The Department of Labor (DOL) recently amended its regulations governing the employment of foreign (non-U.S.) workers in agricultural occupations on a temporary or seasonal basis, as well as, the enforcement of employers' obligations to such workers.
The program, referred to as "H-2A," permits employers to bring foreign nationals to the United States to fill certain agricultural jobs for which domestic workers are not available. Upon the showing of need -- and the DOL's certification of that need -- foreign nationals can be issued a temporary work visa permitting them to legally enter the United States to perform agricultural labor. The process requires the DOL to certify that there are insufficient U.S. workers who are able, willing, qualified, and available to do the work and the employment of H-2A aliens will not adversely affect the wages and working conditions of similarly employed U.S. workers.
The new regulations, effective January 17, 2009, are the result of the Bush Administration's efforts to reduce the number of illegal aliens working in the U.S. while, at the same time, meeting the labor needs of agricultural employers.
The regulatory revisions include broadening the definition of "agricultural labor," while loosening the incidental employment prohibitions. The changes also include provisions for adequate wages, elimination of needless paperwork, and enhanced recruitment for U.S. workers through additional notice of available jobs. While the changes are intended to streamline the process of hiring foreign agricultural workers, significant burdens still remain in the new procedures. The new rules place increased significance on audits and penalties, including the possible revocation of approved labor certifications, increased disbarment authority, and substantial increases in fines. The new rules also strictly prohibit employers, as well as recruiters (both domestic and foreign), from charging fees to workers for access to jobs.