By: Joseph Barnett
With the U.S. government cracking down on undocumented immigration, the U.S. agricultural industry has turned towards the recruitment of seasonal foreign workers under the H-2A Temporary Agricultural Program. The H-2A nonimmigrant visa classification is for a worker “having a residence in a foreign country which he [or she] has no intention of abandoning who is coming temporarily to the United States to perform agricultural labor or services . . . of a temporary or seasonal nature.” See INA 101(a)(15)(H)(ii)(a).
We previously blogged how President Trump supports “a big, fat beautiful door right in the middle of the wall” for legal immigration to the U.S., and the H-2A visa helps U.S. employers fill temporary or seasonal agricultural jobs that most U.S. workers are unlikely to perform. According to data from the U.S. Department of State, there has been a 120% increase in the number of H-2A visas issue from FY 2014-18, and there appears to be no signs of a slowdown. Furthermore, in September 2019, the U.S. Department of Labor (“DOL”) published a final rule to modernize and improve the recruitment of H-2A temporary agricultural workers that became effective last month. Thus, due to demographic, economic, and political factors, and the fact that there is no annual quota on the number of H-2A visas that can be issued, we are likely to see an even greater number of H-2A visas in the coming years. Here are five things U.S. employers should know about sponsoring workers under the H-2A visa category:
- Job Order on Form ETA 790/790A with State Workforce Agency (SWA). A U.S. employer or an association of agricultural producers who has full-time work that needs to be performed on a temporary or seasonal basis may apply to the DOL’s Office of Foreign Labor Certification (“OFLC”) for an H-2A temporary labor certification through its new Foreign Labor Application Gateway (“FLAG”) website. However, there are a number of preliminary steps that must occur, including the preparation and submission of a Job Order on Form ETA 790/790A to the SWA that serves the state where the actual work will be performed. The Job Order includes information about the work duties to be performed; the wages, housing, meals, and transportation to be provided to the foreign worker; and other hiring/employment information, such as proof of workers’ compensation insurance coverage. The filing of the Job Order initiates the labor market test. Absent limited exceptions, a U.S. employer must submit the Job Order sixty (60) to seventy-five (75) calendar days before the start date of work. The SWA is obligated to a relatively quick turnaround (seven (7) calendar days) to approve the Job Order or issue a Notice of Deficiency. The SWA will also conduct a housing inspection for the site where workers who are not reasonably able to return to their residence will live.
- H-2A Application for Temporary Employment Certification on Form ETA-9142A. Upon approval of the Job Order by the SWA, a U.S. employer must submit an H-2A application to OFLC’s Chicago National Processing Center (“NPC”) – since October 1, 2019, this must be done through the FLAG website – no less than forty-five (45) calendar days before the start date of work. Included in the Form ETA-9142A is an employer’s statement clearly describing its temporary need for the services or labor to be performed, including (a) the nature of the employer’s business or operations, (b) why the job opportunity and number of workers being requested for certification reflect a temporary need, and (c) how the employer’s request for the services or labor to be performed is of a seasonal need, peakload need, one-time occurrence, or an intermittent basis. Notably, an employer can submit one Form ETA-9142A for multiple employees, as long as they will perform the same services and work in the same location. The U.S. employer is also required to certify knowledge and compliance with conditions of employment of H-2A employees, violations of which can result in hefty fines (see #5 below).
- DOL Advertisements on SeasonalJobs.dol.gov. After receiving a Notice of Acceptance from Chicago NPC, the job position must be advertised in the area of intended employment to ensure there are not U.S. workers who are able, willing, qualified, and available to perform the labor or services. Until recently, an employer had to advertise its job opportunity in a newspaper serving the area of intended employment, and the use of online or electronic editions of classified advertisements did not satisfy this requirement. However, DOL’s published final rule now clarifies that DOL will use information that an employer provides on the Job Order and ETA-9142A to generate an advertisement that DOL posts on the employer’s behalf on https://seasonaljobs.dol.gov/, and interested U.S. workers can apply to the employer directly using the contact information listed on the website. The requirement for employers to place print newspaper advertisements and the regulation prescribing the content of such advertisements have been rescinded.
- Positive Recruitment and Hiring of U.S. Workers. When DOL determines there are a significant number of qualified workers who, if recruited, would be willing to make themselves available for work at the time and place needed, it may also require an employer to engage in “positive recruitment” in a multi-state region of traditional or expected labor supply. The U.S. employer is responsible to prepare a “Recruitment Report” in accordance with the NPC’s Notice of Acceptance, which is sent to the U.S. Department of Labor, along with proof of the SWA’s housing inspection and the employer’s workers’ compensation insurance, to obtain the labor certification no less than thirty (30) calendar days before the start date of work. The SWA will also perform its own recruitment and will refer each qualified U.S. worker who applies to the employer. An employer must hire any qualified U.S. worker who applies for the job until fifty percent (50%) of the contract has elapsed, though the employer may reject applicants for lawful, job-related reasons.
- Final Step is Applying with U.S. Citizenship and Immigration Services (“USCIS”). After Chicago NPC certifies the temporary labor application and the employer received a certified ETA Form 9142, the final step is submitting a Form I-129, Petition for a Nonimmigrant Worker, with an H Classification Supplement, to USCIS. Included with the Form I-129 are the prospective employees civil and prior U.S. immigration documents, the certified Form ETA-9142A, and evidence of the U.S. employer’s ability to pay the employees’ wages. Upon approval of the Form I-129, the prospective employee can apply for an H-2A visa at a U.S. embassy or consulate abroad.
The H-2A Temporary Agricultural Visa is a practical and relatively untapped nonimmigrant visa category with no annual cap on the number of visas issued (unlike the H-1B or H-2B nonimmigrant visa categories), but it is quite complex and involves a multi-step process through a variety of state and federal agencies with strict deadlines. U.S. employers should contact the experienced attorneys at Wolfsdorf Rosenthal LLP to schedule a consultation to assist in sponsoring H-2A temporary workers.