Featured Issue: Resources for H-2A Practice at DOL, USCIS, and DOS
The AILA Department of Labor (DOL) Liaison Committee provides a resource page with links to legal authorities, agency guidance and publications, and AILA resources and publications helpful for H-2A practice.
Legal Authorities
- INA 101(a)(15)(H) Noncitizens coming temporarily to the United States to perform services
- 8 CFR 214.2(h) Temporary employees
DOL-OFLC Guidance
- H-2A Temporary Agricultural Program
- H-2A Program Flow Chart
- H-2A Application and Appendix Forms (most current versions including parties subject to Kansas litigation)
- H-2A Temporary Certification for Agriculture Workers
- H-2A Adverse Effect Wage Rates (AEWR)
- Agricultural Online Wage Library
- H-2A Meals & H-2A and H-2B Subsistence Rates
- H-2A Frequently Asked Questions (FAQs)
- OFLC Searchable Database of FAQs
- Processing Times for Prevailing Wage Determinations and H-2A, H-2B Applications
- State Workforce Agency (SWA) and National Processing Center Contacts
- H-2A Labor Supply State Determinations
- Prevailing Wage Surveys 2022 H-2A Final Rule
Farmworker Protection Rule
- DOL Final Rule
- FAQs on the Farmworker Protection Rule
- H-2A Employers Guide to the Farmworker Protection Rule
- Materials from DOL Webinar on Farmworker Protection Rule
Litigation To Block Farmworker Protection Rule
- U.S. District Court (GA) ruling blocking enforcing Farmworker Protection Rule in 17 states “Kansas Litigation”
- North Carolina Farm Bureau Federation complaint to block Farmworker Protection Rule
- DOL General Notice for Emergency Request to Reinstate H-2A Forms
DOL-WHD
- Wage and Hour Regulatory Library: H-2 (Temporary Nonagricultural Labor or Services) Program and Guidance Documents
- Section 1188 — Admission of Temporary H2A Workers
- H-2A WHD Fact Sheets
- H-2A Workers Rights Card for U.S. Workers
- Workplace Poster: Employee Rights Under the H-2A Program (English)
- Agricultural Transportation Safety
- Transportation Safety Checklist
- ETA Housing Safety and Health Checklist
- Wage and Hour Fact Sheets
- H-2A Employee Rights Poster
USCIS/DHS Guidance
US DOS Guidance
- Foreign Affairs Manual
9 FAM 402.10-4(D) H-2A Nonimmigrants
9 FAM 402.10-8(D) Effect of DOL Revocation for H-2A Beneficiaries
9 FAM 402.10-12 Length and Extension of Stay
9 FAM 402.10-13(B) H-2A, H-2B Nonimmigrants Maximum Allowable Time
AILA Publications:
- The Seasonal Visas: H-2A and H-2B: Temporary Yet Essential Workers Immigration Practice Pointers, 2024-25 Ed. (AILA 2024) by Loan T. Huynh, L.J. D’Arrigo, Ashley Foret Dees, and Ed White (AILA 2024)
- H-2A and H-2B Practice: What Are We So Afraid Of? Immigration Practice Pointers, 2021-22 Ed. (AILA 2021), by Loan T. Huynh, L.J. D’Arrigo, Ashley Foret Dees, and Sujata Ajmera
Alerts
- DOL Announces Delay in Transition Schedule for Implementing the 2024 H-2A Final Rule
- DOL Alert on the Implementation of the Worker Protection Rule
- DOL Notice of Updates to the Adverse Effect Wage Rates for H-2A Workers
- Practice Pointer: Implementation of DOL’s H-2A Final Rule Improving Worker Protections
Browse the Featured Issue: Resources for H-2A Practice at DOL, USCIS, and DOS collection
DOL Webinar on Employer Filing Tips for Submitting H-2A and H-2B Applications
DOL published slides from a 6/23/16 webinar on filing tips and common deficiencies associated with the submission of applications for temporary labor certification under the H-2A and H-2B visa programs.
DOL’s OFLC Updates Prevailing Wage Data From Occupational Employment Survey
DOL alert that on 7/1/16, OFLC uploaded the newest prevailing wage data from the Occupational Employment Survey (OES) for July 2016 through June 2017. Prevailing wages issued from the National Prevailing Wage Center will reflect the new data.
DOL Statistics on H-2As from Third Quarter of FY2016
DOL’s OFLC statistics on H-2As, as of 6/30/16, including number of applications received; statistics on top states, employers, and occupations; as well as the status of applications processed.
DOL FAQs on the Form ETA-9142A, Appendix A for the H-2A Program
DOL Round 11 FAQs on the H-2A Program, on the revised Form ETA-9142A, Appendix A. Includes information on the streamlined process, what happens if the old Appendix A is submitted, and who is subject to the 2015 H-2A Herder Rule.
Minutes from DOL H-2 Stakeholder Meeting (5/24/16)
AILA’s DOL Liaison Committee minutes from the OFLC H-2 stakeholder meeting with DOL on 5/24/16. Some topics include: H-2A delays, iCERT performance issues, H-2B government errors, “good and substantial cause” for H-2B emergency filing, H-2A e-Approval process implementation, and H-2B RFE increase.
ETA Announces Streamlined H-2A Process with Procedural Change to the Form ETA-9142A, Appendix A
DOL announcement that OMB approved its request to update the Form ETA-9142A, Appendix A to reflect the regulatory requirements in the 2015 H-2A Herder Final Rule and to simplify the H-2A process for employers. Notice includes information on new process and transition procedures.
AILA Notes from SCOPS Teleconference (5/18/16)
AILA notes from a teleconference with SCOPS on 5/18/16. Topics include validity dates on approval notices, B-2 to F-1 denials, card production delivery issues, R-1 site visits, processing time issues, H-1B cap and subsequent extensions, and scam alerts.
USCIS/DOS Announcement on Launch of e-Approval for H-2A Petitions
USCIS and DOS launched e-Approval for H-2A petitions, through which beginning 5/11/16, USCIS will send approvals for H-2A petitions to DOS by the end of the next business day, in the place of a Form I-797 approval notice. Consular posts can then process an H-2A and conduct any required interview.
USCIS Will Now Use Pre-Paid Mailers to Send H-2A Receipt Notices
USCIS will begin using pre-paid mailers provided by petitioners to send out receipt notices for H-2A (temporary agricultural worker) petitions starting on 5/11/16. This is a change from standard processing at USCIS service centers, which normally use pre-paid mailers only for final decision notices.
DOL Practice Pointer: Tips for Using DOL’s Online Data Library
The DOL Liaison Committee offers a practice pointer offering tips for accessing and using the LCA, H-2A, H-2B, and PERM performance data available on the DOL’s Office of Foreign Labor Certification (OFLC) website. Special thanks to David Ware.
DOL Comment Request on the H-2A Temporary Employment Certification Program
DOL request for comments on the H-2A program regarding proposed changes to Appendix A to mirror the operational process implemented in the H–2B program and to conform to the H–2A Final Rule regarding herding and production of livestock. Comments are due by 5/4/16. (81 FR 19243, 4/4/16)
DOL Statistics on H-2As from Second Quarter of FY2016
DOL’s OFLC statistics on H-2As, as of 3/31/16, including number of applications received; statistics on top states, employers, and occupations; as well as the status of applications processed.
USCIS Performance Data on H-2A Petitions for Second Quarter of FY2016
USCIS statistics on I-129 H-2A petitions, broken down by case status (received, approved, denied, or pending) and petitioner location (by state and company) for the second quarter of FY2016.
DOL Alert: May Continue to Use H-2A Forms with 2016 Expiration Dates
DOL announced that the H-2A forms are currently in review for a three-year extension. The Chicago National Processing Center will continue to accept the current H-2A program forms with 2016 expiration dates, which may be extended in one-month increments until the extension is approved by OMB.
DOL Notice of 2016 Allowable Charges for Agricultural Workers’ Meals and for Travel Subsistence Reimbursement
DOL notice with allowable charges for 2016 when the employer provides H-2A workers three meals a day, and the maximum travel subsistence/meal reimbursement that a worker with receipts may claim in 2016 under the H–2A and H–2B programs. Notice is effective on 2/26/16. (81 FR 9885, 2/26/16)
Minutes from DOL H-2 Stakeholder Meeting (2/23/16)
AILA’s DOL Liaison Committee minutes from the OFLC H-2 stakeholder meeting with DOL on 2/23/16. Some topics include: H-2B emergency procedures, processing delays, Prevailing Wage Determinations, definition of temporary need, recruitment report timing, deductions, arbitration agreements, and housing.
DOS Correction to 2/4/16 H-2A Interim Final Rule
DOS correction to an interim final rule published on 2/4/16 in the Federal Register. Correction includes an update to the text as well as a correction to the Addresses section. Correction is effective 2/19/16. Comments must be received by 4/4/16. (81 FR 7454, 2/12/16)
DHS Interim Final Rule on Elimination of H-2A Visa Exemption for Certain Caribbean Residents
DHS interim final rule on the elimination of the nonimmigrant visa exemption for certain Caribbean residents and their spouses/children seeking to come to the United States as H-2A workers. The effective date is 2/19/16. Comments are due by 4/8/16. (81 FR 6430, 2/8/16)
DHS/DOS Announce Changes to Entry Requirements for Certain Caribbean Residents Entering on H-2A Visas
DHS and DOS published rules in the Federal Register eliminating the nonimmigrant visa exemption for certain Caribbean residents coming to the United States as H-2A agricultural workers. Beginning 2/19/16, these workers will be required to have both a valid passport and visa.
DOS Interim Final Rule on H-2A Visas for Certain Nationals
DOS interim final rule requiring a passport and visa for certain nationals from the Caribbean, if that individual is entering as a H-2A. Previously, these workers were allowed to enter without a visa. This rule is effective 2/19/16. Comments will be accepted until 4/4/16. (81 FR 5906, 2/4/16)
DOL Adds Index of OFLC FAQ Rounds
DOL’s Office of Foreign Labor Certification has compiled a searchable list of topics covered in each one of its FAQ Rounds.
DOL Statistics on H-2As from First Quarter of FY2016
DOL’s OFLC statistics on H-2As, as of 12/31/15, including number of applications received; statistics on top states, employers, and occupations; as well as the status of applications processed.
DOL Announcement Regarding Technical Problems with OFLC's iCERT System
DOL alert that the OFLC has been experiencing technical network problems supporting its iCERT Visa Portal System, resulting in delays in the processing of temporary nonimmigrant visa applications for employers. DOL is working to improve system performance as soon as possible.
DOL Round 10 FAQ on Post-Certification Corporate Restructuring and Definition of ”Successor in Interest”
DOL issued Round 10 FAQ on the 2010 H-2A Final Rule, providing guidance on corporate restructuring and “successor in interest” post-certification.
Memo on Joint Employment under the Fair Labor Standards Act and Migrant and Seasonal Agricultural Worker Protection Act
The U.S. Wage and Hour Division issued Administrator’s Interpretation No. 2016-1 on joint employment under the Fair Labor Standards Act and Migrant and Seasonal Agricultural Worker Protection Act where more than one business is involved in the work and where workers may have two or more employers.