New DOL & DHS Regulations to Expand Agricultural Guest Worker Program

For the first time in 20 years, the H-2A guest worker program for agricultural employees is slated for reform. On Dec. 11, the Department of Labor (DOL) and Department of Homeland Security (DHS) issued final rules regarding the hiring of foreign agricultural workers, ostensibly to streamline the hiring process of these temporary and seasonal employees.

Under the current guest worker program, employers are allowed to hire foreign workers only if they cannot find U.S. workers willing and able to do the job, and only if the wages and working conditions they provide do not negatively impact U.S. workers. Previously, the DOL had to certify the employer’s recruitment efforts and wage rates. Under the new rules, an employer need only attest that it has fully complied with the H-2A requirements. This substantially shortens the processing times. An employer who falsifies this attestation is subject to fines (which are increased under the new rules), revocation of labor certification, and debarment from participation in the guest worker program.

Additionally, the DOL rule changes the program’s wage formula. The wage rate is currently calculated using the Department of Agriculture’s quarterly farm labor survey data that is averaged across several regions and agricultural industries. The new rule uses Bureau of Labor Statistics Occupational Employment Survey (OES) data, which is arguably more detailed and takes several regions, occupations and skill levels into account.

The DHS rule, among other things, eases the employer’s limitation on petitioning for multiple, unnamed agricultural workers, allows workers to stay in this country for a longer period of time following visa expiration, and limits worker participants to citizens of a select group of countries.

In general, these rules will likely benefit agricultural employers, as they relax some of the administrative burdens inherent in the H-2A program. Predictably, organized labor has vociferously opposed these changes on the grounds that they make it easier for an employer to bypass recruitment efforts to find available American labor, and allow employers to pay lower wages for all agricultural workers.

The DOL final rule is set to be published December 18 in the Federal Register.  It is anticipated that the final DHS rule will be published around the same time period.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.