H-2A worker abandonment and termination reporting

Accessible letter PDF: https://www.dol.gov/sites/dolgov/files/ETA/advisories/TEGL/2007/TEGL21-01_Ch1_508.pdf

CLASSIFICATION
                                                         H-2A Program
                                                         CORRESPONDENCE SYMBOL
EMPLOYMENT AND TRAINING ADMINISTRATION
          ADVISORY SYSTEM              OFLC
        U.S. Department of Labor       ISSUE DATE
        Washington, D. C. 20210
                                                         February 9, 2007

ADVISORY: FOREIGN LABOR CERTIFICATION
          TRAINING AND EMPLOYMENT GUIDANCE LETTER NO. 21-01, Change 1

TO:          OFLC-NATIONAL PROCESSING CENTER DIRECTORS
             STATE WORKFORE AGENCY ADMINISTRATORS

FROM:        EMILY STOVER DeROCCO /s/
             Assistant Secretary

SUBJECT:     Notification Regarding Worker Abandonment, Rejection or Termination from
             H-2A Temporary Agricultural Employment

1. Purpose. To update guidance to reflect the processing of H-2A applications through
   ETA’s National Processing Centers and provide clarification regarding the
   information employers must report to State Workforce Agencies regarding worker
   abandonment, rejection or termination.

2. References. 20 C.F.R. Part 655, Subpart B; 20 C.F.R. 655.102(b)(11); and 20
   C.F.R. 655.103(c); Training and Employment Guidance Letter (TEGL) No. 21-01,
   Notification Regarding Worker Abandonment, Rejection or Termination from
   H-2A Temporary Agricultural Employment (April 2002); and Federal Register Notice
   (Vol. 70, No. 137, pages 41430-41438).

3. Background. The Department issued a notice in the Federal Register (Vol. 70, No.
   137, pages 41430-41438) on July 19, 2005, clarifying that, effective August 1, 2005,
   employers must file original copies of their H-2A applications directly with the
   appropriate National Processing Centers (NPCs), coinciding with the area of
   intended employment, and simultaneously file a copy with the appropriate State
   Workforce Agency (SWA). The H-2A regulations at 20 C.F.R. 655.103(c) and 20
   C.F.R. 655.102 (b)(11) require employers to report to SWA offices in a timely manner
   any workers who voluntarily abandon employment before the end of the contract
   period or are terminated for cause.

RESCISSIONS                                                 EXPIRATION DATE
None                                                        Continuing

4. Procedural Guidance. The H-2A regulations at 20 C.F.R. 655.103(c) state, in
   pertinent part, that “no U.S. worker will be rejected for or terminated from
   employment for other than a lawful related reason, and notification of all rejections or
   terminations shall be made to the local office." Additionally, the regulations at 20
   C.F.R. 655.102(b)(11) require that "if the worker voluntarily abandons employment
   before the end of the contract period, or is terminated for cause, and the employer
   notifies the local office of such abandonment or termination, the employer will not be
   responsible for providing or paying for the subsequent transportation and
   subsistence expenses of any worker for whom the employer would have otherwise
   been required to pay such expenses under paragraph (b)(5)(ii) of this section, and
   that worker is not entitled to the three-fourths guarantee."

       a) In the event an employer terminates one or more workers, the employer must
          provide written notification of the termination within two (2) business days to
          the appropriate SWA office(s). Such written notification must, at a minimum,
          include the name(s) of the worker(s), name and location of the assigned
          grower, and the date of termination from employment. A list of SWA contacts
          for the H-2A program can be found at the following Web site address:

           http://www.foreignlaborcert.doleta.gov/contacts.cfm#statecont

       b) In the case of worker abandonment, the employer must provide written
          notification within two (2) business days of discovering the abandonment from
          employment to the appropriate SWA office(s). Such written notification must,
          at a minimum, include the name of the worker, name and location of the
          assigned grower, and the date of departure from employment. The
          Department has determined that two (2) business days is appropriate and
          should not place an unnecessary burden on the employer, since the United
          States Citizenship and Immigration Service (USCIS) generally requires, per 8
          C.F.R. 214.2(h)(5)(vi)(A), that the employer notify the USCIS within 24 hours
          of the foreign worker leaving employment.

5. Action Required. NPC Directors and State Workforce Agency Administrators are
   directed to provide all staff involved in the processing of H-2A applications and, to
   the extent practicable, the employer community with a copy of this guidance.

6. Inquiries. Questions from employers should be directed to the appropriate SWA
   staff involved in the processing of H-2A applications. Questions from SWA staff
   should be directed to the appropriate NPC operated by the Office of Foreign Labor
   Certification.