USA IMMIGRATION NEWS

Department of Labor Suspends the December 2008 H-2A Final Rule

Tuesday, 2 June 2009

On May 29, 2009 the Department of Labor announced that the H-2A final rule published on December 18, 2008 (December 2008 H-2A final rule) will be suspended for 9 months.

This suspension will take effect on June 29th, 2009.

The December 2008 H-2A final rule that took effect on January 17, 2009 modified the H-2A temporary labor certification process and its requirements. The rule introduced the new Form ETA 9142, Application for Temporary Employment Certification to replace Form ETA 750, Application for Alien Employment Certification, which was previously used in H-2A application process. In addition, the new rule amended the filing location of application and the mandatory recruitment efforts that H2A employers must complete.

Prior to the implementation of the December 2008 H-2A final rule, H-2A regulations had not been changed for over 20 years. As a result, the new regulation was met with wide spread criticism. In addition, the Department of Labor has received numerous reports that State Workforce Agencies (SWA), and employers alike, were experiencing significant difficulty understanding and following the new procedures of the December 2008 H-2A final rule, which resulted in considerable delays in the H-2A labor application process.

In light of these facts and in order to give the new administration time to review the new regulation, the Department of Labor suspended the new rule and may begin new rule making procedures. At the end of the 9 month suspension period the DOL will either implement a new rule or reinstate the December 2008 H-2A final rule.

The DOL advises that any H-2A applications filed prior to June 29, 2009 will be subject to and adjudicated under the requirements outlined in the December 2008 H-2A final rule. Therefore, any such application must be submitted utilizing Form ETA 9142 and Form ETA 790, Agricultural and Food Processing Clearance Order. However, any H-2A application filed on or after June 29, 2009 must be submitted utilizing Form ETA-750 and the ETA-790. Any application that does not follow this criterion will be returned to the employer for re-filing using the correct form.

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