Guestworkers in Agriculture: The H-2A Temporary Agricultural Worker Program

Farm Business Management Update, June 1999

By Al French, Coordinator, Agricultural Labor Affairs, Office of the Chief Economist, U.S. Department of Agriculture; and modified for Virginia by Jeffrey Alwang of the Department of Agricultural and Applied Economics, Virginia Tech

The H-2A Temporary Agricultural Worker program permits agricultural employers who can demonstrate a labor shortage to import foreign workers on a temporary basis under terms and conditions that will result in no adverse effect to U.S. workers similarly situated. The program is authorized by the Immigration and Nationality Act (INA) as amended by the Immigration Reform and Control Act (IRCA) of 1986. The following information summarizes the process of applying for H-2A certification and the employers' obligations under the program.

The U.S. Department of Labor regulations at 20 CFR Part 655, Subpart B, (2) govern the application process.

Who May Apply

Who May Apply Any agricultural employer who needs workers to perform temporary or seasonal labor or services may apply. The employer may be an individual proprietorship, an association of agricultural producers, a partnership, or a corporation. An authorized agent also may apply on behalf of an employer.

What to Submit

Application for Alien Employment Certification (Form ETA 750, Part A. Offer of Employment); Agricultural and Food Processing Clearance Order (Form ETA 790); attachments as appropriate to supplement information requested on the above forms; and statement of authorization of agent or association, if applicable.

When to Apply

Employers should contact a Farm Placement Specialist at one of nine Virginia Employment Commission Regional Offices (see http:/www.vec.state.va.us//seeker/intro.htm#migrant). Specialists will assist employers with preparation of an application. At least 60 calendar days before the first date on which workers are needed, applications must be filed with the appropriate Regional Administrator (RA) of the U.S. Department of Labor (DOL) Employment and Training Administration (ETA) and with the local office of the Virginia Employment Commission (VEC). To avoid delays in hiring workers, first-time applicants should submit their applications well ahead of the 60-day deadline in the event that Department of Labor (DOL) requires clarification or other modifications. If the application is acceptable, the RA will make a certification determination 20 calendar days before the date on which the workers are needed.

How and Where to Apply

Applications may be filed in person, mailed certified return receipt requested, or delivered by guaranteed commercial delivery to the appropriate RA (for Virginia, this is Regional Administrator, U.S. Department of Labor, ETA, Room 13450, 3535 Market Street, Philadelphia, PA 19104, (215) 596-6336) and to the local office of the VEC. If a labor certification is granted, the employer is then responsible for filing a visa petition with the Immigration and Naturalization Service for the admittance of aliens into the United States.

The Employer's Obligations

Recruitment. The employer is required to engage in independent positive recruitment of United States workers. Positive recruitment means an active effort, including newspaper and radio advertising as directed by DOL in areas of expected labor supply. Such recruitment must be at least equivalent to that conducted by non-H-2A agricultural employers to secure United States workers.

Wages. The wage or rate of pay must be the same for United States residents and H-2A workers. It must also be at least as high as the applicable Adverse Effect Wage Rate (AEWR), the applicable prevailing wage rate, or the federal or state minimum wage, whichever is higher. The AEWR for Virginia is $6.54 per hour in 1999 ( see http://www.usda.gov/agency/oce/oce/labor-affairs/aewr99.htm). Prevailing wage rates are established by the state employment service for specific crop and labor market areas.

Federal Unemployment Tax Act and F.I.C.A. These taxes are not required to be paid for alien H-2A workers, because they are not eligible for benefits under these programs.

Housing. The employer is obligated to provide free, inspected, and approved housing to all workers who are not able to return to their residences the same day. Prospective H-2A employers should contact the Virginia Employment Commission, who conduct a pre-occupancy inspection, and the local County Health Department, who issue a Camp Occupancy Certificate, at least 30 days before the date of their need for workers.

Meals. The employer must either provide three meals a day to each worker or furnish free and convenient cooking and kitchen facilities for workers to prepare their own food. An employer who provides meals may charge each worker a certain amount ($7.84 in 1999) per day for the three meals.

Transportation. The employer is responsible for the following types of transportation: (1) After a worker has completed 50 percent of the work contract period, the employer must reimburse the worker for the cost of transportation and subsistence from the place of recruitment to the place of work; (2) the employer must provide free transportation between any required housing site and the worksite for any worker who is eligible for such housing; (3) when the work contract is completed, the employer must pay for return transportation to the place of recruitment or to the next job.

If it is the prevailing practice for employers in the same crop and labor market area to advance transportation funds to prospective workers, H-2A employers must also arrange or arrange such transportation.

Workers' compensation insurance. Workers' compensation or equivalent insurance is required for all workers. The employer must provide proof of coverage to the RA before certification is granted.

Tools and supplies. The employer is to furnish, at no cost to the worker, all tools and supplies necessary to carry out the work, unless it is common practice for the worker to provide some items.

Three-fourths guarantee. The employer must guarantee that each worker will be offered employment for at least three-fourths of the workdays in the work contract period and any extensions.

Fifty percent rule. Any qualified U.S. worker who applies for a job must be employed until 50 percent of the contract period has elapsed.

Labor dispute. Assurance is required that the job opportunity for which the employer is requesting H-2A certification does not exist due to a strike or lockout.

Certification fee. An employer who is granted temporary alien agricultural labor certification is charged a $100 fee, plus $10 for each job opportunity certified, up to a maximum fee of $1,000 for each certification granted. An additional petition fee is payable to the Immigration and Naturalization Service.

Other conditions. The employer is required to keep accurate records of a worker's earnings and to provide the worker with a complete statement of hours worked and related earnings on each payday. Wages are to be paid at least twice monthly or more frequently if it is the prevailing practice. The employer must give each worker a copy of the work contract.

Application Review

Under normal circumstances, the RA will notify the employer in writing within seven calendar days after receiving an application if it is acceptable or needs modifications.

Recruitment of U.S. Workers

When it receives an employer's application for temporary alien agricultural labor certification, the local state employment service office must promptly prepare a local job order and begin recruiting U.S. workers in the area of intended employment.

Within seven calendar days after receiving the application, the local office must prepare an agricultural clearance order to permit the recruitment of U.S. workers by the state employment service system on an intrastate and interstate basis. After accepting an application for consideration, the RA will give both the employer and the state employment service direction on specific recruitment efforts to be conducted. The employer may be required to advertise and recruit in states regarded as labor supply states.

Notices of Acceptance

The notice

• will inform the employer and the state employment service of specific efforts expected regarding recruitment of U.S. workers,
• will require that the job order be placed into appropriate intrastate and interstate clearances, and
• may require the employer to conduct independent recruitment efforts within a multi-state region (including the Commonwealth of Puerto Rico) of traditional or expected labor supply.

Notices of Non-acceptance

Notice that an employer's application is not accepted for consideration will

• state why it is not acceptable,
• describe changes necessary for the application to be considered,
• allow the employer five calendar days to resubmit the application, and
• outline procedures that may be used to appeal the RA's nonacceptance.

Basis for Denying Certification

Certification may be denied if

• insufficient time exists to test the availability of U.S. workers,
• U.S. workers are available to fill all the employer's job opportunities,
• the employer has not complied with the workers' compensation requirements,
• the employer has not complied with recruitment requirements,
• after the application was accepted for consideration, the employer has adversely affected the wages, working conditions, or benefits of U.S. workers, or
• the RA determines that the employer has substantially violated a material term or condition of a previous certification within the last two years.

Appeals of Certification Denials

If the employer is found to have complied with the H-2A requirements, the RA will grant the temporary alien agricultural labor certification for the number of job opportunities for which it has been determined not enough U.S. workers are available. After certification, the employer must continue to recruit U.S. workers until the H-2A workers have departed for the place of work. In addition, the state employment service will continue to refer U.S. workers who apply during the first 50 percent of the contract period to the employer, and the employer must hire those U.S. workers who are qualified to perform the jobs.

Violations, Penalties, and Sanctions

A major consideration of IRCA is the enforcement of all provisions related to protections for workers. The Employment Standards Administration (ESA) of DOL has a primary role in investigating the terms and conditions of employment. ESA is responsible for enforcing contractual obligations of employers, and it may assess civil monetary penalties and recover unpaid wages. ETA enforces other aspects of the laws and regulations and is responsible for administering sanctions for violations of the regulations.

Appeals of Employer Penalties

The RA will inform the employer about the system of appeals provided for in the regulations.

Additional Information

Information for other ETA regional offices is available on the ETA website (http://www.doleta.gov/) or by phoning (800) 488-0901.

Contact the author at alwangj@vt.edu .

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