The Wage and Hour Division (WHD) of the Department of Labor has a primary role in investigating and enforcing the terms and conditions of employment. WHD 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).

All employers filing H-2A applications must retain the following documentation:

1. Proof of recruitment efforts including:
2. Job order placement
3. Contact with former U.S. workers
4. Additional positive recruitment efforts
5. Substantiation of information submitted in the recruitment report
6. The final recruitment report and any supporting resumes and contact information
7. Proof of workers’ compensation insurance or state law coverage
8. Records of each worker’s earnings
9. The work contract or copy of the Application for Temporary Employment Certification
10. An association must retain the additional documentation required for submission of its application

The records and documents must be retained for a period of three (3) years from the date of certification, or from the date of the determination if the application is denied or withdrawn. Documents must be produced to the Department of Labor upon request.

H-2A employers cannot file for more than 10 months. In order to qualify for the program, you have to prove that you are seasonal in nature.

Not necessarily. Typically Dairies do not qualify for hiring workers to work in the milking parlor since that job is not seasonal, it occurs year-round. So just because you are agricultural does not always mean that you qualify for the program.

Similarly, if you provide trucking services but do now grow your own crop, you do not qualify since you just provide a service to a farmer.

Our main recruiting offices are located in South Africa. We also have an office located in Mexico.

The H-2A temporary agricultural visa is a nonimmigrant visa which allows foreign nationals to enter into the U.S. to perform agricultural labor or services of a temporary or seasonal nature.

Pursuant to 20 CRF 655.122(e)(2), the employer is required to submit proof of workers’ compensation insurance coverage before certification. The employer must submit proof of workers’ compensation when submitting its application to avoid a notice of deficiency.

The FLSA does not limit the number of hours per day or per week that employees aged 16 years and older can be required to work.

The FLSA does require that employers keep accurate records of hours worked and wages paid to employees. However, the FLSA does not require an employer to provide employees pay stubs.

The program is an employer sponsored program, so an employee cannot file for an extension. An employer would have to sponsor and file and application for an employee. An employee can apply for a position with an employer with an approved labor certification for a different period and work for that employer by transferring to that employer without having to return home. An employee can transfer between certified employers for a maximum of 30 months. (3 years of 10-month contracts).

An employer can request an extension of his season for 14 days without having to file for an extension to his/her labor certification period. A 14-day extension can be filed directly with the USDHS with the appropriate filing fee for up to 14 days. If an extension longer that that is needed (up to 10 months), an employer can submit a request to Department of Labor to request an extension of his/her labor certification and by providing evidence that the season is running late and help is needed longer than anticipated. If DOL approves that extension you then must file at USDHS and pay the filing fee to extend the employee’s stay.

Yes, but only if allowed by your employer. Employers are not required to provide housing for your spouse or children. Your spouse and children would have to file for a H4 visa at the US Consulate in your home country as a depended on your visa. They cannot work on a H4 but would be allowed to be in the USA if your H-2A visa is valid. Please note that if you do not have sufficient ties back to your home country the consulate can deny a H4 visa. It is up to the consular officer if they will approve it or not.

Employee Arrival Checklist:

1. Discuss your rules and expectations with the employees
2. Discuss payroll process, pay date, etc.
3. Retrieve the employees I-94
a. https://i94.cbp.dhs.gov/I94/#/home
b. This is needed for a social security card and to get a driver’s license
4. Make copies of the employee’s passport and visa for your records. Please email Golden Opportunities a copy.
5. Take the employee to get a social security card
6. Take the employee to get a driver’s license
7. Take the employee to open a bank account.
8. Reimburse the employee their consulate fee as listed below.

Consulate Fee Reimbursement:
$205 per person paid at the time consulate appointment. The consulate fee is paid by employee at the before going to the consulate. Please Note: If fees are paid by employee, the employer must reimburse on employee’s first paycheck.

Following applicable wage rates in effect at the time work is performed: the adverse effect wage rate (AEWR), the applicable prevailing wage, the agreed-upon collective bargaining rate, or the Federal or State statutory minimum wage.

§ 785.48 Use of time clocks. (a) Differences between clock records and actual hours worked. Time clocks are not required. In those cases where time clocks are used, employees who voluntarily come in before their regular starting time or remain after their closing time, do not have to be paid for such periods provided, of course, that they do not engage in any work. Their early or late clock punching may be disregarded. Minor differences between the clock records and actual hours worked cannot ordinarily be avoided, but major discrepancies should be discouraged since they raise a doubt as to the accuracy of the records of the hours actually worked. (b) “Rounding” practices. It has been found that in some industries, particularly where time clocks are used, there has been the practice for many years of recording the employees’ starting time and stopping time to the nearest 5 minutes, or to the nearest one-tenth or quarter of an hour. Presumably, this arrangement averages out so that the employees are fully compensated for all the time they actually work. For enforcement purposes this practice of computing working time will be accepted, provided that it is used in such a manner that it will not result, over a period of time, in failure to compensate the employees properly for all the time they have actually worked.

§ 785.19 Meal.
(a) Bona fide meal periods. Bona fide meal periods are not worktime. Bona fide meal periods do not include coffee breaks or time for snacks. These are rest periods. The employee must be completely relieved from duty for the purposes of eating regular meals. Ordinarily 30 minutes or more is long enough for a bona fide meal period. A shorter period may be long enough under special conditions. The employee is not relieved if he is required to perform any duties, whether active or inactive, while eating. For example, an office employee who is required to eat at his desk or a factory worker who is required to be at his machine is working while eating

§ 785.35 Home to work; ordinary situation.
An employee who travels from home before his regular workday and returns to his home at the end of the workday is engaged in ordinary home to work travel which is a normal incident of employment. This is true whether he works at a fixed location or at different job sites. Normal travel from home to work is not worktime.

§ 785.37 Home to work on special one-day assignment in another city.
A problem arises when an employee who regularly works at a fixed location in one city is given a special 1-day work assignment in another city. For example, an employee who works in Washington, DC, with regular working hours from 9 a.m. to 5 p.m. may be given a special assignment in New York City, with instructions to leave Washington at 8 a.m. He arrives in New York at 12 noon, ready for work. The special assignment is completed at 3 p.m., and the employee arrives back in Washington at 7 p.m. Such travel cannot be regarded as ordinary home-to-work travel occasioned merely by the fact of employment. It was performed for the employer’s benefit and at his special request to meet the needs of the particular and unusual assignment. It would thus qualify as an integral part of the “principal” activity which the employee was hired to perform on the workday in question; it is like travel involved in an emergency call (described in §785.36), or like travel that is all in the day’s work (see §785.38). All the time involved, however, need not be counted. Since, except for the special assignment, the employee would have had to report to his regular work site, the travel between his home and the railroad depot may be deducted, it being in the “home-to-work” category. Also, of course, the usual mealtime would be deductible.

§ 785.38 Travel that is all in the day’s work.
Time spent by an employee in travel as part of his principal activity, such as travel from job site to job site during the workday, must be counted as hours worked. Where an employee is required to report at a meeting place to receive instructions or to perform other work there, or to pick up and to carry tools, the travel from the designated place to the work place is part of the day’s work, and must be counted as hours worked regardless of contract, custom, or practice. If an employee normally finishes his work on the premises at 5 p.m. and is sent to another job which he finishes at 8 p.m. and is required to return to his employer’s premises arriving at 9 p.m., all of the time is working time. However, if the employee goes home instead of returning to his employer’s premises, the travel after 8 p.m. is home-to-work travel and is not hours worked.

§ 785.39 Travel away from home community.
Travel that keeps an employee away from home overnight is travel away from home. Travel away from home is clearly worktime when it cuts across the employee’s workday. The employee is simply substituting travel for other duties. The time is not only hours worked on regular working days during normal working hours but also during the corresponding hours on nonworking days. Thus, if an employee regularly works from 9 a.m. to 5 p.m. from Monday through Friday the travel time during these hours is worktime on Saturday and Sunday as well as on the other days. Regular meal period time is not counted. As an enforcement policy, the Divisions will not consider as worktime that time spent in travel away from home outside of regular working hours as a passenger on an airplane, train, boat, bus, or automobile.

§ 785.40 When private automobile is used in travel away from home community.
If an employee is offered public transportation but requests permission to drive his car instead, the employer may count as hours worked either the time spent driving the car or the time he would have had to count as hours worked during working hours if the employee had used the public conveyance.

§ 785.41 Work performed while traveling.
Any work which an employee is required to perform while traveling must, of course, be counted as hours worked. An employee who drives a truck, bus, automobile, boat or airplane, or an employee who is required to ride therein as an assistant or helper, is working while riding, except during bona fide meal periods or when he is permitted to sleep in adequate facilities furnished by the employer.

If you need to terminate an employee, you will need to contact Golden Opportunities. We will submit the termination documents to the Department of Labor and Department of Homeland Security on your behalf. It is required to submit the termination documents within 48 hours from the time the employees leave your employment. Failing to do this is a violation of the H-2A program.

Employers must keep accurate records of the number of hours of work offered each day by the employer and the hours actually worked each day by the worker. On or before each payday (which must be at least twice monthly), each worker must be given an hours and earning statement showing hours offered, hours actually worked, hourly rate and/or piece rate of pay, and if piece rates are used, the units produced daily. The hours and earning statement must also indicate total earnings for the period and all deductions from wages. Please remember that these documents must be kept for 3 years.

20 CFR 655.122(j) Earnings records. The employer must keep accurate and adequate records with respect to the workers’ earnings, including but not limited to:

(1) Field tally records, supporting summary payroll records, and records showing the nature and amount of the work performed;
(2) The number of hours of work offered each day by the employer (broken out by hours offered both in accordance with and over and above the three-fourths guarantee at paragraph (i)(3) of this section);
(3) The hours actually worked each day by the worker;
(4) The time the worker began and ended each workday;
(5) The rate of pay (both piece rate and hourly, if applicable);
(6) The worker’s earnings per pay period;
(7) The worker’s home address (home country);
(8) And the amount of and reasons for any and all deductions taken from the worker’s wages.

20 CFR 655.122(k) Hours and earnings statements (Paystub). The employer must furnish to the worker on or before each payday in one or more written statements the following information:

(1) The worker’s total earnings for the pay period;
(2) The worker’s hourly rate and/or piece rate of pay;
(3) The hours of employment offered to the worker (showing offers in accordance with the three-fourths guarantee as determined in 20 CFR 655.122(I), separate from any hours offered over and above the guarantee);
(4) The hours actually worked by the worker;
(5) An itemization of all deductions taken from the worker’s wages;
(6) If piece rates are used, the units produced daily;
(7) Beginning and ending dates of the pay period; and
(8) The employer’s name, address and FEIN.

Please note that you will need to provide the worker with a W-2 at the end of the year. Make sure you know where to mail that information. Please also make sure to get the necessary information from the worker prior to the end of the contract. This includes their Social Security Number.