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DOL proposes rule that would change H-2A labor certification process

  1. Original Date Announced

    July 26, 2019

    DOL proposes changes to the regulations governing the temporary labor certification process for H-2A agricultural workers. The NPRM would, among other things, require electronic filing, change the methodology for determining the adverse effect wage rate (AEWR), expand the definition of agriculture (thus bringing more occupations under the rule), make alterations to the requirements related to recruitment of U.S. workers, and allow for staggered entry of H-2A workers. [ID #1167]

    NPRM: Temporary Agricultural Employment of H–2A Nonimmigrants in the United States
  2. Subsequent Trump and Court Action(s)

    • January 15, 2021

      Advance copy of final rule: Temporary Agricultural Employment of H-2A Nonimmigrants in the United States

      DOL submits final rule on H-2A labor certification process to the Federal Register.

      View Document
    • January 29, 2024

      NCAE v. DOL Memorandum Opinion (D.D.C. Jan. 29, 2024)

      The National Council of Agricultural Employers (NCAE) launched a federal lawsuit against Biden's DOL, alleging that the agency's withdrawal of the Trump-era rule following President Biden's inauguration, its failure to publish the Trump-era rule in 2021, and its promulgation of the Biden administration's 2022 rule violated the Administrative Procedure Act (APA). On January 29, 2024, the DC District Court granted summary judgment in favor of the Biden administration, ruling that the NCAE lacked standing and that DOL had satisfied the APA's notice-and-comment requirement by posting the 2019 NPRM, soliciting comments, and issuing the 2022 rule in its place. On April 2, 2024, the NCAE filed an appeal challenging the summary judgment.

      **Litigation is listed for informational purposes and is not comprehensive. For the current status of legal challenges, check other sources.**

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    • August 26, 2024

      2024.08.26 Order Granting Preliminary Injunction - Kansas v. DOL

      On August 26, 2024, Judge Lisa Godbey Wood issued a preliminary injunction, finding that the 2024 final rule, "Improving Protections for Workers in Temporary Agricultural Employment in the United States," violates the NLRA and barring it from going into effect in 17 states. Kansas v. DOL, 2:24-cv-00076-LGW-BWC (S.D. Ga.).

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    • November 25, 2024

      2024.11.25 Order Granting Preliminary Injunction - Barton v. DOL

      On November 25, 2024, Judge Danny C. Reeves issued a preliminary injunction barring the 2024 final rule, "Improving Protections for Workers in Temporary Agricultural Employment in the United States," from going into effect in Kentucky, Ohio, West Virginia and Alabama. Barton v. DOL, 5:24-cv-00249-DCR (E.D. Ky.).

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  3.  
  4. Biden Administration Action: Revoked/Replaced

    January 20, 2021

    DOL Withdraws Forthcoming H-2A Temporary Agricultural Program Rule for Review

    This Biden administration action withdraws the Trump-era policy identified in this entry.

    On January 15, 2021, the U.S. Department of Labor (Department) announced and posted on the Office of Foreign Labor Certification’s website a forthcoming final rule, Temporary Agricultural Employment of H-2A Nonimmigrants in the United States (RIN 1205-AB89), pending publication in the Federal Register with a 30-day delayed effective date.  On January 20, 2021, the Department withdrew this document from the Office of the Federal Register prior to its publication for the purpose of reviewing issues of law, fact, and policy raised by the rule, and therefore it will not take effect. 

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  5. Biden Administration Action: Revoked/Replaced

    October 12, 2022

    Final Rule: Temporary Agricultural Employment of H-2A Nonimmigrants

    This final rule "adopts much of the regulatory text proposed in the [NPRM of] July 26, 2019, with some significant changes;" it amended DOL regulations governing the certification of agricultural labor or services to be performed by temporary foreign workers with H–2A nonimmigrant status.

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  6. Biden Administration Action

    June 28, 2024

    2024.06.28 Final Rule: Improving Protections for Workers in Temporary Agricultural Employment in the United States

    DOL adopts a final rule "Improving Protections for Workers in Temporary Agricultural Employment in the United States." The rule focuses "on strengthening protections for temporary agricultural workers and enhancing the Department's capabilities to monitor program compliance and take necessary enforcement actions against program violators." Amongst other things, the rule sets the effective date of updated Adverse Effect Wage Rates (AEWR), H-2A wage rates which are published by the DOL each year, as the date of publication in the Federal Register. The DOL "acknowledges that this rule is a departure from more recent practice and the proposal in the 2019 H-2A NPRM, which allowed a minor period for wage adjustment after publication of the FRN." Notably, the rule provides protections to organizing H-2A workers, who are exempt from NLRA protections.

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Current Status

Not in effect

Most Recent Action

June 28, 2024 Action: None 2024.06.28 Final Rule: Improving Protections for Workers in Temporary Agricultural Employment in the United States
January 20, 2021
Acted on by Biden Administration
October 12, 2022
Acted on by Biden Administration
June 28, 2024
Acted on by Biden Administration

Original Trump Policy Status

Trump Administration Action: Rule
Agencies Affected: DOL

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