H-2A Temporary Agricultural Visa Program  USDA Fruit & Vegetable Industry Advisory Committee Meeting                                                   August 14, 2019

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          Office of Foreign Labor Certification

          Employment and Training Administration

          United States Department of Labor	

For Government Training Use Only (August 2019)

U.S. DEPARTMENT OF LABOR

Employment & Training Administration

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Overview of the Immigration Process

Obtain a labor certification from the Department of Labor 

Requires conducting a labor market test with the State Workforce Agency where work will be performed.

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Obtain an approved petition from the DHS United States Citizenship and Immigration Service for a specific number of workers under H-2A or H-2B visa classification.

After receiving USCIS petition approval, workers  will apply with one of the Department of State visa-issuing consulates abroad for an H-2A or H-2B visa.

After receiving the visa from a DOS consulate, workers arrive at a port of entry where DHS’s Customs and Border Protection officers verify eligibility for admission and length of stay.

Step 1

Step 2

Step 3

Step 4

For Government Training Use Only (August 2019)

“Employment-based” clarification:  employer is requesting certification to employ one or more foreign workers in a specific job(s)

In 1940, the Immigration and Naturalization Service was transferred out of the Department of Labor where it then resided, to the  Department of Justice; it was abolished in 2003 and its functions placed under three agencies – United States Citizenship and Immigration Services, Immigration and Customs Enforcement and Customs and Border Protection – within the newly created DHS (Source: USCIS Web site: History)

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Department of LaborOffice of Foreign Labor Certification - Overview

Through a delegation from the Secretary of Labor, OFLC administers employment-based immigration programs.

“Employment-based” means that an employer and not the foreign worker is filing an application.

OFLC certifies to DHS-USCIS and DOS that:

There are not sufficient U.S. workers who are able, willing, qualified, and available for the requested positions; and that the

Employment of the foreign worker(s) will not adversely affect the wages and working conditions of similarly employed U.S. workers.

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For Government Training Use Only (August 2019)

“Employment-based” clarification:  employer is requesting certification to employ one or more foreign workers in a specific job(s)

In 1940, the Immigration and Naturalization Service was transferred out of the Department of Labor where it then resided, to the  Department of Justice; it was abolished in 2003 and its functions placed under three agencies – United States Citizenship and Immigration Services, Immigration and Customs Enforcement and Customs and Border Protection – within the newly created DHS (Source: USCIS Web site: History)

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Department of LaborOffice of Foreign Labor Certification - Overview

OFLC receives and processes employer-filed applications through National Processing Centers.

OFLC programs are divided, by visa classification, into two major types:
| ImmigrantAtlanta Processing Center                                                 | Non-ImmigrantChicago Processing Center     |
|------------------------------------------------------------------------------------|--------------------------------------------|
| Permanent (PERM) Program                    “Green Card”                           | H-1B, H-1B1, E-3 Skilled Occupations Visas |
|                                                                                    | H-2A Temporary Agricultural Visa           |
|                                                                                    | H-2B Temporary Non-Agricultural Visa       |
| Immigrant and Non-ImmigrantNational Processing CenterPrevailing Wage Determination | CW-1 Temporary Non-Immigrant CNMI          |
|                                                                                    |                                            |
|                                                                                    |                                            |

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For Government Training Use Only (August 2019)

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Department of LaborH-2A Program Workload Trends, FY 2008 - 2018

FY 2018 Workload

11,300 labor certifications

242,700 workers certified

97% certification rate

62% of certifications for individual farms-ranches

43% of workers certified for farm labor contractors

Top States of Employment

                      FY 2008    FY 2018

Georgia	          6,500        32,300

Florida              5,800       30,400

Washington      2,500       24,800

North Carolina  9,100       21,700

California          2,900       18,900

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For Government Training Use Only (August 2019)

Department of LaborH-2A Applications Received, FY 2008 vs. FY 2018

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For Government Training Use Only (August 2019)

H-2A ProgramGeneral Requirements for Employer Participation

Must qualify as a U.S. employer (e.g., farm/ranch), association of agricultural producers, or farm labor contractor.

Associations of agricultural producers can participate as a sole employer, agent with one member, or joint employer with multiple members.

Work must consist of agricultural labor or services, such as planting, raising, cultivating, harvesting, or production of any agricultural or horticultural commodity.

Work must be full-time (35 hours or more a week).

Employer’s need for workers must be seasonal or temporary in nature, such as a recurring growing cycle (generally lasting 10 months or less). 

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For Government Training Use Only (August 2019)

H-2A ProgramSTEP 1: Obtain a Minimum Wage & Prepare Application

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Employer obtains minimum wage information from the OFLC agricultural on-line wage library. 

Employer must offer, advertise in recruitment, and pay workers the highest of the following:

Adverse Effect Wage Rate (AEWR)

Prevailing Hourly Wage or Piece Rate

Collective Bargaining Wage

Federal or State Minimum Wage

Employer begins preparing a job order and H-2A application package.

Recommended Timeframe: 90 and 75 days before work start date

For Government Training Use Only (August 2019)

Based on U.S. Department of Agriculture’s (USDA) Farm Labor Survey.

Annual weighted average hourly wage for field and livestock workers (combined).

Wage rates are statewide based on USDA regions.

Typically published and effective beginning January

For current AEWRs, visit the OFLC Agricultural Online Wage Library at: https://www.foreignlaborcert.doleta.gov/adverse.cfm

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H-2A ProgramSTEP 1: Obtain a Minimum Wage & Prepare Application

For Government Training Use Only (August 2019)

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H-2A ProgramSTEP 1: Obtain a Minimum Wage & Prepare Application

Adverse Effect Wage Rates (AEWRs)

For Government Training Use Only (August 2019)

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H-2A ProgramSTEP 1: Obtain a Minimum Wage & Prepare Application

Prevailing Wage 

The wage (hourly, weekly) determined by the SWA to be prevailing in the local, regional, or statewide area

Prevailing Piece Rate 

The amount that is paid to workers in the crop or commodity per piece     (e.g., bin, pallet, bushel) determined by the SWA to be prevailing in the local, regional, or statewide area

For current prevailing wage and piece rates, visit the OFLC Agricultural Online Wage Library at: http://www.foreignlaborcert.doleta.gov/aowl.cfm

For Government Training Use Only (August 2019)

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H-2A ProgramSTEP 2: Submit a Job Order to the State Workforce Agency

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Regulatory Timeframe: 75 and 60 days before work start date

Employer submits the job order and informs the SWA of intent to file a future application for H-2A workers.

Job order must meet minimum regulatory content requirements (20 CFR 653 Subpart F and 20 CFR 655.122).

SWA reviews job order and notifies employer of any deficiencies within 7 days OR, if acceptable, begins recruitment of U.S. workers within the state.

Employer will typically request that the SWA inspect housing for farmworkers during this timeframe.

For Government Training Use Only (August 2019)

Provide housing to workers who cannot reasonably return to their permanent residence (no cost)

Provide workers’ compensation insurance coverage (no cost)

Provide tools and equipment (no cost)

Provide three meals a day or must furnish free and convenient cooking facilities

Pay or reimburse workers for inbound-outbound transportation and subsistence

Provide daily transportation to worksite (no cost)

Guarantee employment for total work hours equal to at least 3/4th of total work days under the work contract

H-2A ProgramKey Worker Guarantees & Protections on Job Order

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For Government Training Use Only (August 2019)

“Employment-based” clarification:  employer is requesting certification to employ one or more foreign workers in a specific job(s)

In 1940, the Immigration and Naturalization Service was transferred out of the Department of Labor where it then resided, to the  Department of Justice; it was abolished in 2003 and its functions placed under three agencies – United States Citizenship and Immigration Services, Immigration and Customs Enforcement and Customs and Border Protection – within the newly created DHS (Source: USCIS Web site: History)

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Pay workers twice monthly or according to prevailing practice, whichever is more frequent

Disclose all deductions from pay required by law and those not required by law to workers

Prohibit employer and its agents from seeking or receiving payments related to obtaining H-2A labor certification (including contracts with third parties)

Comply with all applicable Federal, State and local laws and regulations, including health/safety laws

Provide H-2A workers with a copy of the work contract no later than the time the worker applies for a visa

H-2A ProgramKey Worker Guarantees & Protections on Job Order

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For Government Training Use Only (August 2019)

“Employment-based” clarification:  employer is requesting certification to employ one or more foreign workers in a specific job(s)

In 1940, the Immigration and Naturalization Service was transferred out of the Department of Labor where it then resided, to the  Department of Justice; it was abolished in 2003 and its functions placed under three agencies – United States Citizenship and Immigration Services, Immigration and Customs Enforcement and Customs and Border Protection – within the newly created DHS (Source: USCIS Web site: History)

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Applications filed by U.S. mail or electronically.

Basic H-2A Application Package

Form ETA-9142A and Appendix A

Job order placed with the SWA

Workers’ compensation coverage 

Housing inspection report

Farm labor contractor license (if applicable)

Additional documentation for H-2A labor contractors             (e.g., surety bond, executed work contracts with local growers)

H-2A ProgramSTEP 3:  Submit H-2A Application to DOL-OFLC

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Statutory Timeframe: No later than 45 days before work start date

For Government Training Use Only (August 2019)

“Employment-based” clarification:  employer is requesting certification to employ one or more foreign workers in a specific job(s)

In 1940, the Immigration and Naturalization Service was transferred out of the Department of Labor where it then resided, to the  Department of Justice; it was abolished in 2003 and its functions placed under three agencies – United States Citizenship and Immigration Services, Immigration and Customs Enforcement and Customs and Border Protection – within the newly created DHS (Source: USCIS Web site: History)

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H-2A ProgramSTEP 4:  DOL-OFLC Processing of H-2A Application

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Statutory Timeframe: Within 7 days of receipt of the H-2A application

Department reviews application for obvious errors or inaccuracies and compliance with program requirements.

Issues Notice of Deficiency or Acceptance

If deficiency is issued, employer has 5 business days to respond.

If application is accepted, employer positively recruits for U.S. workers.

SWA is required to submit a housing inspection report          (if applicable).

For Government Training Use Only (August 2019)

“Employment-based” clarification:  employer is requesting certification to employ one or more foreign workers in a specific job(s)

In 1940, the Immigration and Naturalization Service was transferred out of the Department of Labor where it then resided, to the  Department of Justice; it was abolished in 2003 and its functions placed under three agencies – United States Citizenship and Immigration Services, Immigration and Customs Enforcement and Customs and Border Protection – within the newly created DHS (Source: USCIS Web site: History)

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H-2A ProgramSTEP 4:  DOL-OFLC Processing of H-2A Application

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Regulatory Timeframe: Until H-2A workers depart or 3 days before start date, whichever occurs first 

Conducting Positive Recruitment for U.S. Workers

Place advertisements in local area.

Contact U.S. employees from prior season/year.

Conduct out-of-state recruitment (not more than 3 states).

Additional recruitment can be ordered at CO’s discretion.

Positive recruitment must occur no later than 3 days before the start date of work.

Report of recruitment efforts  can be submitted by the date specified in the Notice of Acceptance.

For Government Training Use Only (August 2019)

“Employment-based” clarification:  employer is requesting certification to employ one or more foreign workers in a specific job(s)

In 1940, the Immigration and Naturalization Service was transferred out of the Department of Labor where it then resided, to the  Department of Justice; it was abolished in 2003 and its functions placed under three agencies – United States Citizenship and Immigration Services, Immigration and Customs Enforcement and Customs and Border Protection – within the newly created DHS (Source: USCIS Web site: History)

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H-2A ProgramSTEP 5:  Issuance of Labor Certification Determination

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Temporary labor certification will be granted no later than 30 days before start date of work as long as all program requirements are met.

Employer has rights to appeal any denial determination or partial certification of its request for H-2A workers.

Department instructs the employer to submit the certification documents to the appropriate USCIS Service Center.

Important Reminder:  Employers must consider and hire U.S. workers until 50 percent of the certified period of work has elapsed

For Government Training Use Only (August 2019)

“Employment-based” clarification:  employer is requesting certification to employ one or more foreign workers in a specific job(s)

In 1940, the Immigration and Naturalization Service was transferred out of the Department of Labor where it then resided, to the  Department of Justice; it was abolished in 2003 and its functions placed under three agencies – United States Citizenship and Immigration Services, Immigration and Customs Enforcement and Customs and Border Protection – within the newly created DHS (Source: USCIS Web site: History)

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Helpful Resources

Visit the OFLC website and “Subscribe” for e-mail updates http://www.foreignlaborcert.doleta.gov

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For Government Training Use Only (August 2019)

Disclaimer

This presentation is intended for training use only and does not carry the force of legal opinion.

	The Department of Labor is providing this information as a public service.  This information and any related materials are presented to give the public access to information on the Department of Labor programs.  You should be aware that, while we try to keep the information timely and accurate, there will often be a delay between official publications of the materials and the modification of these pages.  Therefore, we make no express or implied guarantees.  The Federal Register and the Code of Federal Regulations remain the official source for regulatory information published by the Department of Labor.  We will make every effort to keep this information current and to correct errors brought to our attention.

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For Government Training Use Only (August 2019)

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