On July 15, 2019, the U.S. Department of Labor, Employment and Training Administration and Wage and Hour Division posted a Notice of Proposed Rulemaking (NPRM) to solicit public comment on proposed changes to improve the H-2A temporary agricultural labor certification program.

The NPRM includes several major proposals that would streamline and simplify the H-2A application process, strengthen protections for U.S. and foreign workers, and ease unnecessary burdens on employers. For example, the NPRM would streamline the H-2A application process by mandating electronic filing of job orders and applications, promoting the use of digital or scanned signatures, and permitting limited post-certification modifications as to the number of workers, the work period and places of work.  The NPRM would also provide employers with the option of staggering the entry of H-2A workers for up to 120 days on a single application.

With regard to recruitment, the requirement to hire all eligible U.S. workers through the 50% period of the contract would be replaced with a 30 days period, or the end of a 120 day staggered entry period, whichever comes later.

The NPRM also proposes to update the methodologies used to determine the Adverse Effect Wage Rates by disaggregating the data by occupation groups, as opposed to the current method of using the average wage of all field and livestock workers in a region.

The proposed rule would enhance standards applicable to rental housing and public accommodations, strengthen surety bond requirements, and expand DOL’s authority to debar employers for committing substantial violations of program rules.

Finally, the NPRM would expand access to the H-2A program to include employers engaged in reforestation and pine straw activities, and would also codify and update procedures governing the special procedures for animal shearing, custom combining, beekeeping, and reforestation.

In response to the proposed rule for regulatory amendments to the H-2A program, Western Growers President and CEO Tom Nassif issued the following statement:

“We appreciate the emphasis the Administration has placed on resolving agriculture’s ongoing labor challenges, and their efforts to incorporate feedback from agricultural employers into the proposed H-2A reforms. While we encourage swift implementation of these important modernizations to the agricultural guest worker program, we also urge Congress to codify these changes into law as we have seen previous regulatory progress reversed by ensuing administrations. Furthermore, legislation will be required to address the pressing need agricultural employers have to retain their existing workforce.”