Adverse Effect Wage Rates
H2A Statistical Report
H-2A Employer Handbook
Office of Foreign Labor Certification
Statistics from Fiscal Year 2021
DOL Received 16,546 Applications
Applications Were Certified
Applications Were Denied
H-2A Employees Requested
What is the H-2A Program
The H-2A temporary agricultural program allows 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. Employment is of a seasonal nature where it is tied to a certain time of year by an event or pattern, such as a short annual growing cycle, and requires labor levels above what is necessary for ongoing operations. Employment is of a temporary nature when the employer’s need to fill the position with a temporary worker will, except in extraordinary circumstances, last no longer than 1 year.
H-2A Program Overview
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. Employment is of a seasonal nature where it is tied to a certain time of year by an event or pattern, such as a short annual growing cycle or a specific aspect of a longer cycle, and requires labor levels above the necessary for ongoing operations. Employment is of a temporary nature where the employer’s need to fill the position with a temporary worker will, except in extraordinary circumstances, last no longer than 1 year. (10 months on and 2 months off)
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 of Labor stating that: (1) there are not sufficient able, willing, and qualified United States (U.S.) workers available to perform the temporary and seasonal agricultural employment for which an employer desires to import nonimmigrant foreign workers; and (2) employment of H-2A workers 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 (WHD) has responsibility for enforcing provisions of worker contracts.
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, partnership, association, corporation, cooperative, firm, joint stock company, trust, or other organization with legal rights and duties that:
- Has a place of business (physical location) in the U.S. and a means by which it may be contacted for employment;
- Has an employer relationship (such as the ability to hire, pay, fire, supervise, or otherwise control the work of employees with respect to an H-2A worker or a worker in corresponding employment; and
- Possesses a valid Federal Employer Identification Number (FEIN)
- An association of employer producers may file as a sole employer, a joint employer with its members, or as an agent of its members. Associations filing as a joint employer with its employer-members may file master applications on behalf of their members. A farm labor contractor who meets the definition of an employer and is not a fixed-site employer or agricultural association may file an application for temporary foreign workers as an “H-2A Labor Contractor” (H-2ALC).
- In circumstances where an authorized agent, whether an individual (e.g., an attorney) or an entity (e.g., an association), the agent may file an application on behalf of an employer along with documentation which demonstrates that the agent is authorized to represent the employer.
What Step Do I Take Before Filing an H-2A Application?
Prior to filing an Application for Temporary Employment Certification, the employer must prepare a job order on the ETA Form 790 – Agricultural and Food Processing Clearance Order and submit the form and all attachments to the State Workforce Agency (SWA) serving the area of intended employment for intrastate clearance. The following requirements must be met:
- The job order must be submitted to the SWA no more than 75 calendar days and no fewer than 60 calendar days before the start date of the job;
- The job order must be identified as one that will be used in connection with a future filed Application for Temporary Employment Certification (ETA Form 9142A) with the U.S. Department of Labor; and
- The contents of the job order must satisfy the requirements of 20 CFR part 653, subpart F and 20 CFR 655.122.
If the job opportunity is located in more than one State within the same area of intended employment, the employer may submit a job order to any one of the SWAs which has jurisdiction over the anticipated worksites. Where the job order is being placed in connection with a future master application to be filed by an association of agricultural employers as a joint employer, the association may submit a single job order to be placed in the name of the association on behalf of all employers that will be duly named on the future filed ETA Form 9142A.
Upon receipt of the job order, the SWA will review the job order and notify the employer in writing of deficiencies in the job order no later than seven (7) calendar days after it has been submitted. The employer must respond to the SWA within five (5) calendar days after receipt of the SWA notification. The SWA must respond to the employer’s response within three (3) calendar days. Once accepted by the SWA, the job order will be active until the end of the recruitment period, which will extend through 50 percent of the period of employment.
Additional filing requirements for H-2A Labor Contractors (H-2ALC)
An application filed by an H-2ALC must be limited to a single area of intended employment in which the fixed-site employer(s) to whom an H-2ALC is furnishing employees will be utilizing the employees. An H-2ALC must include the following information in its application:
- Name and location of each fixed-site agricultural business to which the H-2ALC expects to provide H-2A workers, the expected beginning and ending dates when the H-2ALC will be providing the workers to each fixed site, and a description of the crops and activities the workers are expected to perform at such fixed site;
- A copy of the Migrant and Seasonal Agricultural Worker Protection Act (MSPA) Farm Labor Contractor (FLC) Certificate of Registration, if required, identifying the specific farm labor contracting activities the H-2ALC is authorized to perform as a FLC;
- Proof of its ability to discharge financial obligations under the H-2A program by including a surety bond under original signature. The bond document must clearly identify the issuer, the name, address, phone number, and contact person for the surety, and provide the amount of the bond and any identifying designation used by the surety for the bond;
- Copies of the fully-executed work contracts with each fixed-site agricultural business; and
- Where the fixed-site agricultural business will provide housing or transportation to the workers, proof that all housing used by workers and owned, operated or secured by the fixed-site agricultural business complies with the standards of the H-2A program and certified by the SWA and all transportation between the worksite and the workers’ living quarters that is provided by the fixed-site agricultural business complies with all applicable Federal, State, or local laws and regulation.
Additional Filing Requirements for Agents
An agent filing an application on behalf of an employer must provide a copy of the agent agreement or other document demonstrating the agent’s authority to represent the employer. In addition, the agent must provide a copy of the MSPA FLC Certificate of Registration, if required by MSPA, identifying the specific farm labor contracting activities the agent is authorized to perform.