H-2A Certification

New H-2A Notices

September 4, 2009 H-2A NPRM: The Department has published in the Federal Register a Notice of Proposed Rulemaking on the Temporary Agricultural Employment of H-2A Aliens in the United States. The Department is accepting comments on the proposed rulemaking until October 5, 2009. To read the full text of the NPRM and to find out about the submission of comments, please click here.

August 28, 2009 The Department has published TEGL 11-07, Change 2 to rescind TEGL 11-07, Change 1 - Clarification of Certain Procedures for Processing H-2A Labor Certification Applications. The rescission of TEGL 11-07, Change 1 was needed to eliminate redundancy and prevent confusion on the part of the NPCs and the SWAs on the procedures related to the H-2A program. The rescission is effective immediately. To read the full text of TEGL 11-07, Change 2 please click here.

June 29, 2009: Suspension Enjoined
On June 29, the U.S. District Court for the Middle District of North Carolina issued a preliminary injunction against the Department's Final Suspension of the December 2008 Final H-2A Rule. As a result of this court action, and unless and until additional court action takes place, the Suspension is no longer in effect; the December 2008 Final Rule remains in effect.

May 29, 2009: Notice of Final Suspension: The Department is suspending the H-2A Final Rule published on December 18, 2008 and in effect as of January 17, 2009. The Suspension will be effective on June 29, 2009. As of that date, the regulations previously in effect as of January 2009, published in the May 29 Federal Register, will be in effect for a period of no more than 9 months.

April 16, 2009: Extension of H-2A Transition Procedures
the Department published an Interim Final Rule extending the transition procedures in the H-2A Final Rule published in December 2008. This Interim Final Rule extends the transition period of the application filing procedures currently in effect for all H-2A employers with a date of need on or before July 1, 2009. The IFR extends the transition procedures to applications filed with a date of need before January 1, 2010. To see the IFR, click here. Persons interested in submitting comments may do so in the manner indicated in the IFR by May 18, 2009.

March 26, 2009 Notice Withdrawing Arriaga Discussion: The Federal Register has published a Notice regarding language contained in both the preambles to the H-2A and H-2B Final Rules, published in December. The Notice withdraws an opinion expressed in both preambles that the Fair Labor Standards Act and its implementing regulations “do not require employers to reimburse workers under the H-2A and H-2B nonimmigrant visa programs, respectively, for relocation expenses even when such costs result in the workers being paid less than the minimum wage.” The Notice withdraws this interpretation from further consideration as a statement of Department policy. To read the full text of the Notice, click here.

H2A Regulation Mailbox Temporarily Suspended: The Office of Foreign Labor Certification has temporarily suspended its H.2ARegulation@dol.gov mailbox. The purpose of the temporary suspension is to avoid the inadvertent and incorrect submission of comments to the Notice of Proposed Suspension to that email box. The Notice directs all comments to the appropriate submission vehicles, both electronically and by mail or other methods. The box will be reactivated after the comment period on the Notice.

On March 17, 2009,The Department published a Notice of Proposed Suspension of the H-2A Final Rule, published December 18, 2008. The Department is accepting comments on the Notice of Proposed Suspension. To see the Notice, click here. To see FAQs regarding the Department's consideration of H-2A applications in light of the Notice, Click here.

January 12, 2009
New Forms: In conjunction with the regulations going into effect on January 17 and 18 for the H-2A and H-2B programs, the Department has created new forms to collect the necessary information from employers applying for labor certifications. Employers must begin using the Form ETA-9142 on the effective date of the new regulations. In addition, for the H-2A program employers must fill out and submit Appendix A.1 and Appendix A.2. For the H-2B program employers must fill out and submit Appendix B.1. For instructions on how to complete the form and appendices see the instructions. The H-2B Final Rule requires the use of the new Form ETA-9141 for prevailing wage determinations. However, the use of this form will only begin after the transition period outlined in the rule is completed. Therefore, Form ETA-9141 will be posted towards the end of the transition period.

H-2A Final Rule: On December 18, 2008, the Office of the Federal Register published the Department’s Final Rule on H-2A Temporary Agricultural Employment. Click here for the Final Rule. The Final Rule is effective January 17, 2009, although certain aspects of the Rule will be subject to transition provisions. The application form published with the rule is not official. Click here for the final ETA Form 9142, Appendix A.1, Appendix A.2 and accompanying instructions, which include the expiration date. The Department will shortly post an ETA Form 9142 that is fillable on line. We strongly encourage program users to complete the fillable form. Employers with questions are encouraged to submit those questions to OFLC at H-2A.Regulation@dol.gov. Due to a high volume of calls, we will be unable to respond individually to inquiries.

On December 5, 2008, the Office of Management and Budget (OMB) cleared for publication the Department’s H-2A Final Rule. Click here for the preamble to the Final Rule and click here for the Final Rule. Please note this document has not yet received final approval from the Office of the Federal Register, which may make minor changes prior to publication. The official version of the rule, as published, may differ from that cleared by OMB.

H-2A Certification for Temporary or Seasonal Agricultural Work

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 U.S. Citizenship and Immigration Services (USCIS) can approve an employer's petition for such workers, the employer must file an application with the Department stating that there are not sufficient workers who are able, willing, qualified, and available, and that the employment of foreign workers will not adversely affect the wages and working conditions of similarly employed U.S. workers. The statute and Departmental regulations provide for numerous worker protections and employer requirements with respect to wages and working conditions that do not apply to nonagricultural programs. The Department's Wage and Hour Division (WHD) has responsibility 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. "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 worker(s) is truly temporary.

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., an 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.

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

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). 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.

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.

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) standards set forth at 29 CFR 1910.142 or the full set of standards at 654.404-645.417. Rental housing which meets local or state health and safety standards also may be provided.

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.

Transportation:
The amount of transportation payment shall be no less (and shall not be required to be more) than the most economical and reasonably 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 the prevailing practice in the occupation to provide transportation, the employer must provide transportation to U.S. workers, as well.

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.

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.

Three-Fourths Guarantee:
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. 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.

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.

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.

Certification Fee:
A fee will be charged to an employer granted temporary foreign agricultural, labor certification. The fee is $100, plus $10 for each job opportunity certified, up to a maximum fee of $1,000 for each certification granted.

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

When To Apply
An employer should observe the following time considerations when applying for H-2A certification:

A complete labor certification application must be filed with and received by the appropriate National Processing Center at least forty-five (45) calendar days before the first date on which workers are needed. If the initial application is accepted or amended within the required time frame and complies with the regulations, the National Processing Center will make a certification determination thirty (30) calendar days before the date on which the workers are needed. Delays in obtaining an acceptable application beyond the time permitted in regulations will delay the certification determination. Employers are encouraged to file before the minimum forty-five (45) calendar-day requirement. This allows more time for review, discussion, and amendment, if necessary.

Employers are encouraged to consult with the U.S. Department of Labor National Processing Center and SWA staff for guidance and assistance well before the forty-five (45) calendar day filing period.

In emergency situations the National Processing Center may waive the time period specified, provided the National Processing Center has an opportunity to obtain sufficient labor market information on an expedited basis in order to make a determination of U.S. worker availability. None of the minimum conditions of employment (wages, housing, and other benefits) are waived, however.

How To Apply
Applications may be filed using any of the methods below:

Filed in person with the appropriate National Processing Center;

Mailed to the appropriate National Processing Center; or

Delivered by guaranteed commercial delivery to the appropriate National Processing Center.

Review of Applications
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 employer by means normally assuring next day delivery.

Applications Accepted for Consideration
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 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.

Applications Not Accepted for Consideration
If the application is not accepted for consideration, then the National Processing Center will notify the employer in writing within seven (7) calendar days after receipt of the application. The National Processing Center's notice of nonacceptance 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) business 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 nonacceptance.

Resubmittal of Amended Applications
An employer may choose to resubmit an application with modifications required by the National Processing Center in his/her notice of nonacceptance. In such instances, an employer should file the amended application within five (5) business days of the National Processing Center's notice of nonacceptance. 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.

Recruitment of U.S. Workers
Once an application and job order has been accepted by the Chicago NPC, the Chicago NPC will transmit a copy of the job order to the SWA. The SWA must promptly prepare a local job order and begin recruiting U.S. workers in the area of intended employment.

After an application is accepted for consideration, the National Processing Center will direct the centralized location of the SWA to prepare an agricultural clearance order to permit the recruitment of U.S. workers by the employment service system on an intrastate and interstate basis.

After an employer's application is accepted for consideration, the National Processing Center will require the employer to independently engage in specific 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.

Certifications 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 redetermination);

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 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.

Appeals of Denials of Certifications
The National Processing Center will inform the employer about the system of appeals provided for in the regulations.

Certifications Granted
If the National Processing Center determines that the employer has complied with the recruitment assurances, the adverse effect criteria, all time requirements and other appropriate requirements established by law and regulation, then the National Processing Center will grant the temporary foreign agricultural labor certification for the number of job opportunities for which it has been determined there are not sufficient U.S. workers available. After certification has been granted, the employer must continue to recruit U.S. workers until the H-2A workers have departed for the place of work. In addition, the SWA must continue to refer to the employer qualified and eligible U.S. workers who are seeking employment and who apply up to fifty (50) percent of the contract period, and the employer must hire these U.S. workers.

Violations, Penalties, and Sanctions
The Wage and Hour Division (WHD) of the U.S. Department of Labor has a primary role in investigating and enforcing the terms and conditions of employment. WHD is responsible for enforcing the contractual obligations employers have toward employees, and may assess civil money penalties and recover unpaid wages. Administrative proceedings and/or injunctive actions through federal courts may be instituted to compel compliance with an employer's contractual obligations to employees.

The Employment and Training Administration (ETA) enforces other aspects of the laws and regulations. ETA is be responsible for administering sanctions relating to substantial violations of the regulations (denial of certification for up to three years) and less than substantial violations of the regulations (reductions of one-fourth of job opportunities certified).

Appeals of Employer Penalties
The National Processing Center will inform the employer about the system of appeals provided for in the regulations.