H-2A Certification
New H-2A On-Line Application Processing System
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The new H-2A On-Line Application Processing System is available at:
www.h2a.doleta.gov
The web-based system allows the creation of ETA form 750, electronically and the option
to save and re-use the information for future applications. Additionally, the system provides the
capability to track applications as they move through the process. Users of the On-Line Application Processing System are reminded that they must sign, date and submit ETA Forms 750 and 790, along with all assurances and attachments, to the Chicago National Processing Center (NPC) and the State Workforce Agency (SWA) simultaneously in the area of intended employment. |
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.
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., and 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 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.
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 Chicago National Processing Center and local SWA
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 Chicago 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's
Chicago National Processing Center
and SWA staff for guidance and assistance
well before the forty-five (45) calendar day filing period.
- In emergency situations, the Chicago National Processing Center
may waive the time period specified, provided the Chicago 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, other benefits) are
waived, however.
How To Apply
Applications may be filed using any of the methods below:
- Filed in person with the Chicago National Processing Center and local
SWA;
- Mailed to the Chicago National Processing Center and local office of the SWA by
certified mail, return receipt requested; or
- Delivered by guaranteed commercial delivery to the Chicago National Processing Center
and local office of the SWA.
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.
Applications Accepted for Consideration
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:
- will inform the employer and the SWA 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
in other traditional or expected labor supply if the Chicago 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 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:
- why the employer's application is not acceptable for consideration;
- what changes are required for the Chicago National Processing Center to accept
the application for consideration;
- that the employer has five (5) calendar days from the date of the Chicago National Processing Center's
notice in which to resubmit the application with modifications
requested by the Chicago National Processing Center to correct any deficiencies; and
- what procedures the employer may use to appeal the Chicago National Processing Center's nonacceptance.
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:
Chief Administrative Law Judge
U.S. Department of Labor
800 K Street NW
Suite 400
Washington, DC 20001-8002
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 does 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.
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:
- 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 Chicago 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 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:
Chief Administrative Law Judge
U.S. Department of Labor
800 K Street NW
Suite 400
Washington, DC 20001-8002
The request for a review or hearing should contain any legal arguments that the employer believes will rebut the basis for the denial of the H-2A application.
If the employer does 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.
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:
Chief Administrative Law Judge
U.S. Department of Labor
800 K Street NW
Suite 400
Washington, DC 20001-8002
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.
Forms & Instructions
Form ETA 750
Instructions for ETA Form 750
Form ETA 790 & Attachments
Instructions for Form ETA 790 & Attachments
Program Regulations & Guidance
TEGL 11-07 - Change 1, Clarification of Certain
Procedures for Processing H-2A Labor Certification Applications
FAQs
TEGL 11-07, Change 1 Questions from SWA Training Webinars – Round 1
Premium Processing
http://www.uscis.gov/graphics/howdoi/prem_process.htm
