H-2A Online Filing via the Foreign Labor Application Gateway FLAG System
NEW: On October 12, 2022, the U.S. Department of Labor (Department) published a final rule, Temporary Agricultural Employment of H-2A Nonimmigrants in the United States ("2022 H-2A Final Rule" or "final rule"), that revised its regulations governing the certification of employment of nonimmigrant workers in temporary agricultural employment and the enforcement of obligations applicable to employers of H-2A workers and workers in the United States similarly employed. The provisions adopted in this final rule strengthen protections for agricultural workers, enhance enforcement to prevent fraud and abuse, and simplify and modernize the H-2A application and Temporary Labor Certification process and the prevailing wage determination process.
The 2022 H-2A final rule became effective on November 14, 2022, and applies to all applications (Forms ETA-9142A) submitted on or after November 14, 2022, with a first date of need on or after February 13, 2023.
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 of a seasonal nature 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 United States (U.S.) workers available to perform the agricultural labor or services of a temporary or seasonal nature for which an employer desires to hire temporary foreign workers (H-2A workers); and
The employment of the H-2A worker(s) will not adversely affect the wages and working conditions of workers in the U.S. similarly employed.
The statute and Departmental regulations provide worker protections and employer requirements concerning wages and working conditions. The Employment and Training Administration's Office of Foreign Labor Certification (OFLC) has responsibility for administering the Department's H-2A program, including reviewing applications and issuing temporary labor certifications. The Department's Wage and Hour Division has responsibility for investigating and enforcing obligations applicable to the employment of H-2A workers and workers in corresponding employment, including obligations to offer employment to eligible U.S. workers. Please refer to 29 CFR Part 501 for additional information.
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 for an H-2A Job Opportunity
Employers and their authorized attorneys or agents must submit H-2A job orders (i.e., H-2A Agricultural Clearance Order Form ETA-790/790A) and all required addenda using the electronic method(s) designated by the OFLC Administrator, unless a specific exemption applies.
The Department's FLAG System, available at https://flag.dol.gov, is the designated electronic filing method.
Upon receipt of the job order, the National Processing Center (NPC) will transmit an electronic copy of the job order to the State Workforce Agency (SWA) serving the area of intended employment for intrastate clearance. The SWA will review the job order, communicate with the employer on any needed corrections, and initiate recruitment of U.S. workers.
In joint-employer situations, only one job order should be submitted for the job opportunity, with each employer identified in the job order, as explained in the Form ETA-790A, General Instructions.
The job order should be filed 75 to 60 calendar days before the employer's first date of need.
Step 2: Filing an H-2A Application for Temporary Employment Certification (Form ETA-9142A) and All Required Appendices and Documentation with the NPC.
Submit an H-2A Application for Temporary Employment Certification (Form ETA-9142A) and all required documentation with the NPC electronically using the FLAG system, unless a specific exemption applies.
The NPC will review the application and job order for compliance with all applicable program requirements, notify the employer if there are any deficiencies within 7 calendar days of receipt, and provide the employer with additional instructions for completing the temporary labor certification process.
The OFLC Certifying Officer (CO) will send notices and requests to employers, circulate approved job orders to appropriate SWAs for interstate clearance and recruitment of U.S. workers using electronic method(s).
In joint-employer situations, the H-2A Application for Temporary Employment Certification must be signed and dated by each joint employer named in in the application. Please refer to 20 CFR 655.131(b) Joint employer filing requirements for additional information.
The application should be filed no less than 45 calendar days before the employer's first date of need.
Step 3: Conducting Recruitment for U.S. Workers
The employer must engage in positive recruitment of U.S. workers. When the CO determines that the H-2A Application for Temporary Employment Certification and the job order meet requirements such that recruitment may begin, the CO will notify the employer of acceptance of the application and will send a copy of the notice to the SWA serving the area of intended employment. The acceptance letter will direct the employer to engage in positive recruitment of U.S. workers and will include instructions for how to prepare and when to submit a recruitment report to the OFLC NPC.
The CO will promptly transmit a copy of the approved job order for interstate clearance, at a minimum to all States listed in the job order as anticipated place(s) of employment and all other States designated by the OFLC Administrator as States of traditional or expected labor supply for the anticipated place(s) of employment.
In addition, the CO will promptly place for public examination a copy of the job order on an electronic job registry maintained by the Department of Labor, which is accessible via SeasonalJobs.dol.gov. Unless otherwise provided, the job order will be posted on the electronic job registry in active status until the end of the recruitment period.
The employer must contact, by mail or other effective means, U.S. workers employed by the employer in the occupation at the place of employment during the previous year and solicit their return to the job. This contact must occur during the period that the job order is being circulated by the SWA(s) for interstate clearance.
The recruitment report must be submitted on a date specified by the CO in the Notice of Acceptance.
If the CO accepted the application for purposes of recruitment but additional documents are required before a certification may be issued, the Notice of Acceptance will specify the additional documents the employer must submit to the NPC in order to receive a final determination; and, should the labor certification be granted, the certification being provided to USCIS.
Step 4: Completing the Temporary Labor Certification Process
If temporary agricultural labor certification is granted, the CO will send a Final Determination notice, the Approval Appendix and an invoice to all available emails identified in the application. The filers will also be able to retrieve a copy of the certified Application for Temporary Employment Certification and job order via their FLAG accounts. In addition, the CO will send this documentation, including any approved modifications, directly to USCIS via FLAG.
Temporary Labor Certifications are generally issued no later than 30 calendar days before the first date of need identified in the Application for Temporary Employment Certification.
What to Submit to the NPC
- H-2A Agricultural Clearance Order (Form ETA-790/790A) and all required addenda;
- Application for Temporary Employment Certification (Form ETA-9142A) and all required appendices; and
- Additional documentation for H-2A Labor Contractors and agents.
Where to Apply
Employers must file their job order and H-2A application electronically via the Department's FLAG System. It is important to read the FLAG user guides and recommended to watch the video tutorials before completing and submitting an H-2A application. These tutorials provide step-by-step instructions for completing and accurately submitting the H-2A application and job order in the FLAG system.
The "video tutorials", which are also posted on YouTube, are available in the "Support" section of the FLAG homepage. These tutorials will guide users through the major features of the system, such as creating an account logging into FLAG, and creating and joining a network.
Only employers that the OFLC Administrator authorizes to file by postal mail due to lack of internet access or authorizes to file using a reasonable accommodation due to a disability would be permitted to file using an alternate means. The OFLC Administrator will only consider and potentially authorize employers to file an H-2A job order and application by postal mail if there is documentation to support the employer's (and employer's authorized representative) inability to file online due to lack of internet access or for reasonable accommodations due to a disability.
- H-2A Program Flow Chart
- H-2A Comparison Chart 2010 to 2022 Rules
- H-2A Final Rule, published on October 12, 2022
- IRS Guidance on Withholding Tax Requirements for H-2A Workers
Frequently Asked Questions (FAQs)
- Please visit our FAQ page at https://www.dol.gov/agencies/eta/foreign-labor/faqs/print for updated FAQs.
- OFLC Stakeholder Webinar on New AEWR Rule Recording April 2023
- OFLC Stakeholder Webinar on New AEWR Rule Presentation April 2023
- OFLC Stakeholder Webinar on New H-2A Rule Processing Updates Recording November 2022
- OFLC Stakeholder Webinar on New H-2A Rule Processing Updates Presentation November 2022
- OFLC WHD 2022 H-2A Final Rule Overview Recording October 2022
- OFLC WHD 2022 H-2A Final Rule Overview Presentation October 202
Additional Resources Based on 2010 Final Rule
- Frequently Asked Questions (FAQs)
- 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
Webinars Based on the 2010 Final Rule
Employers are encouraged to subscribe for announcements on the OFLC webpage under Email Updates.