The
H-2A temporary agricultural program establishes a means for agricultural
employers who anticipate a shortage of domestic workers to bring nonimmigrant
foreign workers to the U.S. to perform agricultural labor or services of a
temporary or seasonal nature. Before the USCIS can approve an employer's
petition for such workers, the employer must file an application with the U.S. Department
of Labor (“DOL”) stating that there are not sufficient workers who are able,
willing, qualified, and available, and that the employment of aliens will not
adversely affect the wages and working conditions of similarly employed U.S.
workers. The regulations governing the H-2A visas provide for numerous worker
protections and employer requirements with respect to wages and working
conditions that do not apply to nonagricultural programs. The DOL's Wage and Hour Division, Employment Standards
Administration is responsible for enforcing provisions of worker
contracts.
"Temporary or seasonal nature" means employment
performed at certain seasons of the year, usually in relation to the production
and/or harvesting of a crop, or for a limited time period of less than one year
when an employer can show that the need for the foreign workers(s) is truly
temporary.
Qualifying Criteria
The
following general categories of individuals or organizations may file an
application:
- An agricultural employer who
anticipates a shortage of U.S. workers needed to perform agricultural
labor or services of a temporary or seasonal nature, may file an
application requesting temporary foreign agricultural labor certification.
- The employer may be an
individual proprietorship, a partnership or a corporation. An association
of agricultural producers may file as a sole employer, a joint employer
with its members, or as an agent of its members.
- An authorized agent, whether
an individual (e.g., and attorney) or an entity (e.g., an association),
may file an application on behalf of an employer. Associations may file
master applications on behalf of their members.
Many of the benefits that must be included in a job offer and
other conditions that must be satisfied will be dependent upon what prevailing
practices exist in the same occupation, crop and area. Employers are advised
that it is desirable to make an independent determination of factors such as
prevailing wages and employer practices before filing an application.
Employers
seeking to obtain an H-2A visa must meet the following specific conditions:
1. Recruitment:
The employer must agree to engage in independent positive
recruitment of U.S. workers. This means an active effort, including
newspaper and radio advertising in areas of expected labor supply. Such
recruitment must be at least equivalent to that conducted by non-H-2A
agricultural employers in the same or similar crops and area to secure U.S.
workers. This must be an effort independent of and in addition to the efforts
of the State
Workforce Agency (“SWA”) (a division of the DOL). In establishing worker
qualifications and/or job specifications, the employer must designate only
those qualifications and specifications which are essential to carrying out the
job and which are normally required by other employers who do not hire foreign
workers.
2. Wages:
The wage or rate of pay must be the same for U.S. workers and
H-2A workers. The hourly rate must also be at least as high as the applicable Adverse
Effect Wage Rate (AEWR), federal or state minimum wage, or the
applicable prevailing hourly wage rate, whichever is higher. The AEWR is
established every year by the Department of Labor for every state except
Alaska. Employers should consult with the SWA
or the Department of Labor National Processing Center to determine what the
rate is for their state.
If a worker will be paid on a piece rate basis, the worker
must be paid the prevailing piece as determined by the SWA. If the piece rate
does not result in average hourly piece rate earnings during the pay period at
least equal to the amount the worker would have earned had the worker been paid
at the hourly rate, then the worker’s pay must be supplemented to the
equivalent hourly level. The piece rate offered must be no less than what is
prevailing in the area for the same crop and/or activity.
3. Housing:
The employer must provide free housing to all workers who are
not reasonably able to return to their residences the same day. Such housing
must be inspected and approved according to appropriate standards. Housing
provided by the employer shall meet the full set of DOL Occupational Safety and Health Administration (OSHA).
Rental housing which meets local or state health and safety standards also may
be provided.
4. Meals:
The employer must provide either three meals a day to each
worker or furnish free and convenient cooking and kitchen facilities for
workers to prepare their own meals. If meals are provided, then the employer
may charge each worker a certain amount per day for the three meals.
5. Transportation:
The amount of transportation payment shall be no less (and
shall not be required to be more) than the most economical and reasonable
similar common carrier transportation charges for the distances involved. The
employer is responsible for the following different types of transportation of
workers:
(1) After a worker has completed
fifty percent of the work contract period, the employer must reimburse the worker for the
cost of transportation and subsistence from the place of recruitment to the
place of work if such costs were borne by the worker.
(2) The employer must provide free
transportation between the employer's housing and the worksite for any worker
who is provided housing.
(3) Upon completion of the work
contract, the employer must pay economic costs of a worker's subsistence
and return transportation to the place of recruitment.
Special conditions apply when the worker will not be
returning to the place of recruitment because of another job. If the employer
must advance transportation costs to foreign workers or provide transportation,
the employer must advance such costs or provide transportation to U.S. workers
as well. In addition, if it is prevailing practice in the occupation to provide
transportation, the employer must provide transportation to U.S. workers, as well.
6. Workers'
Compensation Insurance:
The employer must provide workers' compensation insurance
where it is required by state law. Where state law does not require it, the
employer must provide equivalent insurance for all workers. Proof of insurance
coverage must be provided to the National Processing Center before
certification is granted.
7. Tools
and Supplies:
The employer must furnish, at no cost to the worker, all
tools and supplies necessary to carry out the work, unless it is common
practice in the area and occupation for the worker to provide certain items.
8. Three-Fourths
Guarantee:
The employer must guarantee to offer each worker employment
for at least 3/4 of the workdays in the work contract period and any
extensions. If the employer affords less employment, then the employer must pay
the amount which the worker would have earned had the worker been employed the
guaranteed number of days.
9. Fifty
Percent Rule:
The employer must hire any qualified and eligible U.S. worker
who applies for a job until fifty percent (50%) of the period of the work
contract has elapsed.
10. Labor
Dispute:
The employer must assure that the job opportunity for which
H-2A certification is being requested is not vacant because the former occupant
is on strike or is being locked out in the course of a labor dispute.
11. Other
Conditions:
The employer must keep accurate records with respect to a
worker's earnings. The worker must be provided with a complete statement of
hours worked and related earnings on each payday. The employer must pay the
worker at least twice monthly or more frequently if it is the prevailing
practice to do so. The employer must provide a copy of a work contract or the
job order to each worker.
Process
for Filing with the DOL
An application for an H-2A worker
begins with the DOL. Employers can file the forms by mail or electronically. To
file electronically, employers use the H-2A On-Line Application Processing
System at: www.h2a.doleta.gov .
If filing by mail, the employer files two copies of form ETA-750, one of which
is sent to the appropriate DOL region, the other to the state employment
service agency for the state in which work is sought. The application must be
submitted at least 60 days before the temporary workers are needed. The DOL must approve it 20 days before
the starting work date. If
approved, the employer pays a base fee of $100 plus $10 for each position
certified, up to a maximum of $1000.
The
National Processing Center will review an employer's application promptly.
Normally, within seven (7) calendar days after receipt of an application, the
National Processing Center will notify the employer in writing of the decision
to accept or reject an employer's application. Copies of the notification will
be sent to the SWA
and to the employer by means normally assuring next day delivery.
If
the application is accepted for consideration, the National Processing Center
will notify the employer in writing. The National Processing Center's notice of
acceptance:
- Will inform the employer and
the SWA
of specific efforts expected of them regarding recruitment of U.S.
workers;
- will require that the job
order be placed into appropriate intrastate and interstate clearances; and
- may require the employer to
engage in independent positive recruitment efforts within a multi-state
region of traditional or expected labor supply if the National Processing
Center determines there is a sufficient supply of labor to be recruited.
After the recruitment period, the
DOL makes a decision on certification.
It will subtract the number of US workers who were successfully referred
from the number of H-2A workers requested and certify the remaining job
openings.
Certification will not be issued if the DOL determines that U.S workers have
filled all the job openings, or if it finds that the potential H-2A workers
have been offered better working conditions that those offered to US
workers. Certification will also
not be granted if there is a strike or lockout, if the employer has committed a
substantial violation of the H-2A program within the previous two years, if the
employer fails to demonstrate that H-2A workers will be covered by workers’
compensation, or if the employer fails to comply with recruitment requirements.
What happens once the certification is granted?
Once the certification is granted,
the Employer is eligible to file the H-2A visa petition with the appropriate
USCIS Regional Service Center. The petition packet should including the
following:
- Form I-129, Petition
for Non-Immigrant Worker
- Form I-129 H Supplement
- Filing fee
- A copy of the approved
Temporary Labor Certificate
- A statement detailing
the number of workers required
- An application including
the workers' names and qualifications
The application may be filed for
multiple workers, and the workers may be unnamed on the application. The employer must provide the USCIS
with their names as they become available.
If the USCIS approved the petition,
notification is forwarded to the appropriate consulate where the workers apply
for visas.
An H-2A visa is generally valid for 364 days. Extensions of up to one year are possible, with a maximum of
three years. Once an alien has
spent three years in the US in H-2A status, they must leave for six months
before being able to resume H-2A employment. During this time the alien can reenter the US in any status
that is not based on the performance of agricultural work.
Important: Every two years a report on
the H-2A program must be provided to Congress. This report must include the number of H-2A workers admitted
each year, information on employer compliance, the impact of the H-2A program
on labor needs, wages and working conditions, as well as recommendations on how
to improve the program. So far,
however, despite much debate, there have been no significant changes in the
program since 1986.
What
happens if the application is not accepted for consideration by the DOL?
If
the application is not accepted for consideration, then the National Processing
Center will notify the employer (copy to the SWA)
in writing within seven (7) calendar days after receipt of the application. The
National Processing Center's notice of non-acceptance must state:
- Why the employer's
application is not acceptable for consideration;
- What changes are required
for the National Processing Center to accept the application for
consideration;
- That the employer has five
(5) calendar days from the date of the National Processing Center's notice
in which to resubmit the application with modifications requested by the
National Processing Center to correct any deficiencies; and
- What procedures the employer
may use to appeal the National Processing Center's non-acceptance.
Re-submittal
of Amended Applications
An
employer may choose to resubmit an application with modifications required by
the National Processing Center in his/her notice of non-acceptance. In such
instances, an employer should file the amended application within five calendar
days of the National Processing Center's notice of non-acceptance. The amended
application must be filed with the National Processing Center (with a copy to
the
SWA). Delays in doing so will result in delaying a certification
determination.
Appeals
of Notices of Non-acceptance
The
National Processing Center will inform the employer about the system of appeals
provided for in the regulations.
What
happens if the certification is denied?
The
National Processing Center will deny certifications for any of the following
reasons:
- The application did not meet
the required time frames (except in emergency situations) and there is not
enough time to test the availability of U.S. workers;
- Enough able, willing, and
qualified eligible U.S. workers are available to fill all the employer's
job opportunities. (In the event such workers do not report when needed,
there is a process for a later re-determination);
- The employer has not complied
with the worker's compensation requirements;
- The employer has not
satisfactorily complied with positive recruitment requirements;
- The employer, since the
application was accepted for consideration, has adversely affected the
wages, working conditions, or benefits of U.S. workers; and/or
- After appropriate notice and
opportunity for a hearing, the National Processing Center determines that
the employer has substantially violated a material term or condition of a
previous H-2A certification within the last two years.
If
the National Processing Center denies certification, then the National
Processing Center must notify the employer (with copy to the SWA)
by means calculated to assure next-day delivery. The notice of denial must
state the reasons the certification was denied and offer the employer an
opportunity for appeal.
Note: The DOL’s decision is only an advisory
opinion in H-2A certification applications. Therefore, if the application is
denied by the DOL, and employer may still file with the USCIS.
Appeals
of Denials of Certifications
The
National Processing Center will inform the employer about the system of appeals
provided for in the regulations.
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