Key Regulations Under DOL’s Final H-2A Rule

Final H-2A Rule
November 25, 2022

The US Department of Labor (DOL) recently issued new regulations that amend the H-2A agricultural guest worker visa program. The new regulations change how to formulate prevailing wages, modernize the application and certification process, and improve the standards covering the conditions of employment. Here are the main provisions of this final rule that took effect on November 14, 2022.

Mandatory E-filing

The DOL requires electronically filed applications through a centralized online system, codifying the e-filing requirement. However, many employers were already e-filing when the option became available in 2019. This requirement intends to lower the costs and difficulties of applying for most employers, reducing the frequency of delays associated with deficient applications, improving application quality, and making it easier to share data between agencies.

Joint Employment

Employers that operate jointly will be treated as joint employers even if they choose not to file together. This treatment increases the liability for all employers in the shared employment relationship. Examples include employers who apply for workers through an agricultural association and farmers who hire labor contractors.

This regulation indicates that the DOL intends to expand responsibility to include anyone participating in the program. As such, the department will investigate employment relationships more thoroughly to ensure that anyone involved in the program follows the rules.

The new rule also includes a provision allowing a group of employers with the same need for agricultural labor to file one application and job order together. Groups filing this way can jointly employ the workers as full-time employees. This provision allows small employers who cannot offer their H-2A employees full-time work to participate in the H-2A program. However, it holds all the joint employers responsible for complying with the program’s regulations.

The Expansion of Prevailing Wage Surveys

The new rule codifies the guidance that state workforce agencies already followed. It also increases the number of survey providers. Additional state sources, including universities and colleges, will provide surveys to obtain more prevailing wage survey findings. The DOL will still require employers trying to get H-2A visas to pay the highest of the following: the prevailing wage, the adverse effect wage, the state or federal minimum wage, or an agreed-upon collective bargaining wage.

Final Thoughts on the H-2A Rule

The final rule will simplify the H-2A process while improving the DOL’s ability to enforce the program’s rules and regulations, reducing fraud and abuse. The final rule also benefits small employers that want to participate in the H-2A program by allowing them to file a single joint application. However, employers that hire H-2A employees must remember to complete Form I-9 for these workers, as required for all workers. Unfortunately, it can prove more complicated for H-2A workers due to frequently changing regulations and the many forms of documentation they may present. An electronic I-9 management system can make the process easier by guiding employers through every step. It also safely and securely stores the form and any accompanying documentation.

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