Labor & Employment Law Daily Wrap Up, IMMIGRATION NEWS—DOL ratifies 2010 final rule on temporary agricultural employment, (Jan 10, 2025)
Organizations Mentioned:Secretary of Homeland Security
By Patricia K. Ruiz, J.D.
Previously, a question arose concerning the approval of a separate rule, published in 2023.
The Department of Labor (DOL) published notifications that the Assistant Secretary for Employment and Training and the Administrator of the Wage and Hour Division have ratified the February 10, 2010, rule titled Temporary Agricultural Employment of H-2A Aliens in the United States. The ratification resolves uncertainty with respect to the final rule given related litigation.
2010 rule. The 2010 rule amended ratifications regarding the certification of temporary employment of nonimmigrant workers employed in temporary or seasonal agricultural employment and the enforcement of the obligations applicable to employers of such nonimmigrant workers. The final rule differed from the proposed version in its inclusion of improvements to the application processing procedures, worker protections, and program integrity measures. The final rule went into effect March 15, 2010.
Ratification. Since the publication of the final rule, a question arose in litigation concerning whether a separate rule, Adverse Effect Wage Rate Methodology for the Temporary Employment of H-2A Nonimmigrants in the Non-Range Occupations in the United States, published February 28, 2023, was approved by the Attorney General in consultation with the Secretary of Labor and the Secretary of Agriculture. On November 25, 2024, the Secretary of Homeland Security, in consultation with the Secretary of Labor and the Secretary of Agriculture, approved the final rule.
The DOL, to resolve any uncertainty with respect to the final rule and out of an abundance of caution, ratified the 2010 final rule. Under established case law, an agency may, though ratification, “purge[] any residual taint or prejudice left over from” a potential defect in a prior government action. The ratification is not a statement that the final rule is invalid absent this ratification.
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