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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)
February 12, 2010: Final Rule with effective date of March 15, 2010. The H-2A Program will change point of contact to the state workforce agencies for prefiling of the ETA 790 and local intrastate recruitment. For the latest information, please check the USDOL's Foreign Labor Certification Website.
February 18, 2010: USDOL published the Federal Register announcing the 2010 Adverse Effect Wage Rates (AEWR) that will be reinstated effective March 15, 2010 under the new February 12, 2010 H-2A regulations. For the latest information, please check the USDOL's Foreign Labor Certification Website.
February 12, 2010: Temporary Agricultural Employment of H-2A Aliens in the United States. The Department has published in the Federal Register a Final Rule amending the regulations governing the labor certification process for the temporary agricultural employment of H-2A aliens in the United States, codified at 20 CFR part 655, and enforcement of employer obligations under the H-2A program, codified at 29 CFR Part 501. The new regulations will go into effect on March 15, 2010. Beginning on that date, all program users will be required to file their applications under the new regulations and to comply with all applicable program requirements. To read the full text of the Final Rule, please click each of the following links.
Read a Fact Sheet on the Final Rule (PDF)
February 18, 2010: The Department has published in the Federal Register a Notice announcing the 2010 Adverse Effect Wage Rates, the allowable charges for meals, as well as maximum travel subsistence reimbursement amounts applicable to the H-2A temporary agricultural labor certification program. Read the full text of the Notice. (PDF)
February 16, 2010: Notice Announcing H-2A Stakeholder Briefings in San Diego, Dallas and Raleigh: The Department has submitted to the Federal Register a Notice announcing that it will hold public stakeholder briefing sessions in late February and early March in San Diego, Dallas and Raleigh. The briefings will address changes to the H-2A temporary worker program in the Final Rule published on February 12, 2010. Read the full text of the Notice (PDF).
Time and Dates:
Tuesday, February 23, 2010, San Diego, California.
Time: 8:30 AM - 3:00 PM
Thursday, February 25, 2010, Dallas, Texas.
Time: 8:30 AM - 3:00 PM
Tuesday, March 2, 2010, Raleigh, North Carolina.
Time: 8:30 AM - 3:00 PM
Addresses: The meeting locations are:
1. San Diego - San Diego Marriott Hotel and Marina, 333 West Harbor Drive, San Diego CA 92101, Tel: 1-619-234-1500, fax: 1-619-234-8678.
2. Dallas - Fairmont Hotel
3. Raleigh - Hilton North Raleigh, 3415 Wake Forest Road, Raleigh, NC 27609, Tel: 1-919-872-2323 Fax: 1-919-876-0890.
To Register: To register for a briefing session please complete the registration process on-line, by visiting www.acclaroresearch.com/oflcbriefings/. Due to space considerations, attendance will be limited to those who register online. In the event of cancellation or change, participants will be notified.
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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