Aliens and Nationality - 8 USC Section 1188

01/03/05

Sec. 1188. Admission of temporary H-2A workers

(a) Conditions for approval of H-2A petitions
(1) A petition to import an alien as an H-2A worker (as defined
in subsection (i)(2) of this section) may not be approved by the
Attorney General unless the petitioner has applied to the Secretary
of Labor 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.
(2) The Secretary of Labor may require by regulation, as a
condition of issuing the certification, the payment of a fee to
recover the reasonable costs of processing applications for
certification.
(b) Conditions for denial of labor certification
The Secretary of Labor may not issue a certification under
subsection (a) of this section with respect to an employer if the
conditions described in that subsection are not met or if any of
the following conditions are met:
(1) There is a strike or lockout in the course of a labor
dispute which, under the regulations, precludes such
certification.
(2)(A) The employer during the previous two-year period
employed H-2A workers and the Secretary of Labor has determined,
after notice and opportunity for a hearing, that the employer at
any time during that period substantially violated a material
term or condition of the labor certification with respect to the
employment of domestic or nonimmigrant workers.
(B) No employer may be denied certification under subparagraph
(A) for more than three years for any violation described in such
subparagraph.
(3) The employer has not provided the Secretary with
satisfactory assurances that if the employment for which the
certification is sought is not covered by State workers'
compensation law, the employer will provide, at no cost to the
worker, insurance covering injury and disease arising out of and
in the course of the worker's employment which will provide
benefits at least equal to those provided under the State
workers' compensation law for comparable employment.
(4) The Secretary determines that the employer has not made
positive recruitment efforts within a multi-state region of
traditional or expected labor supply where the Secretary finds
that there are a significant number of qualified United States
workers who, if recruited, would be willing to make themselves
available for work at the time and place needed. Positive
recruitment under this paragraph is in addition to, and shall be
conducted within the same time period as, the circulation through
the interstate employment service system of the employer's job
offer. The obligation to engage in positive recruitment under
this paragraph shall terminate on the date the H-2A workers
depart for the employer's place of employment.
(c) Special rules for consideration of applications
The following rules shall apply in the case of the filing and
consideration of an application for a labor certification under
this section:
(1) Deadline for filing applications
The Secretary of Labor may not require that the application be
filed more than 45 days before the first date the employer
requires the labor or services of the H-2A worker.
(2) Notice within seven days of deficiencies
(A) The employer shall be notified in writing within seven days
of the date of filing if the application does not meet the
standards (other than that described in subsection (a)(1)(A) of
this section) for approval.
(B) If the application does not meet such standards, the notice
shall include the reasons therefor and the Secretary shall
provide an opportunity for the prompt resubmission of a modified
application.
(3) Issuance of certification
(A) The Secretary of Labor shall make, not later than 30 days
before the date such labor or services are first required to be
performed, the certification described in subsection (a)(1) of
this section if -
(i) the employer has complied with the criteria for
certification (including criteria for the recruitment of
eligible individuals as prescribed by the Secretary), and
(ii) the employer does not actually have, or has not been
provided with referrals of, qualified eligible individuals who
have indicated their availability to perform such labor or
services on the terms and conditions of a job offer which meets
the requirements of the Secretary.
In considering the question of whether a specific qualification
is appropriate in a job offer, the Secretary shall apply the
normal and accepted qualifications required by non-H-2A-employers
in the same or comparable occupations and crops.
(B)(i) For a period of 3 years subsequent to the effective date
of this section, labor certifications shall remain effective only
if, from the time the foreign worker departs for the employer's
place of employment, the employer will provide employment to any
qualified United States worker who applies to the employer until
50 percent of the period of the work contract, under which the
foreign worker who is in the job was hired, has elapsed. In
addition, the employer will offer to provide benefits, wages and
working conditions required pursuant to this section and
regulations.
(ii) The requirement of clause (i) shall not apply to any
employer who -
(I) did not, during any calendar quarter during the preceding
calendar year, use more than 500 man-days of agricultural
labor, as defined in section 203(u) of title 29,
(II) is not a member of an association which has petitioned
for certification under this section for its members, and
(III) has not otherwise associated with other employers who
are petitioning for temporary foreign workers under this
section.
(iii) Six months before the end of the 3-year period described
in clause (i), the Secretary of Labor shall consider the findings
of the report mandated by section 403(a)(4)(D) of the Immigration
Reform and Control Act of 1986 as well as other relevant
materials, including evidence of benefits to United States
workers and costs to employers, addressing the advisability of
continuing a policy which requires an employer, as a condition
for certification under this section, to continue to accept
qualified, eligible United States workers for employment after
the date the H-2A workers depart for work with the employer. The
Secretary's review of such findings and materials shall lead to
the issuance of findings in furtherance of the Congressional
policy that aliens not be admitted under this section unless
there are not sufficient workers in the United States who are
able, willing, and qualified to perform the labor or service
needed and that the employment of the aliens in such labor or
services will not adversely affect the wages and working
conditions of workers in the United States similarly employed. In
the absence of the enactment of Federal legislation prior to
three months before the end of the 3-year period described in
clause (i) which addresses the subject matter of this
subparagraph, the Secretary shall immediately publish the
findings required by this clause, and shall promulgate, on an
interim or final basis, regulations based on his findings which
shall be effective no later than three years from the effective
date of this section.
(iv) In complying with clause (i) of this subparagraph, an
association shall be allowed to refer or transfer workers among
its members: Provided, That for purposes of this section an
association acting as an agent for its members shall not be
considered a joint employer merely because of such referral or
transfer.
(v) United States workers referred or transferred pursuant to
clause (iv) of this subparagraph shall not be treated
disparately.
(vi) An employer shall not be liable for payments under section
655.202(b)(6) of title 20, Code of Federal Regulations (or any
successor regulation) with respect to an H-2A worker who is
displaced due to compliance with the requirement of this
subparagraph, if the Secretary of Labor certifies that the H-2A
worker was displaced because of the employer's compliance with
clause (i) of this subparagraph.
(vii)(I) No person or entity shall willfully and knowingly
withhold domestic workers prior to the arrival of H-2A workers in
order to force the hiring of domestic workers under clause (i).
(II) Upon the receipt of a complaint by an employer that a
violation of subclause (I) has occurred the Secretary shall
immediately investigate. He shall within 36 hours of the receipt
of the complaint issue findings concerning the alleged violation.
Where the Secretary finds that a violation has occurred, he shall
immediately suspend the application of clause (i) of this
subparagraph with respect to that certification for that date of
need.
(4) Housing
Employers shall furnish housing in accordance with regulations.
The employer shall be permitted at the employer's option to
provide housing meeting applicable Federal standards for
temporary labor camps or to secure housing which meets the local
standards for rental and/or public accommodations or other
substantially similar class of habitation: Provided, That in the
absence of applicable local standards, State standards for rental
and/or public accommodations or other substantially similar class
of habitation shall be met: Provided further, That in the absence
of applicable local or State standards, Federal temporary labor
camp standards shall apply: Provided further, That the Secretary
of Labor shall issue regulations which address the specific
requirements of housing for employees principally engaged in the
range production of livestock: Provided further, That when it is
the prevailing practice in the area and occupation of intended
employment to provide family housing, family housing shall be
provided to workers with families who request it: And provided
further, That nothing in this paragraph shall require an employer
to provide or secure housing for workers who are not entitled to
it under the temporary labor certification regulations in effect
on June 1, 1986. The determination as to whether the housing
furnished by an employer for an H-2A worker meets the
requirements imposed by this paragraph must be made prior to the
date specified in paragraph (3)(A) by which the Secretary of
Labor is required to make a certification described in subsection
(a)(1) of this section with respect to a petition for the
importation of such worker.
(d) Roles of agricultural associations
(1) Permitting filing by agricultural associations
A petition to import an alien as a temporary agricultural
worker, and an application for a labor certification with respect
to such a worker, may be filed by an association of agricultural
producers which use agricultural services.
(2) Treatment of associations acting as employers
If an association is a joint or sole employer of temporary
agricultural workers, the certifications granted under this
section to the association may be used for the certified job
opportunities of any of its producer members and such workers may
be transferred among its producer members to perform agricultural
services of a temporary or seasonal nature for which the
certifications were granted.
(3) Treatment of violations
(A) Member's violation does not necessarily disqualify
association or other members
If an individual producer member of a joint employer
association is determined to have committed an act that under
subsection (b)(2) of this section results in the denial of
certification with respect to the member, the denial shall
apply only to that member of the association unless the
Secretary determines that the association or other member
participated in, had knowledge of, or reason to know of, the
violation.
(B) Association's violation does not necessarily disqualify
members
(i) If an association representing agricultural producers as
a joint employer is determined to have committed an act that
under subsection (b)(2) of this section results in the denial
of certification with respect to the association, the denial
shall apply only to the association and does not apply to any
individual producer member of the association unless the
Secretary determines that the member participated in, had
knowledge of, or reason to know of, the violation.
(ii) If an association of agricultural producers certified as
a sole employer is determined to have committed an act that
under subsection (b)(2) of this section results in the denial
of certification with respect to the association, no individual
producer member of such association may be the beneficiary of
the services of temporary alien agricultural workers admitted
under this section in the commodity and occupation in which
such aliens were employed by the association which was denied
certification during the period such denial is in force, unless
such producer member employs such aliens in the commodity and
occupation in question directly or through an association which
is a joint employer of such workers with the producer member.
(e) Expedited administrative appeals of certain determinations
(1) Regulations shall provide for an expedited procedure for the
review of a denial of certification under subsection (a)(1) of this
section or a revocation of such a certification or, at the
applicant's request, for a de novo administrative hearing
respecting the denial or revocation.
(2) The Secretary of Labor shall expeditiously, but in no case
later than 72 hours after the time a new determination is
requested, make a new determination on the request for
certification in the case of an H-2A worker if able, willing, and
qualified eligible individuals are not actually available at the
time such labor or services are required and a certification was
denied in whole or in part because of the availability of qualified
workers. If the employer asserts that any eligible individual who
has been referred is not able, willing, or qualified, the burden of
proof is on the employer to establish that the individual referred
is not able, willing, or qualified because of employment-related
reasons.
(f) Violators disqualified for 5 years
An alien may not be admitted to the United States as a temporary
agricultural worker if the alien was admitted to the United States
as such a worker within the previous five-year period and the alien
during that period violated a term or condition of such previous
admission.
(g) Authorization of appropriations
(1) There are authorized to be appropriated for each fiscal year,
beginning with fiscal year 1987, $10,000,000 for the purposes -
(A) of recruiting domestic workers for temporary labor and
services which might otherwise be performed by nonimmigrants
described in section 1101(a)(15)(H)(ii)(a) of this title, and
(B) of monitoring terms and conditions under which such
nonimmigrants (and domestic workers employed by the same
employers) are employed in the United States.
(2) The Secretary of Labor is authorized to take such actions,
including imposing appropriate penalties and seeking appropriate
injunctive relief and specific performance of contractual
obligations, as may be necessary to assure employer compliance with
terms and conditions of employment under this section.
(3) There are authorized to be appropriated for each fiscal year,
beginning with fiscal year 1987, such sums as may be necessary for
the purpose of enabling the Secretary of Labor to make
determinations and certifications under this section and under
section 1182(a)(5)(A)(i) of this title.
(4) There are authorized to be appropriated for each fiscal year,
beginning with fiscal year 1987, such sums as may be necessary for
the purposes of enabling the Secretary of Agriculture to carry out
the Secretary's duties and responsibilities under this section.
(h) Miscellaneous provisions
(1) The Attorney General shall provide for such endorsement of
entry and exit documents of nonimmigrants described in section
1101(a)(15)(H)(ii) of this title as may be necessary to carry out
this section and to provide notice for purposes of section 1324a of
this title.
(2) The provisions of subsections (a) and (c) of section 1184 of
this title and the provisions of this section preempt any State or
local law regulating admissibility of nonimmigrant workers.
(i) Definitions
For purposes of this section:
(1) The term "eligible individual" means, with respect to
employment, an individual who is not an unauthorized alien (as
defined in section 1324a(h)(3) of this title) with respect to
that employment.
(2) The term "H-2A worker" means a nonimmigrant described in
section 1101(a)(15)(H)(ii)(a) of this title.

AMENDMENTS
2000 - Subsec. (c)(4). Pub. L. 106-554 inserted at end "The
determination as to whether the housing furnished by an employer
for an H-2A worker meets the requirements imposed by this paragraph
must be made prior to the date specified in paragraph (3)(A) by
which the Secretary of Labor is required to make a certification
described in subsection (a)(1) of this section with respect to a
petition for the importation of such worker."
1999 - Subsec. (c)(1). Pub. L. 106-78, Sec. 748(1), substituted
"45 days" for "60 days".
Subsec. (c)(3)(A). Pub. L. 106-78, Sec. 748(2), substituted "30
days" for "20 days" in introductory provisions.
1994 - Subsec. (i)(1). Pub. L. 103-416 made technical correction
to directory language of Pub. L. 102-232, Sec. 309(b)(8). See 1991
Amendment note below.
1991 - Subsec. (g)(3). Pub. L. 102-232, Sec. 307(l)(4),
substituted "section 1182(a)(5)(A)(i)" for "section 1182(a)(14)".
Subsec. (i)(1). Pub. L. 102-232, Sec. 309(b)(8), as amended by
Pub. L. 103-416, substituted "1324a(h)(3)" for "1324a(h)".
1988 - Pub. L. 100-525, Sec. 2(l)(2)(A), made technical amendment
to directory language of Pub. L. 99-603, Sec. 301(c), which enacted
this section.
Subsec. (c)(4). Pub. L. 100-525, Sec. 2(l)(3), substituted
"accommodations" for "accomodations" wherever appearing.
EFFECTIVE DATE OF 1994 AMENDMENT
Section 219(z) of Pub. L. 103-416 provided that the amendment
made by subsec. (z)(8) of that section is effective as if included
in the Miscellaneous and Technical Immigration and Naturalization
Amendments of 1991, Pub. L. 102-232.
EFFECTIVE DATE OF 1991 AMENDMENT
Section 307(l) of Pub. L. 102-232 provided that the amendment
made by that section is effective as if included in section 603(a)
of the Immigration Act of 1990, Pub. L. 101-649.
EFFECTIVE DATE OF 1988 AMENDMENT
Amendment by Pub. L. 100-525 effective as if included in
enactment of Immigration Reform and Control Act of 1986, Pub. L.
99-603, see section 2(s) of Pub. L. 100-525, set out as a note
under section 1101 of this title.
EFFECTIVE DATE; REGULATIONS
Section 301(d), (e) of Pub. L. 99-603, as amended by Pub. L.
100-525, Sec. 2(l)(4), Oct. 24, 1988, 102 Stat. 2612, provided
that:
"(d) Effective Date. - The amendments made by this section
[enacting this section and amending sections 1101 and 1184] apply
to petitions and applications filed under sections 214(c) and 218
of the Immigration and Nationality Act [8 U.S.C. 1184(c), 1188] on
or after the first day of the seventh month beginning after the
date of the enactment of this Act [Nov. 6, 1986] (hereinafter in
this section referred to as the 'effective date').
"(e) Regulations. - The Attorney General, in consultation with
the Secretary of Labor and the Secretary of Agriculture, shall
approve all regulations to be issued implementing sections
101(a)(15)(H)(ii)(a) and 218 of the Immigration and Nationality Act
[8 U.S.C. 1101(a)(15)(H)(ii)(a), 1188]. Notwithstanding any other
provision of law, final regulations to implement such sections
shall first be issued, on an interim or other basis, not later than
the effective date."

SENSE OF CONGRESS RESPECTING CONSULTATION WITH MEXICO
Section 301(f) of Pub. L. 99-603, as amended by Pub. L. 100-525,
Sec. 2(l)(4), Oct. 24, 1988, 102 Stat. 2612, provided that: "It is
the sense of Congress that the President should establish an
advisory commission which shall consult with the Governments of
Mexico and of other appropriate countries and advise the Attorney
General regarding the operation of the alien temporary worker
program established under section 218 of the Immigration and
Nationality Act [8 U.S.C. 1188]."
REPORTS ON H-2A PROGRAM
Section 403 of Pub. L. 99-603 provided that:
"(a) Presidential Reports. - The President shall transmit to the
Committees on the Judiciary of the Senate and of the House of
Representatives reports on the implementation of the temporary
agricultural worker (H-2A) program, which shall include -
"(1) the number of foreign workers permitted to be employed
under the program in each year;
"(2) the compliance of employers and foreign workers with the
terms and conditions of the program;
"(3) the impact of the program on the labor needs of the United
States agricultural employers and on the wages and working
conditions of United States agricultural workers; and
"(4) recommendations for modifications of the program,
including -
"(A) improving the timeliness of decisions regarding
admission of temporary foreign workers under the program,
"(B) removing any economic disincentives to hiring United
States citizens or permanent resident aliens for jobs for which
temporary foreign workers have been requested,
"(C) improving cooperation among government agencies,
employers, employer associations, workers, unions, and other
worker associations to end the dependence of any industry on a
constant supply of temporary foreign workers, and
"(D) the relative benefits to domestic workers and burdens
upon employers of a policy which requires employers, as a
condition for certification under the program, to continue to
accept qualified United States workers for employment after the
date the H-2A workers depart for work with the employer.
The recommendations under subparagraph (D) shall be made in
furtherance of the Congressional policy that aliens not be admitted
under the H-2A program unless there are not sufficient workers in
the United States who are able, willing, and qualified to perform
the labor or services needed and that 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.
"(b) Deadlines. - A report on the H-2A temporary worker program
under subsection (a) shall be submitted not later than two years
after the date of the enactment of this Act [Nov. 6, 1986], and
every two years thereafter."
[Functions of President under section 403 of Pub. L. 99-603
delegated to Secretary of Labor by section 2(b) of Ex. Ord. No.
12789, Feb. 10, 1992, 57 F.R. 5225, set out as a note under section
1364 of this title.]

Last modified: June 14, 2006