On February 13, 2008, the Department of Labor (DOL) proposed amendments to the regulations and streamlined the application process for temporary agricultural workers. Interested parties will have 45 days to submit comments in response to the proposed rule. Although it is not clear when the new rules will become effective, the regulatory process is not expected to be completed in time for the 2008 growing season.
Known by the technical classification H-2A, the temporary agriculture worker program is only one part of the more generic guest-worker program discussed in the popular press. In its announcement, the DOL noted that employers hired only 75,000 workers through this program last year, while they estimate that the undocumented workforce was between 600,000 and 800,000. The application process is lengthy, expensive, and difficult to navigate. Duplication of efforts between the state workforce agencies and DOL contributed to the dysfunctional nature of the program. Comments to the proposed rule quoted several news sources discussing the adverse impact this program had on the agricultural industry and explained the need to streamline the process to provide a realistic legal alternative for agricultural employers to hire the required workforce.
The streamlined program will follow a similar model established for permanent visa applications, which require a certification from the Secretary of Labor as to a shortage of U.S. workers. Employers will be required to recruit, document their efforts, and provide attestations on the application. DOL will provide a more limited review of the applications, while retaining the right to investigate potential fraud and abuse. Audit procedures both post and pre-approval, together with severe penalties for abuse, will be used to maintain quality control.
While this proposed regulation will help to alleviate the shortage of agricultural workers, the change is very limited in its application to the overall guest-worker program. It does not apply to the H-2B temporary visa program, for non-agricultural seasonal and temporary labor, nor does it apply to the H-1B program for professionals and highly skilled workers. The H-2B program remains subject to the full processing of a labor certification application. It also remains subject to the cap of 66,000 per year, divided into two halves applicable to each six-month period. The cap for H-2B visas the first half of the year, beginning on October 1, 2007, was reached on September 27, 2007 and the second half, beginning April 1, 2008, was reached on January 2, 2008.
The H-1B visas, available for college educated professionals, does not require a labor certification. However, the H-1B visa is subject to a cap of 65,000, with an additional 20,000 visas available to advanced degree graduates from U.S. academic institutions. The application process for fiscal year 2009, beginning on October 1, 2008, will open on April 1, 2008, and is expected to be exhausted the first day. (See our previous post on this topic).