H-2A News from OFLC, Sept. 10, 2024

OFLC, Sept. 10, 2024

"The Department of Labor’s Office of Foreign Labor Certification Announces Revised Transition Schedule and Technical Guidance for Implementing H-2A Job Orders and Applications Associated with the 2024 Farmworker Protection Final Rule; Compliance with District Court Order

On August 26, 2024, the United States District Court for the Southern District of Georgia issued a preliminary injunction in the case Kansas, et al. vs. U.S. Department of Labor, No. 2:24-cv-00076-LGW-BWC (S.D. Ga., Aug. 26, 2024) (“Kansas”), prohibiting DOL from enforcing the final rule “Improving Protections for Workers in Temporary Agricultural Employment in the United States” (Farmworker Protection Rule) in certain states and with respect to certain entities. The preliminary injunction specifically prohibits DOL from enforcing the Farmworker Protection Rule in the states of Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Missouri, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, Tennessee, Texas, and Virginia, and against Miles Berry Farm and members of the Georgia Fruit and Vegetable Growers Association as of August 26, 2024.

On August 28, 2024, the Department issued a notice regarding its compliance with the Kansas Order. Following this notice, OFLC has continued to receive and process H-2A job orders and Applications for Temporary Employment Certification in accordance with 20 CFR part 655, subpart B in effect on June 27, 2024, the calendar day before the effective date of the Farmworker Protection Rule.

Revised Transition Schedule

The Department is announcing the following revised transition schedule for receiving and processing H-2A job orders and Applications for Temporary Employment Certification under the Farmworker Protection Rule:

• The National Processing Center (NPC) will continue to process all completed H-2A Applications for Temporary Employment Certification (i.e., Forms ETA-790/790A and 9142A) submitted before 7:00 p.m. Eastern Daylight Time on or before September 11, 2024, in accordance with 20 CFR part 655, subpart B in effect on June 27, 2024.
• Beginning at 7:00 p.m. Eastern Daylight Time on September 11, 2024, until 12:00 a.m. Eastern Daylight Time on September 12, 2024, DOL will initiate procedures to deploy and test changes to the FLAG System to implement both the changes required by the Farmworker Protection Rule and changes designed to comply with the Kansas Order. No H-2A job orders (Forms ETA-790/790A) and Applications for Temporary Employment Certification can be submitted during this timeframe. All initiated, but unsubmitted, H-2A job orders and completed Applications for Temporary Employment Certification in the FLAG System as of 7:00 p.m. Eastern Daylight Time on September 11, 2024, will be deleted as of that time. Consistent with 20 CFR 655.134(a), the NPC Certifying Officer will grant a waiver of the regulatory time period for filing Applications for Temporary Employment Certification for employers who may be impacted by the deletion of initiated, but unsubmitted, H-2A job orders and Applications for Temporary Employment Certification.
• The NPC will process all H-2A job orders and Applications for Temporary Employment Certification submitted on or after 12:00 a.m. Eastern Daylight Time, September 12, 2024, as follows:
  1. The NPC will process H-2A job orders and Applications for Temporary Employment Certification not covered by the Kansas Order in accordance with 20 CFR part 655, subpart B in effect as of June 28, 2024.
  2. The NPC will process H-2A job orders and Applications for Temporary Employment Certification covered by the Kansas Order — that is, applications from the states of Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Missouri, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, Tennessee, Texas, and Virginia, as well as from Miles Berry Farm and members of the Georgia Fruit and Vegetable Growers Association as of August 26, 2024 — in accordance with 20 CFR part 655, subpart B in effect on June 27, 2024.

FLAG System Change Required to Comply with Court Order

Beginning at 12:00 a.m. Eastern Daylight Time, September 12, 2024, the FLAG System will require the employer, or the employer’s authorized attorney or agent, prior to initiating an H-2A job order and Application for Temporary Employment Certification, to identify whether the work to be performed under the H-2A job order will be located in one or more of the states or will be performed for entities subject to the Kansas Order. Specifically, when the employer, or the employer’s authorized attorney or agent, selects the option to initiate a new H-2A job order and Application for Temporary Employment Certification, the FLAG System will first present the following question requiring a “YES” or “NO” response before proceeding:

Are you seeking to submit an H-2A Application under any of the following conditions?

• All places of employment where work will be performed under the Form ETA-790/790A are located in one or more of the following states:

  • Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Missouri, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, Tennessee, Texas, or Virginia;

  OR

• The legal business name of the employer identified on the Form ETA-790/790A seeking to employ or jointly employ H-2A workers is “Miles Berry Farm;” 
  OR
• The legal business name of the employer identified on the Form ETA-790/790A seeking to employ or jointly employ H-2A workers is a member of the “Georgia Fruit and Vegetable Growers Association” as of August 26, 2024.

Where a “YES” response is provided (i.e., all the places of employment where work will be performed under the H-2A job order are subject to the Kansas Order), the FLAG System will navigate the employer, or the employer’s authorized attorney or agent, to begin preparing the H-2A job order using the Form ETA-790/790A applicable under the version of 20 CFR part 655, subpart B in effect on June 27, 2024.

Where a “NO” response is provided (i.e., all the places of employment where work will be performed under the H-2A job order are not subject to the Kansas Order), the FLAG System will navigate the employer, or the employer’s authorized attorney or agent, to begin preparing the H-2A job order using the Form ETA-790/790A applicable under the version of 20 CFR part 655, subpart B in effect as of June 28, 2024.

For employers seeking to file H-2A job orders and Applications for Temporary Employment Certification where the place(s) of employment on the single H-2A job order include states subject to the Kansas Order and states not subject to the Kansas Order, the Department provides the additional guidance below.

Additional Technical Guidance for Filing H-2A Job Orders and Applications for Temporary Employment Certification with Worksites in Both Enjoined and Non-Enjoined States in the FLAG System

• To ensure compliance with the Kansas Order, OFLC will not, on the basis of a single H-2A job order and Application for Temporary Employment Certification, grant temporary labor certification where the place(s) of employment on the single H-2A job order include both states subject to the Kansas Order and states not subject to the Kansas Order (i.e., at least one of the States is subject to the Kansas Order and at least one of the States is not subject to the Kansas Order). Employers must submit a job order for work performed in states subject to the Kansas Order and a separate job order for work performed in states not covered by the Kansas Order. Otherwise, depending on the version of the Form ETA-790/790A submitted, the State Workforce Agency or the NPC will issue a Notice of Deficiency requesting removal of the applicable place(s) of employment and direct the employer, or the employer’s authorized attorney or agent, to file a separate H-2A job order for the removed place or places of employment using the appropriate version of the Form ETA-790/790A.
• While the Kansas Order remains in effect, employers seeking temporary labor certification to perform herding and range livestock or itinerant animal shearing, commercial beekeeping, and custom combining with work itineraries, who would normally submit a single job order covering multiple areas of intended employment that include states which are both covered and not covered by the Kansas Order, should submit two H-2A job orders and Applications for Temporary Employment Certification: one for all places of employment covered by the injunction and another one for all places of employment not covered by the injunction.

Employers, or their authorized attorneys or agents, who have questions or need additional technical assistance regarding how to file H-2A job orders in the FLAG System may contact the OFLC H-2A Ombudsman at h2a.ombudsman@dol.gov."