Starting the H-2A process

Anyone considering obtaining a worker, or multiple workers, through the H-2A program may have heard that navigating the program is tedious, but the process for employers to hire workers through the program is straightforward. During the Virtual Agricultural Seminar, sponsored by the U.S. Department of Wage & Hour Division, speakers presented information on H-2A and related programs. Srdzan Lazarevski, certifying officer with the Office of Foreign Labor Certification, opened the program with an overview of the H-2A ag worker program. (The information provided is for training purposes and is not legal opinion.) Lazarevski explained the basic steps an employer takes to obtain H-2A workers, which begins with proving there’s a lack of qualified U.S. citizens to hire. “The Department of Labor (DOL) plays a statutory role in certifying to the Department of Homeland Security (DHS) and Department of State (DOS) that there are not sufficient qualified U.S. workers available for the job,” said Lazarevski, “and that employment of the foreign worker will not adversely affect the wages and working conditions of U.S. workers similarly employed.” The first step in obtaining H-2A workers is obtaining a labor certification from the DOL. This requires a labor market test with the State Workforce Agency (SWA) where the work will be performed. The next step is obtaining an approved petition from DHS for a specific worker or number of workers in the visa classification (H-2A). After obtaining DHS approval, the employer engages foreign labor recruiters and the workers apply for a visa with a DOS consulate. After receiving a visa, workers arrive at a port of entry where Customs & Border Protection verifies eligibility for admission and length of stay. Lazarevski explained the process for obtaining a labor certification: The employer submits a job order to the SWA 60 to 75 days before the work begins, which states where the work will be performed. The employer also submits an H-2A application and supporting documents to DOL for review no less than 45 days before the work starts. If approved, the employer must conduct additional recruitment for U.S. workers and the DOL posts the job on the website seasonablejobs.dol.gov/jobs . The employer must submit a report of recruitment efforts and any other required documentation such as workers compensation. No later than 30 days before work starts, the DOL will issue a final determination to certify or deny the application. The Adverse Effect Wage Rate (AEWR) is an important aspect of hiring H-2A workers. AEWR is the minimum wage the U.S. DOL requires employers to pay H-2A visa workers. “The AEWR is a unique prevailing wage rate required of employers who are employing temporary foreign workers under the H-2A visa,” said Lazarevski. “This goes back to the 1930s. In 1987, the DOL began setting AEWR each year in the H-2A visa program using the average hourly wage for field and livestock workers based on the USDA Farm Labor Survey.” In general, farmworker jobs include harvesting crops by hand or tractors; applying pesticides/fertilizers; directing seasonal workers and informing the farm supervisor of crop conditions; post-harvest tasks such as inspecting, grading, sorting and storing crops; repairing and maintaining farm vehicles and implements; loading crops for shipment and driving to market or storage; regulating greenhouse conditions and setting up irrigation; and repairing farm buildings, fences and other structures. Lazarevski cautioned employers that other work tasks may cover a different occupation and minimum wage, such as supervisors who directly supervise workers, farm mechanics who diagnose and overhaul equipment and operating heavy trucks (above 13-ton capacity) over open roads. Employers should become familiar with the O*NET online descriptions of Standard Occupational Classification (SOC) codes available online. Check to verify that job duties listed are all included with the O*NET job description and identify the SOC code. It’s also important to provide details for “driving duties” including type of vehicles involved, how and where vehicles will be used and outline any special qualifications/requirements needed to operate vehicles such as CDL. Be sure to understand the differences between “directing/monitoring” farmworkers and “supervising” farmworkers. Depending on key work tasks identified on Form ETA-790A, the SOC assignment may differ, or codes may be combined. The primary SWA selection made when completing the job order submittal will determine the SWA the job order is assigned to in FLAG. Work closely with the SWA and communicate throughout the H-2A application process. Lazarevski reminded applicants that all processes are digital. “Take your time if you’re planning to use the H-2A program,” said Lazarevski. “It’s a serious commitment and not something to experiment with. Use the FLAG system to file your H-2A job order and application as early as the regulations permit.” by Sally Colby