H-2A Advertising Rule

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Memoradum

Congress is back in session following their August recess, and negotiations are ongoing on agricultural immigration reform legislation to address the current workforce and to reform the “future flow” visa program. At the same time, the Department of Labor is in the process of making significant changes to the existing H-2A temporary agricultural worker visa program.

Some of these changes are technical, with the agency switching to a new web-based filing platform and updating the application forms. Others are more sweeping in scope, with public comments due next Tuesday, September 24th, on a proposal to rewrite the program’s regulations on everything from wage rates to housing to which occupations can be included in the program. The final rule is expected to be published early in 2020.

This morning, the Department published a new rule addressing one of the concerns that we had raised based on discussions with UnitedAg members. For decades, DOL has required that agricultural employers looking to hire H-2A workers needed to run costly print newspaper ads in an effort to recruit interested U.S. applicants. The Department now acknowledges what growers have been telling them for years, that these advertisements simply do not result in applications from potential U.S. workers. This is one of the issues that UnitedAg had raised in a meeting at the White House with DOL and USDA personnel, as an example of how the program was complicated and costly in ways that did not help farmers or farm workers.

In response to these concerns, the Department of Labor has agreed to remove the newspaper advertising requirement entirely. While they had originally proposed to require agricultural employers to post jobs online themselves, we submitted comments pointing out concerns with that proposal, and the final rule dropped that requirement. Instead, job openings will continue to be posted by the Department, itself, on their SeasonalJobs.dol.gov website. The final rule is available here: https://www.govinfo.gov/content/pkg/FR-2019-09-20/pdf/2019-19674.pdf

We are hopeful that this spirit of modernization and flexibility will continue in the Department’s rewrite of the overarching H-2A program rule and that the legislative negotiations will bear fruit in addressing members’ concerns regarding the availability of a reliable workforce.

Memorandum Provided by CJ Lake, LLC