On Jan. 15, 2021, the U.S. Department of Labor (DOL) announced a final rule that would modernize the H-2A Temporary Agricultural Labor Program. This combined agency effort between DOL, the State Department and the U.S. Department of Agriculture has been a long time coming and comes on the eve of a presidential transition. However, as this final rule comes at the transition of administrations, chances of implementation as written are extremely slim.
This final rule largely adopts the regulatory text proposed in the notice of proposed rulemaking published in the Federal Register on July 26, 2019. The intent of the rule is to streamline the H-2A process for the agricultural industry. The final rule mandates electronic filing of job orders and applications (which the vast majority of H-2A employers and agents have done for years.) The rule also provides for staggered entry of temporary workers over a 120-day period allowing the filing of a single application with multiple start dates. The rule also permits State Workforce Agencies, or other inspecting authorities, to inspect and certify employer-provided housing for up to 24 months under certain circumstances. It also substitutes the rigid “first date of need” concept with a more flexible 14-day period after the anticipated first date of need. It also updates housing standards and expands DOL’s enforcement authority including potential debarment for substantial program rule violations. The rule would allow (and eventually require) farm labor contractors to submit surety bonds electronically but also increases the required amount of such bonds based on an “average adverse effect wage rate.”
It’s common for outgoing administrations to rush through last-minute policy changes, as the Trump administration appears to be doing here; but these so-called “midnight regulations” often never go into effect. The Biden transition team has said it will freeze pending rules as soon as the new president takes office.
Western Growers will continue to pursue long-lasting legislative solutions to solve the industry’s worsening labor availability crisis.
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