H-2A temporary labor certification (agricultural)
1. What is an H-2A certification?
The H-2A labor certification program establishes a means for agricultural employers who anticipate a shortage of domestic workers to bring nonimmigrant foreign workers to the U.S. to perform agricultural labor or services of a temporary or seasonal nature.
2. How long is an H-2A valid?
The H-2A certification is valid for up to 364 days. As temporary or seasonal agricultural employment, the work is 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 is truly temporary.
3. What constitutes a temporary need for H-2A temporary labor certification?
The employer's need for a worker must be of a seasonal or other temporary basis. A seasonal basis is the kind exclusively performed at certain seasons or periods of the year and which, from its nature, may be continuous or carried on throughout the year. A temporary basis is for a limited time only or is contemplated for a particular work period, usually of a short duration.
4. What is the required time frame for filing an H-2A temporary labor certification application?
Employers are advised to file requests for H-2A certifications at least 45 days before certification is needed.
5. If my application is denied, can I still file with BCIS?
Yes. The DOL decision is only an advisory to BCIS in H-2A certification applications.
6. Must the employer attempt to hire US workers to fill the jobs first?
Yes, the employer must agree to engage in the recruitment of U.S. workers. Typically, this means an active effort, including newspaper and radio advisement.
7. What does the employer have to pay the workers?
The United States Department of Labor will determine the applicable 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 (AEWR), federal or state minimum wage, or the applicable prevailing hourly wage rate. Each H-2A employer must also guarantee that the worker will have work for at least 75% of the total hours in the contract period of need.
8. Are H-2A employers required to provide Worker's Compensation Insurance?
Yes, the employer must provide Worker's Compensation Insurance where it is required by State law. In States where it is not required, the employer must provide equivalent insurance for all workers.
9. Do the H-2A employers have to provide housing for the workers?
Yes, free housing is required for all workers who are brought in to work. Housing requirements include an inspection by the State as required by the federal housing standards.
10. Does the employer have to provide meals?
The employer must provide free and convenient cooking and kitchen facilities for workers. Or the employer can provide three meals a day to each worker, and if the employer provides meals, then the employer may charge a certain amount per day for the three meals.
11. If I join F.E.W.A. and participate in the H-2A program, am I guaranteed H-2A workers?
No. You may be unable to bring H-2A workers for the following reasons: 1) The Department of Labor may deny your application; 2) The United States Citizenship and Immigration Service (USCIS) may deny your petition; 3) The U.S. Consulate may deny the worker's visa application.
12. Am I too late to become a member of F.E.W.A.?
No, however, FEWA only accepts a limited number of members annually in order to provide the highest quality service to its members.