§1188 — Title 8 Aliens and Nationality | U.S. Code

Summary

Employers cannot bring in an H–2A farm worker unless the Attorney General approves a petition and the employer first gets a certification from the Secretary of Labor showing two things: there are not enough U.S. workers who are able, willing, and qualified for the job at the time and place needed, and hiring the foreign worker will not hurt the wages or working conditions of similar U.S. workers. The Labor Department may charge a fee to process the certification. The Department must not certify if there is a strike or lockout that blocks hiring, if the employer recently (within two years) seriously broke certification rules (a denial for that kind of violation can last up to three years), if the employer won’t provide workers’ compensation or equivalent insurance at no cost when state law doesn’t cover the job, or if the employer failed to recruit in a broader region where qualified U.S. workers could be found. Employers must file an application no more than 45 days before they need workers. The Department must tell the employer within 7 days if the application is flawed (except for the U.S.-worker availability question) and allow a quick fix. The Department will issue the certification at least 30 days before work must start if the employer met recruitment rules and no qualified U.S. workers are available. For the first three years after this law took effect, certified employers must hire any qualified U.S. worker who applies until half of the H–2A worker’s contract time has passed, unless the employer is exempt as a small user of farm labor (did not use more than 500 man-days in any quarter last year, is not in a petitioning association, and has not teamed up with other petitioning employers). Associations of producers may apply and move workers among members; denials usually apply only to the party responsible. Fast review procedures are required: a new decision must be issued within 72 hours if denial was based on alleged U.S. worker availability, and complaints that domestic workers were withheld must be investigated with findings in 36 hours. Employers must provide housing that meets required standards and show it meets those standards before the 30-day certification deadline. A worker is barred from returning as a temporary agricultural worker if admitted in the past five years and they violated the terms then. Congress authorized $10,000,000 per year starting in fiscal year 1987 for recruiting and monitoring, and extra funds as needed for the Labor and Agriculture Departments. The Attorney General must mark entry and exit documents as needed, and federal rules here override state or local laws on admitting these workers. Definitions: “eligible individual” — a person who is legally allowed to work for that job; “H–2A worker” — a temporary nonimmigrant agricultural worker under federal immigration law.

Title 8, §1188

Aliens and Nationality — Source: USLM XML via OLRC

(a)(1)A petition to import an alien as an H–2A worker (as defined in subsection (i)(2)) may not be approved by the Attorney General unless the petitioner has applied to the Secretary of Labor for a certification that—

(A)there are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services involved in the petition, and

(B)the employment of the alien in such labor or services will not adversely affect the wages and working conditions of workers in the United States similarly employed.

(2)The Secretary of Labor may require by regulation, as a condition of issuing the certification, the payment of a fee to recover the reasonable costs of processing applications for certification.

(b)The Secretary of Labor may not issue a certification under subsection (a) with respect to an employer if the conditions described in that subsection are not met or if any of the following conditions are met:

(1)There is a strike or lockout in the course of a labor dispute which, under the regulations, precludes such certification.

(2)(A)The employer during the previous two-year period employed H–2A workers and the Secretary of Labor has determined, after notice and opportunity for a hearing, that the employer at any time during that period substantially violated a material term or condition of the labor certification with respect to the employment of domestic or nonimmigrant workers.

(B)No employer may be denied certification under subparagraph (A) for more than three years for any violation described in such subparagraph.

(3)The employer has not provided the Secretary with satisfactory assurances that if the employment for which the certification is sought is not covered by State workers’ compensation law, the employer will provide, at no cost to the worker, insurance covering injury and disease arising out of and in the course of the worker’s employment which will provide benefits at least equal to those provided under the State workers’ compensation law for comparable employment.

(4)The Secretary determines that the employer has not made positive recruitment efforts within a multi-state region of traditional or expected labor supply where the Secretary finds that there are a significant number of qualified United States workers who, if recruited, would be willing to make themselves available for work at the time and place needed. Positive recruitment under this paragraph is in addition to, and shall be conducted within the same time period as, the circulation through the interstate employment service system of the employer’s job offer. The obligation to engage in positive recruitment under this paragraph shall terminate on the date the H–2A workers depart for the employer’s place of employment.

(c)The following rules shall apply in the case of the filing and consideration of an application for a labor certification under this section:

(1)The Secretary of Labor may not require that the application be filed more than 45 days before the first date the employer requires the labor or services of the H–2A worker.

(2)(A)The employer shall be notified in writing within seven days of the date of filing if the application does not meet the standards (other than that described in subsection (a)(1)(A)) for approval.

(B)If the application does not meet such standards, the notice shall include the reasons therefor and the Secretary shall provide an opportunity for the prompt resubmission of a modified application.

(3)(A)The Secretary of Labor shall make, not later than 30 days before the date such labor or services are first required to be performed, the certification described in subsection (a)(1) if—

(i)the employer has complied with the criteria for certification (including criteria for the recruitment of eligible individuals as prescribed by the Secretary), and

(ii)the employer does not actually have, or has not been provided with referrals of, qualified eligible individuals who have indicated their availability to perform such labor or services on the terms and conditions of a job offer which meets the requirements of the Secretary.

(B)(i)For a period of 3 years subsequent to the effective date of this section, labor certifications shall remain effective only if, from the time the foreign worker departs for the employer’s place of employment, the employer will provide employment to any qualified United States worker who applies to the employer until 50 percent of the period of the work contract, under which the foreign worker who is in the job was hired, has elapsed. In addition, the employer will offer to provide benefits, wages and working conditions required pursuant to this section and regulations.

(ii)The requirement of clause (i) shall not apply to any employer who—

(I)did not, during any calendar quarter during the preceding calendar year, use more than 500 man-days of agricultural labor, as defined in section 203(u) of title 29,

(II)is not a member of an association which has petitioned for certification under this section for its members, and

(III)has not otherwise associated with other employers who are petitioning for temporary foreign workers under this section.

(iii)Six months before the end of the 3-year period described in clause (i), the Secretary of Labor shall consider the findings of the report mandated by section 403(a)(4)(D) of the Immigration Reform and Control Act of 1986 as well as other relevant materials, including evidence of benefits to United States workers and costs to employers, addressing the advisability of continuing a policy which requires an employer, as a condition for certification under this section, to continue to accept qualified, eligible United States workers for employment after the date the H–2A workers depart for work with the employer. The Secretary’s review of such findings and materials shall lead to the issuance of findings in furtherance of the Congressional policy that aliens not be admitted under this section unless there are not sufficient workers in the United States who are able, willing, and qualified to perform the labor or service needed and that the employment of the aliens in such labor or services will not adversely affect the wages and working conditions of workers in the United States similarly employed. In the absence of the enactment of Federal legislation prior to three months before the end of the 3-year period described in clause (i) which addresses the subject matter of this subparagraph, the Secretary shall immediately publish the findings required by this clause, and shall promulgate, on an interim or final basis, regulations based on his findings which shall be effective no later than three years from the effective date of this section.

(iv)In complying with clause (i) of this subparagraph, an association shall be allowed to refer or transfer workers among its members: Provided, That for purposes of this section an association acting as an agent for its members shall not be considered a joint employer merely because of such referral or transfer.

(v)United States workers referred or transferred pursuant to clause (iv) of this subparagraph shall not be treated disparately.

(vi)An employer shall not be liable for payments under section 655.202(b)(6) of title 20, Code of Federal Regulations (or any successor regulation) with respect to an H–2A worker who is displaced due to compliance with the requirement of this subparagraph, if the Secretary of Labor certifies that the H–2A worker was displaced because of the employer’s compliance with clause (i) of this subparagraph.

(vii)(I)No person or entity shall willfully and knowingly withhold domestic workers prior to the arrival of H–2A workers in order to force the hiring of domestic workers under clause (i).

(II)Upon the receipt of a complaint by an employer that a violation of subclause (I) has occurred the Secretary shall immediately investigate. He shall within 36 hours of the receipt of the complaint issue findings concerning the alleged violation. Where the Secretary finds that a violation has occurred, he shall immediately suspend the application of clause (i) of this subparagraph with respect to that certification for that date of need.

(4)Employers shall furnish housing in accordance with regulations. The employer shall be permitted at the employer’s option to provide housing meeting applicable Federal standards for temporary labor camps or to secure housing which meets the local standards for rental and/or public accommodations or other substantially similar class of habitation: Provided, That in the absence of applicable local standards, State standards for rental and/or public accommodations or other substantially similar class of habitation shall be met: Provided further, That in the absence of applicable local or State standards, Federal temporary labor camp standards shall apply: Provided further, That the Secretary of Labor shall issue regulations which address the specific requirements of housing for employees principally engaged in the range production of livestock: Provided further, That when it is the prevailing practice in the area and occupation of intended employment to provide family housing, family housing shall be provided to workers with families who request it: And provided further, That nothing in this paragraph shall require an employer to provide or secure housing for workers who are not entitled to it under the temporary labor certification regulations in effect on June 1, 1986. The determination as to whether the housing furnished by an employer for an H–2A worker meets the requirements imposed by this paragraph must be made prior to the date specified in paragraph (3)(A) by which the Secretary of Labor is required to make a certification described in subsection (a)(1) with respect to a petition for the importation of such worker.

(d)(1)A petition to import an alien as a temporary agricultural worker, and an application for a labor certification with respect to such a worker, may be filed by an association of agricultural producers which use agricultural services.

(2)If an association is a joint or sole employer of temporary agricultural workers, the certifications granted under this section to the association may be used for the certified job opportunities of any of its producer members and such workers may be transferred among its producer members to perform agricultural services of a temporary or seasonal nature for which the certifications were granted.

(3)(A)If an individual producer member of a joint employer association is determined to have committed an act that under subsection (b)(2) results in the denial of certification with respect to the member, the denial shall apply only to that member of the association unless the Secretary determines that the association or other member participated in, had knowledge of, or reason to know of, the violation.

(B)(i)If an association representing agricultural producers as a joint employer is determined to have committed an act that under subsection (b)(2) results in the denial of certification with respect to the association, the denial shall apply only to the association and does not apply to any individual producer member of the association unless the Secretary determines that the member participated in, had knowledge of, or reason to know of, the violation.

(ii)If an association of agricultural producers certified as a sole employer is determined to have committed an act that under subsection (b)(2) results in the denial of certification with respect to the association, no individual producer member of such association may be the beneficiary of the services of temporary alien agricultural workers admitted under this section in the commodity and occupation in which such aliens were employed by the association which was denied certification during the period such denial is in force, unless such producer member employs such aliens in the commodity and occupation in question directly or through an association which is a joint employer of such workers with the producer member.

(e)(1)Regulations shall provide for an expedited procedure for the review of a denial of certification under subsection (a)(1) or a revocation of such a certification or, at the applicant’s request, for a de novo administrative hearing respecting the denial or revocation.

(2)The Secretary of Labor shall expeditiously, but in no case later than 72 hours after the time a new determination is requested, make a new determination on the request for certification in the case of an H–2A worker if able, willing, and qualified eligible individuals are not actually available at the time such labor or services are required and a certification was denied in whole or in part because of the availability of qualified workers. If the employer asserts that any eligible individual who has been referred is not able, willing, or qualified, the burden of proof is on the employer to establish that the individual referred is not able, willing, or qualified because of employment-related reasons.

(f)An alien may not be admitted to the United States as a temporary agricultural worker if the alien was admitted to the United States as such a worker within the previous five-year period and the alien during that period violated a term or condition of such previous admission.

(g)(1)There are authorized to be appropriated for each fiscal year, beginning with fiscal year 1987, $10,000,000 for the purposes—

(A)of recruiting domestic workers for temporary labor and services which might otherwise be performed by nonimmigrants described in section 1101(a)(15)(H)(ii)(a) of this title, and

(B)of monitoring terms and conditions under which such nonimmigrants (and domestic workers employed by the same employers) are employed in the United States.

(2)The Secretary of Labor is authorized to take such actions, including imposing appropriate penalties and seeking appropriate injunctive relief and specific performance of contractual obligations, as may be necessary to assure employer compliance with terms and conditions of employment under this section.

(3)There are authorized to be appropriated for each fiscal year, beginning with fiscal year 1987, such sums as may be necessary for the purpose of enabling the Secretary of Labor to make determinations and certifications under this section and under section 1182(a)(5)(A)(i) of this title.

(4)There are authorized to be appropriated for each fiscal year, beginning with fiscal year 1987, such sums as may be necessary for the purposes of enabling the Secretary of Agriculture to carry out the Secretary’s duties and responsibilities under this section.

(h)(1)The Attorney General shall provide for such endorsement of entry and exit documents of nonimmigrants described in section 1101(a)(15)(H)(ii) of this title as may be necessary to carry out this section and to provide notice for purposes of section 1324a of this title.

(2)The provisions of subsections (a) and (c) of section 1184 of this title and the provisions of this section preempt any State or local law regulating admissibility of nonimmigrant workers.

(i)For purposes of this section:

(1)The term “eligible individual” means, with respect to employment, an individual who is not an unauthorized alien (as defined in section 1324a(h)(3) of this title) with respect to that employment.

(2)The term “H–2A worker” means a nonimmigrant described in section 1101(a)(15)(H)(ii)(a) of this title.

Notes & Related Subsidiaries

Editorial Notes

References in Text

section 403(a)(4)(D) of the Immigration Reform and Control Act of 1986, referred to in subsec. (c)(3)(B)(iii), is section 403(a)(4)(D) of Pub. L. 99–603, which is set out in a note under this section. Codification Section was classified to section 1186 of this title prior to its renumbering by Pub. L. 100–525.

Amendments

2000—Subsec. (c)(4). Pub. L. 106–554 inserted at end “The determination as to whether the housing furnished by an employer for an H–2A worker meets the requirements imposed by this paragraph must be made prior to the date specified in paragraph (3)(A) by which the Secretary of Labor is required to make a certification described in subsection (a)(1) with respect to a petition for the importation of such worker.” 1999—Subsec. (c)(1). Pub. L. 106–78, § 748(1), substituted “45 days” for “60 days”. Subsec. (c)(3)(A). Pub. L. 106–78, § 748(2), substituted “30 days” for “20 days” in introductory provisions. 1994—Subsec. (i)(1). Pub. L. 103–416 made technical correction to directory language of Pub. L. 102–232, § 309(b)(8). See 1991 Amendment note below. 1991—Subsec. (g)(3). Pub. L. 102–232, § 307(l)(4), substituted “section 1182(a)(5)(A)(i)” for “section 1182(a)(14)”. Subsec. (i)(1). Pub. L. 102–232, § 309(b)(8), as amended by Pub. L. 103–416, substituted “1324a(h)(3)” for “1324a(h)”. 1988—Pub. L. 100–525, § 2(l)(2)(A), made technical amendment to directory language of Pub. L. 99–603, § 301(c), which enacted this section. Subsec. (c)(4). Pub. L. 100–525, § 2(l)(3), substituted “accommodations” for “accomodations” wherever appearing.

Summary

Title 8, §1188

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