NCAE Regulatory Efforts

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Find our history of proposals, read about our goals for regulation, and get updates on pending regulatory proposals that could affect AE.

NCAE applauds the Trump Administration’s announcement on July 15th of its Notice of Proposed Rulemaking (NPRM) to modernize and improve the H-2A temporary agricultural labor certification program.

According to the Department of Labor’s announcement, “These proposed changes would modernize the Department’s H-2A regulations in a way that is responsive to stakeholder concerns and enhances employer access to a legal source of agricultural labor, while maintaining the program’s protections for the U.S. workforce and enhancing enforcement against fraud and abuse.”

“We are very pleased the Administration has agreed to roll out this much needed modernization effort for the H-2A program. It is obvious, based upon the 489 pages included, the deep dive that was done by the agencies in their effort to evolve the program to one more responsive to the needs of stakeholders,” said Michael Marsh, President and CEO of NCAE.

According to the Department, the wide-ranging rulemaking will streamline the application process and strengthen protections for U.S. and foreign workers. The rule also looks to update methodologies used to determine Adverse Effect Wage Rates while addressing many other issues.

Marsh noted, “The breadth of this proposed rule is substantial. NCAE will be working with its committees, members and legal counsel to develop targeted, cogent comments to provide to the Department. This type of hefty rulemaking doesn’t come around often. Our sleeves are rolled up and we’re raring to go!”.

On August 27, 2019 the Office of Foreign Labor Certification announced new H-2A application forms and schedule for electronic filing in the Foreign Labor Application Gateway (FLAG) System.

Modernizing Recruitment Requirements for the Temporary Employment of H-2A Foreign Workers in the United States – November 9, 2019

The Department of Labor has (finally) acknowledged what agricultural employers have been telling them for years – potential U.S. workers are not coming forward in response to print newspaper advertising for available agricultural jobs, and that advertising is costly to employers.

In a Notice of Proposed Rulemaking (NOPR) published today, the Department has opened a 30-day comment period on a proposal to replace expensive newspaper advertising (online or print) entirely with a website-based advertising system – with employers given discretion to choose “at least one website that is widely used and appropriate for use by U.S. workers who are likely to apply for the job opportunity in the area of intended employment.”

Employers seeking to hire H-2A workers will post their jobs to their state workforce agency and then to the Chicago National Processing Center, and then post the job order to the website of their choosing – retaining proof of posting. The job must remain posted on the website for at least 14 consecutive days. No further advertising by employers will be required.

Although the NOPR references the additional duty to contact, in writing, prior-year U.S. workers who completed the season, the NOPR does not replace that requirement with the online job posting. Employers may wish to comment on that issue during the upcoming 30-day comment period, ending December 10, 2018.

For jobs with start dates between now and October 1, 2019, employers will have the choice of online posting or the traditional two newspaper advertisement option.

“This is great news and a good start to a needed reform process for the H-2A visa. NCAE’s advocacy early in the Trump Administration has begun to bear fruit,” noted Michael Marsh, NCAE’s President and CEO. “In fact, timing of the notice dovetails nicely with our planned deep dive into H-2A reform scheduled for our Labor Forum later this month.”

“We are pleased with the Administration’s effort in this regard and look forward to the unveiling of additional reforms,” said Marsh.

Agency Information Collection Activities; Proposed Revision of a Currently Approved Collection; Request for Comments; H-2A Temporary Agricultural Labor Certification Program Form – October 25, 2018