An employer may hire any number of needed foreign agricultural workers under the H-2A visa program for a period of up to 12 months. Two steps must be completed before hiring the foreign worker. A third step is required if the worker will apply for a visa to enter the US from overseas.
Step 1. The employer receives approval of a temporary alien agricultural labor certification (TAALC) from the US Department of Labor. This step should be completed in 25-45 days with regular processing. Premium processing is not available from the Department of Labor.
Step 2. The employer receives approval of an H-2A visa petition from the US Citizenship and Immigration (USCIS). The USCIS normally will approve an H-2A petition which has a valid TAALC unless it finds the worker is not qualified or if the employer is not solvent or otherwise unable to employee the worker. This step should be completed in 15 days, with premium processing. If the worker is inside the US in legal nonimmigrant status when the H-2A visa petition is filed, the petition approval is also an approval for “change of status.” This means the employee can immediately start working for the sponsoring employer.
Step 3. The foreign worker receives an H-2A visa from an American Embassy or Consulate located in the worker’s home country. This normally takes up to one week. The Embassy or Consulate normally approves the visa unless it determines there was some gross error in the approval of the TAALC, or H-2A petition, or if is determined that the worker is an intending immigrant. The worker will be determined to be an intending immigrant if he or she has been in the US illegally, is under petition to become a US permanent resident, or does not have a residence in the home country. The H-2A visa stamp is not necessary if the worker has received change of status approval, and the worker does not wish to travel internationally before the expiration of H-2A status.
Since the H-2A visa petition and the H-2A visa are normally approved after the TAALC has been approved, this paper concentrates on the requirements for approval of the TAALC.
Temporary Alien Agricultural Labor Certification (TAALC)
The TAALC application is filed with the California Employment Development Department (EDD) and the Regional Administrator (RA) of the US Department of Labor simultaneously. The TAALC will be granted if the RA finds that
1. The employer has not offered foreign workers higher wages or better working conditions (or has imposed less restrictions on foreign workers) than those offered and afforded to U.S. workers;
2. Sufficient U.S. workers who are able, willing, and qualified will not be available at the time and place needed to perform the work for which H 2A workers are being requested;
3. The employment of such aliens will not adversely affect the wages and working conditions of similarly employed U.S. workers.
Preferential Treatment Of Aliens Prohibited.
The employer’s job offer to U.S. workers shall offer the U.S. workers less than the same benefits, wages, and working conditions which the employer is offering, intends to offer, or will provide to H 2A workers. Conversely, no job offer may impose on U.S. workers any restrictions or obligations which will not be imposed on the employer’s H 2A workers.
1. The employer shall provide to those workers who are not reasonably able to return to their residence within the same day housing, without charge to the worker, which may be, at the employer’s option, rental or public accommodation type housing.
2. Standards for employer provided housing. Housing provided by the employer shall meet the full set of applicable local standards or DOL Occupational Safety and Health Administration standards
3. Deposit charges. Charges in the form of deposits for bedding or other similar incidentals related to housing shall not be levied upon workers by employers who provide housing for their workers.
4. Family housing. When it is the prevailing practice in the area of intended employment and the occupation to provide family housing, family housing shall be provided to workers with families who request it.
The employer shall provide, at no cost to the worker, insurance, under a State workers’ compensation law or otherwise, covering injury and disease arising out of and in the course of the worker’s employment which will provide benefits at least equal to those provided under the State workers’ compensation law, if any, for comparable employment. The employer shall furnish the name of the insurance carrier and the insurance policy number, or, if appropriate, proof of State law coverage, to the RA prior to the issuance of a labor certification.
Employer Provided Items
Except as provided below, the employer shall provide, without charge including deposit charge, to the worker all tools, supplies, and equipment required to perform the duties assigned; the employer may charge the worker for reasonable costs related to the worker’s refusal or negligent failure to return any property furnished by the employer or due to such worker’s willful damage or destruction of such property. Where it is a common practice in the particular area, crop activity and occupation for workers to provide tools and equipment, with or without the employer reimbursing the workers for the cost of providing them, such an arrangement is permissible if approved in advance by the RA.
Where the employer has centralized cooking and eating facilities designed to feed workers, the employer shall provide each worker with three meals a day. When such facilities are not available, the employer either shall provide each worker with three meals a day or shall furnish free and convenient cooking and kitchen facilities to the workers which will enable the workers to prepare their own meals. Where the employer provides the meals, the job offer shall state the charge, if any, to the worker for such meals. The charge shall not be more than $5.26 per day unless the RA has approved a higher charge.
1. Transportation to place of employment. The employer shall advance transportation and subsistence costs (or otherwise provide them) to workers when it is the prevailing practice of non H 2A agricultural employers in the occupation in the area to do so, or when such benefits are extended to H 2A workers.
2. Transportation from place of employment. If the worker completes the work contract period, the employer shall provide or pay for the worker’s transportation and daily subsistence from the place of employment to the place from which the worker came to work for the employer.
3. Transportation between living quarters and worksite. The employer shall provide transportation between the worker’s living quarters (ie., housing provided by the employer and the employer’s worksite without cost to the worker, and such transportation will be in accordance with applicable laws and regulations.
Three Fourths Guarantee
The employer shall guarantee to offer the worker employment for at least three fourths of the workdays of the total periods during which the work contract and all extensions thereof are in effect, beginning with the first workday after the arrival of the worker at the place of employment and ending on the expiration date specified in the work contract or in its extensions, if any.
Guarantee for Piece Rate Paid Worker
If the worker will be paid on a piece rate basis, the employer shall use the worker’s average hourly piece rate earnings or the Adverse Effect Wage Rate (AEWR – as determined by the US Department of Agriculture), whichever is higher, to calculate the amount due under the guarantee.
Failure to Work
Any hours which the worker fails to work and all hours of work actually performed may be counted by the employer in calculating whether the period of guaranteed employment has been met.
1. The employer shall keep accurate and adequate records with respect to the workers’ Daily earnings and amount of the work performed. Upon reasonable notice, the employer shall make available the records, including field tally records and supporting summary payroll records for inspection and copying by representatives of the Secretary of Labor, and by the worker and representatives designated by the worker.
2. The employer shall retain the records for not less than three years after the completion of the work contract.
3. The employer shall furnish to the worker on or before each payday in one or more written statements information on work history, rates of pay, and earnings (including of all deductions made from the worker’s wages)
Rates of Pay
1. If the worker will be paid by the hour, the employer shall pay the worker AT LEAST the adverse effect wage rate in effect at the time the work is performed, the prevailing hourly wage rate, or the legal federal or State minimum wage rate, WHICHEVER IS HIGHEST, for every hour or portion thereof worked during a pay period;
2. If the worker will be paid on a piece rate basis and the piece rate does not result at the end of the pay period in average hourly piece rate earnings during the pay period at least equal to the amount the worker would have earned had the worker been paid at the appropriate hourly rate, the worker’s pay shall be supplemented at that time so that the worker’s earnings are at least as much as the worker would have earned during that pay period if the worker had been paid at the appropriate hourly wage rate for each hour worked; and the piece rate shall be no less than the piece rate prevailing for the activity in the area of intended employment; and
Frequency of Pay
The employer shall state the frequency with which the worker will be paid (in accordance with the prevailing practice in the area of intended employment, or at least twice monthly whichever is more frequent).
ABANDONMENT OF EMPLOYMENT; OR TERMINATION FOR CAUSE.
Abandonment of Employment; or Termination for Cause
If the worker voluntarily abandons employment before the end of the contract period, or is terminated for cause, and the employer notifies the State labor office of such abandonment or termination, the employer will not be responsible for providing or paying for the subsequent transportation and subsistence expenses of any worker for whom the employer would have otherwise been required to pay such expenses
If, before the expiration date specified in the work contract, the services of the worker are no longer required for reasons beyond the control of the employer due to fire, storm, or other Act of God which makes the fulfillment of the contract impossible the employer may terminate the work contract.
In the event of such termination of a contract, the employer shall fulfill the three fourths guarantee for the time that has elapsed from the start of the work contract to its termination. In such cases the employer will make efforts to transfer the worker to other comparable employment acceptable to the worker.
The employer shall make those deductions from the worker’s paycheck which are required by law. The job offer shall specify all deductions not required by law which the employer will make from the worker’s paycheck. All deductions shall be reasonable. The employer may deduct the cost of the worker’s transportation and daily subsistence expenses to the place of employment which were borne directly by the employer. In such cases, the job offer shall state that the worker will be reimbursed the full amount of such deductions upon the worker’s completion of 50 percent of the worker’s contract period. However, an employer subject to the Fair Labor Standards Act (FLSA) may not make deductions which will result in payments to workers of less than the federal minimum wage.
Copy of Work Contract
The employer shall provide to the worker, no later than on the day the work commences, a copy of the work contract between the employer and the worker. The work contract shall contain all of the provisions required by paragraphs (a) and (b) of this section. In the absence of a separate, written work contract entered into between the employer and the worker, the required terms of the job order and application for temporary alien agricultural labor certification shall be the work contract.
Bona fide occupational qualifications specified by an employer in a job offer shall be consistent with the normal and accepted qualifications required by non H 2A employers in the same or comparable occupations and crops, and shall be reviewed by the RA for their appropriateness.
Positive Recruitment Plan
The employer shall submit in writing, as a part of the application, the employer’s plan for conducting independent, positive recruitment of U.S. workers. Such a plan shall include:
1. A description of recruitment efforts (if any) made prior to the actual submittal of the application.
2. A description of how the employer will engage in positive recruitment of U.S. workers to an extent (with respect to both effort and location(s) no less than that of non H 2A agricultural employers of comparable or smaller size in the area of employment.
3. When it is the prevailing practice in the area of employment and for the occupation for non H 2A agricultural employers to secure U.S. workers through farm labor contractors and to compensate farm labor contractors with an override for their services, the employer shall describe how it will make the same level of effort as non H 2A agricultural employers and provide an override which is no less than that being provided by non H 2A agricultural employers.
As part of the temporary alien agricultural labor certification application, the employer shall include in the job offer a statement agreeing the following assurances:
(A) LABOR DISPUTES. The specific job opportunity for which the employer is requesting H 2A certification is not vacant because the former occupant is on strike or being locked out in the course of a labor dispute.
(B) EMPLOYMENT RELATED LAWS. During the period for which the temporary alien agricultural labor certification is granted, the employer shall comply with applicable federal, State, and local employment related laws and regulations, including employment related health and safety laws.