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CCH® PAYROLL — 06/10/09

DOL suspends rule implementing changes to H-2A program

The Department of Labor (DOL) is suspending for nine months a final rule implementing changes to the federal government's little-used H-2A temporary agricultural worker program, which allows US agricultural businesses to employ foreign workers in temporary or seasonal agricultural jobs, according to a final notice of suspension published in the May 29, 2009, Federal Register. The suspension of the H-2A final rule will take effect on June 29, 2009. Until then, all employers are expected to comply with the H-2A final rule currently in place.

Notice of the proposed suspension appeared in the March 17 Federal Register. The H-2A final rule appeared in the Federal Register on December 18, 2008, and took effect on January 17, 2009. That H-2A final rule amended the regulations governing the certification for temporary employment of nonimmigrant workers in agricultural occupations on a temporary or seasonal basis and the enforcement of contractual obligations applicable to employers of such nonimmigrant workers.

Court challenge

Prior to taking effect, the final rule was challenged in court by the United Farm Workers. On January 15, 2009, the US District Court of the District of Columbia denied the United Farm Workers' (UFW) motion for a temporary restraining order (TRO) and preliminary injunction to postpone the effective date of the rule (United Farm Workers v Chao, DDC, No. 09-00062). In his holding, the court ruled that the UFW failed to make a showing of "likely imminent and irreparable harm." He wrote: "the plaintiffs have not presented sufficient evidence that any plaintiff is likely to suffer immediate decreased wages, increased transportation costs or loss of employment. Based on the speculative injuries alleged by the plaintiffs, the court cannot conclude that the plaintiffs have met the 'high standard for irreparable injury' sufficient to warrant the extraordinary relief of a TRO." The UFW since appealed their case to the DC Circuit Court of Appeals.

The H-2A temporary agricultural visa program establishes a means for agricultural employers in the US who anticipate a shortage of domestic workers to bring nonimmigrant foreign nationals to the US to perform agricultural labor or services of a temporary or seasonal nature. The H-2A nonimmigrant classification applies to aliens seeking to perform agricultural labor or services of a temporary or seasonal nature in the US on a temporary basis. Employment of a seasonal nature is employment that is tied to a certain time of year by an event or pattern, such as a growing season, and requires labor levels far above those necessary for ongoing operations. Under the regulations being modified by the final rule, employment is of a temporary nature if the employer's need for the worker will, except in extraordinary circumstances, last no longer than a year.

To ensure continued functioning of the H-2A program, after the suspension takes effect, the DOL intends to reinstate for a period of nine months the regulations that were in place on January 16, 2009, after which the DOL will either have engaged in further rulemaking or lift the suspension. The regulations are republished in the May 29 notice. More information on the H-2A program can be found at: http://www.foreignlaborcert
.doleta.gov.

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