October 12, 2022. The Department of Labor Publishes Final Rule Revising its Regulations on the H-2A Application and Temporary Labor Certification Process

The U.S. Department of Labor has published a final rule, Temporary Agricultural Employment of H-2A Nonimmigrants in the United States (“2022 H-2A Final Rule” or "final rule"), that revises its regulations governing the certification of employment of nonimmigrant workers in temporary agricultural employment and the enforcement of obligations applicable to employers of H-2A workers and workers in the United States similarly employed.

In recent years, the Department has engaged in rulemaking to propose changes to the H-2A temporary labor certification (TLC) program after nearly 10 years administering the program under the 2010 Final Rule. See Notice of Proposed Rulemaking (NPRM), Temporary Agricultural Employment of H-2A Nonimmigrants in the United States, 84 FR 36168 (July 26, 2019). After consideration of comments received in response to the NPRM, the Department separated the NPRM’s proposals into two rulemaking activities. The first, which encompasses all of the NPRM’s proposals except the AEWR methodology, culminated this final rule. The second will address changes to the AEWR methodology. See 86 FR 68174 (Dec. 1, 2021).

The provisions adopted in this final rule strengthen protections for agricultural workers, enhance enforcement to prevent fraud and abuse, and simplify and modernize the H-2A application and TLC process and the prevailing wage determination process. To help stakeholders better understand the final rule, OFLC has issued a set of Frequently Asked Questions (FAQs), Round 1 – Implementation, which further explain technical details as to dates of implementation and transition dates between the 2010 and 2022 H-2A Final Rules.

Information on stakeholder engagements (e.g., webinars) and of the issuance of additional FAQ rounds on other topics will be forthcoming.