The H-2A Temporary Agricultural Labor Certification 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.

The employer must file an application with the Department stating that there are not sufficient U.S. 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.

“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.

In the H-2A Program, 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. Applications should be filed by mail or in-person to the appropriate National Processing Center and local SWA, a minimum of 45 calendar days before the first date of need. The employer could file earlier to give time for any delays. There is the H-2A On-Line Application Processing System, which is a web-based system that allows the completing and pre-submitting of H-2A applications online, which does not mean your application(s) would be processed for an H-2A labor certification. It only allows you to complete the application online for submission to DOL prior to mailing in your signed application along with other supporting documents and attachments to the appropriate Chicago National Processing Center (CNPC).

The Qualifying Criteria would be:

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.

An employer who files an application for temporary foreign labor certification pursuant to H-2A regulations must meet the following specific conditions:

All terms/conditions of employment which are not less favorable than those that will be offered to the H-2A workers. 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.

The employer must engage in independent positive recruitment of U.S. workers. Newspaper and radio ads are made on the employer’s part. A job order is issued once an application has been accepted for consideration. Any resumes/applications of referrals for this program are to be sent to SWA as soon as possible. The recruitment phase is half of the requested work period plus one day. Once certification has been granted, employer must continue recruitment.

The employer must provide housing, meals, transportation, workers’ compensation insurance, and tools & supplies to all workers. Housing must be inspected and approved according to appropriate standards. The employer must guarantee to offer each worker employment for at least three-fourths of the workdays in the work contract period and any extensions. The fifty percent (50%) rule states the employer must hire any qualified and eligible U.S. worker who applies for a job until half of the period of the work contract has expired. 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. Prevailing Wage Surveys are conducted and wages are in effect.

Filing

As of January 17, 2009, Transition filing & NEW regulations procedures are effective – H-2A Final Rule. Any questions should be directed to: H-2A.Regulation@dol.gov

he filings of H-2A cases will be the responsibility of the Chicago National Processing Center. There is a New Form 9142 to file an H-2A application. The ETA 750 form is no longer used. A completed Form ETA 9142
and ETA 790 need to be filed with the Chicago National Processing Center (CNPC).

The SWA will be notified by Chicago NPC to prepare a local job order. The employer will receive a copy of the acceptance letter from Chicago NPC.

All applicants referred by the SWA will have been verified through the I-9 employment verification process. Employment Verification is the verifying of identity and employment eligibility, this was established by INA S 274A (b). Employers will receive documentation certifying the employment verification on each referral. All records will be kept at the SWA. Those verified referrals will have to be contacted by the employer to set up an interview. Chicago NPC will be notified and sent this information.

Recruitment will proceed until about 30 days of the work contract has elapsed. A copy of the final determination letter will be sent by the Chicago NPC.

For any additional information, please refer to the U.S. DOL Foreign Labor Certification for H-2A Certification.

Related Topics:  Employment & Training, Foreign Labor Certification (FLC), H-2A Program