DOL Proposes Revisions to the H-2A Visa Program

The U.S. Department of Labor (DOL) has announced that it is working to update and improve the protections available to H-2A workers. The proposed changes would include both worker protection measures and compliance and enforcement enhancements.

Quick Hits

• The DOL has released proposed regulations that would strengthen worker protection measures for H-2A agricultural workers and also strengthen the department’s capability to monitor program compliance and take enforcement actions.
• Comments on the proposed rule are due no later than November 14, 2023.

Highlights of the Proposed Rule

The proposed rule would provide “stronger protections for workers who advocate for better wages or working conditions,” the DOL stated in the notice of proposed rulemaking’s preamble. The DOL stated the proposal would achieve this goal through several changes, including the following:

• Requiring “disclosure of additional information about individuals and entities involved in the recruitment of foreign workers and those who manage or supervise [H-2A] workers.”
• “[E]xpediting debarment procedures and revised procedures for applying orders of debarment to successors in interest to debarred employers, agents, and attorneys.”
• Codifying the existing test to determine if two seemingly different employers are in fact a single employer “for purposes of assessing temporary or seasonal need” and for program compliance.
• “[E]nhanc[ing] worker protections and the enforcement capabilities of the [DOL’s] Wage and Hour Division (WHD) by clarifying and revising various regulatory provisions that have been subject to misinterpretation.”
• “[S]trengthen[ing] protections for workers in the event [an] employer must delay the start date due to unforeseeable conditions.”

The H-2A visa program allows agricultural employers anticipating a domestic worker shortage to bring foreign workers to the United States to perform agricultural labor or services on a temporary or seasonal basis.

Comments on the proposed rule are due no later than November 14, 2023.

Ogletree Deakins’ Immigration Practice Group will continue to monitor developments with respect to this proposed rule and will provide updates on the Immigration blog as additional information becomes available.

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