Recission of Final Rule: Improving Protections for Workers in Temporary Agricultural Employment in the United States

DEPARTMENT OF LABOR <SUBAGY>Employment and Training Administration</SUBAGY> <CFR>20 CFR Parts 651, 653, 655, and 658</CFR> <SUBAGY>Wage and Hour Division</SUBAGY> <CFR>29 CFR Part 501</CFR> <DEPDOC>[DOL Docket No. ETA-2025-0007]</DEPDOC> <RIN>RIN 1205-AC25</RIN> <SUBJECT>Recission of Final Rule: Improving Protections for Workers in Temporary Agricultural Employment in the United States</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Employment and Training Administration and Wage and Hour Division, Department of Labor. <HD SOURCE="HED">ACTION:</HD> Proposed rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> The Department of Labor (Department or DOL) is proposing to amend its regulations governing the certification of agricultural labor or services to be performed by temporary foreign workers in H-2A nonimmigrant status (H-2A workers) and enforcement of the contractual obligations applicable to employers of such nonimmigrant workers. This notice of proposed rulemaking (NPRM or proposed rule) that would rescind provisions contained within a final rule published by the Department on April 29, 2024, which adopted a number of unnecessary, burdensome, and costly requirements on employers. Specifically, these provisions include, but are not limited to, substantial new requirements associated with the material terms and conditions offered by employers to H-2A workers that are not commonly provided to other U.S. workers, including progressive discipline policies for cause-based employment terminations, anti-retaliation measures for certain workers engaged in self-organization and other concerted activities, and expanding the authority and scope for a State Workforce Agency (SWA) to discontinue employment services to employers, which prevents those employers from accessing the H-2A program, while eliminating employers' option to request a hearing prior to the SWA's final determination. Further, the final rule imposed extensive highly-sensitive data collection requirements on employers related to their use of foreign labor recruiters, including personal names and physical addresses abroad, as well as detailed personal information associated with all owners of the employers, operators of the place(s) of employment, and supervisor(s) and manager(s) of workers employed under the terms of the work contract, with very limited or no practical utility to the agency's statutory decision making. A brief summary of this rulemaking can be found at <E T="03">www.regulations.gov</E> by searching by the RIN: 1205-AC25. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> Interested persons are invited to submit written comments on this proposed rule on or before September 2, 2025. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> You may submit comments electronically by the following method: <E T="03">Federal eRulemaking Portal: https://www.regulations.gov.</E> Follow the instructions on the website for submitting comments. <E T="03">Instructions:</E> Include the agency's name and docket number ETA-2025-XXXX0007 in your comments. All comments received will become a matter of public record and will be posted without change to <E T="03">https://www.regulations.gov.</E> Please do not include any personally identifiable or confidential business information you do not want publicly disclosed. <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> For further information regarding 20 CFR parts 651, 653, and 658, contact Kimberly Vitelli, Administrator, Office of Workforce Investment, Employment and Training Administration, Department of Labor, Room C-4526, 200 Constitution Avenue NW, Washington, DC 20210, telephone: (202) 693-3980 (this is not a toll-free number). For further information regarding 20 CFR part 655, contact Brian Pasternak, Administrator, Office of Foreign Labor Certification, Employment and Training Administration, Department of Labor, 200 Constitution Avenue NW, Room N-5311, Washington, DC 20210, telephone: (202) 693-8200 (this is not a toll-free number). For further information regarding 29 CFR part 501, contact Daniel Navarrete, Director of the Division of Regulations, Legislation, and Interpretation, Wage and Hour Division, Department of Labor, Room S-3018, 200 Constitution Avenue NW, Washington, DC 20210, telephone: (202) 693-0406 (this is not a toll-free number). For persons with a hearing or speech disability who need assistance to use the telephone system, please dial 711 to access telecommunications relay services. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">I. Background</HD> <HD SOURCE="HD2">A. Legal Authority</HD> <HD SOURCE="HD3">1. Immigration and Nationality Act</HD> The Immigration and Nationality Act (INA), as amended by the Immigration Reform and Control Act of 1986 (IRCA), establishes an “H-2A” nonimmigrant visa classification for a worker “having a residence in a foreign country which he has no intention of abandoning who is coming temporarily to the United States to perform agricultural labor or services . . . of a temporary or seasonal nature.” 8 U.S.C. 1101(a)(15)(H)(ii)(a); <E T="03">see also</E> 8 U.S.C. 1184(c)(1) and 1188. <SU>1</SU> <FTREF/> Agricultural labor or services includes the types of labor and services “defined by the Secretary of Labor in regulations,” as well as the Internal Revenue Code definition of “agricultural labor” at “section 3121(g) of title 26,” the Fair Labor Standards Act definition of “agriculture” at “section 203(f) of title 29,” and “the pressing of apples for cider on a farm . . . .” 8 U.S.C. 1101(a)(15)(H)(ii)(a). <FTNT> <SU>1</SU>  For ease of reference, sections of the INA are referred to by their corresponding section in the United States Code. </FTNT> The admission of foreign workers under this classification involves a multi-step process before several Federal agencies. A prospective H-2A employer must first apply to the Secretary of Labor (Secretary) 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. 8 U.S.C. 1188(a)(1). The INA prohibits the Secretary from issuing this certification—known as a “temporary labor certification”—unless both of the above referenced conditions are met and none of the conditions in 8 U.S.C. 1188(b) apply concerning strikes or lock-outs, labor certification program debarments, workers' compensation assurances, and positive recruitment. The Secretary has delegated the authority to issue temporary agricultural labor certifications to the Assistant Secretary for Employment and Training, who in turn has delegated that authority to ETA's Office of Foreign Labor Certification (OFLC). <SU>2</SU> <FTREF/> In addition, the Secretary has delegated to the Department's Wage and Hour Division (WHD) the responsibility under sec. 218(g)(2) of the INA, 8 U.S.C. 1188(g)(2), to assure employer compliance with the terms and conditions of employment under the H-2A program. <SU>3</SU> <FTREF/> <FTNT> <SU>2</SU>   <E T="03">See</E> Secretary's Order 06-2010 (Oct. 20, 2010), 75 FR 66268 (Oct. 27, 2010). </FTNT> <FTNT> <SU>3</SU>   <E T="03">See</E> Secretary's Order 01-2014 (Dec. 19, 2014), 79 FR 77527 (Dec. 24, 2014). </FTNT> Once an employer obtains a temporary labor certification from DOL, it may then file a nonimmigrant visa petition with the Secretary of Homeland Security. <E T="03">See</E> 8 U.S.C. 1184(c). <SU>4</SU> <FTREF/> If the employer's petition is approved, the foreign workers whom it seeks to employ must, generally, apply for a nonimmigrant H-2A visa at a U.S. Embassy or consulate abroad. <E T="03">Id.</E> Finally, if the foreign worker is coming from abroad, he or she must apply to U.S. Customs and Border Protection for admission to the United States. <SU>5</SU> <FTREF/> <FTNT> <SU>4</SU>  Under sec. 1517 of title XV of the Homeland Security Act of 2002, Public Law 107-296, 116 Stat. 2135, reference to the Attorney General's or other Department of Justice Official's responsibilities under sec. 1184(c) have been expressly transferred to the Secretary of Homeland Security. <E T="03">See</E> 6 U.S.C. 202, 271(b). </FTNT> <FTNT> <SU>5</SU>   <E T="03">See generally</E> 8 U.S.C. 1225; 8 CFR part 235. </FTNT> <HD SOURCE="HD3">2. Wagner-Peyser Act</HD> The Wagner-Peyser Act of 1933 established the United States Employment Service (ES), a nationwide system to improve the functioning of the nation's labor markets by bringing together individuals seeking employment with employers seeking workers. 29 U.S.C. 49 <E T="03">et seq.</E> Section 3(a) of the Act sets forth the basic responsibilities of the Department in the ES, which include assisting in coordinating the State public employment service offices throughout the country and in increasing their usefulness by prescribing standards for efficiency, promoting uniformity in procedures, and maintaining a system of clearing labor between the States. 29 U.S.C. 49b. The Act further authorizes the Department “to make such rules and regulations as may be necessary to carry out [its] provisions.” 29 U.S.C. 49k. Consistent with the aims of sec. 3(a), the ES system provides labor exchange services to its participants and has undergone numerous changes to align its activities with broader national workforce development policies and statutory requirements. The Workforce Innovation and Opportunity Act (Pub. L. 113-128), passed in 2014, expanded upon the previous workforce reforms in the Workforce Investment Act of 1998 and, among other things, identified the ES system as a core prog ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 208k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━