(a) General--(1) Filing of application. An employer who anticipates
a shortage of U.S. workers needed to perform agricultural labor or
services of a temporary or seasonal nature may apply to the RA in whose
region the area of intended employment is located, for a temporary alien
agricultural labor certification for temporary foreign workers (H-2A
workers). A signed application for temporary alien agricultural worker
certification shall be filed by the employer, or by an agent of the
employer, with the RA. At the same time, a duplicate application shall
be submitted to the local office serving the area of intended
employment.
(2) Applications filed by agents. If the temporary alien
agricultural labor certification application is filed by an agent on
behalf of an employer, the agent may sign the application if the
application is accompanied by a signed statement from the employer which
authorizes the agent to act on the employer's behalf. The employer may
authorize the agent to accept for interview workers being referred to
the job and to make hiring commitments on behalf of the employer. The
statement shall specify that the employer assumes full responsibility
for the accuracy of the application, for all representations made by the
agent on the employer's behalf, and for compliance with all regulatory
and other legal requirements.
(3) Applications filed by associations. If an association of
agricultural producers which uses agricultural labor or services files
the application, the association shall identify whether it is: (i) The
sole employer; (ii) a joint employer with its employer-member employers;
or (iii) the agent of its employer-members. The association shall submit
documentation sufficient to enable the RA to verify the employer or
agency status of the association; and shall identify by name and address
each member which will be an employer of H-2A workers.
(b) Application form. Each H-2A application shall be on a form or
forms prescribed by ETA. The application shall state the total number of
workers the employer anticipates employing in the agricultural labor or
service activity during the covered period of employment. The
application shall include:
(1) A copy of the job offer which will be used by each employer for
the recruitment of U.S. and H-2A workers. The job offer shall state the
number of workers needed by the employer, based upon the employer's
anticipation of a shortage of U.S. workers needed to perform the
agricultural labor or services, and the specific estimated date on which
the workers are needed. The job offer shall comply with the requirements
of Secs. 655.102 and 653.501 of this chapter, and shall be signed by the
employer or the employer's agent on behalf of the employer; and
(2) An agreement to abide by the assurances required by Sec. 655.103
of this part.
(c) Timeliness. Applications for temporary alien agricultural labor
certification are not required to be filed more than 45 calendar days
before the first day of need. The employer shall be notified by the RA
in writing within seven calendar days of filing the application if the
application is not approved as acceptable for consideration. The RA's
temporary alien agricultural labor certification determination on the
approved application shall be made no later than 20 calendar days before
the date of need if the employer has complied with the criteria for
certification. To allow for the availability of U.S. workers to be
tested, the following process applies:
(1) Application filing date. The entire H-2A application, including
the job offer, shall be filed with the RA, in duplicate, no less than 45
calendar days before the first date on which the employer estimates that
the workers are needed. Applications may be filed in
person; may be mailed to the RA (Attention: H-2A Certifying Officer) by
certified mail, return receipt requested; or delivered by guaranteed
commercial delivery which will ensure delivery to the RA and provide the
employer with a documented acknowledgment of receipt of the application
by the RA. Any application received 45 calendar days before the date of
need will have met the minimum timeliness of filing requirement as long
as the application is eventually approved by the RA as being acceptable
for processing.
(2) Review of application; recruitment; certification determination
period. Section 655.104 of this part requires the RA to promptly review
the application, and to notify the applicant in writing within seven
calendar days of any deficiencies which render the application not
acceptable for consideration and to afford an opportunity for
resubmittal of an amended application. The employer shall have five
calendar days in which to file an amended application. Section 655.106
of this part requires the RA to grant or deny the temporary alien
agricultural labor certification application no later than 20 calendar
days before the date on which the workers are needed, provided that the
employer has complied with the criteria for certification, including
recruitment of eligible individuals. Such recruitment, for the employer,
the State agencies, and DOL to attempt to locate U.S. workers locally
and through the circulation of intrastate and interstate agricultural
clearance job orders acceptable under Sec. 653.501 of this chapter and
under this subpart, shall begin on the date that an acceptable
application is filed, except that the local office shall begin to
recruit workers locally beginning on the date it first receives the
application. The time needed to obtain an application acceptable for
consideration (including the job offer) after the five-calendar-day
period allowed for an amended application will postpone day-for-day the
certification determination beyond the 20 calendar days before the date
of need, provided that the RA notifies the applicant of any deficiencies
within seven calendar days after receipt of the application. Delays in
obtaining an application acceptable for consideration which are directly
attributable to the RA will not postpone the certification determination
beyond the 20 calendar days before the date of need. When an employer
resubmits to the RA (with a copy to the local office) an application
with modifications required by the RA, and the RA approves the modified
application as meeting necessary adverse effect standards, the modified
application will not be rejected solely because it now does not meet the
45-calendar-day filing requirement. If an application is approved as
being acceptable for processing without need for any amendment within
the seven-calendar-day review period after initial filing, recruitment
of U.S. workers will be considered to have begun on the date the
application was received by the RA; and the RA shall make the temporary
alien agricultural labor certification determination required by
Sec. 655.106 of this part no later than 20 calendar days before the date
of need provided that other regulatory conditions are met.
(3) Early filing. Employers are encouraged, but not required, to
file their applications in advance of the 45-calendar-day minimum period
specified in paragraph (c)(1) of this section, to afford more time for
review and discussion of the applications and to consider amendments,
should they be necessary. This is particularly true for employers
submitting H-2A applications for the first time who may not be familiar
with the Secretary's requirements for an acceptable application or U.S.
worker recruitment. Such employers particularly are encouraged to
consult with DOL and local office staff for guidance and assistance well
in advance of the minimum 45-calendar-day filing period.
(4) Local recruitment; preparation of clearance orders. At the same
time the employer files the H-2A application with the RA, a copy of the
application shall be submitted to the local office which will use the
job offer portion--of the application to prepare a local job order and
begin to recruit U.S. workers in the area of intended employment. The
local office also shall begin preparing an agricultural clearance order,
but such order will not be used to recruit workers in other geographical
areas
until the employer's H-2A application is accepted for consideration and
the clearance order is approved by the RA and the local office is so
notified by the RA.
(5) First-time employers of H-2A workers. With respect only to those
applications filed on or before May 31, 1989, and notwithstanding the
time requirements in paragraphs (c)(1) through (c)(4) of this section,
under the following circumstances the RA shall make the certification
determination required by Sec. 655.106 of this part no later than 10
calendar days before the date of need:
(i) The employer would be a first-time employer of H-2A workers
(and, prior to June 1, 1987, did not use or apply for certification to
use H-2 agricultural workers under the INA as then in effect) and has
not previously applied for a temporary alien agricultural labor
certification to use H-2A workers;
(ii) The RA, the employer, and the ES System have had a reasonable
opportunity to test the availability of U.S. workers under the
conditions of a job offer which has been determined to be acceptable by
the RA in accordance with the provisions of Secs. 655.102 and 655.103 of
this part at least 30 calendar days before the date of need; and
(iii) The RA has determined that the employer has otherwise made
good faith efforts to comply with the requirements of this subpart.
(d) Amendments to application to increase number of workers.
Applications may be amended at any time, prior to an RA certification
determination, to increase the number of workers requested in the
initial application by not more than 20 percent (50 percent for
employers of less than ten workers) without requiring an additional
recruitment period for U.S. workers. Requests for increases above the
percent prescribed, without additional recruitment, may be approved only
when the need for additional workers could not have been foreseen, and
that crops or commodities will be in jeopardy prior to the expiration of
an additional recruitment period.
(e) Minor amendments to applications. Minor technical amendments may
be requested by the employer and made to the application and job offer
prior to the certification determination if the RA determines they are
justified and will have no significant effect upon the RA's ability to
make the labor certification determination required by Sec. 655.106 of
this part. Amendments described at paragraph (d) of this section are not
``minor technical amendments''.
(f) Untimely applications--(1) Notices of denial. If an H-2A
application, or any part thereof, does not satisfy the time requirements
specified in paragraph (c) of this section, and if the exception in
paragraph (d) of this section does not apply, the RA may then advise the
employer in writing that the certification cannot be granted because,
pursuant to paragraph (c) of this section, there is not sufficient time
to test the availability of U.S. workers. The notice of denial shall
inform the employer of its right to an administrative review or de novo
hearing before an administrative law judge.
(2) Emergency situations. Notwithstanding paragraph (f)(1) of this
section, in emergency situations the RA may waive the time period
specified in this section on behalf of employers who have not made use
of temporary alien agricultural workers (H-2 or H-2A) for the prior
year's agricultural season or for any employer which has other good and
substantial cause (which may include unforeseen changes in market
conditions), provided that the RA has an opportunity to obtain
sufficient labor market information on an expedited basis to make the
labor certification determination required by Sec. 216 of the INA (8
U.S.C. 1186). In making this determination, the RA will accept
information offered by and may consult with representatives of the U.S.
Department of Agriculture.
(g) Length of job opportunity. The employer shall set forth on the
application sufficient information concerning the job opportunity to
demonstrate to the RA that the need for the worker is ``of a temporary
or seasonal nature'', as defined at Sec. 655.100(c)(2) of this part. Job
opportunities of 12 months or more are presumed to be permanent in
nature. Therefore, the RA shall not grant a temporary alien agricultural
labor certification where the job opportunity
has been or would be filled by an H-2A worker for a cumulative period,
including temporary alien agricultural labor certifications and
extensions, of 12 months or more, except in extraordinary circumstances.
[64 FR 34957, June 29, 1999]
