U.S. DEPARTMENT OF LABOR Employment & Training Administration
U.S. DEPARTMENT OF LABOR Employment & Training Administration H-2A Temporary Agricultural Visa Program USDA Fruit & Vegetable Industry Advisory Committee Meeting August 14, 2019 Office of Foreign Labor Certification Employment and Training Administration United States Department of Labor For Government Training Use Only (August 2019) 1 Overview of the Immigration Process Step 1 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.
Step 2 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. Step 3 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. Step 4 After receiving the visa from a DOS consulate, workers arrive at a port of entry where DHSs Customs and Border Protection officers verify eligibility for admission and length of stay. For Government Training Use Only (August 2019)
2 Department of Labor Office 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: 1. There are not sufficient U.S. workers who are able, willing, qualified, and available for the requested positions; and that the 2. Employment of the foreign worker(s) will not adversely affect the wages and working conditions of similarly employed U.S. workers. For Government Training Use Only (August 2019) 3 Department of Labor Office 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: Immigrant Atlanta Processing Center Permanent (PERM) Program Green Card Immigrant and Non-Immigrant National Processing Center Prevailing Wage Determination For Government Training Use Only (August 2019) Non-Immigrant Chicago Processing Center H-1B, H-1B1, E-3 Skilled Occupations Visas H-2A Temporary Agricultural Visa H-2B Temporary Non-Agricultural Visa CW-1 Temporary Non-Immigrant CNMI
4 Department of Labor H-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
Georgia 6,500 Florida 5,800 Washington 2,500 North Carolina 9,100 California 2,900 FY 2018 32,300 30,400 24,800 21,700 18,900 For Government Training Use Only (August 2019) 5
Department of Labor H-2A Applications Received, FY 2008 vs. FY 2018 FY 2008 FY 2018 2,250 2,000 1,750 1,500 1,250 1,000 750 500 250 OCT NOV DEC
For Government Training Use Only (August 2019) JAN FEB MAR APR MAY JUN JUL AUG SEPT 6
H-2A Program General 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). Employers need for workers must be seasonal or temporary in nature, such as a recurring growing cycle (generally lasting 10 months or less). For Government Training Use Only (August 2019) 7 H-2A Program
STEP 1: Obtain a Minimum Wage & Prepare Application 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: 1. 2. 3. 4. 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) 8
H-2A Program STEP 1: Obtain a Minimum Wage & Prepare Application Based on U.S. Department of Agricultures (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 For Government Training Use Only (August 2019) 9 H-2A Program STEP 1: Obtain a Minimum Wage & Prepare Application
Adverse Effect Wage Rates (AEWRs) For Government Training Use Only (August 2019) 10 H-2A Program STEP 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) 11 H-2A Program STEP 2: Submit a Job Order to the State Workforce Agency 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. Regulatory Timeframe: 75 and 60 days before work start date For Government Training Use Only (August 2019)
12 H-2A Program Key Worker Guarantees & Protections on Job Order 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 For Government Training Use Only (August 2019) 13 H-2A Program Key Worker Guarantees & Protections on Job Order
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 For Government Training Use Only (August 2019) 14 H-2A Program STEP 3: Submit H-2A Application to DOL-OFLC 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) Statutory Timeframe: No later than 45 days before work start date For Government Training Use Only (August 2019) 15 H-2A Program STEP 4: DOL-OFLC Processing of H-2A Application
Department reviews application for obvious errors or inaccuracies and compliance with program requirements. Statutory Timeframe: Within 7 days of receipt of the H-2A application 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) 16 H-2A Program STEP 4: DOL-OFLC Processing of H-2A Application 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 COs 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. Regulatory Timeframe: Until H-2A workers depart or 3 days before start date, whichever occurs first For Government Training Use Only (August 2019) 17 H-2A Program STEP 5: Issuance of Labor Certification Determination 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) 18 Helpful Resources Visit the OFLC website and Subscribe for e-mail updates http://www.foreignlaborcert.doleta.gov For Government Training Use Only (August 2019) 19 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. For Government Training Use Only (August 2019) 20
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