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H-2A Temporary Agricultural Labor Certification Process Stakeholder Briefing Sessions Atlanta, GA and Denver, CO December 2008. Office of Foreign Labor Certification Employment and Training Administration United States Department of Labor. H-2A Final Rule Briefing Outline.

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slide1

H-2A Temporary Agricultural Labor Certification Process Stakeholder Briefing SessionsAtlanta, GA and Denver, CODecember 2008

Office of Foreign Labor Certification

Employment and Training Administration

United States Department of Labor

h 2a final rule briefing outline
H-2A Final Rule Briefing Outline

Briefing Section I: Regulatory Overview

  • Purpose and Scope of Final Rule
  • Authority of ETA-OFLC and Special Procedures
  • Key Terms and Definitions
  • Assurances/Obligations of H-2A Employers and Labor Contractors

Briefing Section II: Application Processing and Form

  • Transition Procedures
  • Full Implementation Procedures
  • Integrity Provisions (Audits, Fraud, Revocation, Debarment)
slide3
H-2A Final Rule Overview

Briefing Section I

Regulatory Overview: Key Provisions and Employer Obligations

- 3 -

slide4
Purpose and Scope of Final Rule

20 CFR 655.90

  • 20 CFR 655, Subpart B, sets out the procedures established by the Secretary of Labor to acquire information sufficient to make factual determinations of . . .
    • Whether there are sufficient able, willing, and qualified U.S. workers available to perform the temporary and seasonal agricultural employment for which an employer desires to import  nonimmigrant foreign workers (H-2A workers);

and

2. Whether the employment of H-2A workers will adversely affect the wages and working conditions of workers in the U.S. similarly employed

slide5
Authority and Special Procedures

20 CFR 655.92

20 CFR 655.93

Authority of ETA-OFLC

  • Labor certification determinations are made by the OFLC Administrator within USDOL-ETA who, in turn, may delegate this responsibility to a designated staff member (e.g., NPC Certifying Officer - CO)

Establishment of Special Procedures

  • Provides a limited degree of flexibility in processing certain H-2A applications while not deviating from statutory requirements(e.g., custom combine, sheepherder)
  • OFLC Administrator has the authority to establish or to devise, continue, revise, or revoke special procedures
  • Consultation with employer and worker representatives is required before establishing or changing special procedures
slide6
Key Terms and DefinitionsAgricultural Association

20 CFR 655.100(c)

  • Any nonprofit or cooperative association of farmers, growers or ranchers
  • Recruits, solicits, employs, furnishes, houses, or transports any worker under sec 218 of the INA
  • May be:
    • Agents
    • Sole employers
    • Joint employers
slide7
Key Terms and DefinitionsArea of Intended Employment

20 CFR 655.100(c)

  • Area within normal commuting distance of the worksite of the job opportunity
  • If within an MSA – any location in the MSA is deemed to be within the area of intended employment
  • MSAs are not controlling – places outside an MSA may be within normal commuting distance of something within the MSA
slide8
Key Terms and DefinitionsEmployee

20 CFR 655.100(c)

  • General common law meaning
  • Based on the presence of certain factors:
      • Hiring party’s right to control
      • Manner and means by which work is accomplished
      • Source of the tools
      • Location
      • Hiring party’s discretion over time and length of work
      • Whether the work is part of the hiring party’s regular business
slide9
Key Terms and DefinitionsEmployer

20 CFR 655.100(c)

Employer

  • Has a place of business in the US – physical location and means by which it may be contacted for employment
  • Employer relationship with H-2A employees or related U.S. workers
  • For purposes of filing, possesses an FEIN

Fixed-Site Employer

  • Employer who owns or operates a farm, ranch, processing establishment, cannery, gin, packing shed, nursery etc. where ag activities are performed
  • And recruits, solicits, hires, employs, houses, or transports any worker subject to 218 of INA
slide10
Key Terms and DefinitionsH-2A Labor Contractor

20 CFR 655.100(c)

  • Employer that is not a fixed-site employer, agricultural association, or an employee of a fixed-site employer or agricultural association
  • Who recruits, solicits, employs, furnishes, houses, or transports any worker under sec 218 of the INA
slide11
Key Terms and DefinitionsJoint Employment

20 CFR 655.100(c)

  • Two or more employers each have sufficient definitional indicia of employment to be considered the employer of an employee
slide12
Key Terms and DefinitionsSuccessor in Interest

20 CFR 655.100(c)

  • Relates to violations in which a predecessor entity engages – are they sufficient to result in a debarment or debarment recommendation??
  • Primary consideration will be the personal involvement of the firm’s ownership, management, supervisors, and others associated with the firm in the violations resulting in a debarment recommendation.
slide13
Key Terms and DefinitionsWork Contract

20 CFR 655.100(c)

  • Material terms and conditions of employment relating to wages, hours, working conditions, and other benefits
  • Includes those terms and conditions attested to by the H-2A employer
  • In the absence of a separate written work contract, the work contract at a minimum shall be the terms of the ETA Form 790 Agricultural and Food Processing Clearance Order
slide14
Key Terms and DefinitionsDefinition of Agriculture - Revisions

20 CFR 655.100(c)

  • Authority to define agriculture stems from statute
  • Final Rule makes several additions to current definition:
    • Logging employment
    • Unmanufactured processing
    • Incidental activity

Addition of Logging to H-2A

  • Logging already contains most of the 2A obligations under current rules
  • Transition—logging applications filed before the effective date will be certified as if for H2A occupations, if certifiable
slide15
Key Terms and DefinitionsDefinition of Agriculture - Revisions

20 CFR 655.100(c)

  • Handling, planting, drying, packing, packaging, processing, freezing, grading, storing, or delivering to storage or to market or to a carrier for transportation to market, in its unmanufactured state, any agricultural or horticultural commodity while in the employ of the operator of a farm where no H-2B workers are employed to perform the same work at the same establishment

Minor and Incidental Work

  • Other work typically performed on a farm that is not specifically listed on the application that is:
    • Minor -- less than 20 percent of the total time worked
    • Incidental
slide16
Assurances and Obligations of

H-2A Employers

20 CFR 655.105(a)

General Attestation of Assurances/Obligations

  • An employer seeking to employ H-2A workers must attest as part of the Application for Temporary Employment Certification (ETA Form 9142) that it will comply with program requirements regarding recruitment of eligible U.S. workers, the payment of an appropriate wage, and other terms and conditions of employment

Job Opportunity

  • is and will continue through the recruitment period to be open to any qualified U.S. worker
  • Is and remains open regardless of: race, color, national origin, age, sex, religion, handicap, or citizenship
slide17
Assurances and Obligations of

H-2A Employers

20 CFR 655.105(a)

Insufficient Number of Workers After Recruitment

  • Employer has conducted/will continue to conduct the required recruitment
  • Unsuccessful in locating sufficient numbers of qualified U.S. applicants
  • Any U.S. workers who applied or apply for the job were or will be rejected only for lawful, job-related reasons
  • Those not rejected on this basis have been or will be hired
  • Employer will retain records of all rejections
slide18
Assurances and Obligations of

H-2A Employers

20 CFR 655.105(b)(c)

Terms and Working Conditions

  • Employer offering terms and working conditions to US workers which are:
    • Not less favorable than those offered to the H-2A worker(s)
    • Not less than the minimum terms and conditions required by this subpart

Strike or Lockout

  • No strike/lockout
  • The job opportunity is not vacant because the former occupant is/are on strike or being locked out in the course of a labor dispute
slide19
Assurances and Obligations of

H-2A Employers

20 CFR 655.105(d)

Thirty (30) Day Active Recruitment Period

  • The employer will continue to cooperate with the SWA by accepting referrals of all eligible U.S. workers who apply (or on whose behalf an application is made) for the job opportunity until the end of the recruitment period
  • Recruitment period defined as 30 days after the date of (first) need
  • Replaces “50 percent rule”
slide20
Assurances and Obligations of

H-2A Employers

20 CFR 655.105(e)

Compliance with Program Requirements

  • Provide for/secure housing for workers not reasonably able to return to their permanent residence at the end of the work day, without charge
  • Timely requested a preoccupancy inspection of that housing and, if one has been conducted, received certification
  • Provide workers compensation insurance, without charge to the worker, and
  • Provide transportation between the worker's living quarters and worksite without cost to the worker
slide21
Assurances and Obligations of

H-2A Employers

20 CFR 655.105(f)

Employer Notification of Separation to DOL/DHS

  • Must notify the Department and DHS of premature separation from employment not later than 2 work days after such separation is discovered by the employer
  • Notice in writing or any other method specified by DOL or DHS
  • Must occur no later than 2 work days after such separation is discovered by the employer
  • Separation defined as failure to report for work for 5 consecutive work days
slide22
Assurances and Obligations of

H-2A Employers

20 CFR 655.105(g)(h)

Wage Obligations

  • The offered wage rate must be the highest of the adverse effect wage rate in effect at the time recruitment is initiated, the prevailing hourly wage or piece rate, or the Federal or State minimum wage
  • Must pay the offered wage during the entire period of the approved labor certification
  • The offered wage is guaranteed: not based on commission, bonuses, or other incentives unless the employer guarantees a wage paid on a weekly, bi-weekly, or monthly basis
slide23
Assurances and Obligations of

H-2A Employers

20 CFR 655.105(i)

Full-Time “Normal” Position

  • Full-time temporary position (at least 30 hours per work week)
  • Qualifications for the position must not substantially deviate from the normal and accepted qualifications required by employers that do not use H-2A workers in the same or comparable occupations or crops
slide24
Assurances and Obligations of

H-2A Employers

20 CFR 655.105(j)

No Layoff Provision

  • The employer has not laid off and will not lay off any similarly employed U.S. worker in the occupation in the area of intended employment
  • Look back within 60 days of the date of need
  • If the employer has laid off such workers, it must offer the job opportunity to those laid-off U.S. worker(s) and the U.S. worker(s) must either have refused the job opportunity or have been rejected for the job opportunity for lawful, job-related reasons
slide25
Assurances and Obligations of

H-2A Employers

20 CFR 655.105(k)

No Threat or Intimidation

  • The employer has not and will not engage in . . .
    • Intimidation, threats, discrimination against anyone who:
      • filed complaint
      • testified
      • consulted with legal assistance program employee or attorney on matters related to H-2A
      • Exercised or asserted any right or protection afforded by H-2A statute or any other Department regulation relating to H-2A
    • No discharge for these reasons either
slide26
Assurances and Obligations of

H-2A Employers

20 CFR 655.105(n)

Notice of Departure to Worker

  • The employer must inform H-2A workers that they must leave the U.S. at the earlier of
      • end of the period certified
      • separation from the employer
  • The departure requirement does not apply if the H-2A worker is being sponsored by another subsequent employer
slide27
Assurances and Obligations of

H-2A Employers

20 CFR 655.105(o)(p)

No Payments from H-2A Employees

  • The employer and its agents have not sought or received payment of any kind from the employee for any activity related to obtaining labor certification
  • Includes monetary payments, wage concessions (including deductions from wages, salary, or benefits), kickbacks, bribes, tributes, in kind payments, and free labor
  • Does not apply to costs for which the H-2A worker is responsible

Foreign Recruiters

  • The employer must contractually forbid any foreign labor contractor or recruiter whom the employer engages in international recruitment of H-2A workers to seek or receive payments from prospective employees, except as provided for in DHS regulations at 8 CFR 214.2(h)(5)(xi)(A).
slide28
H-2A Labor Contractors

20 CFR 655.106

  • Final Rule acknowledges unique situation of Farm Labor Contractors in H-2A employment
  • Permits specific recruitment adaptations
    • Authorized to prepare a job order containing work locations in multiple areas of intended employment
    • Permitted to submit the job order to any one of the SWAs having jurisdiction over the anticipated work areas
  • Imposes additional specific obligations and attestations
slide29
H-2A Labor Contractors

Additional Assurances and Obligations

20 CFR 655.106(b)

  • Provide any required MSPA Farm Labor Contractor (FLC) certificate of registration
  • Identify the farm labor contracting activities the H-2ALC is authorized to perform as an FLC under MSPA
  • Name/location of each fixed-site agricultural business to which the H-2ALC expects to provide H-2A workers
  • Expected beginning and ending dates to each fixed site
  • Description of the crops and activities
slide30
H-2A Labor Contractors

Additional Assurances and Obligations

20 CFR 655.106(b)

  • Obtain a surety bond
  • Has engaged in, or will engage in within the timeframes required, recruitment efforts in each area of intended employment in which it has listed a fixed-site agricultural business; and
  • Provide compliant housing and transportation or obtain from each fixed-site agricultural business a written statement of compliance with housing/transportation standards
slide31
Navigating the H-2A Visa Program

Briefing Section II

Employer Application Filing:Processing Model and Form

- 31 -

pay attention to important icons
Pay Attention to Important “Icons”

Emphasizes important documentation requirements

needed to support H-2A application

Indicates USDOL regulatory requirement

contains a definite timeframe for response

Means employer signature is required

“Post-it” notes highlight important reminders

for employers

slide33
Transition from Current Regulations

Employer’s Start Date of Need

priortoJuly 1, 2009

Employer’s Start Date of Need

onorafterJuly 1, 2009

  • Must comply with transition procedures contained at 20 CFR 655.100(b)
  • Go to Next Slide
  • Must comply with all of the requirements, obligations and assurances under the new regulations
  • Go to Slide 40

- 33 -

slide34
Navigating the H-2A Visa Program

Briefing Section II.A

H-2A Final Rule Transition Procedures

- 34 -

transition filing procedures employers with dates of need prior to july 1 2009
Transition Filing ProceduresEmployers with dates of need prior to July 1, 2009

20 CFR 655.100

  • Employer willnot obtain an offered wage rate through the Chicago National Processing Center (NPC) prior to filing an H-2A application
  • Employer will submit the following documents nolessthan45days prior to its date of need to the Chicago NPC
    • A completed ETA Form 9142
    • A completed ETA Form 790 and all attachments
  • DoNot submit the ETA Form 750, Part A, to NPC
  • DoNot submit the application simultaneously to the SWA
  • Employer will be required to make all the attestations applicable to its future activities on the ETA Form 9142

- 35 -

transition filing procedures employers with dates of need prior to july 1 200936
Transition Filing ProceduresEmployers with dates of need prior to July 1, 2009

20 CFR 655.100

  • Upon receipt of the H-2A application, the Chicago NPC will . . .
    • Process the application consistent with 20 CFR 655.107
      • Review for obvious inaccuracies or omissions
      • Review for compliance with criteria for certification
    • Transmit a copy of the ETA Form 790 to the SWA having jurisdiction over the area of intended employment
    • In collaboration with the SWA, review the ETA Form 790 for compliance with 20 CFR 653, subpart F, and 20 CFR 655.103-104
  • Chicago NPC will notify the employer of any deficiencies with the application within7calendardays
  • Pre-filing recruitment activities specified at 20 CFR 655.102 will be conducted by the employer post-filing

- 36 -

transition filing procedures employers with dates of need prior to july 1 200937
Transition Filing ProceduresEmployers with dates of need prior to July 1, 2009

20 CFR 655.100

  • Upon acceptance of the H-2A application, the Chicago NPC will . . .
    • Provide written notification to the SWA authorizing interstate clearance of the ETA Form 790 and requesting an inspection of the housing
    • Provide written instructions to the employer for recruiting U.S. workers consistent with 20 CFR 655.102(d)(2)-(4)
    • Provide the employer with a minimum offered wage rate in accordance with 20 CFR 655.108
    • Provide a date on which the employer must submit an initial recruitment report prior to issuance of a determination

Pay Attention! The Chicago NPC will designate states of traditional or expected labor supply for positive recruitment by the employer on a case-by-case basis during the transition period

- 37 -

transition filing procedures employers with dates of need prior to july 1 200938
Transition Filing ProceduresEmployers with dates of need prior to July 1, 2009

20 CFR 655.100

  • Upon receipt of the employer’s initial recruitment report and any other documentation, the NPC will issue a determination to certify or deny the H-2A application consistent with 20 CFR 655.109
  • A determination will be issued nolaterthan30days before date of need, except for modified applications or those otherwise not meeting the criteria for certification by that date
  • Where certified, the NPC will notify the employer in writing to . . .
    • Continue to cooperate with the SWA in recruiting U.S. workers until the end of the designated recruitment period
    • Prepare and retain a final recruitment report within48hours of the date that is the end of the designated recruitment period

- 38 -

transition filing procedures
Transition Filing Procedures

20 CFR 655.100

H-2A Final Rule Stakeholder Briefing United States Department of Labor

December 2008 Employment and Training Administration

- 39 -

slide40
Navigating the H-2A Visa Program

Briefing Section II.B

H-2A Final Rule Full Implementation Procedures

- 40 -

slide41
Full Implementation ProceduresEmployers with dates of need on or after July 1, 2009
  • Major steps in the application filing process

STEP 1

Understand Filing Requirements

STEP 2

Obtain Offered Wage from NPC

STEP 3

Conduct Pre-Filing Recruitment Activities

STEP 4

Submit ETA Form 9142 and Recruitment Report

STEP 5

NPC Processing and Issuance of Final Determination

STEP 6

Post-Determination Actions

- 41 -

slide42
Navigating the H-2A Visa Program

Step 1Understanding the Application Filing Requirements

- 42 -

application filing requirements general provisions
Application Filing RequirementsGeneral Provisions

20 CFR 655.101

  • Filed by a U.S. employer by U.S. Mail or private mail courier with the USDOL Chicago National Processing Center (NPC)
  • Any future address changes will be published in the Federal Register as well as the USDOL Internet Web site at http://www.foreignlaborcert.doleta.gov/
  • The Department may also require applications to be filed electronically in addition to or instead of by mail

- 43 -

application filing requirements general provisions continued
Application Filing RequirementsGeneral Provisions (continued)

20 CFR 655.101

  • Employer will submit the following documents to the Chicago NPC
    • ETA Form 9142 – Application for Temporary Employment Certification
    • Initial Recruitment Report
  • A completed application must be filed nolessthan 45 calendar days before the first date the employer requires the services of the H-2A workers
  • Application must contain attestations of the employer's compliance or promise to comply with program requirements regarding recruitment of eligible U.S. workers, the payment of an appropriate wage, and terms and conditions of employment
  • The ETA Form 9142 must bear the original signature of the employer and, if applicable, that of the employer's authorized attorney or agent

- 44 -

application filing requirements association of agricultural producers
Application Filing RequirementsAssociation of Agricultural Producers

20 CFR 655.101

  • An association of agricultural producers must identify on the ETA Form 9142 whether it is filing as . . .
    • A sole employer;
    • A joint employer with its employer-member employers; or
    • An agent of its employer-members.
  • Only associations are permitted to submit a “master” application covering a variety of job opportunities available with its employer members in multiple areas of intended employment so long as . . .
    • A single date of need is provided for all workers requested by the application
    • A combination of job opportunities is supported by an explanation demonstrating a business reason for the combination

- 45 -

application filing requirements association of agricultural producers continued
Application Filing RequirementsAssociation of Agricultural Producers (continued)

20 CFR 655.101

  • The association must identify on the ETA Form 9142, by name and address, each employer that will employ H-2A workers
  • An association filing a master application as a jointemployer may sign the ETA Form 9142 on behalf of its employer members
  • If the association is acting solely as an agent, each employer will receive a separate labor certification

- 46 -

application filing requirements h2a labor contractors h2alcs
Application Filing RequirementsH2A Labor Contractors (H2ALCs)

20 CFR 655.101

  • H2ALCs must comply with the following provisions:
    • Meet the definition of "employer” specified at 20 CFR 655.100(b)
    • Must have a place of business (physical location) in the United States and a means by which it may be contacted for employment
    • Comply with all the assurances, guarantees, and other requirements contained in 20 CFR 655 and 653, subpart F
    • H-2A workers employed by an H2ALC may not perform services for a fixed-site employer unless . . .
      • The H2ALC is itself providing the housing and transportation required by 20 CFR 655.104(d) and (h); or
      • The H2ALC has filed a statement confirming that the fixed-site employer will provide compliant housing and/or transportation, as required by 20 CFR 655.106, for each fixed-site employer listed on the ETA Form 9142

- 47 -

application filing requirements emergency situations
Application Filing RequirementsEmergency Situations

20 CFR 655.101

  • The time period for filing and pre-filing wage and recruitment requirements may be waived by the Chicago NPC Certifying Officer (CO) for . . .
    • Employers who did not make use of H-2A workers during the prior year's agricultural season; or
    • Any employer that has other good and substantial cause to include unforeseen changes in market conditions
  • Employer must submit the following documents
    • A completed ETA Form 9142
    • A completed ETA Form 790 and all attachments
    • A statement justifying the waiver request
  • Chicago NPC procedures for processing emergency applications will be very similar to the transition procedures

- 48 -

application filing requirements emergency situations special processing
Application Filing RequirementsEmergency Situations – Special Processing

20 CFR 655.101

  • Once submitted, the Chicago NPC shall . . .
    • Process the application in accordance with 20 CFR 655.107
    • Promptly transmit the ETA Form 790, on behalf of the employer, to the SWA serving the area of intended employment
    • Request the SWA perform an expedited review of the ETA Form 790 and schedule an inspection of the housing
    • Issue a wage determination in accordance with 20 CFR 655.108
  • Upon acceptance of the application, the Chicago NPC shall . . .
      • Require the employer to engage in positive recruitment (including multi-state recruitment)
      • Instruct the SWA to transmit the job order for interstate clearance
    • Specify a date for the employer to submit a recruitment report
    • Issue a final determination on the application

- 49 -

slide50
Navigating the H-2A Visa Program

Step 2Obtaining An Offered Wage Rate from the NPC

- 50 -

offered wage rate determination general provisions
Offered Wage Rate Determination General Provisions

20 CFR 655.108

  • An employer must offer and advertise in its recruitment a wage rate that is the highest of the following:
    • Adverse Effect Wage Rate;
    • Prevailing hourly wage or piece rate;
    • Federal minimum wage; or
    • State minimum wage
  • The employer must request and obtain a wage rate determination from the NPC before commencing any recruitment under the regulations, except where a specific exemption is granted
  • Employer will submit the minimally required information contained on the ETA Form 790 to the NPC

- 51 -

slide52
Offered Wage Rate Determination ETA Form 790

20 CFR 655.108

  • Required by 20 CFR 653, Subpart F, to facilitate the intrastate and interstate clearance of jobs on behalf of employers seeking workers to perform agricultural or food processing work on a less than year round basis
  • A copy of the ETA Form 790 – Agricultural and Food Processing Clearance Order can be obtained at http://www.foreignlaborcert.doleta.gov/form.cfm
  • In lieu of requiring a separate prevailing wage request form, employers will submit a copy of the ETA Form 790 to the Chicago NPC with the minimal information needed to determine the offered wage

- 52 -

slide53
Offered Wage Rate Determination ETA Form 790

20 CFR 655.108

  • Minimally required fields to be complete by the employer are highlighted in “yellow” below

- 53 -

slide54
Offered Wage Rate Determination ETA Form 790

20 CFR 655.108

  • Employers must attached a complete description of the job specifications and pay, including minimum qualifications (education, experience, training), crop activities, and any special requirements (supervisory duties, use of special equipment)

- 54 -

slide56
Determination of Offered Wage RateAdverse Effect Wage Rate (AEWR)

20 CFR 655.108

  • Based on published wage data from the Bureau of Labor Statistics (BLS), Occupational Employment Statistics (OES) Survey (go to http://www.bls.gov/OESfor additional information)
  • OES data is published annually by occupation, skill level, state and sub-state geographic areas using the Standard Occupational Classification (SOC) / Occupational Network (O*NET) system
  • The Dictionary of Occupational Titles (DOT) will be discontinued in its use for the H-2A program
  • In accordance with 20 CFR 655.108(e), the AEWR shall not be less than the July 24, 2009 Federal minimum wage of $7.25

- 56 -

slide57
Offered Wage Rate Determination Adverse Effect Wage Rate (AEWR)

20 CFR 655.108

  • NPC will obtain the AEWR using the OFLC On-line Wage Library (OWL) at http://www.flcdatacenter.com

- 57 -

offered wage rate determination common soc o net occupations agriculture
Offered Wage Rate Determination Common SOC-O*NET Occupations - Agriculture

20 CFR 655.108

  • To find out more information about the SOC-O*NET classification, please visit O*Net Online at http://online.onetcenter.org

- 59 -

offered wage rate determination prevailing wages
Offered Wage Rate Determination Prevailing Wages

20 CFR 655.108

  • NPC will obtain prevailing wages from the OFLC Agricultural Online Wage Library at
  • http://www.foreignlaborcert.doleta.gov/aowl.cfm
  • Prevailing Hourly Wage: The hourly wage determined by the SWA to be prevailing in the area in accordance with state-based wage surveys
  • Prevailing Piece Rate: The amount that is typically paid to an agricultural worker per piece (e.g., per load, bin, pallet, bag, bushel) determined by the SWA according to a methodology published by the Department

- 63 -

offered wage rate determination npc review of wage request
Offered Wage Rate Determination NPC Review of Wage Request
  • Employer will submit the minimally required information contained on the ETA Form 790 to the NPC
  • Upon receipt, the NPC will perform the following actions:
    • Review the employer’s request for obvious errors or omissions and ensure the job duties qualify as agriculture
    • Where necessary, provide written notification to the employer of any deficiencies or corrections
    • Assign the most appropriate SOC-O*NET code using the job title and duties to be performed supplied by the employers
    • Issue an offered wage for each crop/agricultural commodity supplied by the employer covering the area(s) of intended employment
    • Select the highest of the AEWR, prevailing hourly or piece rate, or legal Federal or State minimum wage as the offered wage
    • Enter all wage rate determinations on a form it uses, indicate the source, and return the form with its endorsement to the employer

- 64 -

slide65
Navigating the H-2A Visa Program

Step 3Conducting Pre-Filing Recruitment Activities

- 65 -

slide66
Pre-Filing Recruitment ActivityGeneral Provisions

20 CFR 655.102

  • Employer may not file the ETA Form 9142 until all of the pre-filing recruitment steps have been met, except where a specific exemption applies
  • Employer must attest on the ETA Form 9142 that it has complied with all necessary steps of the recruitment process, including:
    • Submit a job order to the SWA serving the area of intended employment
    • Run two print advertisements in area of intended employment
    • Contact former U.S. employees who were employed within the last year
    • Recruit in all State(s) of traditional or expected labor supply as designated by Secretary
  • All advertising must contain terms/conditions of employment which are not less favorable than those that will be offered to the H-2A workers

- 66 -

slide67
Pre-Filing Recruitment Activity1. SWA Job Order

20 CFR 655.102

  • A completed ETA Form 790 must be submitted to the SWA nomorethan75calendardaysandnofewerthan60calendardays before the date of need for intrastate and interstate clearance
  • Employer must make a request to the SWA for a housing inspection nolessthan60days before the date of need, except where a specific exemption applies
  • Employer must identify the ETA Form 790 as a job order to be placed in connection with a future application for H-2A workers
  • If the anticipated worksites are located in more than one State, the employer may submit a job order to any one of the SWAs having jurisdiction

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Pre-Filing Recruitment Activity1. SWA Job Order

20 CFR 655.102

  • The ETA Form 790 must satisfy all the following requirements:
    • Content for newspaper advertisements at 20 CFR 655.103
    • Content for agricultural clearance orders at 20 CFR 653 Subpart F
    • Content for job offers at 20 CFR 655.104
  • The SWA will review the contents of the job order and will work with the employer to address any deficiencies
  • Upon receipt and acceptance of the ETA Form 790, the SWA must promptly place the job order in intrastate clearance on its active file and begin recruitment of eligible U.S. workers
  • The SWA must keep the job order open until the end of the recruitment period and refer each eligible U.S. worker who applies for the job opportunity.

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Pre-Filing Recruitment Activity1. SWA Job Order

20 CFR 655.102

  • Interstate Recruitment
  • SWA will promptly transmit, on behalf of the employer, a copy of its active ETA 790 to all States listed in the job order as anticipated worksites
  • SWA must also transmit a copy of all active job orders to nofewerthan3States, which must include those States designated by the Secretary as traditional or expected labor supply States for the area(s) of intended employment
  • Each of the SWAs to which the ETA Form 790 was referred must keep its own job order open until the end of the recruitment period and refer each eligible U.S. worker who applies for the job opportunity.

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Pre-Filing Recruitment Activity1. SWA Job Order - Content

20 CFR 655.104

  • Employer’s job offer must . . .
    • Offer to U.S. workers no less than the same benefits, wages, and working conditions that the employer is offering, intends to offer, or will provide to H-2A workers
    • Offer may not impose on U.S. workers any restrictions or obligations that will not be imposed on H-2A workers, except where permitted by the regulations
    • Offer qualifications that do not substantially deviate from the normal and accepted qualifications required by employers that donot use H-2A workers in the same or comparable occupations and crops

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Pre-Filing Recruitment Activity2. Newspaper Advertisements

20 CFR 655.102

  • Employer must place an advertisement on 2 separate days, one of which must be a Sunday, in a newspaper of general circulation in the area of intended employment
  • Advertisements must be published only after the ETA Form 790 is accepted by the SWA for intrastate/interstate clearance
  • Advertisements must satisfy the requirements of 20 CFR 655.103 and 655.104

If the job opportunity is located in a rural area that does not have a newspaper with a Sunday edition, the employer must, in place of a Sunday edition, advertise in the regularly published daily edition with the widest circulation in the area of intended employment

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Pre-Filing Recruitment Activity2. Newspaper Advertisements

20 CFR 655.102

  • Employer may use a professional, trade or ethnic publication if such publication is more appropriate to the occupation and workers likely to apply for the job opportunity
  • Advertisement in a professional, trade or ethnic publication may be used in lieu of 1 newspaper advertisement
  • The requirement to place a newspaper advertisement on a Sunday cannotbewaived in these circumstances

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Pre-Filing Recruitment Activity2. Newspaper Advertisements

20 CFR 655.103

  • Advertising Requirements
    • Employer’s name and location(s) of work
    • Geographic area(s) of employment with specificity to apprise US workers of any travel requirements
    • Description of job opportunity with particularity
    • Anticipated duration of employment
    • Wage offer or range of applicable wage offers
    • Three-fourths guarantee specified in 20 CFR 655.104(h)(3)(i)
    • Indication the job is “temporary”
    • Total number of job openings

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Pre-Filing Recruitment Activity2. Newspaper Advertisements

20 CFR 655.103

  • Advertising Requirements (continued)
    • A statement that work tools, supplies, and equipment will be provided at nocostto the worker (if applicable)
    • A statement that transportation and subsistence expenses to the worksite will be provided by the employer(if applicable)
    • A statement that housing will be made available at nocostto workers, including US workers, who cannot reasonably return to their permanent residence at the end of each working day
    • SWA contact information and job order number
    • Statement directing applicants to report or send resumes to the SWA for referral to the employer

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Pre-Filing Recruitment Activity3. Contact with Former U.S. Employees

20 CFR 655.102

  • Employer must contact former U.S. employees employed by the employer in the occupation at the place of employment during the previous year and solicit their return to the job.
  • Employer must contact by mail or other effective means
  • Employer is not required to contact employees who were either
    • Dismissed for cause;
    • Abandoned the worksite; or
    • Provided documentation at the end of their previous period of employment explaining the lawful, job-related reasons they would not be re-contacted

The recruitment report must include any workers who did not return to the employ of the employer because they were either unable or unwilling to return to the job or did not respond to the employer's request

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Pre-Filing Recruitment Activity

4. Recruitment in Traditional or Labor Supply States

20 CFR 655.102

  • Employer must conduct positive recruitment in States of traditional or expected labor supply, as designated by the Secretary, where the work is to be performed
  • Positive recruitment will consist of one (1) newspaper advertisement in each designated State published within the same period of time as the local newspaper advertisements
  • Employer is not required to place advertisements in more than three (3) designated States for each area of intended employment
  • Advertisement must refer applicants to the SWA nearest the area in which the advertisement was placed

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Pre-Filing Recruitment Activity

4. Recruitment in Traditional or Labor Supply States

20 CFR 655.102

  • Secretary will make an annual determination for each Statewhether there are other States of traditional or expected labor supply
  • Determination will based upon current information from State agencies or other sources solicited through a formal notice in the Federal Register and USDOL-ETA website
  • Secretary will not designate a State where a significant number of employers are recruiting U.S. workers for the same types of occupations and comparable work

The Secretary’s designation will also include a listing of the newspapers in those States for the employer to use to conduct positive recruitment

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Pre-Filing Recruitment Activity

Initial Recruitment Report

20 CFR 655.102

  • Employer must sign and date a written recruitment report and submit the report with the ETA Form 9142
  • Recruitment report must contain the following information:
    • Number of job openings for which the employer recruited
    • Identification of each recruitment source by name
    • Name/contact information of each U.S. worker who applied for the job and the disposition of each worker
    • Name/contact information of each former U.S. employee contacted and the disposition of each former employee
    • Explanation of the lawful job-related reason(s) for not hiring each U.S. worker (if applicable)

Pay Attention!The initial recruitment report must be prepared by the employer nomorethan50days before the date of need

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H-2A Labor Contractors

Special Recruitment Provisions

20 CFR 655.106(a)

  • ETA Form 790 may contain work locations in multiple areas of intended employment, and be submitted to anyone of the SWAs having jurisdiction over the anticipated work areas
  • Upon receipt and acceptance of the job order, the SWA must
    • Transmit copy of job order to all States covering the anticipated worksites and those designated by the Secretary as traditional or expected labor supply
    • Keep the job order posted until the end of the recruitment period (including SWAs traditional or expected labor supply states)
    • Make referrals for job opportunities in any area of intended employment that is still in an active recruitment period
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H-2A Labor Contractors

Special Recruitment Provisions

20 CFR 655.106(a)

  • H-2ALC must conduct separate positive recruitment for each area of intended employment
  • Separate recruitment for each work location within a single area of intended employment not required
  • Must list name/location of each fixed-site agricultural business to which the H-2ALC expects to provide workers, with
    • Expected beginning and ending dates
    • Description of the crops and activities the workers are expected to perform at such fixed site
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H-2A Labor Contractors

Special Recruitment Provisions

20 CFR 655.106(a)

  • Positive recruitment for each area must be conducted pre-filing for the first area of intended employment, but . . .
    • Must be started no more than 75 and no fewer than 60 days before the listed arrival date (or the amended date, if applicable) for each subsequent area of intended employment
  • For each area of intended employment, the advertising that must be placed in any applicable States designated as traditional or expected labor supply States must be placed at the same time as the placement of other positive recruitment for the area of intended employment
  • The job order and the positive recruitment in each area of intended employment may require that workers complete the remainder of the H2ALC’s itinerary
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H-2A Labor Contractors

Special Recruitment Provisions

20 CFR 655.106(a)

  • H-2ALC must contact all U.S employees that worked for the H-2ALC during the previous season -- advising that a separate job opportunity exists for each area of intended employment that is covered by the application
  • The employer may advise contacted employees that for any given job opportunity, workers may be required to complete the remainder of the H-2ALC’s itinerary
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H-2A Labor Contractors

Special Recruitment Provisions

20 CFR 655.106(a)

Amendments to Applications Post Submission

  • If additional worksite(s) are in the same area(s) of intended employment, not required to re-recruit in those areas of intended employment if
    • that recruitment has been completed and
    • job duties at the new work sites are similar to those already covered by the application.
  • If additional worksite(s) are outside the area(s) of intended employment the H-2ALC must
    • submit in writing the new area(s) of intended employment and explain the reasons for the amendment of the labor certification itinerary
    • Perform additional recruitment as ordered by CO
  • Housing changes must be secured
slide85
Navigating the H-2A Visa Program

Step 4Preparing the ETA Form 9142

(sample for illustrative purposes only)

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sample eta form 9142 header and footer
Sample ETA Form 9142Header and Footer
  • Header
  • Displays OMB approved collection number and expiration date
  • Footer
  • Displays case tracking number, status, and validity period of labor certification on each page
  • Donotwrite in this section

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sample eta form 9142 sections i through k declarations certification
Sample ETA Form 9142Sections I through K – Declarations/Certification

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slide98
Navigating the H-2A Visa Program

Step 5NPC Processing & Issuance of Final Determinations

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npc application processing general provisions
NPC Application ProcessingGeneral Provisions

20 CFR 655.107

  • Employer will submit the following documents nolessthan45days prior to its date of need to the NPC
    • A completed ETA Form 9142
    • An initial recruitment report
  • Upon receipt of the application, the NPC shall . . .
    • Review for obvious inaccuracies or omissions
    • Review for compliance with criteria for certification
  • Chicago NPC will notify the employer of any deficiencies with the application within7calendardays

Unless otherwise noted, any notice or request sent by the NPC to an applicant requiring a response shall be sent by means normally assuring next-day delivery, to afford the applicant sufficient time to respond

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npc application processing general provisions100
NPC Application ProcessingGeneral Provisions

20 CFR 655.107

  • Criteria for certification include, but are not limited to, the following:
    • The services or labor to be performed qualify as agriculture
    • The nature of the employer’s need for the agricultural services or labor to be performed is seasonal or temporary
    • All the assurances and obligations required by 20 CFR 655.105 and/or, if an H2ALC, by 20 CFR 655.106 have been made
    • The filing of the application met the timeliness requirements specified at 20 CFR 655.102
    • The recruitment obligations required by 20 CFR 655.102 and 655.103 have been met

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NPC Application ProcessingNotice of Deficiency - Content

20 CFR 655.107

  • State the reason(s) why the application fails to meet the criteria for temporary labor certification, citing the relevant regulatory standard(s)
  • Offer the employer an opportunity to submit a modified application within5businessdays from date of receipt, stating the modification that is needed for the NPC Certifying Officer (CO) to accept the application for consideration
  • With limited exception, state that the CO's determination will be made no later than 30 calendar days before the date of need, provided that the employer submits the requested modified application within 5 business days and in a manner specified by the CO

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NPC Application ProcessingNotice of Deficiency - Content

20 CFR 655.107

  • Offer the employer an opportunity to request an expedited administrative review or a de novo administrative hearing before an administrative law judge, of the Notice of Deficiency
  • State that in order to obtain such a review or hearing, the employer must file within5businessdays of the receipt of the notice
  • State that the NPC will deny the application where the employer does not comply with the regulatory requirements or request an expedited review or a de novo hearing before an administrative law judge within the 5 business days

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NPC Application ProcessingNotice of Deficiency - Recruitment

20 CFR 655.107

  • Where the employer failed to comply with the recruitment obligations, the NPC shall offer the employer an opportunity to correct its recruitment and conduct it on an expedited schedule
  • The NPC notice shall . . .
    • Specify the positive recruitment requirements
    • Request the employer submit proof of corrected advertisement
    • Request the employer submit an initial recruitment report no earlier than 48 hours after the last corrected advertisement is printed
    • State that the CO's determination on whether to grant or deny the ETA Form 9142 will be made within 5 business days of receiving the required documentation, which may be a date later than 30 days before the date of need

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NPC Application ProcessingSubmission of Modified Applications

20 CFR 655.107

  • In order to receive a timely determination, the employer must submit the requested modified application within5businessdays and in a manner specified by the NPC
  • As long as the NPC issues the Notice of Deficiency within the 7 day timeframe, the statutory determination date (i.e., 30 days before the date of need) will be postponed by 1 day for each day that passes beyond the 5 business day timeframe for the employer to submit a modified application

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NPC Application ProcessingSubmission of Modified Applications

20 CFR 655.107

  • Where the employer submits a modified application as required by the NPC, and the modified application is approved, the NPC will not deny the application based solely on the fact that it now does not meet the timeliness requirements for filing applications
  • However, the NPC will deny the application where . . .
    • The modified application submitted by the employer does not overcome all the deficiencies
    • The employer does not comply with the modification provisions or request a timely review of de novo hearing, the application will be denied

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NPC Application ProcessingAmendments – Number of Workers

20 CFR 655.107

  • Applications may be amended at any time before the NPC determination to increase the number workers requested for certification
    • Not more than 20% (50 percent for employers requesting less than 10 workers) without requiring an additional recruitment period for U.S. workers
  • Requests for increases above the percent prescribed, without additional recruitment, may be approved by the CO only when the request is submitted in writing, the need for additional workers could not have been foreseen, and the crops or commodities will be in jeopardy prior to the expiration of an additional recruitment period

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NPC Application ProcessingAmendments – Period of Employment

20 CFR 655.107

  • Applications may be amended to make minor changes in the period of employment upon approval by the NPC
  • NPC will determine whether the reason(s) for the request are justified taking into account the effect(s) of a decision to approve on the underlying labor market test
  • Where the employer is requesting a change in start date and workers have already departed for the place of work, the NPC may only approve the request where the employer guarantees to provide housing and subsistence, without cost to the workers, until work commences.
  • Upon acceptance of an amendment, the NPC will submit any necessary modifications to the ETA Form 790 to the SWA

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NPC Application ProcessingOther Minor Amendments

20 CFR 655.107

  • Employer may request other amendments to the application, including elements of the job offer and the place/location of work
  • Such requests must be approved by the NPC
  • The NPC may approve the request as long as the proposed amendments(s) are justified by a business reason and will not prevent the NPC from making the required determination
  • Amendments will be reviewed as quickly as possible, taking into account revised dates of need for work locations associated with the amendment.

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npc application processing issuance of determinations
NPC Application ProcessingIssuance of Determinations

20 CFR 655.109

  • NPC Certifying Officer (CO) will make a determination either to certify, partially certify, or deny the ETA Form 9142
  • CO will certify where the employer has met all the regulatory requirements, including the criteria for certification at 20 CFR 655.107(a)
  • CO will determine that employment of H-2A workers will not adversely affect the wages and working conditions of similarly employed US workers
  • CO will notify employer in writing (either electronically or by mail) of the labor certification determination

Determination will be issued nolaterthan 30 days before date of need, except for modified applications or those otherwise not meeting the criteria for certification by that date

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issuance of determinations full certification
Issuance of DeterminationsFull Certification

20 CFR 655.109

  • Employer or employer’s agent or attorney will receive the following documents from USDOL
    • Final Determination letter
    • ETA Form 9142
    • An invoice for payment of fees within 30 days
  • Employer must continue to cooperate with the SWA by accepting referrals of eligible workers until the recruitment period has ended (see 20 CFR 655.102(f)(3))
  • Employer must file the certified ETA Form 9142 and appropriate documentation to the USCIS Service Center in California (see www.uscis.gov for more information)

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issuance of determinations partial certification
Issuance of DeterminationsPartial Certification

20 CFR 655.109

  • CO may reduce either the period of need and/or the number of H-2A workers being requested for certification
  • Employer or employer’s agent or attorney will receive the same documents from USDOL as those for “Full Certification”
  • Employer must continue to cooperate with the SWA by accepting referrals of eligible workers until the recruitment period has ended (see 20 CFR 655.102(f)(3))
  • Determination letter will include the following:
    • Reason(s) partial certification is being granted
    • If applicable, address the availability of US workers
    • Notice of opportunity to request expedited administrative review or a de novo hearing in writing within7calendardays of the date of notice

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issuance of determinations denials
Issuance of DeterminationsDenials

20 CFR 655.109

  • Employer or employer’s agent or attorney will receive the following documents from USDOL
    • Final Determination letter
  • Determination letter will include the following:
    • Reason(s) certification is denied, citing the relevant regulatory standards and/or special procedures
    • If applicable, address the availability of US workers
    • Notice of opportunity to request expedited administrative review or a de novo hearing in writing within7calendardays of the date of notice
    • Notice that the denial determination is the final decision of the Secretary if employer does not make a timely request for review or de novo hearing

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issuance of determinations validity and scope of labor certification
Issuance of DeterminationsValidity and Scope of Labor Certification

20 CFR 655.110

  • The certified ETA Form 9142 (as originally filed or amended) may not be transferred from one employer to another and is valid only for the . . .
    • Beginning and end dates of employment1
    • Number of H-2A workers 2
    • Area(s) of intended employment
    • Specific occupation and duties
    • Employer(s)

1 Except where either a short-term extension (2 weeks or less) is granted by DHS

or a long-term extension is granted by the CO in which the beginning and/or end

date of need is modified. Absent an extraordinary circumstance, long-term

extensions will not be granted where the period of need lasts 12 months or more.

2 Except where the CO grants a request for a new determination based on unavailability

of US workers

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issuance of determinations validity and scope of labor certification114
Issuance of DeterminationsValidity and Scope of Labor Certification

20 CFR 655.110

Special Consideration - Associations

  • If filing as a joint-employer, the certified ETA Form 9142 (as originally filed or amended) is granted to the association and to each named employer member
  • Workers may be transferred among the certified employer members, provided the association controls and tracks the assignment of workers
  • All temporary agricultural labor certifications to associations may be used for the certified job opportunities of any of its employer members named on the application.

Workers maynot be transferred or referred to an association's employer member if that employer member has been debarred from participation in the H-2A Program.

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Navigating the H-2A Visa Program

Step 6Post-Determination Actions

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post determination actions recruitment of u s workers
Post-Determination ActionsRecruitment of U.S. Workers

20 CFR 655.109

  • Employers receiving a labor certification must continue to cooperate with the SWA by accepting referrals -- and have the obligation to hire qualified and eligible U.S. workers who apply -- until the end of the designated recruitment period
  • SWAs may only refer for employment individuals whom they have verified identity and employment authorization through the process for employment verification of all workers that is established by INA § 274A(b)
  • SWAs must provide documentation to the employer certifying the employment verification that satisfies the standards of INA § 274A(a)(5) and its implementing regulations at 8 CFR 274a.6

The employer is notrequired to accept referrals of eligible U.S. workers once it has hired or extended employment offers to eligible U.S. workers equal to the number of H-2A workers sought

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supplemental recruitment report
Supplemental Recruitment Report

20 CFR 655.102

  • Employer must supplement the initial recruitment submitted with the ETA Form 9142 at the end of the recruitment period
  • The supplemental recruitment report must contain the same information as the initial recruitment report
  • Employer must sign and date this supplemental written recruitment report and provide it to the CO in the event of an audit

Pay Attention! The final recruitment report must be prepared by the employer within48hours of the date that is the end of the recruitment period as specified in 20 CFR 655.102(f)(3)

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post determination actions document retention requirements
Post-Determination ActionsDocument Retention Requirements

Employers receiving certification must retain records and documents supporting the ETA Form 9142

Retention period is 3 years from date of certification

All applicants must retain the following documents:

20 CFR 655.119

  • NPC prevailing wage determination
  • SWA job order and all attachments
  • Newspaper/journal advertisements
  • Contact with former U.S. workers
  • Multi-state recruitment efforts
  • Recruitment Report
  • Proof of workers’ compensation
  • Earnings records for each worker
  • Work contract or copy of ETA Form 9142
  • Housing inspection request to SWA
  • Add’l documents for H2ALCs
  • Status of association as employer or agent

Employers are notrequired to retain records and documents where the Secretary issues a denial determination

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post determination actions audit file checklist
Post-Determination ActionsAudit File Checklist

For associations only, documentation substantiating their status as an employer or agent

Prevailing wage determination letter or other documentation provided by the NPC to support recruitment of U.S. workers

Copy of the request for housing inspection submitted to the SWA

SWA Job Order (i.e., ETA Form 790 and all attachments) and proof of posting from the SWA identifying the job order number(s) with the start and end dates of the active posting

Copies of correspondence with former U.S. employees signed and dated by the employer or, if other means are used, maintain dated logs demonstrating that each worker was contacted, including the phone number, e-mail address, or other means that was used to make contact

20 CFR 655.119

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post determination actions audit file checklist120
Post-Determination ActionsAudit File Checklist

In-state and multi-state recruitment: Copies of all newspaper pages (with date of publication and full copy of ad), or tear sheets of the pages of the publication in which the advertisements appeared, or other proof of publication containing the text of the printed advertisements and the dates of publication furnished by the newspaper

Initial recruitment report and, separately, the supplemental recruitment report containing the employer’s original signature

Resumes (if provided) of, and evidence of contact with (which may be in the form of an attestation), each U.S. worker who applied or was referred to the job opportunity

Work contract or copy of the ETA Form 9142

Proof of workers’ compensation insurance or State law coverage

Records of each worker’s earnings

20 CFR 655.119

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post determination actions audit file checklist121
Post-Determination ActionsAudit File Checklist

Additional Documentation – H-2A Labor Contractors

Statements of compliance with the housing and transportation obligations for eachfixed-siteemployer which provided housing or transportation and to which the H-2ALC provided workers during the validity period of the certification

Proof of surety bond coverage which includes the name, address, and phone number of the surety, the bond number of other identifying designation, the amount of coverage, and the payee

20 CFR 655.119

Pay Attention!In circumstances where the H2ALC meets the housing and transportation obligations itself, proof of compliance by the H2ALC must be retained (see 20 CFR 655.101(a)(5))

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post determination actions notice of departure to workers
Post-Determination ActionsNotice of Departure to Workers

Limit to Worker’s Stay

A foreign worker may not remain in the US beyond his/her . . .

Authorized period of stay established by DHS; or

Separation from employment prior to completion of H-2A work contract

Absent an extension or change in worker’s status by DHS, the period of stay is based upon validity period of DOL labor certification

Notice to Worker

Employers must notify each H-2A worker uponstartingwork of the requirement to register his/her departure from the US at the conclusion of employment

Registration is required for H-2A workers departing the US by land at the place and in the manner prescribed by DHS

Employer obligation begins onlyafter DHS establishes a formal program for registration of departure

20 CFR 655.111

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slide123
Navigating the H-2A Visa Program

Briefing Section II.C

H-2A Final Rule Integrity Provisions

- 123 -

slide124
Audit Examinations

20 CFR 655.112

  • Will be conducted on certified applications only
  • Will be submitted in writing to employers
  • What is going to be requested? Documents which must be retained, or other information regarding the application
  • Failure to respond may result in the approved labor certification being revoked or the employer being debarred from future filings
slide125
Audit Examinations

Results of Findings

20 CFR 655.112

  • Affirm Compliance
  • Revocation
  • Referral for Debarment
  • Possible Referral to DHS
  • Possible Referral to DOJ (finding employer discouraged US workers)
slide126
Applications Involving Fraud or

Willful Misrepresentation

20 CFR 655.113

  • Possible fraud or misrepresentation—referred to DHS or DOLOIG
  • Any application that is found to involve fraud or misrepresentation will be deemed invalid; revocation will result if application has been approved
slide127
Administrative Review Provision

20 CFR 655.115

  • Available for refusal to accept, denials, denials of amendments, denials of extensions
  • CO delivers case file to ALJs
  • Briefs permitted but no new evidence may be introduced
  • Decision in 5 days—must either affirm, reverse, or modify the CO's decision by written decision.
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Administrative Review Provision

De Novo Hearing

20 CFR 655.115(b)

  • Employer may request a de novo hearing for refusal to accept, denials, denials of amendments, denials of extensions
  • Hearing within 5 days after the administrative law judge's receipt of the ETA case file, if the employer so requests
  • Will allow for the introduction of new evidence;
  • The administrative law judge's decision (final) affirm, reverse, or modify within 10 days after the hearing.
slide129
Job Service Complaint System

20 CFR 655.116

  • Enhanced from current regulation
  • Any complaint arising under these regulations can be brought to the Job Service complaint system
  • Contract complaints brought to the SWA will be raised to ESA
  • Discouragement complaints regarding US workers may also be referred to DOJ, and DOJ may raise to DOL
slide130
Revocation Provision

20 CFR 655.117

  • CO may revoke applications that have been approved
  • Employer will be provided notice and opportunity for a hearing
  • Violations rising to revocation include
    • OFLC Certifying Officer finds
      • Willful misrepresentation
      • Willful violation by employer of a material term or condition of the certification or the regulations
      • Failure to cure a substantial violation of the applicable housing standards
      • Significantly failed to cooperate with a DOL investigation
      • Failed to comply with one or more sanctions or remedies imposed by ESA, DOL or a court
    • ESA recommends and Certifying Officer concurs
slide131
Revocation Provision

20 CFR 655.117(b)

  • Employer/attorney/agent will receive notice with opportunity to rebut
  • Can submit evidence to rebut the charge:
    • 14 days CO must withdraw or uphold Notice:
  • If no new evidence submitted, within 14 days Notice will become the final decision of the Secretary and take effect immediately
  • Final Notice will provide opportunity for hearing; hearing stays the revocation
slide132
Revocation Provision

Employer Obligations

20 CFR 655.117(d)

  • If the workers have departed the place of recruitment:
    • Reimbursement of actual inbound transportation and subsistence expenses
    • Worker's outbound transportation expenses
    • Payment to the worker of the amount due under the three-fourths guarantee
    • Any other wages, benefits, and working conditions due or owing to the worker under these regulations
slide133
Debarment Provision

20 CFR 655.118

  • Can be imposed for up to 3 years
  • Debarments must be initiated within 2 years of the subject violation
  • Entities that can be debarred
    • Employers and their successors in interest
    • Agents
    • Attorneys
slide134
Debarment Provision

Grounds for Action

20 CFR 655.118

  • Employer commits substantial violation
  • Attorney or agent
    • participated in
    • had knowledge of
    • had reason to know of employer’s substantial violation
slide135
Debarment Provision

Substantial Violation

20 CFR 655.118(d)

  • Pattern or practice of acts which: are significantly injurious to wages, benefits, or working conditions OR reflect: significant failure to offer employment to all qualified domestic workers, willful failure to comply with obligations to recruit; significant failure to comply with audit; employment of H-2A worker outside the approved LC
  • Employer’s persistent failure to pay fees
  • Fraud
  • Significant failure to cooperate in investigation
  • Significant failure to comply with sanctions or remedies for violation
  • Single heinous act showing flagrant disregard for program requirements
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Debarment Provision

Procedures

20 CFR 655.118(e)

  • Notice with opportunity to rebut
  • Can submit evidence to rebut the charge:
    • 14 days OFLC Administrator must withdraw or uphold Notice:
  • If no new evidence submitted, within 14 days Notice will become the final decision of the Secretary and take effect immediately
  • Final Notice after rebuttal – effective within 30 days, will provide opportunity for hearing which stays effective date
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Debarment Provision

Administrative Review of Decision

20 CFR 655.118(e)(5)

  • Goes to an ALJ for hearing
  • New evidence permitted
  • Decision must affirm, reverse, or modify the OFLC Administrator's determination.
  • Review is available from the Administrative Review Board – must be requested within 30 days of decision, acceptance for review is discretionary
  • Debarment becomes final once all time for review runs
  • Requests for review stay debarment effectiveness
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Questions

H-2A Regulations

Please send an electronic mail to

[email protected]

and indicate “H-2A Rule Question” in the subject line

H-2B Regulations

Please send an electronic mail to

[email protected]

and indicate “H-2B Rule Question” in the subject line

DONOTsend email inquiries regarding these regulations to the

Chicago National Processing Center. All such inquiries will be

forwarded to the appropriate email box listed above.

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