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H-2A Certification
New H-2A On-Line Application Processing System
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 aliens 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, Employment Standards Administration (ESA) 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. The following general categories of individuals or organizations may file an application:
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 advertising in the area of intended employment. 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 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’s Chicago 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 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. 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 Chicago 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. However, the fifty percent rule does not apply to a small employer who did not use more than “five hundred man days of agricultural labor” (as defined by the Fair Labor Standards Act (FLSA) during any calendar quarter of theprevious year and is not a member of an association which has applied for H-2A workers. 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. When To Apply An employer should observe the following time considerations when applying for H-2A certification:
How To Apply Applications may be filed using any of the methods below:
Review of Applications The Chicago National Processing Center will review
an employer's application promptly. Within seven (7) calendar days after receipt
of an application, the Chicago National Processing Center will notify the employer (or the employer’s-designated representative) 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 (or the employer’s-designated representative) by means normally assuring
next day delivery. If the application is accepted for consideration, the Chicago National Processing Center will notify the employer in writing. The Chicago National Processing Center's notice of acceptance:
Applications Not Accepted for Consideration If the application is not accepted for consideration, then the Chicago Chicago National Processing Center will notify the employer (copy to the SWA) in writing within seven (7) calendar days after receipt of the application. The Chicago National Processing Center's notice of nonacceptance must state:
Resubmittal of Amended Applications An employer may choose to resubmit an application with modifications required by the Chicago National Processing Center in his/her notice of nonacceptance. In such instances, an employer should file the amended application within five calendar days of the Chicago National Processing Center's notice of nonacceptance. The amended application must be filed with the Chicago National Processing Center (with a copy to the SWA). Delays in doing so will result in delaying a certification determination. Appeals of Notices of Nonacceptance As provided by the regulations at 20 CFR 655.104(c), the employer has the opportunity to request an expedited administrative judicial review or a de novo hearing before a Department of Labor (DOL) Administrative Law Judge on the non-acceptance of the H-2A application. To obtain this review or de novo hearing, the employer must file within seven (7) calendar days of the date of this notice by facsimile (fax), telegram or other means normally assuring next day delivery, a written request for such a review or hearing to the following with a copy to this office: The request for a review or hearing should contain any legal arguments that the employer believes will rebut the basis for the non-acceptance of the H-2A application. Recruitment of U.S. Workers Upon receipt of an employer's application for temporary foreign agricultural labor certification, 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 Chicago 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 Chicago National Processing Center will require the employer to independently engage in specific positive recruitment efforts in other states of traditional or expected labor supply if the Chicago National Processing Center determines there is a sufficient supply of labor to be recruited. Certification Requests Denied The Chicago National Processing Center will deny certifications for any of the following reasons:
If the Chicago National Processing Center denies certification, then the Chicago 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. Appeals of Denials of Certifications As provided by the regulations at 20 CFR 655.112(a)(b), the employer has the opportunity to request an expedited administrative judicial review or a de novo hearing before a Department of Labor (DOL) Administrative Law Judge on the denial of the H-2A application. To obtain this review or de novo hearing, the employer must file within seven (7) calendar days of the date of this notice by facsimile (fax), telegram or other means normally assuring next day delivery, a written request for such a review or hearing to the following with a copy to this office: Certification Requests Granted If the Chicago 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 Chicago 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 of the Employment Standards Administration (ESA) of the U.S. Department of Labor has a primary role in investigating and enforcing the terms and conditions of employment. ESA 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 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 As provided by the regulations at 20 CFR 655.110, the employer has the opportunity to request an expedited administrative judicial review or a de novo hearing before a Department of Labor (DOL) Administrative Law Judge on the non-acceptance of the H-2A application. To obtain this review or de novo hearing, the employer must file within seven (7) calendar days of the date of this notice by facsimile (fax), telegram or other means normally assuring next day delivery, a written request for such a review or hearing to the following with a copy to this office: The request for a review or hearing should contain any legal arguments that the employer believes will rebut the basis for the non-acceptance of the H-2A application. If the employer do not request an expedited administrative judicial review or a de novo hearing before an Administrative Law Judge within seven (7) calendar days of the date of this notice of non-acceptance, or if the employer does not choose to resubmit a modified application within five (5) calendar days, no further consideration of the application will be made by any Department of Labor official.Form ETA 750 Program Regulations & Guidance TEGL 11-07 - Change 1, Clarification of Certain
Procedures for Processing H-2A Labor Certification Applications Premium Processing http://www.uscis.gov/graphics/howdoi/prem_process.htm |
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