Some of the important acts which are generally applied as Farm Labor laws are:
- The Immigration and Nationality Act (INA)
- The Fair Labor Standards Act (FLSA)
- The Migrant and Seasonal Agricultural Worker Protection Act (MSPA)
- Occupational Safety and Health (OSH).
The Immigration and Nationality Act (INA) includes provisions addressing employment eligibility, employment verification, and nondiscrimination. Under INA, employers may hire only persons who may legally work in the United States and aliens authorized to work in the U.S. The employer must verify the identity and employment eligibility of anyone to be hired, which includes completing the Employment Eligibility. Pursuant to the Act, employers must keep each I-9 on file for at least three years, or one year after employment ends, whichever is longer. Employers who fail to complete and/or retain the I-9 forms are subject to penalties. Moreover, the INA protects U.S. citizens and aliens authorized to accept employment in the U.S. from discrimination in hiring or discharge on the basis of national origin and citizenship status. The Department of Justice’s (DOJ) Office of Special Counsel for Immigration Related Unfair Employment Practices enforces the anti-discrimination provisions.
The Fair Labor Standards Act (FLSA) establishes standards for minimum wages and overtime pay. The FLSA requires employers of covered employees who are not otherwise exempt to pay these employees a minimum wage of not less than $5.15 an hour as of September 1, 1997. Even though all employees engaged in agriculture are covered by the Fair Labor Standards Act, there are exemptions from the minimum wage provisions, the overtime pay provisions, or both for certain agricultural employees, because they are associated with the production of goods for interstate commerce.
The Migrant and Seasonal Agricultural Worker Protection Act (MSPA) safeguards most migrant and seasonal agricultural workers in their interactions with farm labor contractors, agricultural employers, agricultural associations, and providers of migrant housing. However, some farm labor contractors, agricultural employers, agricultural associations, and providers of migrant housing are exempt from MSPA under limited circumstances.
Labor laws such as the Occupational Safety and Health (OSH) Act may also apply. The H-2A temporary agricultural program establishes a means for agricultural employers who anticipate a shortage of domestic workers to bring non-immigrant foreign workers to the U.S. to perform agricultural labor or services of a temporary or seasonal nature. The employer must file an application with the Department of Labor stating that there are an insufficient number of workers who are able, willing, qualified, and available, and the employment of aliens will not adversely affect the wages and working conditions of similarly employed U.S. workers, before the U.S. Citizenship and Immigration Services (CIS) can approve an employer’s petition for such workers.
The Department of Labor’s Wage and Hour Division, Employment Standards Administration (ESA) has responsibility for enforcing provisions of worker contracts. Employers who wish to hire foreign workers to temporarily perform services or labor or to receive training need to also file an I-129 petition with the U.S. Citizenship and Immigration Services (CIS). The I-129 is mainly used for non-immigrant categories. Therefore, in most cases, workers who enter the United States under this petition must depart the U.S. when their maximum period of stay has been reached. Moreover, Form I-129 may be used to petition for an extension of stay or change of status for certain non-immigrants.
However, the U.S. Customs and Border Protection (CBP) has authority to deny admission at the port of entry to any applicant who is inadmissible under INA, even if the applicant has a visa. Furthermore, the CBP determines the period for which the bearer of a temporary work visa is authorized to remain in the United States. The decision to grant or deny a request for extension of stay, however, is made solely by the USCIS.