The U.S. Dept. of Labor is amending its regulations to extend the transition period of the application filing procedures currently in effect for all H–2A employers with a date of need on or before July 1, 2009, as established in the H–2A Final Rule published in December 2008 and in effect as of January 17, 2009.

The H–2A Final Rule significantly changed the H–2A labor certification process, under which employers obtain temporary labor certification to employ immigrants as temporary agricultural workers. Under the H-2A program, employers must recruit qualified, available U.S. workers before they are able to hire immigrant workers; employers are required under the final rule to perform additional recruitment for U.S. workers in advance of submitting their application for foreign workers. Although the final rule provided a transition period for employers to gradually change their process for recruitment and solicitation of foreign and domestic workers, and to become accustomed to the filing procedures delineated in the new regulations, the final rule was suspended in March, to give the DOL a chance to review comments on the impact of the change. Now, the DOL says, it will not be able to complete its analysis of the comments before employers with dates of need beginning July 2, 2009 are expected to commence the process of pre-filing recruitment on April 17, 2009. The full implementation schedule of the final regulation requires employers with a date of need for workers on or after July 1, 2009, to engage in full recruitment prior to filing an application for H–2A certification. The regulation calls for such pre-filing recruitment to take place at least 75 days prior to the date of need for workers, and the DOL points out that 75 days from a date of need of July 1, 2009—the first date anyone would actually need to begin pre-filing recruitment—is April 17, 2009, so the DOL says that an extension of the period in which the transition procedures are available is necessary.