§ 501.9 - Enforcement of surety bond.

§ 501.9 Surety Enforcement of surety bond.

(a)

Every H-2A labor contractor (H-2ALC) must obtain a surety bond demonstrating its ability to discharge financial obligations

under the H-2A program. The original bond instrument issued by the surety must be submitted with the Application for Temporary Employment Certification. At a minimum, the bond instrument must identify the name, address, phone number, and contact person for the surety, and specify the amount of the bond (as required in paragraph (c) of this section), the date of issuance and expiration and any identifying designation used by the surety for the bond. (b) The bond must be payable to the Administrator, Wage and Hour Division, United States Department of Labor, 200 Constitution Avenue, NW., Room S-3502, Washington, DC 20210. The bond must obligate the surety to pay any sums to the WHD Administrator for wages and benefits

as set forth in 20 CFR 655.132(c).

(a) Notwithstanding the required bond amounts set forth in 20 CFR 655.132(c), the WHD Administrator may require that an H-2ALC obtain a bond with a higher face value amount after notice and opportunity for hearing when it is shown based on objective criteria that the amount of the bond is insufficient to meet potential liabilities.

(b) Upon a final decision reached pursuant to the administrative proceedings of subpart C of this part, including any timely appeal, or resulting from an enforcement action brought directly in a District Court of the United States finding a violation or violations of 20 CFR part 655, subpart B, or this part, the WHD Administrator may make a written demand on the surety for payment of any wages and benefits, including the assessment of interest, owed to an H-2A worker or to , a worker engaged in corresponding employment, or to a U.S. worker improperly rejected or improperly laid off or displaced, based on a final decision finding a violation or violations of this part or 20 CFR part 655, subpart B relating to the labor certification the bond is intended to cover. The aggregate liability of the surety shall not exceed the face amount of the bond. The bond must be written to cover liability incurred during the term of the period listed in the Application for Temporary Employment Certification for labor certification made by an H-2ALC, and shall be amended to cover any extensions of the labor certification requested by an H-2ALC.

(c) The bond must be in the amount of $5,000 for a labor certification for which an H-2ALC will employ fewer than 25 workers; $10,000 for a labor certification for which an H-2ALC will employ 25 to 49 workers; $20,000 for a labor certification for which an H-2ALC will employ 50 to 74 workers; $50,000 for a labor certification for which an H-2ALC will employ 75 to 99 workers; and $75,000 for a labor certification for which an H-2ALC will employ 100 or more workers. The WHD Administrator may require that an H-2ALC obtain a bond with a higher face value amount after notice and opportunity for hearing when it is shown based on objective criteria that the amount of the bond is insufficient to meet potential liabilities.

(d) The bond must remain in force for a period of no less than 2 years from the date on which the labor certification expires. If the WHD has commenced any enforcement action under the regulations in this part against an H-2ALC employer or any successor in interest by that date, the bond shall remain in force until the conclusion of such action and any related appeal or related litigation. Surety bonds may not be canceled or terminated unless 45 days' notice is provided by the surety in writing to the WHD Administrator at the address set forth in paragraph (b) of this section

. The WHD Administrator shall have 3 years from the expiration of the labor certification, including any extension thereof, to make such written demand for payment on the surety. This 3-year period for making a demand on the surety is tolled by commencement of any enforcement action of the WHD Administrator pursuant to § 501.6, § 501.15, or § 501.16 or the commencement of any enforcement action in a District Court of the United States.