Nov 13, 2018

H-2A advertising rule proposal backed by ag employers

Michael Marsh, President and CEO, National Council of Agricultural Employers, issued a statement supporting a recent announcement from the Department of Labor regarding advertising of positions in relation to H-2A visa use.

“This is great news and a good start to a needed reform process for the H-2A visa,” Marsh said. “NCAE’s advocacy early in the Trump Administration has begun to bear fruit. In fact, timing of the notice dovetails nicely with our planned deep dive into H-2A reform scheduled for our Labor Forum later this month.”

“We are pleased with the administration’s effort in this regard and look forward to the unveiling of additional reforms,” said Marsh.

To make it easier for Americans to find and fill open jobs, the U.S. Department of Labor issued a proposal Nov. 8 for employers seeking temporary labor certifications through the H-2B and H-2A visa programs to advertise jobs online.

Under current rules, an employer advertising a job for which it seeks a temporary labor certification must publish two print advertisements in a newspaper of general circulation in the area of intended employment.

To modernize this recruitment and make job opportunities more readily available to Americans, the Department of Labor and the U.S. Department of Homeland Security are proposing a rule that would require employers seeking temporary labor certifications through the H-2B visa program to post job advertisements online for at least 14 days.””

The Department of Labor is simultaneously proposing a similar rule for temporary labor certifications through the H-2A visa program for agricultural workers.

The Department of Labor has (finally) acknowledged what agricultural employers have been telling them for years – potential U.S. workers are not coming forward in response to print newspaper advertising for available agricultural jobs, and that advertising is costly to employers,” Marsh said.

In a Notice of Proposed Rulemaking (NOPR), the department has opened a 30-day comment period on a proposal to replace expensive newspaper advertising (online or print) entirely with a website-based advertising system – with employers given discretion to choose “at least one website that is widely used and appropriate for use by U.S. workers who are likely to apply for the job opportunity in the area of intended employment.”

Employers seeking to hire H-2A workers will post their jobs to their state workforce agency and then to the Chicago National Processing Center, and then post the job order to the website of their choosing – retaining proof of posting. The job must remain posted on the website for at least 14 consecutive days. No further advertising by employers will be required.

Although the NOPR references the additional duty to contact, in writing, prior-year U.S. workers who completed the season, the NOPR does not replace that requirement with the online job posting. Employers may wish to comment on that issue during the upcoming 30-day comment period, ending Dec. 10, 2018.

For jobs with start dates between now and Oct. 1, 2019, employers will have the choice of online posting or the traditional two newspaper advertisement option.

For more on NCAE’s Ag Labor Forum in Las Vegas Nov. 28-30, visit here.