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Code of Federal Regulations Pertaining to ESA |
| Labor |
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| Wage and Hour Division, Department of Labor |
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| Enforcement of Contractual Obligations for Temporary Alien Agricultural Workers Admitted Under Section 216 of the Immigration and Nationality Act |
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| General Provisions |
29 CFR 501.1 - Purpose and scope.
- Section Number: 501.1
- Section Name: Purpose and scope.
(a) Statutory standard. Section 216(a) of the INA provides that--
(1) A petition to import an alien as an H-2A worker (as defined in
subsection (i)(2)
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.
(b) Role of the ETA, USES. The issuance and denial of labor
certification under section 216 of the INA has been delegated by the
Secretary of Labor to the Employment and Training Administration (ETA).
In general, matters concerning the obligations of an employer of H-2A
workers related to the labor certification process are administered and
enforced by ETA. Included within ETA's jurisdiction are such issues as
whether U.S. workers were available, whether positive recruitment was
conducted, whether there was a strike or lockout, the methodology for
establishing adverse effect wage rates, whether workers' compensation
insurance was provided, whether employment was offered to U.S. workers
for up to 50 percent of the contract period and other similar matters.
The regulations pertaining to the issuance and denial of labor
certification for temporary alien workers by the Employment and Training
Administration are found in title 20 CFR part 655.
(c) Role of ESA, Wage and Hour Division. Section 216(g)(2) of the
INA provides that--
[T]he 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.
Certain investigation, inspection and law enforcement functions to carry
out the provisions of section 216 of the INA have been delegated by the
Secretary of Labor to the Employment Standards Administration (ESA),
Wage and Hour Division. In general, matters concerning the obligations
of the work contract between an employer of H-2A workers and the H-2A
workers and other workers in corresponding employment hired by H-2A
employers are enforced by ESA. Included within the enforcement
responsibility of ESA, Wage and Hour Division are such matters as the
payment of required wages, transportation, meals and housing provided
during the employment. The Wage and Hour Division has the responsibility
to carry out investigations, inspections and law enforcement functions
and in appropriate instances impose penalties, seek injunctive relief
and specific performance of contractual obligations, including recovery
of unpaid wages.
(d) Effect of regulations. The amendments to the INA made by title
III of the IRCA apply to petitions and applications filed on and after
June 1, 1987. Accordingly, the enforcement functions carried out by the
Wage and Hour Division under the INA and these regulations apply to the
employment of any H-2A worker and any other workers hired by H-2A
employers in corresponding employment as the result of any petition or
application filed with the Department on and after June 1, 1987.
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