such as the H-2A visa—fail to meet the workforce needs of U.S. pork producers and other year-round livestock farmers. Now more than ever, we need a dedicated, year-round workforce.”

The changes in the final rule will also support the enforcement capabilities of the department’s Wage and Hour Division to address H-2A program fraud and abuse that undermines workers’ rights and hurts law-abiding employers.