H2A Program (Agricultural)

The H2A Program provides a solution to the current labor market shortage by enabling companies that qualify for the federal H2A program to acquire seasonal migrant labor to come and work for only those companies on a legal work permit.

FEWA helps companies across America tap into the labor market of the world. Employer members have brought labor in from Mexico, El Salvador, Guatemala, Belize, Dominican Republic, Costa Rica, Brazil, Hungary, Norway, and the United Kingdom-Scotland, to mention a few.

For more information on the H2A program, please fill out The Information Request Form, or call toll free 1-877-H2B-FEWA.

The FEWA H2A Membership includes:

• Individual Guide that is dedicated to assisting you throughout the process.

• Filing assistance for all government forms required to certify an employer to bring in seasonal labor needed to meet peek market demand.

• The "members only" reference E-Guide Book

• Bilingual staff to help explain the program to domestic and foreign workers.

• World Wide assistance in facilitating workers arrival to the U.S.

• Unparalleled commitment to service.

• Association Staff Counsel for your H2A legal needs.

Overview

Source: United States Department of Labor

H-2A Certification for Temporary or Seasonal Agricultural Work

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) 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, Employment Standards Administration (ESA) has responsibility for enforcing provisions of worker contracts.

"Temporary or seasonal nature" means employment 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.

Qualifying Criteria

The following general categories of individuals or organizations may file an application:

• An agricultural employer who anticipates a shortage of U.S. workers needed to perform agricultural labor or services of a temporary or seasonal nature, may file an application requesting temporary foreign agricultural labor certification. "Temporary or seasonal nature" means employment 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 worker(s) is truly temporary.
• The employer may be an individual proprietorship, a partnership or a corporation. An association of agricultural producers may file as a sole employer, a joint employer with its members, or as an agent of its members.
• An authorized agent, whether an individual (e.g., and attorney) or an entity (e.g., an association), may file an application on behalf of an employer. Associations may file master applications on behalf of their members.

Things to keep in mind about the H2A Program

It is not a way to "legalize" undocumented workers. U.S. Consulates have made it clear that they will reject applicants with a history of unlawful presence in the United States.

It is not a means by which to hire "cheap labor." It is a way to hire a stable, consistent and productive work force. Companies interested in using the H-2A program should be aware that the Department of Labor assigns the prevailing wage for the local labor market.

It is not easy or inexpensive. The H-2A process requires a coordinated effort on the part of FEWA staff and the individual FEWA member employers. Employer members may have to write letters or make phone calls to government agencies on very short notice.

It is not a program which you want to start late. It takes a minimum of 45 days to complete the process. If you need H-2A worker(s) at your place of business on March 1st, you should have all the necessary paperwork by December 1st to ensure that your application is filed with the Department of Labor NO LATER THAN January 15th.

Frequently Asked Questions Regarding the H-2A Program (Agricultural)

H-2A temporary labor certification (agricultural)

1. What is an H-2A certification?

The H-2A labor certification 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.

2. How long is an H-2A valid?

The H-2A certification is valid for up to 364 days. As temporary or seasonal agricultural employment, the work is performed at certain seasons of the year or for a limited time period of less than one year when the employer can show that the need for the foreign worker is truly temporary.

3. What constitutes a temporary need for H-2A temporary labor certification?

The employer's need for a worker must be of a seasonal or other temporary basis. A seasonal basis is the kind exclusively performed at certain seasons or periods of the year and which, from its nature, may be continuous or carried on throughout the year. A temporary basis is for a limited time only or is contemplated for a particular piece of work, usually of a short duration.

4. What is the required time frame for filing an H-2A temporary labor certification application?

Employers are advised to file requests for H-2A certifications at least 45 days before certification is needed.

5. If my application is denied, can I still file with BCIS?

Yes. The DOL decision is only an advisory to BCIS in H-2A cerification applications.

6. Must the employer attempt to hire US worker to fill the jobs first?

Yes, the employer must agree to engage in recruitment of U.S. workers. Typically, this means an active effort, including newspaper and radio advisement.

7. What does the employer have to pay the workers?

The United States Department of Labor will determine the applicable rate. The wage or rate of pay must be the same for U. S. workers and H-2A workers. The hourly rate must also be at least as high as the applicable Adverse Effect Wage Rate (AEWR), federal or state minimum wage, or the applicable prevailing hourly wage rate. Each H-2A employer must also guarantee that the worker will have work for at least 75% of the total hours in the contract period of need.

8. Are H-2A employers required to provide Worker's Compensation Insurance?

Yes, the employer must provide Worker's Compensation Insurance where it is required by State law. In States where it is not required, the employer must provide equivalent insurance for all workers.

9. Do the H-2A employers have to provide housing for the workers?

Yes, free housing is required for all workers who are brought in to work. Housing requirements include an inspection by the State as required by the federal housing standards.

10. Does the employer have to provide meals?

The employer must provide free and convenient cooking and kitchen facilities for workers. Or the employer can provide three meals a day to each worker and if the employer provides meals, then the employer may charge a certain amount per day for the three meals.

11. If I join F.E.W.A. and participate in the H-2A program am I guaranteed H-2A workers?

 No. You may be unable to bring H-2A workers for the following reasons: 1) The Department of Labor may deny your application; 2) The United States Citizenship and Immigration Service (USCIS) may deny your petition; 3) The U.S. Consulate may deny the worker's visa application.

12. Am I too late to become a member of F.E.W.A.?

No, however, FEWA only accepts a limited number of members annually in order to provide the highest quality service to our members.