By: Joseph Barnett
A U.S. employer who files an application for temporary foreign labor certification pursuant under the H-2A visa program must meet many specific conditions, including those concerning recruitment, wages, housing, meals, transportation, workers’ compensation insurance, tools and supplies, certification and recruitment fees, labor disputes, and other conditions. These obligations are on-going, and the cost of non-compliance is quite high, ranging from $1,735 to $17,344 per violation per worker.
Violations include failure to pay the minimum wage as indicated in the ETA-9142A; missing paychecks; failure to provide safe housing; improperly rejecting a U.S. worker or displacing a U.S. worker, and failure to meet safe transportation requirements. The Immigration and Nationality Act of 1990, as amended, authorizes the Department of Labor (“DOL”) to take such actions, including imposing appropriate penalties and seeking appropriate injunctive relief and specific performance of contractual obligations, as may be necessary to assure employer compliance with terms and conditions of employment.
Here are five things U.S. employers should know:
- Post Labor Certification Recruitment Obligations. S. employers must continue to cooperate with the State Workforce Agency (“SWA”) in recruiting for the job opportunity and provide employment to any qualified U.S. worker who applies for the job opportunity until fifty percent (50%) of the certified period of work has elapsed. A U.S. employer must continue to update the initial recruitment report submitted to DOL for certification throughout the entire recruitment period and be prepared to submit it when requested by DOL in the event of an audit examination. U.S. employers must maintain all documents supporting the labor certification for a period of three (3) years.
- Increased Wages. If the prevailing hourly wage or piece rate is adjusted during the job order period listed in the ETA 790/790A, and is higher than the appropriate wage in effect at the time the work is performed, the employer must pay at least that higher prevailing wage or piece rate, upon notice to the employer by DOL.
- Audits. DOL has the discretion to audit any certified ETA-9142A by sending the U.S. employer a letter with a date within thirty (30) days to provide requested documentation. The government will ask for documentation retained by the employer regarding the certified application – such as proof of conducting positive recruitment; an updated recruitment report; or an explanation of how full-time work had been accomplished without the use of H-2A workers. An extension to respond can be granted for up to 14 days per audit examination.
- Termination of Employment. S. employers are obliged to report the termination or separation of workers to DOL in a timely manner – no later than two (2) business days of the termination or discovering of abandonment. Additionally, employers must inform H-2A workers that they must leave the U.S. at the end of the period certified by the Department or separation from the employer, whichever is earlier, unless the H-2A worker is being sponsored by another subsequent employer.
- H-2A Program Debarments. An employer may be “debarred” from future labor condition application certifications in the event DOL finds the employer “substantially violated a material term or condition of its temporary labor certification, with the respect to H-2A workers, or U.S. workers improperly rejected for employment or improperly laid off or displaced.” Common violations which result in a debarment include failure to respond to an audit, willful misrepresentations in ETA 9142A, or failure to recruit U.S. workers. A Notice of Debarment must be issued no later than 2 years after occurrence of the violation. DOL will look at a variety of factors to determine whether a violation is substantial, including previous history of violations and the employer’s commitment to future compliance. Prior to debarment, an employer may request a hearing in front of an administrative law judge and even appeal an ALJ’s decision to DOL’s Administrative Review Board.
The H-2A Temporary Agricultural Visa is complex and involves a multi-step process through a variety of state and federal agencies with strict deadlines, and U.S. employers are obliged to comply with federal regulations and contractual obligations through the employment. We will likely see an even greater number of H-2A visas in the coming years because there is no annual quota on the number of H-2A visas that can be issued; yet, the cost of non-compliance is quite high, and can disrupt business activities. U.S. employers should contact the experienced attorneys at Wolfsdorf Rosenthal LLP to schedule a consultation to assist in sponsoring H-2A temporary workers.