Federal Agencies, Agency Memos & Announcements

DOL FAQs on the Implementation of 2022 H-2A Final Rule

3/14/23 AILA Doc. No. 22101210. Business Immigration, H-2A Agricultural Worker

DOL provided FAQs to assist employers, workers, and other interested parties in understanding the H-2A final rule, which goes into effect on 11/14/22. FAQs include questions on implementation, job order filing and processing, prevailing wage surveys, wages, application filing and processing, and joint employers.

March 14, 2023

DOL provided Round 5 FAQs on H-2A joint employers.

Topics

  • May multiple employers file a single H-2A application, and related job order, to jointly employ H-2A workers?
  • For a “joint employer application” filed under 20 CFR 655.131(b), is each joint employer required to sign the H-2A application?

NPC Processing

  • For a “joint employer application” filed under 20 655.131(b), what supporting documentation must be submitted with the H-2A application?
  • For a “joint employer application” filed under 20 CFR 655.131(b), what information must be included on the job order (i.e., Form ETA-790A, H-2A Agricultural Clearance Order) with regard to the number of workhours offered?

Amendment Requests

  • May an employer filing an Application for Temporary Employment Certification under 655.131(b) request an amendment to add or remove one or more of the joint employers from its H-2A application?

Post-certification

  • If an employer who was included in a “joint employer application” filed under 20 CFR 655.131(b) needs more labor than normal or anticipated during a particular workweek, may the joint employer adjust workhours from those disclosed on the Form ETA-790A, H-2A Agricultural Clearance Order?

December 30, 2022

DOL provided Round 4 FAQs on H-2A Application Filing and Processing.

Topics

Electronic Filing

  • How do I submit an H-2A application?/li>
  • Is the employer's original signature required on the H-2A application submission?

Time Considerations

  • Is there a timeframe requirement that governs when an employer submits its H-2A application?
  • How does the NPC determine whether an H-2A application has been filed at least 45 calendar days before the employer’s date of need?
  • What should an employer do if it is not ready to file its H-2A application at least 45 days from the first date of need?
  • What should an employer do if it becomes aware of a need for labor with fewer than 45 days before the first date of need?

Multiple Worksites

  • Can an employer file one H-2A application for work in multiple places of employment?
  • Can an employer file one H-2A application for work in multiple places of employment that are located across State lines?
  • Under what conditions can an agricultural association submit one H-2A application for its members located in two States?

NPC Processing

  • What supporting documentation must an employer submit with its H-2A application?
  • What happens after an employer submits an H-2A application?
  • How can an employer ensure that its H-2A application is processed as quickly as possible?
  • May an employer appeal a NOD?

Amendment Requests

  • Can an employer request an amendment to the period of employment and/or number of workers on its H-2A application?
  • How late in the H-2A application process can an employer request an amendment?
  • What is the process for requesting an amendment to an H-2A application?

Withdrawal Requests

  • May I withdraw an H-2A application and job order before the CO makes a final determination?

December 7, 2022

DOL provided Round 3 FAQs on Job Offers, Assurances, and Obligations – Wages

Topics

Wage and Pay Obligations

  • What is the minimum wage an employer must offer, advertise, and pay H-2A workers and works in corresponding employment?
  • What disclosures must an employer make regarding the wage rate to be offered, advertised, and paid to H-2A workers and workers in corresponding employment?
  • What are “piece rate” wages?
  • If the employer offers a piece rate wage, what is its wage obligation?
  • If the employer offers a piece rate, what additional wage offer disclosures are required in the H-2A job order?
  • If the employer uses a written contract distinct from the job offer, what wage should be listed in the contract?
  • How often must workers receive their paychecks?
  • If OFLC publishes notice of an updated hourly AEWR or another wage source in 20 CFR 655.120(a) changes, does the employer need to re-evaluate its wage offer and pay obligations?
  • If OFLC publishes an adjusted hourly AEWR or prevailing wage rate update during the work contract period and the new rate is lower than the certified rate, does the employer’s wage obligation to workers decrease?

Prevailing Wages

  • How are prevailing wage rates determined?
  • Is a prevailing wage rate always available for H-2A job opportunities?
  • How will the Department notify an employer if the prevailing wage rate changes after the employer submits a job order and/or H-2A application?
  • May an employer appeal a wage determination in the H-2A program?

DOL provided FAQs to assist employers, workers, and other interested parties in understanding the H-2A final rule, which goes into effect on 11/14/22. FAQs include implementation, job order filing and processing, and prevailing wage surveys.

November 21, 2022

DOL provided Round 3 FAQs on prevailing wage surveys.

Topics

  • Why did the Department adopt new prevailing wage survey requirements for the H-2A program?
  • What are the key elements of the 2022 H-2A final rule prevailing wage survey methodology?
  • How will the 2022 H-2A final rule change the role of the State Workforce Agencies (SWAs) with regard to prevailing wage surveys used in the H-2A program?
  • What standards must a prevailing wage survey meet to be approved under the 2022 H-2A final rule and posted on OFLC’s Agricultural Online Wage Library (AOWL)?
  • What are the requirements for contacting employers to collect wage data for a prevailing wage survey?
  • When is a survey unacceptable for determining a prevailing wage due to “dominant employer” wage data?
  • How does a SWA submit a prevailing wage survey to OFLC under the 2022 H-2A final rule?
  • Are prevailing wage surveys that the OFLC Administrator approved before the effective date of the 2022 H-2A final rule still valid?
  • How will a State Workforce Agency (SWA) know whether the 2022 H-2A final rule methodology or the Department’s ETA Handbook 385 guidance governs a prevailing wage survey?
  • If a SWA already submitted a Form ETA-232, Domestic Agricultural In-Season Wage Report, and it is pending with OFLC, which prevailing wage methodology will OFLC apply?
  • If a SWA conducted a prevailing wage survey based on the ETA Handbook 385 guidance before November 14, 2022, can the SWA submit the survey for evaluation on or after November 14, 2022?

October 25, 2022

DOL provided Round 2 FAQs on job order filing and processing.

Topics

  • How do I submit a job order for an H-2A job opportunity?
  • Is the employer’s original signature required on the job order submission?
  • Is there a timeframe requirement that governs when I submit a job order?
  • I am ready to submit my job order, but it is less than 60 days from my first date of need. What should I do when submitting my job order?
  • When should I contact the State Workforce Agency (SWA) to inspect the housing I plan to provide to my workers?
  • What wage rate should I list on my job order?
  • My job opportunity is subject to a collective bargaining agreement (CBA). Do I need to submit a copy of the CBA with my job order?
  • What will happen if the SWA determines the wage rate listed on my job order is lower than the H-2A program requirement?
  • What happens after I submit my job order?
  • How can I ensure that my job order is processed as quickly as possible?
  • What do I do if the SWA doesn’t accept my job order in time or I cannot reach an agreement with the SWA on the necessary changes to the job order?
  • May I withdraw a job order?

October 12, 2022

DOL provided Round 1 FAQs on the implementation of the 2022 H-2A final rule. Move embedded pdf to be a related file and link where highlighted.

Topics

  • Why did the Department issue a new final rule governing the H-2A program?
  • How is the 2022 H-2A final rule different from the 2010 H-2A regulations?
  • When does the 2022 H-2A final rule become effective? How will employers know whether the 2022 H-2A final rule governs the processing of a particular H-2A application?
  • I filed a job order (Form ETA0790/790A) with the SWA before the effective date of the 2022 H-2A final rule, but I have not yet submitted the related H-2A application (Form ETA-9142A). Will I need to refile? What processing procedures will apply?
  • I filed an H-2A Application for Temporary Employment Certification (Form ETA-9142A) before the effective date of the 2022 H-2A final rule. Will I need to refile? What processing procedures will apply?
  • I received temporary agricultural labor certification before the Department published the 2022 H-2A final rule. Is the certification still valid?

Related Resources