|- Employment Law Guide A Companion to the FirstStep Employment Law Advisor|
Work Authorization for Non-U.S. Citizens: Temporary Agricultural Workers (H-2A Visas)
Updated: September 2009
Sections 101(a)(15)(H)(ii)(a), 214, and 218 of the
Immigration and Nationality Act of 1952, (INA)(http://www.uscis.gov/portal/site/uscis/menuitem.f6da51a2342135be7e9d7a10e0dc91a0/?vgnextoid=fa7e539dc4bed010VgnVCM1000000ecd190aRCRD&vgnextchannel=fa7e539dc4bed010VgnVCM1000000ecd190aRCRD&CH=act) as amended (8 USC
§§1101, 1184, and 1188;
Who is Covered
The Immigration and Nationality Act (INA) is administered by the Office of Foreign Labor Certification (OFLC) of the Employment Training Administration (ETA). The INA covers agricultural employers seeking to hire temporary agricultural workers under H-2A visas.
The work to be performed must be “of a temporary (or seasonal) nature,” meaning employment that is performed at certain seasons of the year, usually in relation to the production and/or harvesting of a crop, or for a limited time period of less than one year when an employer can show that the need for the foreign workers(s) is truly temporary.
Important Notice. All program users and other interested parties should frequently consult the Office of Foreign Labor Certification Web site,(http://www.foreignlaborcert.doleta.gov/) where the Department of Labor will post updates concerning the H-2A temporary agricultural labor certification program.
The H-2A temporary agricultural 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. Before the U.S. Citizenship and Immigration Services (USCIS)(http://www.uscis.gov/) can approve an employer's petition for such workers, the employer must file an application with the Department stating that there are not sufficient workers who are able, willing, qualified, and available, and that the employment of aliens will not adversely affect the wages and working conditions of similarly employed U.S. workers. The statute and Departmental regulations provide for numerous worker protections and employer requirements with respect to wages and working conditions that do not apply to nonagricultural programs. The Department's Wage and Hour Division(http://www.dol.gov/whd/) has responsibility for enforcing provisions of worker contracts.
Any employer who has been certified for a specific number of H-2A jobs must have initially attempted to find U.S. workers to fill these slots. Even after H-2A workers are recruited employers must continue to engage in "positive recruitment" of U.S. workers.
An employer who files an application for temporary foreign labor certification pursuant to H-2A regulations must meet many specific conditions, including those concerning recruitment, wages, housing, meals, transportation, workers’ compensation insurance, tools and supplies, certification fees, labor disputes, and other conditions.
Workers who believe that their rights were violated under the H-2A regulations may file their complaints through the Job Service Complaint System, as described in 20 CFR part 658, Subpart E(http://www.dol.gov/cgi-bin/leave-dol.asp?exiturl=http://s.dol.gov/56&exitTitle=www.ecfr.gov&fedpage=yes).
H-2A workers and the U.S. workers hired under the job order may file complaints about non-compliance with H-2A labor standards with a local Wage and Hour Division office(http://www.dol.gov/whd/america2.htm). ETA or any State Workforce Agency will forward any complaint received about contractual H-2A labor standards between the employer and the employee to a local Wage and Hour Division office(http://www.dol.gov/whd/america2.htm) for appropriate action.
Recordkeeping, Reporting, Notices and Posters
Notices and Posters
The Department’s Employment and Training Administration and Wage and Hour Division published a final rule implementing changes to the H-2A program effective March 15, 2010. One of the requirements in the rule is for employers who employ H-2A workers to display a new H-2A poster (http://www.dol.gov/whd/posters/pdf/WHD1491Eng_H2A.pdf) where employees can readily see it. The poster is also available in Spanish (http://www.dol.gov/whd/posters/pdf/WHD1491Span_H2A.pdf). It will be made available in other languages in the coming months.
Employers certified under H-2A must keep records of the hours each worker actually works. In addition the employer must retain a record of time "offered" to the worker but which the worker "refused" to work. Each worker must be provided a wage statement showing hours of work, hours refused, pay for each type of crop, the basis of pay (i.e., whether the worker is being paid by the hour, per piece, "task" pay, etc.). The wage statement must indicate total earnings for the pay period and all deductions from wages (along with an explanation as to why deductions were made).
Employers must maintain records concerning any worker who was terminated and the reason for such termination. The employer, in order to negate a continuing liability for wages and benefits to workers, must notify the NPC of any abandonment or abscondment. The employer should also indicate if replacement(s) will be sought for such worker(s).
The worker must be provided with a complete statement of hours worked, offered, and refused, pay for each type of crop, the basis of pay (i.e., whether the worker is being paid by the hour, by the piece, "task" pay, etc.) on each payday. The wage statement must indicate total earnings for the pay period and all deductions from wages (along with a statement as to why deductions were made). The employer must provide a copy of a work contract or the job order to each worker on or before the first day of employment.
The Wage and Hour Division has a primary role in investigating and enforcing the terms and conditions of employment. WHD is responsible for enforcing the contractual obligations employers have toward employees, and may assess civil money penalties and recover unpaid wages. Administrative proceedings and/or injunctive actions through federal courts may be instituted to compel compliance with an employer's contractual obligations to employees.
ETA enforces other aspects of the laws and regulations. ETA is be responsible for administering sanctions relating to substantial violations of the regulations and less than substantial violations of the regulations.
Relation to State, Local, and Other Federal Laws
Foreign workers employed under the H-2A program are not covered under the Migrant and Seasonal Agricultural Worker Protection Act (MSPA) however, various other laws, such as workers’ compensation, tax (unemployment insurance, local, state, and federal), the Fair Labor Standards Act, and the Family and Medical Leave Act may apply to the employment of these workers.
Compliance Assistance Available
Copies of the application forms, regulations, and relevant directives may be obtained from the Employment and Training Administration’s national office. Copies of Wage and Hour Division publications may be obtained from the Wage and Hour Division Web site(http://www.wagehour.dol.gov/) or by contacting the local Wage and Hour Division office(http://www.dol.gov/whd/america2.htm).
The Department of Labor provides employers, workers, and others with clear and easy-to-access information and assistance on how to comply with the Immigration and Nationality Act. Among the many resources available is:
Additional compliance assistance, including explanatory brochures, fact sheets, and regulatory and interpretive materials, is available on the Compliance Assistance “By Law”(http://www.dol.gov/compliance/laws/comp-ina.htm) Web page.
Employment and Training Administration,
Office of Foreign Labor