Facilitating Earlier Filing of Certain Electronically Submitted H-2A Petitions

<RULE> DEPARTMENT OF HOMELAND SECURITY <CFR>8 CFR Part 214</CFR> <DEPDOC>[CIS No. 2832-25; DHS Docket No. USCIS-2025-0238]</DEPDOC> <RIN>RIN 1615-AD04</RIN> <SUBJECT>Facilitating Earlier Filing of Certain Electronically Submitted H-2A Petitions</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> U.S. Citizenship and Immigration Services (“USCIS”), Department of Homeland Security (“DHS”). <HD SOURCE="HED">ACTION:</HD> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> This final rule amends DHS regulations to modify the timing of when USCIS must receive a valid temporary labor certification when an H-2A petitioner electronically files a Petition for a Nonimmigrant Worker requesting unnamed beneficiaries. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> This final rule is effective on October 2, 2025. </EFFDATE> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Business and Foreign Workers Division, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, 5900 Capital Gateway Drive, Camp Springs, MD 20746; telephone 240-721-3000 (not a toll-free call). </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">I. Background</HD> The Immigration and Nationality Act (INA), as amended, establishes the H-2A nonimmigrant classification for a temporary 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.” INA section 101(a)(15)(H)(ii)(a), 8 U.S.C. 1101(a)(15)(H)(ii)(a). Employers must petition the Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS), for classification of prospective temporary workers as H-2A nonimmigrants. INA section 214(c)(1), 8 U.S.C. 1184(c)(1). DHS must approve this petition before the beneficiary can be considered eligible for an H-2A visa. Finally, the INA requires that “[t]he question of importing any alien as [an H-2A] nonimmigrant . . . in any specific case or specific cases shall be determined by [DHS], <SU>1</SU> <FTREF/> after consultation with appropriate agencies of the Government . . . mean[ing] the U.S. Department of Labor and includ[ing] the U.S. Department of Agriculture.” INA section 214(c)(1), 8 U.S.C. 1184(c)(1). <FTNT> <SU>1</SU>  As of March 1, 2003, in accordance with section 1517 of Title XV of the Homeland Security Act of 2002 (HSA), Public Law 107-296, 116 Stat. 2135, any reference to the Attorney General in a provision of the Immigration and Nationality Act (INA) describing functions which were transferred from the Attorney General or other Department of Justice official to the Department of Homeland Security by the HSA “shall be deemed to refer to the Secretary” of Homeland Security. <E T="03">See</E> 6 U.S.C. 557 (2003) (codifying HSA, Title XV, sec. 1517); 6 U.S.C. 542 note; 8 U.S.C. 1551 note. The Secretary of Homeland Security has authority to enforce and administer the immigration laws, including those relating to nonimmigrants, and to “establish such regulations; prescribe such forms of bond, reports, entries, and other papers; issue such instructions; and perform such other acts as [s]he deems necessary for carrying out h[er] authority” under the INA. 8 U.S.C. 1103(a)(1), (a)(3); <E T="03">see also, e.g.,</E> 6 U.S.C. 202(3)-(4), 236(b), 271(a)(3), (b); 8 U.S.C. 1184. </FTNT> Existing DHS regulations provide that an H-2A petition for temporary employment in the United States must be accompanied by a single valid temporary labor certification (TLC) from the U.S. Department of Labor (DOL) issued in accordance with INA section 218, 8 U.S.C. 1188, and DOL regulations established at 20 CFR part 655, subpart B. 8 CFR 214.2(h)(5)(i)(A), (D), (h)(5)(iv); <E T="03">see also</E> INA sections 214(c)(1) and 218, 8 U.S.C. 1184(c)(1) and 1188. <SU>2</SU> <FTREF/> The TLC serves as DHS's consultation with DOL regarding whether: (i) An able, willing, and qualified U.S. worker is available to fill the petitioning H-2A employer's job opportunity, and (ii) whether a foreign worker's employment in the job opportunity will adversely affect the wages or working conditions of similarly employed workers in the U.S. <E T="03">See</E> INA sections 214(c)(1) and 218, 8 U.S.C. 1184(c)(1) and 1188; <E T="03">see also</E> 8 CFR 214.2(h)(5)(ii); 20 CFR 655.100. <FTNT> <SU>2</SU>  Under certain emergent circumstances, petitions requesting a continuation of employment with the same employer for 2 weeks or less are exempt from the TLC requirement. <E T="03">See</E> 8 CFR 214.2(h)(5)(x). </FTNT> DHS regulations refer to a valid TLC by various terms including “Department of Labor determination” at 8 CFR 214.2(h)(2)(i)(E), “approved labor certification” at 8 CFR 214.2(h)(5)(x), and “temporary agricultural labor certification” at 8 CFR 214.2(h)(5)(i)(A), (h)(5)(iv)(B). The Form I-129, H-2A instructions also indicate that petitioners must submit a single valid temporary labor certification from DOL. <SU>3</SU> <FTREF/> <FTNT> <SU>3</SU>   <E T="03">See https://www.uscis.gov/i-129.</E> Under certain emergent circumstances, petitions requesting a continuation of employment with the same employer for 2 weeks or less are exempt from the TLC requirement. <E T="03">See</E> 8 CFR 214.2(h)(5)(x). </FTNT> In 2019, DOL's Office of Foreign Labor Certification (OFLC) announced that it was transitioning electronic filing of H-2A applications to the new Foreign Labor Application Gateway (FLAG) system beginning October 1, 2019. <SU>4</SU> <FTREF/> The transition to the FLAG system meant that employers whose TLCs were approved would receive the Form ETA-9142A, Final Determination: H-2A Temporary Labor Certification Approval, and Final Determination letter electronically, rather than receiving a paper TLC and Final Determination by mail. DOL provided a paper delivery exception for employers, including their authorized attorneys or agents who were not able to receive this documentation electronically. To effectuate this change, on March 6, 2020, USCIS published a notice in the <E T="04">Federal Register</E> announcing that employers who received TLCs through DOL's FLAG system would need to provide a printed copy of the DOL Final Determination with the H-2A petition as required initial evidence and that a printed copy of the Final Determination completed and electronically signed by DOL satisfies the requirement that petitioners provide evidence of a valid TLC pursuant to 8 CFR 214.2(h)(5)(i)(A). <SU>5</SU> <FTREF/> <FTNT> <SU>4</SU>   <E T="03">See https://www.dol.gov/agencies/eta/foreign-labor/news.</E> </FTNT> <FTNT> <SU>5</SU>   <E T="03">Notice of DHS's Requirement of the Temporary Labor Certification Final Determination Under the H-2A Temporary Worker Program,</E> 85 FR 13176 (Mar. 6, 2020). </FTNT> In 2022, DOL made electronic filing and issuance of temporary agricultural labor certifications in the H-2A program mandatory, except in limited circumstances. <SU>6</SU> <FTREF/> A printed copy of the signed DOL Final Determination is still required to be submitted to USCIS with the paper-filed H-2A petition on Form I-129 as initial evidence of a valid TLC. <FTNT> <SU>6</SU>   <E T="03">Temporary Agricultural Employment of H-2A Nonimmigrants in the United States,</E> 87 FR 61660, 61783 (Oct. 12, 2022) (“. . . [T]his final rule requires an employer to submit the <E T="03">Application for Temporary Employment Certification</E> and all required supporting documentation using an electronic method(s) designated by the OFLC Administrator, unless the employer cannot file electronically due to disability or lack of internet access.”); 20 CFR 655.130(c). </FTNT> <HD SOURCE="HD1">II. Purpose of Final Rule</HD> This rule modifies the timing of when USCIS must receive a valid TLC for certain H-2A petitions, as part of a larger effort by DOL and DHS (collectively, “the Departments”) to modernize and streamline the H-2A process. In light of an urgent demand for an authorized agricultural labor force  <SU>7</SU> <FTREF/> and requests from the regulated community and members of Congress to make the H-2A program easier to use and more efficient for U.S. agricultural producers, <SU>8</SU> <FTREF/> the Departments are collaborating to create a more streamlined application and petition filing process for U.S. agricultural producers to help meet an urgent need for H-2A temporary agricultural workers while simultaneously ensuring that petitioners are complying with all statutory and regulatory requirements of the H-2A program. While both OFLC and USCIS have separately been meeting applicable processing timeframes, <SU>9</SU> <FTREF/> this effort is nonetheless aimed at improving customer service by reducing the overall time across Federal departments it takes to complete the temporary agricultural labor certification and nonimmigrant petition processes for petitioners seeking to employ H-2A workers, and also make the process more modernized and streamlined for H-2A petitioners. <FTNT> <SU>7</SU>   <E T="03">See, e.g.,</E> American Enterprise Institute, <E T="03">Immigration Enforcement and the US Agricultural Sector in 2025</E> (Apr. 15, 2025) (“Anticipation of a reduced unauthorized immigrant worker supply will likely incentivize the agricultural sector to renew efforts to pass legislation that streamlines the H-2A program.”), <E T="03">https://www.aei.org/research-products/report/immigration-enforcement-and-the-us-agricultural-sector-in-2025/</E> (last visited July 30, 2025); USDA, Economic Research Service, <E T="03">Farm Labor</E> (July 7, 2025) (noting that “[o]ne of the clearest indicators of the scarcity of farm labor is the fact that the number of H-2A positions ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 40k characters. 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