H-2A Online Filing via FLAG System
The H-2A temporary agricultural program allows 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. Employment is of a seasonal nature where it is tied to a certain time of year by an event or pattern, such as a short annual growing cycle, and requires labor levels above what is necessary for ongoing operations. Employment is of a temporary nature when the employer's need to fill the position with a temporary worker will, except in extraordinary circumstances, last no longer than one year.
The Department must determine that:
- There are not sufficient able, willing, and qualified U.S. workers available to perform the temporary and seasonal agricultural employment for which nonimmigrant foreign workers are being requested; and
- Employment of H-2A workers will not adversely affect the wages and working conditions of similarly employed U.S. workers. The statute and Departmental regulations provide worker protections and employer requirements concerning wages and working conditions. The Department's Wage and Hour Division has responsibility for enforcing provisions of worker contracts.
How and When to Apply
Before filing a petition with the U.S. Citizenship and Immigration Services employers must complete the following four steps in the H-2A Temporary Labor Certification process through the FLAG online filing system.
Step 1: Filing a Job Order with the State Workforce Agency (SWA)
This involves preparing and submitting an agricultural job order (Form ETA-790/790A) to the SWA that serves the state where the work will be performed. The SWA will review the job order, work with you on any needed corrections, and initiate recruitment of U.S. workers.
When: 75 to 60 calendar days before the start date of work
Step 2: Filing an H-2A Application with the Chicago National Processing Center (NPC)
Submit an H-2A application to the Chicago NPC. The Chicago NPC will review your application, notify you of any deficiencies, and provide you with additional instructions for completing the temporary labor certification process.
When: No less than 45 calendar days before the start date of work
Step 3: Conducting Recruitment for U.S. Workers
The recruitment of U.S. workers will be conducted by the employer and includes where and when to advertise, what content the advertisements must contain, and how to prepare your recruitment report.
When: Recruitment beginning on the date you receive the Notice of Acceptance from the Chicago NPC until you complete the recruitment steps
Step 4: Completing the Temporary Labor Certification Process
The final step in this process identifies the additional documents you must submit to the Chicago NPC in order to receive a final determination; and, should labor certification be granted, moving on to the USCIS.
When: No less than 30 calendar days before the start date of work.
What to Submit to the Chicago NPC
- Agricultural and Food Processing Clearance Order (ETA Form 790/790A) and Addendums;
- Application for Temporary Employment Certification and Appendix A; (ETA Form 9142A); and
- Additional documentation for H-2A Labor Contractors.
Where to Apply
The ETA Form 790/790A must be submitted to the SWA serving the area of intended employment in the FLAG system.
The H-2A Application package which includes the ETA Form 9142A , the ETA Form 790/790A, all applicable attachments and any other additional information must be filed with the Chicago NPC in the FLAG system.
Duplicate applications, where the employer or authorized representative files electronically and submits that same application via U.S. mail, will be rejected.
Employers may submit their H-2A application electronically via the Department's FLAG System . It is important to read the FLAG user guides and video tutorials before completing and submitting an H-2A application. The online help provides step-by-step instructions for completing and submitting the H-2A application electronically.
Employers that lack adequate access to electronic filing may file the application by mail. The employer must indicate that it is filing by mail due to a lack of adequate access to electronic filing. The employer may mail the application package to the Chicago NPC at the following address:
U.S. Department of Labor
Office of Foreign Labor Certification
Chicago National Processing Center
11 W Quincy Ct
Chicago, IL 60604-2105
Attention: H-2A Program Unit
What Happens Next
The Chicago NPC will promptly review the application. Within seven calendar days of receipt of the application, the Chicago NPC will notify the employer in writing of the decision to accept the employer's application. The notification will also provide next steps for the employer to take. Copies of the notification will be sent to the employer and, if applicable, the employer's attorney or agent by means normally assuring next day delivery. If the application is accepted or amended within the required time frame and complies with the regulations, the Chicago NPC will make a final determination 30 calendar days prior to the employer's date of need.
- H-2A Final Rule Factsheet
- H-2A Employer Filing Tips
- H-2A Program Improvements
- CNPC Updates November, 2019
- ETA-OFLC H-2A Rule Briefing Presentation 2010 (ppt)
- H-2A Final Rule Public Rollout WHD 2010
- IRS Guidance on Withholding Tax Requirements for H-2A Workers
- H-2A Employer Handbook