Sec. 202. H–2A program requirements
8,053 words·~37 min read·
/bill/116/hr/4916/ih/section-202A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
Section 218 of the Immigration and Nationality Act ( 8 U.S.C. 1188 ) is amended to read as follows: The Secretary of Homeland Security may not approve a petition to admit an H–2A worker unless the Secretary of Labor has certified that— there are not sufficient United States workers who are able, willing and qualified, and who will be available at the time and place needed, to perform the agricultural labor or services described in the petition; and the employment of the H–2A worker in such labor or services will not adversely affect the wages and working conditions of workers in the United States who are similarly employed.
An employer filing a petition for an H–2A worker to perform agricultural labor or services shall attest to and demonstrate compliance, as and when appropriate, with all applicable requirements under this section, including the following: The employer has described the need for agricultural labor or services in a job order that includes a description of the nature and location of the work to be performed, the anticipated period or periods (expected start and end dates) for which the workers will be needed, and the number of job opportunities in which the employer seeks to employ the workers.
The employer has not and will not displace United States workers employed by the employer during the period of employment of the H–2A worker and during the 60-day period immediately preceding such period of employment in the job for which the employer seeks approval to employ the H–2A worker. Each place of employment described in the petition is not, at the time of filing the petition and until the petition is approved, subject to a strike or lockout in the course of a labor dispute.
The employer shall engage in the recruitment of United States workers as described in subsection
(c)and shall hire such workers who are able, willing and qualified, and who will be available at the time and place needed, to perform the agricultural labor or services described in the petition. The employer may reject a United States worker only for lawful, job-related reasons. The employer shall offer and provide, at a minimum, the wages, benefits, and working conditions required by subsections
(d)through
(g)to the H–2A worker and all United States workers who are similarly employed. The employer— shall offer such United States workers not less than the same benefits, wages, and working conditions that the employer is offering or will provide to the H–2A worker; and may not impose on such United States workers any restrictions or obligations that will not be imposed on the H–2A worker. If the job opportunity is not covered by or is exempt from the State workers’ compensation law, the employer shall provide, at no cost to the worker, insurance covering injury and disease arising out of, and in the course of, the worker’s employment which will provide benefits at least equal to those provided under the State workers’ compensation law. The employer shall comply with all applicable Federal, State and local employment-related laws and regulations. The employer may satisfy the recruitment requirement described in subsection (b)(4) by satisfying all of the following: As provided in subsection (h)(1), the employer shall complete a job order for posting on the electronic job registry maintained by the Secretary of Labor and for distribution by the appropriate State workforce agency. Such posting shall remain on the job registry as an active job order through the period described in paragraph (2)(B). At least 45 days before each start date identified in the petition, the employer shall— make reasonable efforts to contact any United States worker the employer employed in the previous year in the same occupation and area of intended employment for which an H–2A worker is sought (excluding workers who were terminated for cause or abandoned the worksite); and post such job opportunity in a conspicuous location or locations at the place of employment. During the period of recruitment, the employer shall complete any other positive recruitment steps within a multistate region of traditional or expected labor supply where the Secretary of Labor finds that there are a significant number of qualified United States workers who, if recruited, would be willing to make themselves available for work at the time and place needed. For purposes of this subsection, the period of recruitment begins on the date on which the job order is posted on the online job registry and ends on the date that H–2A workers depart for the employer’s place of employment. For a petition involving more than 1 start date under subsection (h)(1)(C), the end of the period of recruitment shall be determined by the date of departure of the H–2A workers for the final start date identified in the petition. Notwithstanding the limitations of subparagraph (A), the employer will provide employment to any qualified United States worker who applies to the employer for any job opportunity included in the petition until the later of— the date that is 30 days after the date on which work begins; or the date on which— 33 percent of the work contract for the job opportunity has elapsed; or if the employer is a farm labor contractor, 50 percent of the work contract for the job opportunity has elapsed. For a petition involving more than 1 start date under subsection (h)(1)(C), each start date designated in the petition shall establish a separate job opportunity. An employer may not reject a United States worker because the worker is unable or unwilling to fill more than 1 job opportunity included in the petition. Notwithstanding clause (i), the employer may offer a job opportunity to an H–2A worker instead of an alien granted certified agricultural worker status under title I of the Farm Workforce Modernization Act of 2019 if the H–2A worker was employed by the employer in each of 3 years during the most recent 4-year period. The employer shall maintain a recruitment report through the applicable period described in paragraph (2)(B) and submit regular updates through the electronic platform on the results of recruitment. The employer shall retain the recruitment report, and all associated recruitment documentation, for a period of 3 years from the date of certification. If the employer asserts that any eligible individual who has applied or been referred is not able, willing or qualified, the employer bears the burden of proof to establish that the individual is not able, willing or qualified because of a lawful, employment-related reason. Each employer under this section will offer the worker, during the period of authorized employment, wages that are at least the greatest of— the agreed-upon collective bargaining wage; the adverse effect wage rate (or any successor wage established under paragraph (7)); the prevailing wage (hourly wage or piece rate); or the Federal or State minimum wage. Except as provided under subparagraph (B), the applicable adverse effect wage rate for each State and occupational classification for a calendar year shall be as follows: The annual average hourly wage for the occupational classification in the State or region as reported by the Secretary of Agriculture based on a wage survey conducted by such Secretary. If a wage described in clause
(i)is not reported, the national annual average hourly wage for the occupational classification as reported by the Secretary of Agriculture based on a wage survey conducted by such Secretary. If a wage described in clause
(i)or
(ii)is not reported, the statewide annual average hourly wage for the standard occupational classification as reported by the Secretary of Labor based on a wage survey conducted by such Secretary. If a wage described in clause (i), (ii), or
(iii)is not reported, the national average hourly wage for the occupational classification as reported by the Secretary of Labor. For calendar year 2020, the adverse effect wage rate for each State and occupational classification under this subsection shall be the adverse effect wage rate that was in effect for H–2A workers in the applicable State in calendar year 2019. For each of calendar years 2021 through 2029, the adverse effect wage rate for each State and occupational classification under this subsection shall be the wage calculated under subparagraph (A), except that such wage may not— be more than 1.5 percent lower than the wage in effect for H–2A workers in the applicable State and occupational classification in the immediately preceding calendar year; except as provided in clause (III), be more than 3.25 percent higher than the wage in effect for H–2A workers in the applicable State and occupational classification in the immediately preceding calendar year; and if the application of clause
(II)results in a wage that is lower than 110 percent of the applicable Federal or State minimum wage, be more than 4.25 percent higher than the wage in effect for H–2A workers in the applicable State and occupational classification in the immediately preceding calendar year. For any calendar year after 2029, the applicable wage rate described in paragraph (1)(B) shall be the wage rate established pursuant to paragraph (7)(D). Until such wage rate is effective, the adverse effect wage rate for each State and occupational classification under this subsection shall be the wage calculated under subparagraph (A), except that such wage may not be more than 1.5 percent lower or 3.25 percent higher than the wage in effect for H–2A workers in the applicable State and occupational classification in the immediately preceding calendar year. If the primary job duties for the job opportunity described in the petition do not fall within a single occupational classification, the applicable wage rates under subparagraphs
(B)and
(C)of paragraph
(1)for the job opportunity shall be based on the highest such wage rates for all applicable occupational classifications. Prior to the start of each calendar year, the Secretary of Labor shall publish the applicable adverse effect wage rate (or successor wage rate, if any), and prevailing wage if available, for each State and occupational classification through notice in the Federal Register. Except as provided in subparagraph (C), publication by the Secretary of Labor of an updated adverse effect wage rate or prevailing wage for a State and occupational classification shall not affect the wage rate guaranteed in any approved job order for which recruitment efforts have commenced at the time of publication. If the Secretary of Labor publishes an updated adverse effect wage rate or prevailing wage for a State and occupational classification concerning a petition described in subsection (i), and the updated wage is higher than the wage rate guaranteed in the work contract, the employer shall pay the updated wage not later than 14 days after publication of the updated wage in the Federal Register. If an employer pays by the piece rate or other incentive method and requires one or more minimum productivity standards as a condition of job retention, such standards shall be specified in the job order and shall be no more than those normally required (at the time of the first petition for H–2A workers) by other employers for the activity in the area of intended employment, unless the Secretary of Labor approves a higher minimum standard resulting from material changes in production methods. The employer shall guarantee the worker employment for the hourly equivalent of at least three-fourths of the work days of the total period of employment, beginning with the first work day after the arrival of the worker at the place of employment and ending on the date specified in the job offer. For purposes of this subparagraph, the hourly equivalent means the number of hours in the work days as stated in the job offer and shall exclude the worker’s Sabbath and Federal holidays. If the employer affords the worker less employment than that required under this paragraph, the employer shall pay the worker the amount which the worker would have earned had the worker, in fact, worked for the guaranteed number of hours. Any hours which the worker fails to work, up to a maximum of the number of hours specified in the job offer for a work day, when the worker has been offered an opportunity to do so, and all hours of work actually performed (including voluntary work in excess of the number of hours specified in the job offer in a work day, on the worker’s Sabbath, or on Federal holidays) may be counted by the employer in calculating whether the period of guaranteed employment has been met. If the worker voluntarily abandons employment without good cause before the end of the contract period, or is terminated for cause, the worker is not entitled to the guarantee of employment described in subparagraph (A). If, before the expiration of the period of employment specified in the job offer, the services of the worker are no longer required for reasons beyond the control of the employer due to any form of natural disaster before the guarantee in subparagraph
(A)is fulfilled, the employer may terminate the worker’s employment. In the event of such termination, the employer shall fulfill the employment guarantee in subparagraph
(A)for the work days that have elapsed from the first work day after the arrival of the worker to the termination of employment. The employer shall make efforts to transfer a United States worker to other comparable employment acceptable to the worker. If such transfer is not affected, the employer shall provide the return transportation required in subsection (f)(2). Beginning in fiscal year 2026, the Secretary of Agriculture and Secretary of Labor shall jointly conduct a study that addresses— whether the employment of H–2A workers has depressed the wages of United States farm workers; whether an adverse effect wage rate is necessary to protect the wages of United States farm workers in occupations in which H–2A workers are employed; whether alternative wage standards would be sufficient to prevent wages in occupations in which H–2A workers are employed from falling below the wage level that would have prevailed in the absence of H–2A employment; whether any changes are warranted in the current methodologies for calculating the adverse effect wage rate and the prevailing wage rate; and recommendations for future wage protection under this section. Not later than October 1, 2027, the Secretary of Agriculture and Secretary of Labor shall jointly prepare and submit a report to the Congress setting forth the findings of the study conducted under subparagraph
(A)and recommendations for future wage protections under this section. In conducting the study under subparagraph
(A)and preparing the report under subparagraph (B), the Secretary of Agriculture and Secretary of Labor shall consult with representatives of agricultural employers and an equal number of representatives of agricultural workers, at the national, State and local level. Upon publication of the report described in subparagraph (B), the Secretary of Labor, in consultation with and the approval of the Secretary of Agriculture, shall make a rule to establish a process for annually determining the wage rate for purposes of paragraph (1)(B) for fiscal years after 2029. Such process shall be designed to ensure that the employment of H–2A workers does not undermine the wages and working conditions of similarly employed United States workers. Employers shall furnish housing in accordance with regulations established by the Secretary of Labor. Such regulations shall be consistent with the following: The employer shall be permitted at the employer’s option to provide housing meeting applicable Federal standards for temporary labor camps or to secure housing which meets the local standards for rental and/or public accommodations or other substantially similar class of habitation: Provided , That in the absence of applicable local standards, State standards for rental and/or public accommodations or other substantially similar class of habitation shall be met: Provided further , That in the absence of applicable local or State standards, Federal temporary labor camp standards shall apply. The employer shall provide family housing to workers with families who request it when it is the prevailing practice in the area and occupation of intended employment to provide family housing. Notwithstanding paragraphs
(1)and (2), an employer is not required to provide housing to United States workers who are reasonably able to return to their residence within the same day. The Secretary of Labor or designee shall make a determination as to whether the housing furnished by an employer for a worker meets the requirements imposed by this subsection prior to the date on which the Secretary of Labor is required to make a certification with respect to a petition for the admission of such worker. The Secretary of Labor shall provide a process for— an employer to request inspection of housing up to 60 days before the date on which the employer will file a petition under this section; and annual inspection of housing for workers who are engaged in agricultural employment that is not of a seasonal or temporary nature. A worker who completes 50 percent of the period of employment for the job opportunity for which the worker was hired shall be reimbursed by the employer for the cost of the worker’s transportation and subsistence from the place from which the worker came to work for the employer (or place of last employment, if the worker traveled from such place) to the place of employment. For a worker who completes the period of employment for the job opportunity or who is terminated without cause, the employer shall provide or pay for the worker’s transportation and subsistence from the place of employment to the place from which the worker, disregarding intervening employment, came to work for the employer, or to the place of next employment, if the worker has contracted with a subsequent employer who has not agreed to provide or pay for the worker’s transportation and subsistence to such subsequent employer’s place of employment. Except as provided in subparagraph (B), the amount of reimbursement provided under paragraph
(1)or
(2)to a worker need not exceed the lesser of— the actual cost to the worker of the transportation and subsistence involved; or the most economical and reasonable common carrier transportation charges and subsistence costs for the distance involved. If the distance traveled from the worker’s home to the relevant consulate is 50 miles or less, reimbursement for transportation and subsistence may be based on transportation from the consulate. The employer shall maintain a reasonable plan that describes the employer’s procedures for the prevention of heat illness, including appropriate training, access to water and shade, the provision of breaks, and the protocols for emergency response. Such plan shall— be in writing in English and, to the extent necessary, any language common to a significant portion of the workers if they are not fluent in English; and be posted at a conspicuous location at the worksite and provided to employees prior to the commencement of labor or services. The employer shall submit information required for the adjudication of the H–2A petition, including a job order, through the electronic platform no more than 75 calendar days and no fewer than 60 calendar days before the employer’s first date of need specified in the petition. An association of agricultural producers that use agricultural services may file an H–2A petition under subparagraph (A). If an association is a joint or sole employer of workers who perform agricultural labor or services, H–2A workers may be used for the approved job opportunities of any of the association’s producer members and such workers may be transferred among its producer members to perform the agricultural labor or services for which the petition was approved. Except as provided in clause (ii), an employer may file a petition involving employment in the same occupational classification and same area of intended employment with multiple start dates if— the petition involves temporary or seasonal employment and no more than 10 start dates; the multiple start dates share a common end date that is no longer than 1 year after the first start date; no more than 120 days separate the first start date and the final start date listed in the petition; and the need for multiple start dates arises from variations in labor needs associated with the job opportunity identified in the petition. A farm labor contractor may not file a petition described in clause
(i)unless the farm labor contractor— is filing as a joint employer with its contractees, or is operating in a State in which joint employment and liability between the farm labor contractor and its contractees is otherwise established; or has posted and is maintaining a premium surety bond as described in subsection (l)(1). The Secretary of Labor, in consultation with the relevant State workforce agency, shall review the job order for compliance with this section and notify the employer through the electronic platform of any deficiencies not later than 7 business days from the date the employer submits the necessary information required under paragraph (1)(A). The employer shall be provided 5 business days to respond to any such notice of deficiency. The job order must include all material terms and conditions of employment, including the requirements of this section, and must be otherwise consistent with the minimum standards provided under Federal, State or local law. In considering the question of whether a specific qualification is appropriate in a job order, the Secretary shall apply the normal and accepted qualification required by non-H–2A employers in the same or comparable occupations and crops. The Secretary of Labor shall establish emergency procedures for the curing of deficiencies that cannot be resolved during the period described in clause (i). Upon approval of the job order, the Secretary of Labor shall immediately place for public examination a copy of the job order on the online job registry, and the State workforce agency serving the area of intended employment shall commence the recruitment of United States workers. The Department of Labor and State workforce agency shall keep the job order active until the end of the period described in subsection (c)(2) and shall refer to the employer each United States worker who applies for the job opportunity. Within 7 business days of the approval of the job order, the Secretary shall review the information necessary to make a labor certification and notify the employer through the electronic platform if such information does not meet the standards for approval. Such notification shall include a description of any deficiency, and the employer shall be provided 5 business days to cure such deficiency. Not later than 30 days before the date that labor or services are first required to be performed, the Secretary of Labor shall issue the requested labor certification if— the employer has complied with the requirements for certification set forth in this section; and the Secretary of Labor determines that there are not sufficient qualified, willing, and available United States workers to perform the agricultural labor or services as required by the terms and conditions of the job offer. The Secretary of Labor shall by regulation establish a procedure for an employer to request the expedited review of a denial of a labor certification under this section, or the revocation of such a certification. Such procedure shall require the Secretary to expeditiously, but no later than 72 hours after expedited review is requested, issue a de novo determination on a labor certification that was denied in whole or in part because of the availability of able, willing and qualified workers if the employer demonstrates, consistent with subsection (c)(3)(B), that such workers are not actually available at the time or place such labor or services are required. Not later than 7 business days after the Secretary of Labor issues the certification, the Secretary of Homeland Security shall issue a decision on the petition and shall transmit a notice of action to the petitioner via the electronic platform. Upon approval of a petition under this section, the Secretary of Homeland Security shall ensure that such approval is noted in the electronic platform and is available to the Secretary of State and U.S. Customs and Border Protection, as necessary, to facilitate visa issuance and admission. A petition for multiple named beneficiaries may be partially approved with respect to eligible beneficiaries notwithstanding the ineligibility, or potential ineligibility, of one or more other beneficiaries. The Secretary of Labor shall provide a process for amending a request for labor certification in conjunction with an H–2A petition, subsequent to certification by the Secretary of Labor, in cases in which the requested amendment does not materially change the petition (including the job order). If an individual producer member of a joint employer association is determined to have committed an act that results in the denial of a petition with respect to the member, the denial shall apply only to that member of the association unless the Secretary of Labor determines that the association or other member participated in, had knowledge of, or reason to know of, the violation. If an association representing agricultural producers as a joint employer is determined to have committed an act that results in the denial of a petition with respect to the association, the denial shall apply only to the association and does not apply to any individual producer member of the association unless the Secretary of Labor determines that the member participated in, had knowledge of, or reason to know of, the violation. If an association of agricultural producers certified as a sole employer is determined to have committed an act that results in the denial of a petition with respect to the association, no individual producer member of such association may be the beneficiary of the services of H–2A workers in the commodity and occupation in which such aliens were employed by the association which was denied during the period such denial is in force, unless such producer member employs such aliens in the commodity and occupation in question directly or through an association which is a joint employer of such workers with the producer member. The Secretary of Labor, in consultation with the Secretary of Agriculture and Secretary of Homeland Security, may by regulation establish alternate procedures that reasonably modify program requirements under this section, when the Secretary determines that such modifications are required due to the unique nature of the work involved. Unless the employer is an agricultural producer, an employer may not file a petition under this section on behalf of a worker when the majority of the worker’s duties will fall within a construction or extraction occupational classification. An H–2A worker may only perform duties that fall within a construction or extraction occupational classification if such duties are agricultural labor or services. Notwithstanding section 101(a)(15)(H)(ii)(a), the Secretary of Homeland Security may, consistent with the provisions of this subsection, approve a petition for an H–2A worker to perform agricultural services or labor that is not of a temporary or seasonal nature. The total number of aliens who may be issued visas or otherwise provided H–2A nonimmigrant status under paragraph
(1)for the first fiscal year during which the first visa is issued under such paragraph and for each of the following two fiscal years may not exceed 20,000. The total number of aliens who may be issued visas or otherwise provided H–2A nonimmigrant status under paragraph
(1)for the first fiscal year following the fiscal years referred to in subparagraph
(A)and for each of the following six fiscal years may not exceed a numerical limitation jointly imposed by the Secretary of Agriculture and Secretary of Labor in accordance with clause (ii). For each fiscal year referred to in clause (i), the Secretary of Agriculture and Secretary of Labor, in consultation with the Secretary of Homeland Security, shall establish a numerical limitation for purposes of clause (i). Such numerical limitation may not be lower 20,000 and may not vary by more than 12.5 percent compared to the numerical limitation applicable to the immediately preceding fiscal year. In establishing such numerical limitation, the Secretaries shall consider appropriate factors, including— a demonstrated shortage of agricultural workers; the level of unemployment and underemployment of agricultural workers during the preceding fiscal year; the number of H–2A workers sought by employers during the preceding fiscal year to engage in agricultural labor or services not of a temporary or seasonal nature; the number of such H–2A workers issued a visa in the most recent fiscal year who remain in the United States in compliance with the terms of such visa; the estimated number of United States workers, including workers who obtained certified agricultural worker status under title I of the Farm Workforce Modernization Act of 2019, who worked during the preceding fiscal year in agricultural labor or services not of a temporary or seasonal nature; the number of such United States workers who accepted jobs offered by employers using the online job registry during the preceding fiscal year; any growth or contraction of the United States agricultural industry that has increased or decreased the demand for agricultural workers; and any changes in the real wages paid to agricultural workers in the United States as an indication of a shortage or surplus of agricultural labor. For each fiscal year following the fiscal years referred to in subparagraph (B), the Secretary of Agriculture and Secretary of Labor shall jointly determine, in consultation with the Secretary of Homeland Security, and after considering appropriate factors, including those factors listed in subclauses
(I)through
(VIII)of subparagraph (B)(ii), whether to establish a numerical limitation for that fiscal year. If a numerical limitation is so established— such numerical limitation may not be lower than highest number of aliens admitted under this subsection in any of the three fiscal years immediately preceding the fiscal year for which the numerical limitation is to be established; and the total number of aliens who may be issued visas or otherwise provided H–2A nonimmigrant status under paragraph
(1)for that fiscal year may not exceed such numerical limitation. The Secretary of Agriculture and Secretary of Labor, in consultation with the Secretary of Homeland Security, shall jointly establish by regulation procedures for immediately adjusting a numerical limitation imposed under subparagraph
(B)or
(C)to account for significant labor shortages. The annual allocation of visas described in paragraph
(2)shall be evenly allocated between two halves of the fiscal year unless the Secretary of Homeland Security, in consultation with the Secretary of Agriculture and Secretary of Labor, determines that an alternative allocation would better accommodate demand for visas. Any unused visas in the first half of the fiscal year shall be added to the allocation for the subsequent half of the same fiscal year. Of the visa numbers made available in each half of the fiscal year pursuant to subparagraph (A), 50 percent of such visas shall be reserved for employers filing petitions seeking H–2A workers to engage in agricultural labor or services in the dairy industry. If, after four months have elapsed in one half of the fiscal year, the Secretary of Homeland Security determines that application of clause
(i)will result in visas going unused during that half of the fiscal year, clause
(i)shall not apply to visas under this paragraph during the remainder of such calendar half. In addition to the other requirements of this section, an employer shall provide H–2A workers employed under this subsection, at no cost to such workers, with annual round trip travel, including transportation and subsistence during travel, to their homes in their communities of origin. The employer must provide such travel within 14 months of the initiation of the worker’s employment, and no more than 14 months can elapse between each required period of travel. The cost of travel under subparagraph
(A)need not exceed the lesser of— the actual cost to the worker of the transportation and subsistence involved; or the most economical and reasonable common carrier transportation charges and subsistence costs for the distance involved. An employer seeking to employ an H–2A worker pursuant to this subsection shall offer family housing to workers with families if such workers are engaged in agricultural employment that is not of a seasonal or temporary nature. The worker may reject such an offer. The employer may not charge the worker for the worker’s housing, except that if the worker accepts family housing, a prorated rent based on the fair market value for such housing may be charged for the worker’s family members. If an employer is seeking to employ a worker in agricultural labor or services in the dairy industry pursuant to this subsection, the employer must report incidents consistent with the requirements under section 1904.39 of title 29, Code of Federal Regulations, and maintain an effective worksite safety and compliance plan to prevent workplace accidents and otherwise ensure safety. Such plan shall— be in writing in English and, to the extent necessary, any language common to a significant portion of the workers if they are not fluent in English; and be posted at a conspicuous location at the worksite and provided to employees prior to the commencement of labor or services. The Secretary of Labor, in consultation with the Secretary of Agriculture, shall establish by regulation the minimum requirements for the plan described in subparagraph (A). Such plan shall include measures to— require workers (other than the employer’s family members) whose positions require contact with animals to complete animal care training, including animal handling and job-specific animal care; protect against sexual harassment and violence, resolve complaints involving harassment or violence, and protect against retaliation against workers reporting harassment or violence; and contain other provisions necessary for ensuring workplace safety, as determined by the Secretary of Labor, in consultation with the Secretary of Agriculture. An alien shall be ineligible for admission to the United States as an H–2A worker pursuant to a petition filed under this section if the alien was admitted to the United States as an H–2A worker within the past 5 years of the date the petition was filed and— violated a material provision of this section, including the requirement to promptly depart the United States when the alien’s authorized period of admission has expired, unless the alien has good cause for such failure to depart; or otherwise violated a term or condition of admission into the United States as an H–2A worker. A visa issued to an H–2A worker shall be valid for three years and shall allow for multiple entries during the approved period of admission. An alien admissible as an H–2A worker shall be authorized to stay in the United States for the period of employment specified in the petition approved by the Secretary of Homeland Security under this section. The maximum continuous period of authorized stay for an H–2A worker is 36 months. In the case of an H–2A worker whose maximum continuous period of authorized stay (including any extensions) has expired, the alien may not again be eligible for such stay until the alien remains outside the United States for a cumulative period of at least 45 days. The Secretary of Homeland Security shall deduct absences from the United States that take place during an H–2A worker’s period of authorized stay from the period that the alien is required to remain outside the United States under subparagraph (B), if the alien or the alien’s employer requests such a deduction, and provides clear and convincing proof that the alien qualifies for such a deduction. Such proof shall consist of evidence including, but not limited to, arrival and departure records, copies of tax returns, and records of employment abroad. In addition to the maximum continuous period of authorized stay, an H–2A worker’s authorized period of admission shall include an additional period of 10 days prior to the beginning of the period of employment for the purpose of traveling to the place of employment and 45 days at the end of the period of employment for the purpose of traveling home or seeking an extension of status based on a subsequent offer of employment if the worker has not reached the maximum continuous period of authorized stay under subparagraph
(A)(subject to the exceptions in subparagraph (C)). An H–2A worker is authorized to start new or concurrent employment upon the filing of a nonfrivolous H–2A petition, or as of the requested start date, whichever is later if— the petition to start new or concurrent employment was filed prior to the expiration of the H–2A worker’s period of admission as defined in paragraph (3)(D); and the H–2A worker has not been employed without authorization in the United States from the time of last admission to the United States in H–2A status through the filing of the petition for new employment. Notwithstanding the limitations on the period of authorized stay described in paragraph (3), any H–2A worker who— is the beneficiary of an approved petition, filed under section 204(a)(1)(E) or
(F)for preference status under section 203(b)(3)(A)(iii); and is eligible to be granted such status but for the annual limitations on visas under section 203(b)(3)(A), may apply for, and the Secretary of Homeland Security may grant, an extension of such nonimmigrant status until the Secretary of Homeland Security issues a final administrative decision on the alien’s application for adjustment of status or the Secretary of State issues a final decision on the alien’s application for an immigrant visa. Except as provided in subparagraph (B), an H–2A worker who abandons the employment which was the basis for the worker’s authorized stay, without good cause, shall be considered to have failed to maintain H–2A status and shall depart the United States or be subject to removal under section 237(a)(1)(C)(i). An H–2A worker shall not be considered to have failed to maintain H–2A status solely on the basis of a cessation of the employment on which the alien’s classification was based for a period of 45 consecutive days, or until the end of the authorized validity period, whichever is shorter, once during each authorized validity period. Not later than the time the H–2A worker applies for a visa, the employer shall provide the worker with a copy of the work contract that includes the disclosures and rights under this section (or in the absence of such a contract, a copy of the job order and proof of the certification described in subparagraphs
(B)and
(D)of subsection (h)(2)). An H–2A worker moving from one H–2A employer to a subsequent H–2A employer shall be provided with a copy of the new employment contract no later than the time an offer of employment is made by the subsequent employer. The employer shall furnish to H–2A workers, on or before each payday, in one or more written statements— the worker’s total earnings for the pay period; the worker’s hourly rate of pay, piece rate of pay, or both; the hours of employment offered to the worker and the hours of employment actually worked; if piece rates of pay are used, the units produced daily; an itemization of the deductions made from the worker’s wages; and any other information required by Federal, State or local law. The employer must post and maintain in a conspicuous location at the place of employment, a poster provided by the Secretary of Labor in English, and, to the extent necessary, any language common to a significant portion of the workers if they are not fluent in English, which sets out the rights and protections for workers employed pursuant to this section. An employer that is a farm labor contractor who seeks to employ H–2A workers shall post or maintain a surety bond in an amount required under subparagraph (B). Such bond shall be payable to the Secretary of Labor or pursuant to the resolution of a civil or criminal proceeding, for the payment of wages and benefits, including any assessment of interest, owed to an H–2A worker or a similarly employed United States worker, or a United States worker who has been rejected or displaced in violation of this section. The Secretary of Labor shall annually publish in the Federal Register a schedule of required bond amounts that are determined by such Secretary to be sufficient for farm labor contractors to discharge financial obligations under this section based on the number of workers the farm labor contractor seeks to employ and the wages such workers are required to be paid. A farm labor contractor seeking to file a petition involving more than 1 start date under subsection (h)(1)(C) shall post and maintain a surety bond that is at least 15 percent higher than the applicable bond amount determined by the Secretary under subparagraph (B). Any sums paid to the Secretary under subparagraph
(A)that are not paid to a worker because of the inability to do so within a period of 5 years following the date of a violation giving rise to the obligation to pay shall remain available to the Secretary without further appropriation until expended to support the enforcement of this section. If the employer has retained the services of a foreign labor recruiter, the employer shall use a foreign labor recruiter registered under section 251 of the Farm Workforce Modernization Act of 2019. Neither the employer nor its agents shall seek or receive payment of any kind from any worker for any activity related to the H–2A process, including payment of the employer’s attorneys’ fees, application fees, or recruitment costs. An employer and its agents may receive reimbursement for costs that are the responsibility and primarily for the benefit of the worker, such as government-required passport fees. The contract between an employer and any farm labor contractor or any foreign labor recruiter (or any agent of such farm labor contractor or foreign labor recruiter) whom the employer engages shall include a term providing for the termination of such contract for cause if the contractor or recruiter, either directly or indirectly, in the placement or recruitment of H–2A workers seeks or receives payments or other compensation from prospective employees. Upon learning that a farm labor contractor or foreign labor recruiter has sought or collected such payments, the employer shall so terminate any contracts with such contractor or recruiter. The Secretary of Labor is authorized to take such actions against employers, including imposing appropriate penalties and seeking monetary and injunctive relief and specific performance of contractual obligations, as may be necessary to ensure compliance with the requirements of this section and with the applicable terms and conditions of employment. The Secretary of Labor shall establish a process for the receipt, investigation, and disposition of complaints alleging failure of an employer to comply with the requirements under this section and with the applicable terms and conditions of employment. A complaint referred to in subparagraph
(A)may be filed not later than 2 years after the date of the conduct that is the subject of the complaint. A complaint filed under this paragraph is not an exclusive remedy and the filing of such a complaint does not waive any rights or remedies of the aggrieved party under this law or other laws. If the Secretary of Labor finds, after notice and opportunity for a hearing, that the employer failed to comply with the requirements of this section or the terms and conditions of employment, the Secretary of Labor may require payment of unpaid wages, unpaid benefits, fees assessed in violation of this section, damages, and civil money penalties. The Secretary is also authorized to impose other administrative remedies, including disqualification of the employer from utilizing the H–2A program for a period of up to 5 years in the event of willful or multiple material violations. The Secretary is authorized to permanently disqualify an employer from utilizing the H–2A program upon a subsequent finding involving willful or multiple material violations. Civil penalties collected under this paragraph shall be deposited into the H–2A Labor Certification Fee Account established under section 203 of the Farm Workforce Modernization Act of 2019. Nothing in this subsection may be construed as limiting the authority of the Secretary of Labor to conduct an investigation— under any other law, including any law affecting migrant and seasonal agricultural workers; or in the absence of a complaint. It is a violation of this subsection for any person who has filed a petition under this section to intimidate, threaten, restrain, coerce, blacklist, discharge, or in any other manner discriminate against, or to cause any person to intimidate, threaten, restrain, coerce, blacklist, or in any manner discriminate against, an employee, including a former employee or an applicant for employment, because the employee— has disclosed information to the employer, or to any other person, that the employee reasonably believes evidences a violation under this section, or any rule or regulation relating to this section; has filed a complaint concerning the employer’s compliance with the requirements under this section or any rule or regulation pertaining to this section; cooperates or seeks to cooperate in an investigation or other proceeding concerning the employer’s compliance with the requirements under this section or any rule or regulation pertaining to this section; or has taken steps to exercise or assert any right or protection under the provisions of this section, or any rule or regulation pertaining to this section, or any other relevant Federal, State, or local law. The Secretary of Labor, in consultation with the Secretary of Homeland Security, Secretary of State and the Equal Employment Opportunity Commission, shall establish mechanisms by which the agencies and their components share information, including by public electronic means, regarding complaints, studies, investigations, findings and remedies regarding compliance by employers with the requirements of the H–2A program and other employment-related laws and regulations. In this section: The term displace means to lay off a similarly employed United States worker, other than for lawful job-related reasons, in the occupation and area of intended employment for the job for which H–2A workers are sought. The term H–2A worker means a nonimmigrant described in section 101(a)(15)(H)(ii)(a). The term job order means the document containing the material terms and conditions of employment relating to wages, hours, working conditions, worksite and other benefits, including obligations and assurances required under this section. The term online job registry means the online job registry of the Secretary of Labor required under section 201(b) of the Farm Workforce Modernization Act of 2019 (or similar successor registry). The term similarly employed , in the case of a worker, means a worker in the same occupational classification as the classification or classifications for which the H–2A worker is sought. The term United States worker means any worker who is— a citizen or national of the United States; an alien who is lawfully admitted for permanent residence, is admitted as a refugee under section 207, is granted asylum under section 208, or is an immigrant otherwise authorized to be employed in the United States; an alien granted certified agricultural worker status under title I of the Farm Workforce Modernization Act of 2019; or an individual who is not an unauthorized alien (as defined in section 274A(h)(3)) with respect to the employment in which the worker is engaging. The Secretary of Homeland Security shall impose a fee to process petitions under this section. Such fee shall be set at a level that is sufficient to recover the reasonable costs of processing the petition, including the reasonable costs of providing labor certification by the Secretary of Labor. Fees collected under subparagraph
(A)shall be deposited as offsetting receipts into the immigration examinations fee account in section 286(m), except that the portion of fees assessed for the Secretary of Labor shall be deposited into the H–2A Labor Certification Fee Account established pursuant to section 203(c) of the Farm Workforce Modernization Act of 2019. There are authorized to be appropriated for each fiscal year such sums as necessary for the purposes of— recruiting United States workers for labor or services which might otherwise be performed by H–2A workers, including by ensuring that State workforce agencies are sufficiently funded to fulfill their functions under this section; enabling the Secretary of Labor to make determinations and certifications under this section and under section 212(a)(5)(A)(i); monitoring the terms and conditions under which H–2A workers (and United States workers employed by the same employers) are employed in the United States; and enabling the Secretary of Agriculture to carry out the Secretary of Agriculture’s duties and responsibilities under this section. .
Connectionstraces to 1
Traces to 1 document
Citation graph
cites case law
Sec. 202
H–2A program requirements
Cites 1Cited by 0 across 0 sources