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WHAT THE PROGRAM DOES:
This program allows agricultural employers wishing to employ foreign workers on a temporary or seasonal basis to file a Labor Certification Application.
REGULATIONS:
20 CFR Part 655, Subpart B.
VALIDITY PERIOD:
"Temporary or seasonal nature" means agricultural employment performed at certain seasons of the year or for a limited time period of less than one year when the employer can show that the need for the foreign worker(s) is truly temporary.
QUALIFYING CRITERIA:
An agricultural employer that anticipates a shortage of U.S. workers to perform agricultural labor or services of a temporary or seasonal nature may file an application requesting temporary foreign agricultural labor certification.
TRANSITION PERIOD FROM FORMER REGULATIONS:
Employers with a date of need for H–2A workers for temporary or seasonal agricultural services prior to July 1, 2009 will file applications in the following manner:
Obtaining Required Wage Rate:
An employer will not obtain an offered wage rate through the NPC (National Processing Center) prior to filing an application, but will complete and submit Form ETA–9142, Application for Temporary Employment Certification no less than 45 days prior to their date of need. The employer will simultaneously submit Form ETA–790 Agricultural and Food Processing Clearance Order, along with the Application for Temporary Employment Certification, directly to the NPC having jurisdiction over H–2A applications.
Acceptance of Application:
Upon receipt, the NPC will provide the employer with the wage rate to be offered, at a minimum by the employer, and will process the application, issuing a notification of deficiencies for any curable deficiencies within 7 calendar days.
All other obligations and assurances under the newly enacted H-2A Regulations are listed below.
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Employers with a date of need for H–2A workers for temporary or seasonal agricultural services on or after July 1, 2009 must comply with all of the obligations and assurances required under the newly enacted H-2A Regulations.
(a) Time of filing of application:
The application must be filed with the NPC at least 45 calendar days before the first date the employer requires the services of the H– 2A workers. The application must contain attestations of the employer’s compliance or promise to comply with program requirements regarding recruitment of eligible U.S. workers, the payment of an appropriate wage, and terms and conditions of employment. An employer may not file an Application for Temporary Employment Certification before all of the pre-filing recruitment steps have been fully satisfied, except where specifically exempted from some or all of those requirements.
(b) General Attestation Obligation:
An employer must attest on the Application for Temporary Employment Certification that it will comply with all of the assurances, obligations and to performing all necessary steps of the recruitment.
(c) Retention of documentation:
An employer filing an Application for Temporary Employment Certification must maintain documentation of its advertising and recruitment efforts as required and be prepared to submit this documentation in response to a Notice of Deficiency from the CO (Certifying Officer) prior to the CO rendering a Final Determination, or in the event of an audit. The documentation must be retained for a period of no less than 3 years from the date of the certification.
(d) Positive recruitment steps. An employer filing an application must:
- Submit a job order to the SWA (State Workforce Agency) serving the area of intended employment.
- Run two print advertisements (one of which must be on a Sunday).
- Contact former U.S. employees who were employed within the last year.
- Based on an annual determination made by the Secretary, recruit in all states currently designated as a state of traditional or expected labor supply with respect to each area of intended employment in which the employer’s work is to be performed.
(e) Job order:
The employer must submit a job order to the SWA serving the area of intended employment, no more than 75 calendar days and no fewer than 60 calendar days before the date of need, identifying it as a job order to be placed in connection with a future application for H–2A workers. The job order submitted to the SWA must satisfy all the requirements for newspaper advertisements and comply with the requirements for agricultural clearance orders. Unless otherwise directed by the CO, the SWA must keep the job order open for interstate clearance until the end of the recruitment period, which is currently 30 days after the starting date of need.
Any issue with regard to whether a job order may properly be placed in the job service system that cannot be resolved with the applicable SWA may be brought to the attention of the NPC, which may direct that the job order be placed in the system where the NPC determines that the applicable program requirements have been met. If the NPC concludes that the job order is not acceptable, it shall so inform the employer using the procedures applicable to a denial of certification.
(f) Housing:
The SWA must ensure that a housing inspection within its jurisdiction is inspected as expeditiously as possible and arrangements made directly with the employer.
For links to additional information, answers to frequently asked questions and complete details on processing labor certification requests under the H-2B Regulations, visit USDOL H-2A Labor Certification.
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