Changes to the H-2A Visa Program
Updated: Nov 5, 2020
By Sarah Everhart
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Farm employers who hire foreign workers with H-2A visas know how tedious and time consuming the process can be. One example is the need for employers to advertise for farm workers in American newspapers in an attempt to recruit United States (U.S.) workers prior to hiring foreign workers. Last month, a federal rule was finalized to modernize, in part, the requirements for hiring of H-2A workers by eliminating the need to run print advertisements.
In order to qualify for H-2A workers, employers must prove they made efforts to recruit U.S. workers for the position. Employers are able to make this showing, in part, by placing two print advertisements that meet certain content requirements in a newspaper of general circulation serving the area of intended employment. Employers must run these advertisements to prove there are not sufficient able, willing, and qualified U.S. workers available to fill jobs and that hiring foreign workers will not adversely affect the wages and working conditions of workers in the U.S. similarly employed.
In the final rule that became effective Oct. 21, the need to pay for lengthy newspaper advertisements has been eliminated. According to the U.S. Department of Labor (DOL), this decision was “… grounded in the Department’s determination that the newspaper advertisements required under this section do not meaningfully contribute to the labor market test that the Department administers to assess the availability of able, willing, and qualified U.S. workers.” In the final rule, DOL cites a lack of data indicating newspaper advertisements are an effective means of recruiting U.S. workers for agricultural positions.
The DOL will now post job openings on its own website, SeasonalJobs.dol.gov. According to DOL, the website “… is a mobile-friendly and centralized online platform that will offer more robust and personalized search capabilities as well as information about agricultural job opportunities in a format that is compatible with third-party job-search websites.”
According to the DOL, the final rule also enhances the existing role of the SWA in conducting outreach activities. The final rule allows DOL to direct a SWA to offer written notice of an employer’s H-2A job opportunity to organizations that provide employment and training services to workers who are likely to apply for the job and/or place written notice in other physical locations where such workers are likely to gather.
For more information on employer responsibilities related to the H-2A program, check out this ALEI publication or contact one of the ALEI legal specialists at 410-706-7377.