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DOL Proposes Revisions to the H-2A Visa Program

26 Oct

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Applicable to:

Employers and employed temporary or seasonal nonimmigrant workers of the agricultural sector.

What happened?

The Department of Labor (DOL) proposes to amend its regulations governing the certification of temporary employment of nonimmigrant workers employed in temporary or seasonal agricultural employment and the enforcement of the contractual obligations applicable to employers of these nonimmigrant workers.

What are the details?

The revisions proposed focus on strengthening protections for temporary agricultural workers and enhancing the DOL capabilities to monitor program compliance and take necessary enforcement actions against program violators.

Anyone interested in leaving comments on the proposed rule can do so on or before November 14, 2023, by visiting the Federal eRulemaking Portal: https://www.regulations.gov/docket/ETA-2023-0003 Follow the instructions on the website for submitting comments. Include the agency’s name and docket number ETA–2023–0003 in your comments and do not include any personally identifiable or confidential business information you do not want publicly disclosed.

The proposed rule aims to address some of the comments that were beyond the scope of the 2022 H–2A Final Rule and concerns expressed during that rulemaking, to respond to recent court decisions and program experience indicating a need to enhance the DOL ability to enforce regulations related to foreign labor recruitment and to enhance worker protections for a vulnerable workforce.

Some of the proposed amendments are as follows:

1. Employers must pay updated Adverse Effects Wage Rates (AEWR) immediately upon publication in the Federal Register.

2. New rules for minor work delays of up to 14 days, requiring employer notification and compensation.

3. Amendments to H-2A labor certification program, enhancing worker protections and empowerment.

4. State workforce agencies can discontinue services for non-compliant employers, agents, and contractors.

5. Employers must provide information to labor organizations, permit representatives in meetings, and limit captive audience meetings for non-NLRA workers.

6. Employers seeking H-2A workers must commit to labor neutrality agreements or provide reasons for refusal.

7. Employers must disclose job retention standards, non-hourly wage rates, and overtime pay conditions.

8. Employers are forbidden from confiscating workers’ travel documents.

You can visit the proposed rule and additional information in the following link: Proposed Rule

For more information, please see the links below:

Proposed amendment

FAQ on Proposed amendment DOL

Notice of DOL

Press release

What do employers need to do?

Employers should review the above resources and links. If an employer desires to submit a comment on the proposed ruling, follow the instructions above. Employers should seek legal counsel if they would like to perform an audit of contracts, policies, and procedures to ensure compliance with the proposed rule.

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This communication is intended solely for the purpose of conveying information. The present post might incorporate hyperlinks directing readers to websites managed by third-party entities. The inclusion of any links within this communication is meant to serve as points of reference and could encompass opinion articles from various law firms, articles from HR associations, official websites, news releases, and documents of government agencies, and other relevant third-party sources. Vensure has no authority over these external websites and bears no responsibility for their content. Furthermore, Vensure does not endorse the materials present on these websites. The contents of this communication should not be interpreted as legal advice or as a legal standpoint concerning specific facts or scenarios. Nor should it be deemed an exhaustive compilation of facts potentially pertinent to federal, state, or local laws. It is strongly advised that employers solicit legal guidance from an employment attorney when undertaking actions in response to any legal updates provided. This is due to the possibility of future alterations occurring in federal, state, and local laws, regulations, as well as the directives and guidelines issued by governing agencies. These changes may transpire at any given time, potentially rendering certain portions of the content within this update void or inaccurate.

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