It’s hard to believe, but it is already time to start planning for your 2025 Spring labor needs. As we know, finding, hiring, developing, and retaining adequate labor resources are some of the most vexing challenges for agricultural employers – even more so this year. Local workers are often not available in sufficient numbers to meet the needs of seasonal employers, or are uninterested in seasonal or temporary jobs, or farm work in general. Employing undocumented workers is, of course, illegal and risky, with Immigration and Customs Enforcement (ICE) raids and I-9 audits increasing each year. Moreover, immigration violations cannot be resolved within the United States. People who entered illegally, or those who have overstayed visas, must return to their home countries to fix their status. The H-2A program, despite its challenges, can be a lifeline to agricultural employers. Both the U.S. Department of Labor (DOL) and U.S. Citizenship and Immigration Service (USCIS) have proposed new regulations intended to modernize the H-2A program and make certain aspects of it more in line with other nonimmigrant visa classifications. Further, this year, we also saw the implementation of a new wage rule, which greatly impacts position classifications that fall outside of the “Big 6” classifications for field and livestock workers.

What is the H-2A Program?

By way of background, the H-2A program is for temporary agricultural positions. In 2023, the U.S. Department of Labor received 21,018 H-2A applications representing 378,400 workers. This is a 7,000 increase over 2022. What is agricultural work? Agricultural work includes: the cultivation of soil; raising, feeding, caring for, training, or management of livestock, bees, poultry, fur-bearing animals, or wildlife; or the raising or harvesting of any other agricultural or horticultural commodity. Notably, services performed in connection with the production or harvesting of maple sap, in connection with the raising or harvesting of mushrooms, or in connection with the hatching of poultry, constitute agriculture labor only if such services are performed on a farm.

Employers must pay an Adverse Effect Wage Rate, or AEWR. This varies by state. For New York, that 2024 rate is $17.80 per hour for field work. The work must be full-time and temporary or seasonal (up to 10 months). Although a year-round need for a single position is not permissible, there may be ways to achieve year-round coverage between two separate positions with opposite seasons of need. For example, a farmworker could be needed during the growing/harvest season (March through November), but the farm may need winter maintenance workers for the months of December through February. On top of the AEWR pay rate, employers must provide housing free of charge, as well as transportation to and from their employees’ home country.

Employers must also recruit and preferentially hire U.S. workers over H-2A workers. This means contacting any U.S. employees laid off from the prior season to see if they are willing to return, as well as conducting domestic recruitment. Employers must submit a recruitment report, and must give the name of each U.S. worker who applied for the job and whether they were hired or why not. These records must be retained for a period of three years. Employers must continue to cooperate with the state workforce agency SWA in recruiting and hire any U.S. workers until 50% of the work period is completed. Employers must complete and retain a final recruitment report at the 50% mark of the work period.

Employers must report any termination or abandonment of workers within two working days. It is also worth noting that the terms and conditions of the H-2A contract apply to all – domestic workers must receive the AEWR rate as well if performing similar duties to H-2A workers.

U.S. Department of Labor Final H-2A Rule

The U.S. Department of Labor recently published its Final Rule, “Improving Protections for Workers in Temporary Agricultural Employment in the United States.” The DOL first announced proposed regulatory changes to the H-2A program through a Notice of Proposed Rule Making (NPRM), with the goal of enhancing protections for H-2A workers. The NPRM was issued in September 2023, followed by a 60-day public comment period. Many organizations, including the American Immigration Lawyers Association (AILA), submitted robust comments in response to the NPRM.

The final rule, published April 29, 2024, became effective on June 28, 2024, which is 60 days after publication in the Federal Register. Form changes on the government filings related to the Final Rule will be rolled out for applications submitted to DOL on or after August 29, 2024.

Harris Beach PLLC is providing a summary of the most notable provisions of this Final Rule. This is, however, not an exhaustive list and there are a number of other provisions and procedural changes in the actual rule. The Department of Labor has published an FAQ on the regulatory changes with more information.

Terminations for Cause

This provision was adopted in the Final Rule with minor changes. In response to comments, DOL provided additional clarification and context on its regulatory definitions and scope of the provisions.

Workers employed under the H-2A program have the right to: payment for three-fourths of the hours offered in the work contract, even if the work ends early; housing and transportation until the worker leaves; payment for outbound transportation; and, if the worker is a U.S. worker, to be contacted for employment in the next year, unless they are terminated for cause. The Rule clarifies that an employer may only terminate a worker “for cause” when the employer demonstrates the worker has failed to comply with employer policies or rules or to satisfactorily perform job duties. Additionally, a worker is only terminated “for cause” after the transparent application of a system of progressive discipline, unless the worker has engaged in egregious misconduct. The rule establishes five conditions that must be satisfied to ensure disciplinary and/or termination processes are justified and reasonable. Those five conditions are:

1. The worker has been informed, in a language understood by the worker, of the policy, rule or performance expectation.
2. Compliance with the policy, rule, or performance expectation is within the worker’s control.
3. The policy, rule, or performance expectation is reasonable and applied consistently to the employer’s H-2A workers and workers in corresponding employment under the H-2A program.
4. The employer undertakes a fair and objective investigation into the job performance or misconduct.
5. The employer corrects the worker’s performance or behavior using progressive discipline, unless the worker has engaged in egregious misconduct.

Anti-Blacklisting / Retaliation

The rule strengthened protections against blacklisting and retaliation by employers against workers who exercise their rights or raise concerns about their wages or working conditions.

Housing Access

Proposed Rule: Adds a requirement for employers to give labor organizations (e.g., union groups, farmworker advocates, etc.) access to worker housing, and expands farmworkers’ right to invite social guests into the housing property.

Final Rule: This provision was NOT adopted in the Final Rule. In response to stakeholder concerns, DOL eliminated the housing access provision and simply noted that workers may invite guests to housing, subject to reasonable employer restrictions.

Management Disclosure

Proposed Rule: Requires mandatory public disclosure of the names and contact information for all farm owners/shareholders, operators, managers, and supervisors or crew leaders who supervise farmworkers’ work activities.

Final Rule: This provision was adopted in the Final Rule with minor changes. In response to comments, DOL clarified that ownership disclosure is limited to persons or entities with a controlling operational role in the business. These additional disclosures are aimed at providing a more accurate and detailed understanding of the scope and structure of the employer’s agricultural operation and will enhance the department’s investigative and enforcement capabilities by helping it identify, investigate, and pursue remedies from program violators; ensure that sanctions such as debarment or civil money penalties are appropriately assessed and applied to responsible entities, including individuals and successors in interest when appropriate; and determine whether an H-2A employer under investigation has been previously investigated under a different name.

Recruiter Disclosure

Proposed Rule: Requires mandatory public disclosure of the names and contact information for any person or entity involved in recruiting foreign workers.

Final Rule: This provision was adopted in the Final Rule. Similar to the current requirements in the H-2B program, the new provisions will require employers and the employer’s attorney or agent to:

• Provide a copy of all agreements with any agent or recruiter that the employer engages or plans to engage in the recruitment of prospective H-2A workers, regardless of whether the agent or recruiter is located in the U.S. or abroad; and
• Disclose the identity (i.e., name and, if applicable, registration and license numbers) and geographic location of persons and entities hired by, or working for, the foreign labor recruiter and any of the agents or employees of those persons and entities who will recruit or solicit prospective H-2A workers.

The DOL will gather this additional recruitment chain information when the employer files an H-2A application. The employer must continue to keep the information up to date until the end of the work contract period, and must make the updated information available in the event of a post-certification audit, or upon request by the DOL. As in the H-2B program, the labor department will publish this information in a public recruiter list but will not disclose contracts between agents/foreign labor recruiters and employers unless required by law.

Worker Disclosure

Proposed Rule: Requires mandatory disclosure of the names and contact information for all farmworkers to any labor organization that requests such information.

Final Rule: The provision was NOT adopted in the Final Rule. DOL agreed with stakeholder comments regarding privacy concerns and potential disclosure to unauthorized third parties.

AEWR Effective Date

Proposed Rule: Abolishes the notice period for changes to the Adverse Effect Wage Rate (AEWR). New AEWRs become effective immediately upon publication.

Final Rule: This provision was adopted in the Final Rule, with the exception that employers may choose to adjust the rate in the next pay period and simply offer backpay to workers from the effective date.

Productivity Standards and Pay

Proposed Rule: Requires express disclosure of a specific, quantifiable productivity standard (e.g., “X units per hour”) imposed on workers as a condition of job retention. Employers may not terminate workers for “qualitative” performance issues.

Final Rule: The productivity standard requirement was adopted in the Final Rule. In response to stakeholder comments, DOL clarified that employers may still use qualitative criteria to evaluate worker performance, and terminate workers who fail to perform to employer’s reasonable expectations.

Additionally, where there is an applicable prevailing piece rate or where an employer intends to pay a piece rate or other non-hourly wage rate, the Farmworker Protection Rule expressly requires employers to include the non-hourly wage rate on the job order, along with the highest hourly rate, so that both rates are included in the recruitment disclosures and job order. The Farmworker Protection Rule also clarifies that, if the employer offers overtime pay voluntarily or pursuant to federal, state, or local laws, then the employer must disclose on the job order any applicable overtime premium wage rates and the conditions for such overtime payment.

Worker Empowerment

Proposed Rule: Adopts numerous protections related to concerted activity, worker self-organization and unionization activities.

Final Rule: This provision was adopted in the Final Rule with minor changes. DOL modified the provision restricting employers from engaging in coercive speech to avoid interfering with employers’ First Amendment free speech rights.

The Rule expands existing provisions and adds new protections to better empower workers to advocate on behalf of themselves and their coworkers regarding working conditions. These protections are designed to help fulfill DOL’s obligation to ensure the H-2A program does not have an adverse effect on the working conditions of similarly employed workers in the United States. Specifically, DOL is expanding and clarifying the range of activities protected by the anti-retaliation provisions to include: consulting with key service providers; filing a complaint related to any applicable federal, state, or local law or regulation; and, for workers not protected by the National Labor Relations Act (NLRA), engaging in self-organization or certain other concerted activities and leaving or declining to attend employer-sponsored “captive audience” meetings. The Rule also provides that workers are permitted to invite and accept guests, including friends and family, key service providers, labor organizations and others, to employer-furnished housing. Additionally, for workers not protected by the NLRA, the rule requires employers to permit workers to designate a representative to attend certain meetings where an employer seeks to gather information which may result in discipline.

Withholding Worker Travel Documents

Consistent with existing laws prohibiting passport confiscation, the Rule clarifies and expressly prohibits an employer from taking or confiscating workers’ travel documents, such as a passport, visa, or other immigration or government identification documents, against the workers’ wishes. Even where the worker has voluntarily requested that the employer safeguard such documents, the worker must be able to readily access the documents.

Disclosure of material terms and conditions of employment

The Rule requires employers to disclose any minimum productivity standards that are a condition of job retention, regardless of whether the employer pays on a piece rate or hourly basis. Additionally, where there is an applicable prevailing piece rate, or where an employer intends to pay a piece rate or other non-hourly wage rate, the Farmworker Protection Rule expressly requires employers to include the non-hourly wage rate on the job order, along with the highest hourly rate, so that both rates are included in the recruitment disclosures and job order. The Farmworker Protection Rule also clarifies that, if the employer offers overtime pay voluntarily or pursuant to federal, state, or local laws, then the employer must disclose on the job order any applicable overtime premium wage rates and the conditions for such overtime payment.

Transportation

The Rule includes a seat belt requirement to reduce the hazards associated with the transportation of agricultural workers. For vehicles required by Department of Transportation regulations to be manufactured with seat belts, the Farmworker Protection Rule requires the employer to retain and maintain those seat belts in good working order and prohibits operation of a vehicle unless each worker is wearing a seat belt.

USCIS Final H-2A Modernization Rule (Proposed)

On September 20, 2023, the USCIS issued proposed regulations, “Modernizing H-2 Program Requirements, Oversight and Worker Protections.” The proposed rule is aimed at modernizing the H-2A program and codifying certain provisions into the regulations. This is the first substantial revision to the H-2A regulations in many years.

Unlike the Department of Labor proposed rule, the U.S. Citizenship and Immigration Services (USCIS) rule provides a more balanced approach to representing the interests of both employers and H-2 workers. It also attempts to synchronize provisions from various employment-based visa categories, including the H-2A, H-2B and H-1B programs.

Some of the notable proposed regulatory changes include the following:

• Clarifies that employers who participate in the H-2A and H-2B programs are consenting to USCIS audits and investigations concerning their compliance with program regulations. USCIS reserves the right to deny, revoke or delay application approvals for non-compliance or uncooperative employers.
• Expands whistleblower protections that currently apply to the H-1B visa program to both H-2A and H-2B. This provision protects workers by allowing them to report employers for program violations and poor working conditions without the fear of retaliation.
• Clarifies which costs must be borne by the employer and which can be legally charged to the employee. Clarifies that costs for the exclusive benefit of the employee (such as passport application or renewal cost) can be the responsibility of the worker. The rule also imposes consequences to employers who wrongfully charge H-2 workers for the cost of visa processing.
• Requires employers to pay for the reasonable cost of return transportation to the workers’ last place of foreign residence upon revocation of H-2A petitions. This is currently in place for H-2Bs, but not for H-2As. There are, however, no changes in the regulations for transportation costs outside of the revocation scenario. Currently, H-2B program regulations require an employer to pay for return transportation costs when a worker is terminated for ANY reason, including termination for cause, unless the worker voluntarily leaves. The H-2A regulations do not require employer-paid transportation to workers terminated for cause or voluntarily abandonment.
• Removes the term “abscondment, abscond” and other variations in favor of “does not report to work for a period of 5 consecutive workdays without the consent of the employer.” The removal of the prior terminology clarifies that the cessation of employment doesn’t necessarily mean the employee did anything wrong. They could have departed for poor working conditions.
• Removes the H-2 Eligible Country List. Currently, employers can bring in H-2 workers only from eligible countries as determined by USCIS and DOL. For years, this greatly limited options for employers who identified specific workers from countries not on the eligible list, making them go through a difficult waiver process. Now, employers may bring in workers from any country for both the H-2A and H-2B programs, greatly expanding the reach of the program.
• Clarifies the amount of time H-2 workers must remain outside the United States to reset their 3-year eligibility. Currently, H-2 workers are eligible to remain in the U.S. in H-2 status for no more than three years without then leaving the United States for a period of time to reset the clock. The current formula for determining what absences are “interruptive” is complicated and time consuming for employers and USCIS. The current period required to reset the 3-year H-2 eligibility is 90 days if the H-2 workers have not previously departed the United States during the 3-year H-2 period. DHS now shortens this period to 60 days after accruing three years in H-2 status. This provides a significant benefit to employers who currently experience the burden of critically vital H-2 resources needing to be out for 90 days.
• Makes the H-2 grace periods consistent between H-2A and H-2B. Currently, H-2A workers are allowed to enter the United States one week prior to the start date of their H-2A visas, allowing them to get settled and prepared for employment. The H-2B regulations provide for 10 days. At the end of the H-2A program, workers receive a 30-day grace period, while H-2B workers only receive a 10-day grace period. This rule harmonizes both rules and now permits a 10-day grace period at the beginning of the season and a 30-day grace period at the end of the season for both H-2A and H-2B workers. This provides both workers and employers with much needed flexibility.
• Expands the 60-day grace period that applies to the H-1B program, to H-2A and H-2B. This provision would grant a 60-day grace period (or until the end date of their H-2 status, whichever is shorter) to H-2 workers following cessation of employment for any reason (termination or resignation) to find a new employer, change to a new visa classification, or depart the United States
• Expands the ability of employers to transfer H-2 workers presently in the United States in valid H-2 status to a new employer upon the filing of a transfer petition by the new employer. The workers are able to work for the new employer upon the filing of the H-2 petition with USCIS. The petition does not need to first be approved. This allows new employers to receive the benefit of these new workers much earlier in the process, rather than waiting months for USCIS to approve the petition.
• Redefines “Immigrant Intent” – this is a very significant development that will positively impact both employers and workers wanting to secure permanent status in the United States. Currently, H-2 visas are considered to be “single intent” – meaning they are not allowed to demonstrate any intent to remain permanently in the United States. This has been an obstacle to both employers and H-2 workers wanting to secure permanent resident status in the United States. This new provision seeks to change the regulations to make clear that the approval of an application for permanent labor certification, the filing or approval of an immigrant visa petition, or the filing of application to adjust to permanent resident status would not, by itself, be a violation of H-2 status or show an intent to abandon a foreign residence. Such fact, standing alone, would not constitute a basis for denying an H-2A or H-2B petition or the beneficiary’s admission in H-2A or H-2B status, or a petition to change status or extend status. This provision therefore provides flexibility for employers to sponsor their H-2 workers for permanent resident status (“Green Cards”) without jeopardizing the ability of these workers to continue participating in the H-2 programs. This is significant as more and more employers are seeking to sponsor H-2 workers for green cards to mitigate the instability and challenges of the H-2 programs.

Department of Labor Wage Rule – Navigating the Wage Maze

Earlier this year, the DOL finalized a new rule changing the methodology for how H-2A Adverse Effect Wage Rates (AEWRs) are determined, which became effective on March 30, 2023. Since then, additional guidance has been issued by the DOL in the form of FAQ’s that address specific fact patterns.

The DOL will continue to update the wage data yearly as it has been doing (AEWR update on January 1 and Occupational Employment and Wage Statistics (OEWS) update on July 1). According to the new rule, if the wage increases during a work contract period, the higher wage must be paid, and if the wage is lowered during the period, the advertised wage rate must still be paid.

The DOL assures H-2A users that, for the vast majority, there will be no change as it relates to the wage methodology. For those job opportunities that involve field and livestock workers engaged in basic job duties, the agency indicates there should not be significant changes and the DOL will continue to use the Farm Labor Survey to determine the AEWR, as done in the past. This includes duties such as the following: plant, tend, pack, harvest field crops, fruits, vegetables, nursery and greenhouse or other crops, tend livestock, or operate farm machinery, operating under the following Standard Occupational Classification (SOC) titles and codes, commonly referred to as “the Big 6”:

• Farmworkers and Laborers, Crop, Nursery and Greenhouse Workers (45-2092); Farmworkers, Farm, Ranch, and Aquacultural Animals (45-2093); Agricultural Equipment Operators (45-2091); Packers and Packagers, Hand (53-7064); Graders and Sorters, Agricultural Products (45-2041); and All Other Agricultural Workers (45-2099).

However, for all other occupations, the DOL will assign a statewide annual average gross hourly wage based on the OEWS survey. This will likely be a higher wage in most instances. If the job opportunity has multiple duties that cause the opportunity to be classified in multiple occupations, the highest rate will apply. As such, the DOL anticipates that some employers may want to separate applications limiting the job duties or find other alternatives outside of H-2A for accomplishing certain tasks.

Truck Driving Duties

The inclusion of driving duties has been a point of concern among agricultural employers across the country, as prior to the implementation of the new wage rule, many driving-related tasks were contemplated under one of the Big 6 classifications, and therefore included in the normal AEWR methodology. Under the new rule, job orders that include duties involving hauling crops on public roads, operating semi-trucks or CDL requirements will likely result in the assignment of a Light Truck Drivers (53-3033) or Heavy and Tractor-Trailer Truck Drivers (53-3032) OEWS wage. For H-2A job orders that contain a blend of public road hauling duties or CDL requirements with traditional field work, DOL will likely assign the higher OEWS wage rate. This will need to be reviewed on a case-by-case basis.

Below is a list of OEWS wage rates for select states for truck drivers classified as Heavy and Tractor-Trailer Truck Drivers (53-3032). Although these are the current rates, DOL adjusts these rates every July.

• Connecticut: $25.92
• Maine: $23.26
• Massachusetts: $27.31 per hour
• New Hampshire: $26.13
• New Jersey: $28.55 per hour
• New York: $27.94 per hour

It should be noted that some driving duties are contemplated under the Agricultural Equipment Operators (45-2091) SOC code. Specifically, “drive trucks to haul crops, supplies, tools, or farm workers.” This can include driving workers from housing to the worksite, as long as this does not include driving workers to work on public roads, in a van used exclusively for passenger transport. The latter could result in the assignment of Shuttle Drivers and Chauffeurs (53-3053) classification based on OEWS wage data.

Likewise, where the job tasks, qualifications and requirements indicate skilled construction work will be performed on the farm, an OEWS wage could be assigned for Construction Laborers (47-2061), or even something more specialized, like Cement Masons and Concrete Finishers (47-2051). Further, advanced and complicated tasks like fabrication, electrical wiring and similar tasks could be assigned an OEWS wage for Farm Equipment Mechanics and Service Technicians (49-3041).

Conclusion

It is clear that one of the most pressing issues facing the seasonal and agricultural business community remains labor. Although there are some positive features in the USCIS proposed rule, the U.S. Department of Labor has thrown challenges and roadblocks at employers, making compliance with an already overly-burdensome program even more complex and expensive. There is no perfect visa program to alleviate the burdens of labor shortages, but the H-2A visa program is the closest option that exists and still provides a viable and workable solution if managed properly.