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H-2A Labor Certification Process
for Employers applying for Nonimmigrant Aliens
to perform Temporary Or Seasonal Work in Agriculture

Important changes for the H-2A program per the United States Department of Labor (USDOL) Final Rule dated December 18, 2008. For the latest information, please check the U.S. DOL's Foreign Labor Certification web site.

On December 18, 2008, the Office of the Federal Register published the Department's Final Rule on H-2A Temporary Agricultural Employment (PDF). The Final Rule is effective January 17, 2009, although certain aspects of the Rule will be subject to transition provisions. The application form published with the rule is not official. View the final ETA Form 9142 (PDF), Appendix A.1 (PDF), Appendix A.2 (PDF) and accompanying instructions (PDF), which include the expiration date. The Department will shortly post an ETA Form 9142 that is fillable on line. We strongly encourage program users to complete the fillable form. Employers with questions are encouraged to submit those questions to OFLC at H-2A.Regulation@dol.gov.

PROGRAM DESCRIPTION: This program allows agriculture employers wishing to employ foreign agricultural workers on a temporary or seasonal basis to file a Labor Certification Application directly with the U.S. Department of Labor, Employment and Training Administration's National Processing Center located in Chicago, Illinois.

REGULATIONS: Immigration and Nationality Act as amended by the Immigration Reform and Control Act of 1986. Department of Labor regulations at 20 CFR, Part 655, Subpart B.

WHO MAY APPLY: An agriculture employer who anticipates a shortage of U.S. workers to perform agriculture labor or services of a temporary or seasonal nature may file an application requesting temporary alien agricultural labor certification.

VALIDITY PERIOD: Temporary means agricultural employment performed (usually on a one time occurrence) for a limited time period of not more than ten (10) months when the employer can show that the need for the alien worker(s) is truly temporary. Seasonal means agriculture employment performed at certain seasons of the year.

CONDITIONS TO BE SATISFIED: The following specific conditions must be met by an employer who files an application for temporary alien labor certification pursuant to H-2A regulations:

• Recruitment: The employer must agree to engage in independent positive recruitment of U.S. workers. This means an active effort, including newspaper and radio advertising in the areas of expected labor supply and placing a job order with the nearest local office of the Texas Workforce Commission.
• Wage Rate: 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, Federal or State minimum wage or the applicable prevailing hourly wage rate, whichever is higher. If the worker is paid on a piece rate basis and the piece rate does not result in an hourly piece rate earning during the 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.
• 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 standards established by Occupational Safety and Health Administration (OSHA).
• 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 employer is responsible for the following type of transportation of workers: (1) After the worker has completed fifty percent of the work contract period, the employer must reimburse the worker 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 reasonable costs of the worker's subsistence and return transportation cost to foreign workers or provide transportation. The employer must advance such costs or provide transportation to U.S. workers as well.
• Worker's Compensation Insurance: The employer must provide either Worker's Compensation Insurance, or insurance coverage equivalent to Worker's Compensation Insurance, for all workers. Proof of insurance must be provided before certification is granted.
• Tools and Supplies: The employer must provide, 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 that the worker would have earned had the worker been employed the guaranteed number of days.
• Fifty Percent Rule: The employer must agree to hire any qualified and eligible U.S. worker who applies for a job until fifty percent of the period, or the work contract, has elapsed.
• 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.

WHERE TO APPLY:

U.S. Department of Labor
Employment and Training Administration
Chicago National Processing Center
844 North Rush Street, 12th Floor
Chicago, Illinois 60611
Telephone Number: (312)-886-8000
Fax: (312) 886-1688

Please e-mail questions or comments to alienlabor@twc.state.tx.us

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