, it is determined that the RA's denial must be upheld
for a number of reasons.
First, Respondent failed to timely file his application. The regulations provide that
the H2-A application should be filed "no less than 60 calendar days before the first date on which
the employer estimates that the workers are needed." § 655.101(c)(1). The application filed
with Region IX was filed on July 2, 1999. The first date of need indicated in that application was August
15, 1999. (AF 21-22). Respondent acknowledges that this was untimely, but requested in his request for
review that the "timetable" be waived for their California operation. (AF 2). The time period
may be waived if "emergency situations" exist that excuse the delay in filing. §
655.101(f)(2). However, as Respondent has failed to provide any such circumstances, such as unforseen
changes in market conditions, a waiver is not justified, and the application must be denied as untimely.
Second, the application was denied as its period of employment exceeds nine
months. Specifically, the denial stated that "Our national office has determined that the intended
period of employment should not exceed nine months unless the employer can substantiate the employment
is not intended to continue indefinitely, nor is it essentially on a year-round basis." (AF 22).
Previously, it was held that the establishment of such a rule by ETA was not arbitrary, insofar as the RA's
letters of denial permitted Employers the opportunity to rebut its findings. It was not actually a rule, but a
"red flag," which required further justification from the applicant in order to prevent abuses of
the H-2A program. Kentucky Tennessee Growers Assoc., Inc., 1998-TLC-1 (December 16,
1997). Such is the case in this situation. Respondent did not supply this information to the Regional Office.
Accordingly, the application is deficient.
Third, Respondent failed to properly complete the section of the application
regarding anticipated hours of work per week. Specifically, Respondent has inconsistent hours of
employment on ETA Forms 750 & 790, listing hours per week on these forms as 10 hours and 60 hours
respectively. Further, Respondent failed to indicate a normal quitting time for the work schedule on Item
11 of ETA Form 750. (AF 24-26). The regulations specifically require that the Respondent provide the
anticipated period and hours of employment. § 653.501(d)(2)(iii). By failing to fully and consistently
complete these sections, Respondent failed to meet the regulatory standards regarding H-2A applications.
Further, Respondent's job offer failed to reference any "Hours and earning
statements." The regulations specifically require that such information be provided to the workers
on or before each payday information regarding the hours offered to the employee and that employee's rate
of pay, inter alia . § 655.102(b)(8). "Every job offer which must accompany an
H-2A application" should always include this information. § 655.102(b). Since this
information was never provided, the application again failed to meet the regulatory standards.
The next ground for denial was that the application did not contain referral
instructions for workers who wish to apply for the positions. Specifically, the employer left Item 15 on
ETA Form 790 blank. (AF 26). Regulations involving the H-2A application process specifically require
the regional office to immediately begin recruiting U.S. workers to fill the requested positions. §
655.101. Without referral instructions, no such efforts may be undertaken. This ground of denial must thus
be upheld.
The application was further found to be deficient as the housing to be provided had
not been inspected and a conditional access request had not been included. The regulations require that
the employer provide to workers "who are not reasonably able to return to their residence within the
same day" accommodations without charge. § 655.102(b)(1). These accommodations are
required to meet "the full set of DOL Occupational Safety and Health Administration
standards" or the applicant must apply for conditional access to the intrastate or interstate clearance
system by giving assurances that the housing will meet these standards at least thirty (30) days prior to
occupation. §§ 655.102(b)(1)(i) & 654.403. Respondent's application merely states that
accommodation will be provided at "motels that will be centrally located to the place where the
harvesting will be conducted." (AF 35). No further information is given. Accordingly, the RA, not
knowing which hotels were intended, could not verify whether these accommodations met the OSHA
standards. As Respondent did not attach a conditional access request, denial on this ground was
appropriate.
The Region IX application was also rejected as the activities and pay rates listed on
the Form ETA 790 were inconsistent and that it listed activities to be performed in more than one state.
The regulations specifically provide that any H-2A application must be filed with the regional office
"in whose region the area of intended employment is located." § 655.101(a). Employer
filed the same application with each site. Only on modification did Employer attempt to separate the two
applications. However, as Employer failed to file a modified application correcting this problem with the
Region IX office, this ground for denial must stand.
Finally, Respondent has failed to submit a valid Federal farm labor contractor
certificate. The certificate submitted by Respondent expires October 31, 1999, well before the end of the
prospective employment period. (AF at 39-40). According to the regulations governing H-2A
applications, Respondent must "comply with applicable federal, State, and local employment-related
laws and regulations, including employment-related health and safety laws." § 655.103(b).
According to the Migrant and Seasonal Agricultural Worker Protection Act, a contractor that is going to
transport workers under its provisions must provide a valid Federal farm labor contractor certificate before
an application may be received. § 653.104(b). Accordingly, as stated in the RA's brief, without
such an application, Respondent is not eligible to file an H-2A application. See ETA Handbook
No. 398 at II-24-25. As Respondent has not provided a certificate that will be valid throughout the time
of the employment, the H-2A application must be denied.
Conclusion
Each of these applications contained a number of deficiencies and inconsistencies.
So many, in fact, that the RA's were unable to uncover all of them during the limited time available to review
such applications, as evidenced by the further problems found with the Region IV application after the
modified application was filed. In both instances, the RA's were correct in determining that these
applications did not meet the regulatory requirements and should thus be denied pursuant to §
655.104(b). Further, both RAs informed Respondent of these deficiencies and omissions and afforded him
the opportunity to amend his application. Instead of correcting these mistakes, some of which merely
required Respondent to completely fill out the forms provided, Respondent chose to challenge the
determinations. However, Respondent has failed to present any rationale as to why the regulatory
requirements were incorrectly or inappropriately applied to these applications. The RA's appropriately
looked at the number of omissions and errors and determined correctly that temporary labor certifications
could not be issued based on these applications.
Accordingly, the following Order shall enter.
ORDER
The Regional Administrators' denial of temporary alien agricultural labor certifications
is hereby AFFIRMED .
at Washington, DC
JOHN M.
VITTONEChief Administrative
Law Judge
JMV/jcg
[ENDNOTES]
1
2
3 supra. , were deficient in the original filing as well.
4
