The Department of Labor (DOL) announced on Dec. 20 additional guidance on the 2024 Farmworker Protection Final Rule.

Key Points:

  • The additional guidance is based on court orders issued in Nov. 2024 in response to lawsuits brought by groups of farm and business organizations seeking to block implementation of the final rule.
  • DOL concluded that use of the current forms associated with the Farmworker Protection Rule is “infeasible in the short term”— including during the current peak H-2A filing season.
  • Employers can submit H-2A job orders and Applications for Temporary Employment Certification on the Foreign Labor Application Gateway (FLAG) system using applicable forms under the version of 20 Code of Federal Regulations part 655, subpart B that went into effect on June 27, 2024.
  • Waivers of the regulatory time period for filing new H-2A job orders and Applications for Temporary Employment Certification using the applicable forms under the version of 20 CFR part 655, subpart B in effect on June 27, 2024, will be granted for those employers impacted by DOL’s cessation of processing as a result of these court orders. However, this waiver does not extend to certified applications that are withdrawn and refiled.
  • Read the two-page additional guidance here.

Additional Information: On November 27, 2024, all initiated but unsubmitted, H-2A job orders and completed Applications for Temporary Employment Certification in FLAG using the forms associated with the Farmworker Protection Rule under the version of 20 CFR part 655, subpart B in effect as of June 28, 2024, were deleted to help prevent accidental submittals using incorrect versions of the forms and ensure DOL compliance with the court orders.

OFLC has ceased further processing of all pending H-2A job orders and Applications for Temporary Employment Certification using the revised forms in effect on June 28, 2024. Employers with pending job orders/applications have the option of requesting withdrawal of their pending H-2A job order or Application for Temporary Employment Certification using either the FLAG System online withdrawal function or submitting a request in writing to the OFLC at tlc.chicago@dol.gov (the unique FLAG H-2A job order or Application for Temporary Employment Certification case number must be used in the subject line of the email).

The preliminary “Yes/No” question put in place by DOL to comply with court orders has been removed from the FLAG System.

The Labor Certification Process for Temporary Agricultural Employment in the United States (H-2A Workers) codified under 20 Code of Federal Regulations part 655, subpart B that went into effect on June 27, 2024 can be found here.

This alert has been provided by the BAL U.S. Practice Group. 

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