Under the Immigration Nationality Act, the federal government oversees work visa programs to assist employers with temporary and permanent workforce needs. The H-2A visa program allows foreign agricultural workers to enter the U.S. temporarily when there is a shortage of U.S. workers for temporary or seasonal agricultural labor or services.
The Office of Foreign Labor Certification (OFLC) now offers an online application process for the H-2A program. Before hiring H-2A workers, employers must contact former U.S. workers employed in the same occupation during the past year to solicit their return and maintain a report listing all U.S. workers who applied, whether they were hired, and the lawful, job-related reasons for not hiring any applicants. Employers must hire all able, willing, and qualified U.S. workers who apply during the recruitment period and ensure that any restrictions imposed on U.S. job applicants are also applied to H-2A workers.
Employers need to obtain a labor certification from the Department of Labor (DOL) and secure an approved petition from the Department of Homeland Security (DHS) for specific numbers of workers. After DHS petition approval, employers usually engage foreign labor recruiters, and workers apply for visas at a Department of State (DOS) consulate.
To get a labor certification, employers must submit a job order to their state workforce agency (SWA), submit an H-2A application with supporting documentation, conduct additional recruitment for U.S. workers as DOS posts the job, report recruitment efforts to DOL for final review, and receive either final certification or denial from DOL.
The Adverse Effect Wage Rate (AEWR) is what employers must pay H-2A workers based on prevailing wage rates determined by Standard Occupational Classification (SOC) codes updated last in 2018.
Agricultural employers are required to provide either three meals daily or access to free cooking facilities for their employees; this should be disclosed along with any meal charges involved.
Employers must provide detailed information about daily transportation plans including mode of transportation and vehicle details such as type and seating capacity.
Housing provided by employers should be adequate for accommodating all hired workers; options include employer-provided housing or rental/public accommodation arrangements.
Employers are advised to have all necessary documentation ready before applying through FLAG system early within regulatory timelines while maintaining communication with SWAs throughout this process using contact information available on DOL website if needed further assistance regarding processing can reach OFLC help desk via email at tlc.chicago@dol.gov
