University
of California
University
of California
Modification of H-2A Certification Rules, 6/29/99
[Federal Register: June 29, 1999 (Volume
64, Number 124)]
[Rules and Regulations]
[Page 34957-34966]
From the Federal Register Online
via GPO Access [wais.access.gpo.gov]
[DOCID:fr29jn99-14]
[[Page 34957]]
Labor Certification Process for
the Temporary Employment of
Nonimmigrant Aliens in Agriculture
in the United States; Administrative
Measures To Improve Program Performance;
Final Rule
-----------------------------------------------------------------------
DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Parts 654 and 655
RIN 1205-AB19
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Employment and Training
Administration (ETA) of the
Department of Labor (DOL or Department)
is publishing a final rule
amending its regulations relating
to the temporary employment of
nonimmigrant agricultural workers
(H-2A workers) in the United States.
The final rule makes three substantive
changes to the current
regulations. One change reduces the
time that an application for
temporary agricultural labor certification
must be filed from 60 days
to 45 days before the date the employer
needs agricultural workers.
Another change provides employers
with the option of having the housing
inspected as late as 20 days before
the date of need. The third
substantive change modifies the requirement
that employers notify the
local State Employment Security Office,
in writing, of the exact date
on which the H-2A workers
depart for the employers place of business.
The proposal to
provide a limited exception from the requirement to
use certain Farm Labor Contractors
as a source of workers has been
narrowed so that it can be implemented
in a manner that does not
require a change to the current regulations.
A fifth proposed change to
transfer visa petition adjudication
authority for workers outside of
the United States from the Immigration
and Naturalization Service (INS)
to DOL remains open as it is the
subject of parallel notice-and-comment
rulemaking by INS.
DATES: This final rule is effective
July 29, 1999. Affected parties do
not have to comply with the information
collection and recordkeeping
requirements in Sec. 655.106(e)(1)
until the Department publishes in
the Federal Register the control
numbers assigned by the Office of
Management and Budget (OMB) to these
information collection
requirements. Publication of the
control numbers notifies the public
that OMB has approved these information
collection requirements under
the Paperwork Reduction Act of 1995.
FOR FURTHER INFORMATION CONTACT: Denis
M. Gruskin, Senior Specialist,
Division of Foreign Labor Certifications,
Employment and Training
Administration, 200 Constitution
Avenue, NW., Room N-4456, Washington,
DC 20210. Telephone: (202) 219-5263
(this is not a toll-free number.)
SUPPLEMENTARY INFORMATION:
I. Introduction
On October 2, 1998,
ETA published in the Federal Register a Notice
of Proposed Rulemaking (NPRM) which
proposed five amendments to ETA's
regulations at 20 CFR part 655, subpart
B, relating to the temporary
employment of nonimmigrant agricultural
(H-2A) workers in the United
States. 63 FR 53244 (Oct. 2, 1998).
The NPRM proposed five regulatory
changes pertaining to: (1) The time
limits for housing inspections; (2)
time limits for filing labor certification
applications; (3) a possible
exception from using certain Farm
Labor Contractors (FLC's); (4)
elimination of the requirement that
employers notify the local job
service office in writing of the
date the H-2A workers depart for the
employer's place of business; and
(5) transfer of the responsibility
for approving H-2A
visa petitions for workers coming from outside of
the United States (U.S.) to DOL from
the INS Commissioner. This
document adopts final regulations
involving the time limits for housing
inspection and filing applications,
and the requirement that employers
notify the local employment service
office of the date the H-2A workers
depart for the employer's place of
business. Another proposed change
relating to an exception from using
certain FLC's is being adopted, in
part, in a manner that can be implemented
under current regulations.
The Department will take appropriate
action to finalize the transfer of
petition authority if INS concludes
such transfer is appropriate at the
completion of its rulemaking.
II. Statutory Standard and Implementing Regulations
The decision whether
to grant or deny an employer's petition to
import nonimmigrant farm workers
to the United States for the purpose
of temporary employment is the responsibility
of the Attorney General's
designee, the INS Commissioner. The
Immigration and Nationality Act
(INA) (8 U.S.C. 1101 et seq.) provides
that the Attorney General may
not approve a petition from an employer
for employment of nonimmigrant
farm workers (H-2A
visa holders) for temporary or seasonal services or
labor in agriculture unless the petitioner
has applied to the Secretary
of Labor for a labor certification
showing that:
(A) There are
not sufficient U.S. 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
(B) The employment
of the alien in such labor or services will not
adversely affect the wages and working
conditions of workers in the
United States similarly employed.
[8 U.S.C. 1101(a)(15)(H)(ii)(a),
1184(c), and 1188.]
The Department
of Labor has published regulations at 20 CFR part
655, subpart B, and 29 CFR part 501
to implement its responsibilities
under the H-2A program.
Regulations affecting employer-provided
agricultural worker housing are in
20 CFR part 654, subpart E, and 29
CFR 1910.42.
It was noted in
the NPRM that some recent H-2A program changes were
made to enhance effectiveness and
efficiency while maintaining worker
protections by administrative directives
in the form of Field Memoranda
(FM) issued by the ETA national office
to its 10 Regional
Administrators (RA's). (The RA's
make determinations on H-2A labor
certification applications and provide
functional guidance to the State
Employment Security Agencies (SESA),
which administer the H-2A program
under 20 CFR part 655, subpart B--Labor
Certification Process for
Temporary Agricultural Employment
in the United States.) These
administrative changes are summarized
herein for the convenience of
interested parties.
Administrative
changes made by FM 17-9, issued January 6, 1997,
Subject: Improvements in H-2A
processing, included:
<bullet> Clarifying
under what conditions U.S. workers are
considered to be ``available'' and
thus may be counted to fully or
partially deny H-2A
positions requested on employers' labor
certification applications. Only
those U.S. workers who are identified
by name, address, and social security
number can be counted to reduce
the number of H-2A
workers requested by an employer;
<bullet> Emphasizing
that regional offices should use discretion in
reducing the number of certified
positions requested as a result of
``last minute'' replacements of recruited
U.S. workers where historical
records of similar last minute referrals,
or other information,
[[Page 34959]]
indicate the likelihood that a proportion
of the referred workers would
not make themselves available for
work;
<bullet> Clarifying
positive recruitment requirements of U.S. farm
workers in areas where there are
credible reports of ``a significant
number of qualified U.S. workers,
who, if recruited, would likely be
willing to make themselves available
for work at the time and place
needed,'' thereby targeting recruitment
efforts by employers and SESA's
to those areas most likely to produce
qualified and available U.S.
workers;
<bullet> Encouraging
routine posting of approved agricultural job
orders on America's Job Bank in view
of the increased use of this
resource on the part of employers
and U.S. workers.
FM Number 22-98,
issued April 14, 1998, Subject: Clarification of
Transportation Requirements Home,
reaffirmed and clarified the
regulatory provisions which allow
H-2A
workers to move from one
certified employer to another and
the requirement placed on the final
H-2A employer to pay
for (or provide) the worker's transportation home.
III. Comments on Proposed Rule and the Department's Response
A. Comments on Proposed Rule
Thirty-six comments
were received on the proposed rule. The largest
number of comments--15--were received
from State agencies. After the
State agencies, the largest number
of comments were received from
worker advocates and employer organizations,
which submitted 8 and 5
comments, respectively. The Farmworker
Justice Fund (FJF) indicated
that its comments were supported
by 32 listed organizations. Comments
were received from the American Immigration
Lawyers Association (AILA)
and two private attorneys. Comments
were also received from Congressman
Howard Berman of California, ETA's
Regional Office in Chicago, one
monitor advocate, and one member
of the general public.
Many commenters,
in addition to commenting on the specific
regulatory proposals contained in
the NPRM, offered a number of
additional suggestions for modifying
the H-2A program. These
suggestions included, but were not
limited to:
<bullet> Repealing
the adverse effect wage rate (AEWR);
<bullet> Increasing
the AEWR by 20 percent;
<bullet> Eliminating
the current definition of ``prevailing
practice'' which is based on the
practices of a majority of employers
and employees, and replacing it with
one based on either a majority of
employers, or a majority of the employees
in the local area and
occupation;
<bullet> Imposing
user fees that recover the true cost of the H-2A
program;
<bullet> Eliminating
the 50 percent rule, which requires employers
to hire any qualified U.S. worker
who applies until 50 percent of the
work contract, under which the foreign
worker was hired, has elapsed.
<bullet> Requiring
withholding and placing in escrow sufficient
funds from H-2A workers'
wages so that they can pay for their return
transportation home if they do not
fulfill their contracts.
The above suggestions
are outside the scope of the proposed rule.
Consequently, they are not addressed
in this document but may be
considered by the Department in a
future rulemaking regarding the H-2A
nonimmigrant program. Similarly,
comments concerning administrative (
i.e., non-regulatory) changes in
the H-2A program are not addressed in
this document, but will be considered
by the Department in making
administrative changes that can be
implemented without amending the H-
2A regulations at 20 CFR part
656, subpart B.
The FJF strongly
opposed the proposed rule and urged that it be
withdrawn. According to the FJF,
the proposal is arbitrary and
capricious because it allegedly ignores
numerous studies concluding
that the Department has not adequately
implemented worker protections
under the H-2A program,
and it ignores recommendations that have been
made by such studies to improve worker
protections. The FJF enumerated
a variety of recommendations made
and issues identified by the studies
cited in its comments. Moreover,
addressing the recommendations and
issues cited by the FJF, as well
as the many other recommendations made
by other commenters would require
a much more comprehensive assessment
of the H-2A program
and extensive consultation with all stakeholders,
which--while such a process has been
taking place in other fora--is
outside the scope of this rulemaking.
As indicated in
the preamble to the NPRM, the primary purpose of
the proposed regulatory amendments
was to implement certain changes
growing out of a dialogue among the
Departments of State (DOS), Justice
(INS), Agriculture, and Labor to
streamline the H-2A program and
address complaints raised by some
users of the program without
weakening worker protections. Such
an effort is particularly important
in an environment characterized by
program growth and stable or
declining resources. The Department
believes, as discussed in greater
detail below, that the amendments
adopted are balanced. The amendments
serve to streamline the H-2A
program and can help improve operations
without weakening worker protections.
Further, as stated in the
preamble, this rulemaking represents
one step towards implementing
changes to improve H-2A
program operations. The Department will
consider the issues raised by various
studies of the H-2A program, as
well as the recommendations made
by the commenters on the NPRM, in a
future rulemaking effort to improve
the operation of the H-2A program.
B. Comments About the Proposed Regulatory Changes
The comments received
on the specific regulatory proposals in the
NPRM and the Department's response
to the comments are discussed below.
1. Time Limits for Employer Provided
Housing To Be Available for
Inspection (Sec. 654.403)
Several comments
were received on the proposal to reduce the time
by which housing that will be provided
to a worker must be available
for inspection, from 30 to 15 days
prior to occupancy. Inspections are
performed by State agencies in most
cases. See 20 CFR 653.501(d)(2)(xv)
and 20 CFR 654.400 et seq.
Congressman Howard
Berman and several worker advocates objected to
the proposal on several grounds.
The major issues raised by those
comments include:
<bullet> State
agencies do not always make timely inspections and
shortening the lead time to conduct
housing inspections will inevitably
lead to some needed repairs not being
made.
<bullet> The
Office of Inspector General's (OIG) report concluded,
in relevant part, that DOL has certified
employers to receive H-2A
workers despite lacking documentary
proof that housing inspection had
occurred. The OIG finding is consistent
with reports that some H-2A
housing is not inspected in a timely
fashion and that H-2A housing does
not comply with basic housing standards.
<bullet> The
untimely inspection and repair of farmworker housing
will worsen as the H-2A
program continues to grow, since funding for
inspections will not keep pace with
the increased need. The H-2A
program has been expanding to new
States and crop areas during the last
three years and is expected to continue
its growth.
Employer organizations
favored the proposal to reduce the lead time
worker
[[Page 34960]]
housing must be available for inspection
prior to occupancy, and
assumed that the proposed shortened
deadline for housing inspections
would allow certifications to be
issued even if housing inspection was
still pending. The National Council
of Agricultural Employers (NCAE)
stated that if certification is delayed
while housing inspections are
still pending, the proposed amendment
would have little ``real impact
on H-2A users.'' NCAE
recommended that the regulations be amended to
clarify that housing inspection is
not required prior to certification.
Two large employer
organizations--NCAE and the American Farm Bureau
Federation (AFBF)--expressed considerable
concern about the increasing
difficulty employers face in obtaining
timely housing inspections. The
NCAE indicated that this problem
has grown worse in recent years with
growth in the H-2A
program and its expansion into States where H-2A
certification has not been sought
in recent years. The NCAE further
stated that it appears that many
states have an extremely limited
number of personnel who are capable
of performing housing inspections.
Although the NCAE supported reducing
the application time, it strongly
urged that DOL inventory the housing
inspection resources available in
the State agencies to assure that
there are qualified inspectors
available to make inspections in
a timely manner.
Both the NCAE
and AFBF recommended conforming the H-2A housing
inspection requirement to that for
all other migrant and seasonal
agricultural workers in the regulations
implementing the Migrant and
Seasonal Agricultural Worker Protection
Act (MSPA) at 29 CFR 500.135.
They contend such a change would
address the problem faced by employers
in obtaining timely housing inspections.
The MSPA regulations require
that housing be approved prior to
occupancy. They also provide that if
the employer has made a timely request
for an inspection, and the
inspection has not been made, the
employer may house workers without
inspection, provided that the housing
is in full compliance with
applicable regulations.
Nine State agencies
objected to the proposal to shorten the lead
time for housing inspections. The
major points they made include:
<bullet> Several
States objected to the proposal because it would
allow certification to be issued
before the employer's housing was
inspected and approved.
<bullet> Other
states objected to the proposal based on resource
considerations. With the limited
resources available, a shorter time
frame would make it more difficult
for States to inspect and approve
housing prior to occupancy. Two States
pointed out that they only had
one person available to conduct housing
inspections; another indicated
that normally only one person is
available to conduct 150 housing
inspections.
<bullet> One
State pointed out that inclement weather conditions
during the winter months requires
rescheduling of housing inspections
in remote areas. The proposed 15-day
time frame would make it difficult
for inspections to be completed in
a timely fashion.
<bullet> Many
employers do not request housing inspections in a
timely manner.
<bullet> Inspection
15-days before occupancy may not provide
adequate time for employers to correct
deficiencies in their housing.
Four States were
in favor of the proposal to shorten the lead time
for conducting housing inspections.
One State maintained that the
shorter time frame would allow more
flexibility for its field staff to
work with employers and that the
``relaxing'' of the regulation ``still
provides the same level of protection
for U.S. workers.''
The ETA Chicago
Regional Office expressed great concern about
reducing the time limit for inspection
prior to occupancy, because
there would be no way to guarantee
that housing will be in full
compliance with requirements before
certification is granted.
The Department
indicated in the NPRM that one reason for reducing
the lead time for conducting housing
inspections was the commonly
expressed concern among employers
in Northern States that a 1-month
lead time was unrealistic for employers
that need workers in March or
April. It was also stated in the
NPRM that local employment security
agency staff have had difficulty
inspecting employer-provided housing
in Northern States. 63 FR at 53245.
Only two comments directly
addressed these issues. Massachusetts
indicated that it does not have a
problem in inspecting housing in
late winter or early spring. The
State's records show that employers
with employment needs during late
winter or early spring normally maintain
their housing facilities in
conformity with the required standards
and have always been inspected
in a timely manner. As noted above,
another state, pointed out that
inclement weather frequently causes
housing inspections to be
rescheduled and opined that reducing
the lead time the employer has to
assure that housing will be in full
compliance before it is occupied
will make it more difficult for State
agencies to perform timely
housing inspections.
Lastly, one commenter
questioned what would happen if--with a
shortened lead time--the employer's
housing is found deficient after
certification, and called upon the
Department to spell out what happens
in such circumstances. The commenter
urged that the employer simply be
given an opportunity to correct and
cure any deficiency before the date
of need.
After carefully
reviewing all the comments, the Department
continues to be of the view that
employers should have the option of
having the housing inspected at a
date considerably later than under
the current regulations. At the same
time, however, the Department has
given careful consideration to the
interrelationship between housing
inspection and the certification
process, and has concluded that
housing must pass inspection before
certification can be granted. See 8
U.S.C. 1188(c)(4). Therefore the
Department has concluded that the
latest date by which employers must
assure that the housing will be in
full compliance with applicable standards
pursuant to
Sec. 655.403(a)(3) can be no later
than 20 days before the date of
need--i.e., the date on which certification
must ordinarily be granted.
An employer whose housing fails to
pass an inspection conducted on or
before the 20th day prior to the
date of need will have the 5 days
provided for in Sec. 655.403 (e)
to correct the deficiency and the
certification will be delayed for
that period, if necessary. If, on the
other hand, the state agency did
not timely inspect the housing (i.e.,
by 20 days before the date of need),
at no fault of the employer, the
Department will delay certification
until the housing has been
inspected and the employer has had
an opportunity to remediate any
deficiencies discovered.
The Department
notes that the employer must notify the SESA
ordering office at least 10 working
days before the date of need,
pursuant to 20 CFR 653.501(d)(2)(v)(D),
if workers are no longer needed
or if the date of need has changed
or else face liability to U.S.
workers for housing and the first
week's pay. U.S. workers in turn are
required pursuant to 20 CFR 653.510(d)(2)(v)(B)
to contact a local job
service office 5 to 9 working days
before the date of need to determine
if the employer's needs have changed.
This allows workers to commence
travel to the jobsite, or to find
alternative employment if the work is
no longer available. It therefore
is important that the housing be
timely
[[Page 34961]]
inspected so that the local office
is able to advise workers if it
becomes necessary to deny the certification
because the housing is not
in compliance with the applicable
standards.
The Department
is of the view that rather than allow State agencies
less time in which to schedule inspections,
this modification actually
provides a longer window. The Department
anticipates that in areas
where housing inspections take longer
to schedule, employers will
continue to provide early notice
to State agencies to ensure that
inspections are conducted timely.
Accordingly, the
Department has modified Sec. 654.403 to require
that employers assure housing will
be in full compliance no later than
20 calendar days before the date
of need. The Department intends to
issue administrative guidance concerning
the operation of this
modification.
2. Reduction in Lead Time To File
Labor Certification Applications
(Sec. 655.101(c))
The proposal in
the NPRM to reduce the deadline for filing
applications from 60 to 45 days before
the date of need was strongly
opposed by the FJF, other worker
advocates, and Congressman Howard
Berman. Their major reasons for objecting
to the proposal include:
<bullet> There
has been no showing that a change in the lead time
to file applications is justified.
Agricultural growers know well in
advance their planting and harvesting
schedules. Indeed, for decades,
growers throughout the eastern United
States were able to estimate
these needs a full 80 days in advance.
<bullet> The
time available for interstate and positive recruitment
of U.S. workers would be unreasonably
shortened if the proposal is
implemented. Interstate recruitment
does not begin until the
application is accepted for consideration
by DOL. It can take 7 days
for the DOL's regional office to
review the employer's application, and
the employer has another 5 days to
correct deficiencies. With a
shortened lead time, this would place
the beginning of the interstate
recruitment at the 33rd day prior
to the date of need and just 13 days
before the date for labor certification.
If DOL does not review
applications in a timely manner,
as is often the case, there could be
10 days or less of interstate recruitment
of migrant workers prior to
the date of certification.
<bullet> Congress
insisted that H-2A labor certification be based
on proof that there is an actual
labor shortage, following a meaningful
test of the labor market. Accordingly,
it is not sufficient to rebut
that the regulations provide that
recruitment must continue until the
date the foreign (H-2A)
workers depart for the employer's place of
work.
<bullet> Employers
do not always hire workers referred to them
pursuant to the 50-percent rule.
<bullet> The
proposal is inconsistent with the recommendations of
the General Accounting Office (GAO).
Although the GAO report suggested
that the Department could reduce
from 60 to 45 days the time
applications have to be submitted
prior to the date of need, it also
stated that such a reduction should
only be made if the statutory
requirement that certifications be
issued 20 days before the date of
need is reduced to 7 days.
<bullet> The
proposal is inconsistent with the regulatory
requirement at Sec. 655.105 (a)(2),
which requires that H-2A employers
engage, at a minimum, in the kind
and degree of recruitment efforts to
secure U.S. workers that they made
to obtain H-2A workers.
Employer organizations
supported the reduction in the required lead
time to file applications. However,
they recommended that the lead time
to file applications be reduced by
more than suggested by DOL.
The NCAE, for
example, maintained that it is the experience of H-2A
users that most U.S. workers make
themselves available shortly before,
or after, the certification date.
Furthermore, since under current
regulations all qualified U.S. workers
who apply to the employer must
be hired until 50 percent of the
anticipated period of work (the
contract period) has elapsed, no
qualified U.S. worker would be denied
a job even if the deadline for applications
were reduced to 40 or even
30 days before the date of need.
The New England Apple Council (NEAC)
maintained that the ``lag time''
between recruitment and start of work
produces more ``no shows'' of workers
than any other reason.
The Florida Fruit
and Vegetable Association (FFVA) stated that for
several vegetable crops which are
greatly influenced by weather and
other production uncertainties, a
45-day lead time may still be too far
out to determine a crop's maturity
rate.
Comments submitted
by State agencies regarding the proposal to
shorten the lead time for filing
applications were mixed. Four States
supported the proposal, indicating
that the proposed change would not
have an adverse impact on U.S. workers.
Two of these States indicated
that the deadline for filing applications
should be reduced to less
than 45 days. The California State
agency recommended that the deadline
for filing applications be reduced
to 30 days prior to the date of
need. According to the California
State Agency, the shorter lead time
would increase the possibility of
locating U.S. workers who can commit
to the job and it also would be beneficial
to employers ``who may not
know their exact staffing needs or
start date until closer to the time
the work needs to be done.'' The
Kentucky State agency commented that
``(s)uccessfully recruiting any U.S.
workers can be achieved through
the Agriculture Recruitment System
in 30 days if supply states and
demand states coordinate specific
efforts towards identified
populations.''
Two states were
against reducing the lead time for filing and
processing applications. The Idaho
State agency noted that the full 60
days is needed because applications
are not filled out properly when
received. The Massachusetts State
agency indicated that the shorter
time frame will adversely impact
on State agencies' ability to conduct
effective recruitment, especially
in regions where master orders are
used.
Two other states
also commented. The New Jersey State agency
indicated that the reduction in time
to process applications should not
be a problem if there are adequate
staff at DOL to respond to the
applications when they are received.
The Nevada State agency noted that
the proposal provides employers with
more flexibility in recruitment of
agricultural labor, particularly
with regard to crops that are more
sensitive to weather conditions.
At the same time, the proposal may
allow employers to be less organized
in the planning and execution of
their application. The Nevada State
agency concluded by stating that
because of the way applications are
prioritized and processed in
Nevada, processing times would remain
relatively constant regardless of
filing deadlines.
A monitor advocate
who commented opined that the lead time to file
and process applications should be
expanded. This time should not be
less than 60 days to enable employers
to access all local resources in
attracting and identifying a ``sufficiently
large labor force.''
The ETA Chicago
Regional Office commented that reducing the time
limit to file labor certifications
did not leave enough time for the
State agencies to recruit adequately
in view of all the administrative
steps that must be completed before
States can conduct recruitment.
Some commenters
also indicated that the employers should still be
able to file labor certification
applications more than 45-days prior
to the date of need
[[Page 34962]]
for H-2A agricultural
workers. One commenter assumed that first-time
users of the program would be able
to file less than 45-days prior to
the date of need if necessary.
With respect to
the time limit for filing applications, the
Department has decided, after reviewing
all of the diverse comments, to
implement the proposal to reduce
the lead time for filing H-2A labor
certification applications from 60
to 45 days before the first date the
employer estimates that H-2A
workers are needed. The regulation will
provide growers with increased ability
to more precisely estimate the
need for workers. The Department
has concluded, for the reasons
discussed below, that reducing the
lead time for filing H-2A labor
certification applications will not
have a significant adverse impact
on the recruitment of U.S. workers.
The final rule, at
Sec. 655.101(c)(3), continues to
encourage employers to file in advance
of the required filing date, and
no change is made in the regulation
for emergency applications at Sec.
655.101(f)(2), which refers to
agricultural employers who have not
made use of H-2A agricultural
workers for the prior year's agricultural
season.
As noted in the
preamble to the NPRM, the overwhelming majority of
qualified U.S. workers do not apply
and make a commitment to temporary
agricultural employment earlier than
45 days before their services are
required. The Department does not
believe that this is generally
attributable to the fact, as some
commenters indicated, that DOL
regional offices may spend 12 days,
or more, in processing applications
before they are accepted for consideration
and placed into interstate
clearance. Furthermore, the majority
of applications filed on behalf of
H-2A agricultural workers
are by repeat users of the H-2A program. Most
such employers are well versed in
program requirements, policies, and
procedures; consequently, their applications
can be accepted for
consideration and placed into the
Agricultural Recruitment System with
minimal review.
H-2A
labor certification applications are filed simultaneously with
the local employment service office
and the ETA regional office. The
local office begins to conduct local
recruitment when it receives the
application from the employer whether
or not it has been accepted for
consideration by ETA's regional office.
20 CFR 655.101(c)(2).
As stated above,
some commentators noted that it can take longer
than the allotted 7 days for regional
offices to review H-2A labor
certification applications, and that
employers may take longer than 5
days to resubmit an amended application
in response to any deficiencies
found in the application by the regional
office, resulting in a
reduction in the time allowed for
interstate recruitment, since the
application has to be certified 20
days before the day the employer
first needs agricultural workers.
With respect to meeting the 7-day
deadline for reviewing applications,
ETA intends to increase its
monitoring of regional offices to
improve its performance in meeting
this statutory and regulatory requirement.
See 20 CFR 655.101(c)(1);
and 8 U.S.C. 1188(c)(2).
With respect to
the 5 days allotted for employers to submit amended
applications in response to deficiencies
noted by the regional office,
ETA intends to strictly enforce the
regulatory requirement at
Sec. 655.101(c)(2). This provides,
in relevant part, that when ETA has
formally notified an applicant of
any deficiencies, any time needed to
obtain an application acceptable
for consideration after the 5-calendar
period allowed for an amended application
will postpone the
certification decision day-for-day
beyond the 20 calendar days before
the date of need. This will lessen
considerably the possibility that
the period of interstate recruitment
prior to the date the application
is certified will be unduly abbreviated.
Most importantly,
notwithstanding comments to the contrary, it is
important to recognize that recruitment
continues considerably past the
date a labor certification application
is certified. Positive
recruitment conducted by the employer
must continue until the time the
H-2A workers depart
for the employer's place of employment, and
recruitment through the interstate
clearance system continues until 50
percent of the work contract under
which the H-2A workers were hired
has elapsed. Under the ``50-percent
rule,'' which refers to half the
time accounted for by the total period
of the contract, the employer
must continue to provide employment
to any qualified, eligible U.S.
worker who may apply. In addition,
the employer must offer to provide
the U.S. workers with housing and
the other benefits, wages, and
working conditions provided to H-2A
workers. See 8 U.S.C. 1188(b)(4),
and 20 CFR 655.102, 655.103(d), 655.105(a),
and 655.106(e).
As noted above,
some commenters indicated that employers do not
always hire U.S. workers referred
to them pursuant to the ``50-percent
rule.'' See 20 CFR 655.103(e). However,
no evidence to support these
claims was submitted to the Department.
Additionally, the Department is
not aware of any evidence suggesting
that such occurrences are numerous
or widespread. Nevertheless, ETA
intends to be vigilant of employers'
compliance with the ``50-percent
rule'', with violations addressed
through the imposition of appropriate
sanctions.
3. Exception From Using Farm Labor
Contractors (Sec. 655.103(f))
The majority of
comments opposed the proposal to provide a limited
exception from the requirement to
use farm labor contractors (FLC's)
when it is the prevailing practice
in an area and occupation for non-H-
2A employers to use such contractors
as a recruitment source for U.S.
workers and to compensate them with
an override. This exception would
have applied if a particular FLC
has a demonstrated history of using
undocumented aliens or serious labor
standard violations.
Congressman Berman
and worker advocacy organizations were strongly
opposed to the proposal. They indicated
that such an exception would
reduce the use of FLC's which are
an important recruitment source for
U.S. farmworkers. The FJF maintained
that recent studies show that an
increasing percentage of U.S. farmworkers
and most guest workers are
hired through labor contractors.
Both Congressman Berman and the FJF
maintained that in California it
is estimated that between one-half and
two-thirds of seasonal farmworkers
are hired through crewleaders--many
of whom also transport, house, pay,
and supervise workers in the
fields.
Objections to
the proposal by worker advocates include:
<bullet> The
provision that employers need not use an FLC on the
Wage and Hour Division's (WHD's)
list of contractors whose certificates
have been revoked is redundant with
current law under MSPA and
unnecessary. Employers are prohibited
by law from contracting with an
FLC whose licenses has been revoked
and not reinstated.
<bullet> The
complaint provision proposed provides no due process
rights permitting FLC's to challenge
the evidence submitted by State
agencies.
<bullet> The
proposed rule could put some FLC's out of business and
deny jobs to U.S. workers who are
associated with contractors who have
been ``sanctioned'' by the INS for
hiring unauthorized immigrants or
who have violated labor laws. The
Department should not use this
rulemaking process to impose additional
``punishment'' on businesses
because affected U.S. workers would
be unduly harmed.
[[Page 34963]]
<bullet> The
proposal may lead to workers being ``doubly punished''
and discouraged from filing complaints.
If a worker complains about
abusive practices of an FLC, such
as nonpayment of wages, the worker
may see wages go unpaid and then
lose future work because of the
secondary consequences of the complaint.
<bullet> An
H-2A
grower which may have hired unauthorized workers
and violated labor laws would still
receive Government approval to hire
H-2A workers; yet,
an FLC could be barred, at the grower's initiation,
from supplying lawful U.S. workers
to that same U.S. employer.
<bullet> The
proposal is particularly troubling in that it allows
an FLC who is barred as a contractor
supplying U.S. workers to apply
for H-2A labor certifications.
<bullet> The
proposal could be subject to manipulation and harmful
to workers. An employer could bring
a complaint against an FLC who has
a large number of available U.S.
workers to avoid hiring U.S. workers.
The employer organizations
also objected to the proposal to provide
an exception from using certain FLC's.
The NCAE pointed out, as did the
worker advocates, that the provision
in the proposal permitting H-2A
applicants to refuse to engage FLC's
who are on WHD's list of
contractors whose certificates have
been revoked adds no new
protections for H-2A
employers. Under the MSPA regulations at 20 CFR
500.71, employers are already prohibited
from engaging such
contractors.
The NCAE also
maintained that the provision that H-2A employers
would not be required to employ farm
labor contractors on a list of
contractors sanctioned by INS is
meaningless, because INS does not
maintain such a list. NCAE contends
that although INS district or
regional offices may have such lists,
all offices may not have such
lists, and to the extent such lists
exist, they would include all
employers sanctioned by that INS
district and would not be limited to
FLC's. The lists are not aggregated
in one spot and the lists that do
exist are not routinely disseminated
to the public as is the DOL FLC
list. NCAE contended that the only
apparent way an employer could avail
itself of this regulatory provision
is to contact each INS district
office and request its list of employers
which have been sanctioned for
violations of immigration laws and
search each list for the names of
contractors.
According to the
NCAE, the provision in the proposal to permit
employers not to use FLC's not on
the WHD or INS lists if the employer
can document that the FLC ``has a
history of employing or providing a
substantial number of workers who
do not have the authorization to work
in the U.S. or a substantial history
of labor violations'' is
impractical on several grounds. These
grounds include:
<bullet> It
is unlikely that growers would be able to assemble the
documentation on the FLC required
to support a credible complaint;
<bullet> There
is no protection for the employer from retaliation
by the FLC; DOL would be creating
a procedure in which the employer
could incur legal liability by making
the complaint; and
<bullet> The
complaint procedure is flawed, convoluted and ignores
the reality of the hiring procedure.
The NCAE recommended
that, if the Department is truly concerned
about helping employers avoid hiring
persons not authorized to work in
the United States, it should take
appropriate measures to assure that
the workers the State agencies refer
are authorized to work before
referring them. It is the experience
of users of the H-2A program that
a substantial and growing number
of the persons referred as ``U.S.
workers'' to H-2A applicant
employers are, in fact, workers with
fraudulent documents or, in some
cases, no documents at all.
The comments submitted
by State agencies on the proposal to provide
an exception to permit employers
not to use certain FLC's were mixed.
The thrust of the comments submitted
by three States appeared to be
that the current regulation pertaining
to FLC's as a recruitment source
should be eliminated. On balance
the State agencies of Arizona and Ohio
appeared to be against the proposal.
The Kentucky state agency stated
that the proposal is a common-sense
approach to a growing concern on
the part of employer's and the State
employment security staff and
should be implemented.
The one monitor
advocate who submitted comments supported the
proposed amendment that provided
an exception to using certain FLC's as
a recruitment source.
After reviewing
all the comments received on the proposed amendment
to provide an exception to using
certain FLC's, the Department has
concluded that there are indeed serious
due process concerns about
potentially stigmatizing FLC's who
have not had an opportunity to
challenge allegations of wrongdoing
in an adjudicatory proceeding.
Further, the Department has legal
authority to revoke the licence of an
FLC who has violated immigrations
laws or to refuse to register such an
FLC (29 CFR 500.51(g)). The Department
intends to obtain from the INS
the list of those FLC's who have
been found in violation of Section
274A(a) of the INA, either by hiring,
recruiting, or referring an
alien, knowing the alien was unauthorized
to work; or by employing a
person without first verifying the
person's identity and employment
authorization. Therefore, the final
rule needs to make no change to the
regulation at Sec. 655.103(f). The
Department is not implementing its
proposal to provide a new means for
employers to challenge the
requirement to use an FLC the employer
believes may have violated
immigration or labor laws. Employers
must attempt to secure workers
through registered FLC's and to compensate
them with an override for
their services when it is the prevailing
practice in the area for non-
H-2A agricultural employers
to use FLC's. However, no H-2A grower-
applicant may or will be required
to use any FLC included on WHD's list
of contractors whose certificates
have been revoked, including those
certificates which are revoked because
of violations of the immigration
laws. The Wage and Hour Division
publishes a list of ineligible FLC's,
which is also available at its web
site at: http://www.dol.gov/dol/esa/
public/regs/statutes/whd/mspa__debar0399.html.
Thus, the Department's
proposal is being narrowed and can
be implemented under existing
regulatory authority.
4. Elimination of Requirement To
Provide Notice of the H-2A Workers'
Departure Date (Sec. 655.106(e)(1))
Diverse comments
were received on the proposal to eliminate the
requirement that employers notify
the local employment service office,
in writing, of the exact date the
H-2A
workers depart for the
employer's place of employment, and
substitute a provision deeming that
the workers departed on the day immediately
preceding the date of need.
The Department stated in the preamble
to the NPRM that program
experience indicates that the H-2A
workers usually depart for the
employer's place of business the
day before they are needed.
Worker advocates
objected to eliminating the requirement that
employers notify the local office
of the H-2A workers departure dates
because:
<bullet> There
is no evidence that the current regulation imposes
an excessive burden on growers utilizing
the H-2A program;
<bullet> Such
change should not occur until DOL addresses workers'
needs; and
[[Page 34964]]
<bullet> Although
the proposed change appears innocuous, it is
likely to harm U.S. workers. For
example, a nursery that was certified
for H-2A workers to
begin employment on October 15, 1998, did not start
employing its H-2A
workers until November 15, a full month later. The
required notification enabled the
local office to determine the
appropriate dates for administering
the 50-percent rule and advise job
applicants accordingly.
The NCAE supported
eliminating notice of the departure date, but
disagreed that workers typically
depart the day before the employer's
date of need. The NCAE maintained
that typically for workers to obtain
their visas, travel to the employer's
place of employment, and be
settled and ready for work on the
date of need, they must depart at
least 3 days before the date of need.
NCAE recommended that DOL deem 3
days before the date of need as the
departure date. Furthermore, since
workers' departure dates may be even
earlier, depending on where they
are coming from, it recommended that
DOL continue to allow employers to
notify the Department of the date
on which their workers depart if it
is more than 3 days before the date
of need.
One attorney supported
eliminating notice of the departure date
because it is extremely burdensome
to employers, especially when the
employer has many H-2A
workers who do not always depart for the
employer's place of business at the
same time.
Divergent comments
were submitted by State agencies on this
proposal. Three States commented
that the requirement for notification
of the departure date should not
be eliminated. One of these States
maintained that the change will harm
U.S. workers, as on numerous
occasions H-2A workers
have departed up to 15 days after the date of
need. Another State also pointed
out that the contract period must also
be determined for the purpose of
determining whether 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 came to
work for the employer. A third State
indicated that notification of the
departure date is helpful in scheduling
field checks, which is
important to ensure that information
is collected timely and for each
employer, each crop and for each
activity of those crops.
Four State agencies
supported eliminating the requirement of
notification of the H-2A
workers' departure date. One State noted that
the requirement is currently being
ignored. Two States indicated that
eliminating notice of the departure
date would have no adverse impact
on U.S. workers. A fourth State viewed
the proposal as positive, since
it does not affect the employer's
requirement of notifying the order-
holding office of changes in the
date of need. This State also noted
that it has had problems with H-2A
employers notifying it of departure
dates, but it can still meet with
the H-2A workers after the date of
need to review the job order and
the employment service complaint
system.
In light of the
above comments regarding departure date
notification, ETA has concluded that
its original proposal to eliminate
the requirement to notify of the
departure date at Sec. 655.106(e)
should be modified to provide that
ETA and the SESA shall deem the date
of departure to be the third day
before the first date of need. If the
workers depart on or before the date
of need, no notice to the SESA
will be necessary. However, employers
will have the option of advising
the SESA if workers depart earlier.
In all cases, an employer's
obligation to positively recruit
continues until the actual date of
departure.
If the workers
do not depart by the date of need, the employer must
notify the SESA. Such notice shall
be in writing, or orally, confirmed
in writing, and must be made as soon
as the employer knows that the
workers will not depart by the first
date of need, but in no event
later than the date of need. At the
same time the employer shall notify
the SESA of the workers' expected
departure date, if known. No
additional notification will be necessary
unless the employer either
did not inform the local office of
the expected departure date or the
workers in fact did not depart by
the expected date.
This modification
should address the concerns of employers that
workers more commonly depart three
days before the date of need, while
allowing flexibility if they do not
depart on exactly that day or if
employers wish to advise of an earlier
departure date. In addition,
this modification should address
the concern expressed by worker
advocates groups that on occasion
workers depart long after the stated
date of need, as well as the concern
of States regarding their need to
know the date of departure.
5. Transfer of Adjudication of Visa
Petitions
Worker advocates
indicated that there should be no transfer of
adjudication of H-2A
visa petitions from INS to DOL, absent a
comprehensive approach to improving
administration of the program.
AILA and two attorneys
opposed the proposal to transfer the
adjudication of visa petitions to
the Department. They cited the lack
of DOL's experience in adjudicating
visa petitions, that training DOL
personnel in visa petitioning issues
and procedures would be
duplicative of the training INS adjudicators
already receive on these
issues, that DOL does not have the
resources or personnel to adjudicate
visa petitions, and that they believe
it is doubtful that DOL could be
any more efficient than INS in processing
H-2A
visa petitions--in fact,
because of the lack of personnel
familiar with the issues, as well as
the budgetary problems experienced
by ETA in immigration-related
processing, they contend it is likely
to be worse.
Further, AILA
and one attorney pointed out that it is impossible to
know how delegation will work without
seeing specifics of a rule
implementing the proposed delegation.
The AILA suggested that, if the
proposed transfer of adjudication
of visa petitions to DOL goes
forward, it should be published in
the Federal Register for comment.
The NCAE expressed
``grave'' concerns about any interim procedures
that might be established to process
H-2A
visa petitions. It noted the
interim procedures were not described
in sufficient detail to permit an
analysis of whether they, in fact,
will be more streamlined and save
time, or whether they might have
the opposite effect. It also opined
that the bottleneck in the current
system is not the INS but the DOL.
The only way to save time and increase
the probability of timely
arrival of workers is if the employer
is permitted to include a
completed visa petition in the same
submission as the labor
certification application, and if
the issuance of the labor
certification and approval of the
visa petition are done in one action.
The NCAE concluded
its comments by stating it strongly supported
efforts to streamline the H-2A
paperwork process. Combining the
temporary labor certification application
and visa petition into a
single document, which is acted upon
at the time of certification and
immediately transmitted to the consulate
or port of entry, could result
in a significant improvement. Before
undertaking this change, however,
DOL should propose the precise regulations
and procedures under which
it intends to operate, and, at the
same time, the INS should propose
its regulations so both proposals
can be evaluated together. Until this
can be done, NCAE stated that it
strongly objects to the proposed
change and recommended that
[[Page 34965]]
the proposal to transfer adjudication
of visa petitions be withdrawn
from the rulemaking effort at this
time.
The NEAC and the
AFBF also expressed concerns similar to the NCAE
regarding the transfer of the adjudication
of the visa petition
function to DOL; only the FFVA approved
of this proposal.
Three State agencies
supported transferring adjudication of H-2A
visa petitions to DOL from the INS
as it would result in reducing the
time needed for employers to obtain
foreign workers. Four States
indicated that visa petitioning authority
should not be transferred to
DOL, unless additional funding is
made available to the regional
offices to adjudicate the visa petitions.
The Ohio State agency
``guardedly'' agreed with the change
based on a concern that work may
be delegated to the States which
are already underfunded to complete
existing duties.
The Department
believes that transferring the visa adjudication
function to the Department would
save substantial government resources
and would eliminate one administrative
step employers would have to
complete under the program. Reducing
the number of steps and paperwork
involved in the process of obtaining
H-2A
workers--from the filing of
an application with the Department
of Labor to the issuance of a visa
by the Department of State--should
reduce both the paperwork burden and
the number of instances that foreign
workers do not arrive by the first
date of the employer's need. The
Department anticipates that the
streamlined process would involve
the development of a single
consolidated labor certification
application and visa petition form
that will eliminate otherwise redundant
information and support both
labor certification and visa petitioning
requirements. This would
eliminate the necessity of employers
filing visa petitions with INS for
H-2A workers who are
outside of the United States. The Department is
committed to completing the necessary
rulemaking and associated
procedural changes as soon as possible,
if INS delegates to DOL the
authority to adjudicate H-2A
visa petitions. INS has begun rulemaking
to implement the transfer and the
comment period on its proposed rule
concluded on February 5, 1999.
Executive Order 12866
The Department
has treated this rule as a ``significant regulatory
action'' within the meaning of Executive
Order 12866 because of the
great interest in the H-2A
program and the legal and policy issues
raised by the rulemaking. However,
this rule is not an ``economically
significant regulatory action'' which
requires an economic analysis
because it will not have an economic
effect on the economy of $100
million or more or adversely affect
in a material way the economy, a
sector of the economy, productivity,
competition, jobs, the
environment, public health or safety,
or state, local, or tribal
governments or communities.
Regulatory Flexibility Act
When the proposed
rule was published, the Department notified the
Chief Counsel for Advocacy, Small
Business Administration, and made the
certification pursuant to the Regulatory
Flexibility Act at 5 U.S.C.
605(b), that the rule would not have
a significant impact on a small
number of entities. The Chief Counsel
did not submit a comment.
Paperwork Reduction Act
Section 655.106(e)(1),
pertaining to departure-date notification,
contains information collection recordkeeping
requirements. As required
by the Paperwork Reduction Act of
1995, the U.S. Department of Labor
has submitted a copy of these sections
to OMB for its review. (44
U.S.C. 3504(h)).
The public reporting
burden for information collection requirements
contained in these regulations is
estimated to average as follows:
15 minutes per
response, including the time for reviewing
instructions, searching existing
data sources, gathering and
maintaining the data needed, and
completing and reviewing the
collection of information.
Comments from
the public and substantive changes are discussed in
the preamble section dealing with
this regulatory provision.
As discussed in
the preamble, the Department anticipates further
rulemaking to transfer the adjudication
of H-2A visa petitions from the
INS to DOL. Although this requirement
would create a new collection of
information requirement for DOL,
we expect a net reduction in
requirements for employers. This
rulemaking will be subject to review
by the Office of Management and Budget
under the Paperwork Reduction
Act of 1995.
Catalogue of Federal Domestic Assistance Number
This program is
listed in the Catalogue of Federal Domestic
Assistance as Number 17.202, ``Certification
of Foreign Workers for
Agricultural and Logging Employment.''
List of Subjects
20 CFR Part 654
Agriculture, Employment,
Government procurement, Housing standards,
Labor, Migrant labor, Unemployment.
20 CFR Part 655
Administrative
practice and procedure, Agriculture, Aliens,
Crewmembers, Employment, Enforcement,
Forest and forest products, Guam,
Health professions, Immigration,
Labor, Longshore work, Migrant labor,
Nurse, Penalties, Registered nurse,
Reporting and record keeping
requirements, Specialty occupation,
Students, Wages.
Final Rule
Accordingly, parts
654 and 655 of chapter V of title 20, Code of
Federal Regulations, are amended
as follows:
PART 654--SPECIAL RESPONSIBILITIES OF THE EMPLOYMENT SERVICE SYSTEM
Subpart E--Housing for Agricultural Workers
1. The authority
citation for part 654, subpart E is revised to
read as follows:
Authority: 29 U.S.C.
49k; 8 U.S.C. 1188(c)(4); 41 Op.A.G. 406
(1959).
Sec. 654.403 [Amended]
2. Section 654.403
is amended as follows:
a. In paragraph
(a)(1) the phrase ``30 calendar days'' is removed
and the phrase ``20 calendar days''
is added in lieu thereof.
b. In paragraph
(a)(3) the phrase ``30 calendar days'' is removed
and the phrase ``20 calendar days''
is added in lieu thereof.
PART 655--TEMPORARY EMPLOYMENT OF ALIENS IN THE UNITED STATES
1. The authority
citation for part 655 continues to read as
follows:
Authority: Section
655.0 issued under 8 U.S.C. 1101(a)(15)(H)(i)
and (ii), 1182(m) and (n), 1184,
1188, and 1288(c) and (d); 29
U.S.C. 49 et seq.; sec. 3(c)(1),
Pub. L. 101-238, 103 Stat. 2099,
2103 (8 U.S.C. 1182 note); sec. 221(a),
Pub. L. 101-649, 104 Stat.
4978, 5027 (8 U.S.C. 1184 note);
P.L. 103-206, 107 Stat 2419; and 8
CFR 214.2(h)(4)(i).
Section 665.00
issued under 8 U.S.C. 1101(a)(15)(H)(ii), 1184,
and 1188; 29 U.S.C. 49 et seq.; and
8 CFR 214.2(h)(4)(i).
Subparts A and
C issued under 8 U.S.C. 1101(a)(15)(H)(ii)(b) and
1184; 29 U.S.C. 49 et seq.; and 8
CFR 214.2(h)(4)(i).
Subpart B issued
under 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184, and
1188; and 29 U.S.C. 49 et seq.
[[Page 34966]]
Subparts D and
E issued under 8 U.S.C. 1101(a)(15) (H)(i)(a),
1182(m), and 1184; 29 U.S.C. 49 et
seq.; and sec. 3(c)(1), Pub. L.
101-238, 103 Stat. 2099, 2103 (8
U.S.C. 1182 note).
Subparts F and
G issued under 8 U.S.C. 1184 and 1288(c) and (d);
and 29 U.S.C. 49 et seq.; and P.L.
103-206, 107 Stat 2419.
Subparts H
and I issued under 8 U.S.C. 1101(a)(15)(H)(i)(b),
1182(n), and 1184; 29 U.S.C. 49 et
seq.; and sec. 303(a)(8), Pub. L.
102-232, 105 Stat. 1733, 1748 (8
U.S.C. 1182 note).
Subparts J and
K issued under 29 U.S.C. 49 et seq.; and sec.
221(a), Pub. L. 101-649, 104 Stat.
4978, 5027 (8 U.S.C. 1184 note).
Sec. 655.100 [Amended]
2. In Sec. 655.100,
paragraph (a)(1) is amended by removing the
phrases ``60 calendar days'' and
``60-calendar-day period'' and adding
in lieu thereof the phrases ``45
calendar days'' and ``45-calendar-day
period'', respectively.
Sec. 655.101 [Amended]
3. In Sec. 655.101,
paragraph (c) is amended as follows:
a. In the introductory
text of paragraph (c), the phrase ``60
calendar days'' is removed and the
phrase ``45 calendar days'' is added
in lieu thereof.
b. In paragraph
(c)(1), the phrase ``60 calendar days'' is removed
in the two places it appears and
the phrase ``45 calendar days'' is
added in each place in lieu thereof.
c. In paragraph
(c)(2), the phrase ``60-calendar-day filing
requirement'' is removed and the
phrase ``45-calendar-day filing
requirement'' is added in lieu thereof.
d. In paragraph
(c)(3), the term ``60-calendar-day'' is removed in
the two places it appears and the
term ``45-calendar-day'' is added in
each place in lieu thereof.
Sec. 655.106 [Amended]
4. Section 655.106
is amended by revising paragraph (e) to read as
follows:
Sec. 655.106 Referral of U.S.
workers; determinations based on U.S.
worker availability and adverse effect;
activities after receipt of the
temporary alien agricultural labor
certification.
* * * * *
(e) Approvals
of applications--(1) Continued recruitment of U.S.
workers. After a temporary agricultural
labor certification has been
granted, the employer shall continue
its efforts to recruit U.S.
workers until the actual date the
H-2A
workers depart for the
employer's place of employment.
(i) Unless the
local employment office is informed in writing of a
different date, the local office
shall deem the third day immediately
preceding the employer's first date
of need to be the date the H-2A
workers depart for the employer's
place of employment. The employer may
notify the local office in writing
if the workers depart prior to that
date.
(ii)(A) If the
H-2A
workers do not depart for the place of
employment on or before the first
date of need (or by the stated date
of departure, if the local office
has been advised of a different
date), the employer shall notify
the local employment office in writing
(or orally, confirmed in writing)
as soon as the employer knows that
the workers will not depart by the
first date of need, and in no event
later than such date of need. At
the same time, the employer shall
notify the local office of the workers'
expected departure date, if
known. No further notice is necessary
if the workers depart by the
stated date of departure.
(B) If the employer
did not notify the local office of the expected
departure date pursuant to paragraph
(e)(1)(ii)(A) of this section, or
if the H-2A workers
do not leave for the place of employment on or
before the stated date of departure,
the employer shall notify the
local employment office in writing
(or orally, confirmed in writing) as
soon as the employer becomes aware
of the expected departure date, or
that the workers did not depart by
the stated date and the new expected
departure date, as appropriate.
(2) Requirement
for Active Job Order. The employer shall keep an
active job order on file until the
``50-percent rule'' assurance at
Sec. 655.103(e) of this part is met,
except as provided by paragraph
(f) of this section.
(3) Referrals
by ES System. The ES system shall continue to refer
to the employer U.S. workers who
apply as long as there is an active
job order on file.
* * * * *
Signed at Washington, DC, this 22nd
day of June, 1999.
Raymond L. Bramucci,
Assistant Secretary for Employment
and Training.
[FR Doc. 99-16444 Filed 6-28-99;
8:45 am]
BILLING CODE 4510-30-U