DOL Publishes Final Rule on H-2A Regulatons – October 2019

From USADNEWS Volume XIII, Issue 5

The Department of Labor (DOL) published a final rule with amendments to the regulations for the recruitment process for H-2A temporary labor certifications.

Most notably, the revised regulations remove the requirement for employers to advertise in a print newspaper of general circulation in the area of intended employment. The original proposed rule would have replaced the print method with a mandatory internet posting. During the open comment period, many employers supported rescinding the print requirement, complaining that print advertising was onerously expensive and yielded few if any responses from job seekers. However, other commenters expressed concerns that mandating an internet ad would disadvantage employers and job seekers who have limited reliable access to the internet. Nevertheless, the DOL determined that for the purposes of agricultural recruitment, “newspaper advertisements do not meaningfully contribute to the labor market test” and the print newspaper requirement has been eliminated.

Instead of mandating that employers post the position online, however, the DOL will advertise all H-2A job openings on, the expanded version of the DOL’s electronic job registry. The website is currently operational, and the Department will continue to update and enhance the search functions. The DOL also seeks to engage the State Workforce Agencies (SWAs) in more extensive outreach activities.

The new regulations retain the “positive recruitment” requirement for employers to conduct multi-state recruitment in areas “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.” The Certifying Officer (CO) will determine on a case-by-case basis the additional locations and recruitment methods where an employer must advertise.

The DOL believes these changes will modernize the H-2A application process and will provide a more accurate labor market test. The final rule was published on September 20, 2019, and takes effect October 21, 2019.