H-2A University - The Law And A Dash Of History


Key Points:

1.  This is a mid-level H-2A University entry, providing background.

2.  Provides information about the history of the H-2B Program

3. Identifies what law governs your obligations as an H-2A employer


The historical roots of the H-2A program can be traced back to the 1880's. However, the program as we know it really began in 1952. That year, Congress passed the Immigration and Nationality Act. The INA authorized employers to hire foreign nationals on a temporary basis 'if unemployed workers' to do the job could not be found. Technically, there was no "H-2A" program, just H-2.

The H-2A program as we know it came into existence in 1986. Congress divided the H-2 program into H-2A (for agriculture) and H-2B (for everything else). The law that did this was the Immigration Reform and Control Act of 1986.

So where is the law? The statutory law is found at 8 USC 1188. The H-2A regulations are located at 20 C.F.R. Part 655, subpart B. (In an instance of DOL logic, the H-2A regulations are found in subpart B, while the H-2B regulations are found in subpart A. Go figure.)

On top of this, DOL has published numerous "non-binding" guidance documents. The place to find most of these is OFLC's website.

There is one final source of law - unwritten law. Unwritten law is basically whatever the government says. A current example is DOL's current 'rule' that all worksites for most types of agricultural employment be within 60 miles of each other. You can search the INA, IRCA, and the regulations and you won't find it. Remember, unwritten law is not the law but it needs to be taken into account.

So now you know the law. We will start to apply it in coming days.