H-2A Labor
Agricultural employers, including tobacco growers, who anticipate a shortage of domestic workers, use a guest worker program called H-2A. The program establishes a means to bring nonimmigrant foreign workers to the U.S. to perform temporary or seasonal agricultural labor or services.
If you are interested in learning about the program with respect to the qualifying criteria to file an application for H-2A workers, filing process, certification process, documents and forms needed to file, when you can file and where you should file as well as news and updates related to the program, you can go to the following link. http://www.foreignlaborcert.doleta.gov/h-2a.cfm
For further information in your state, you can contact the local offices of the Wage and Hour Division of the Department of Labor.
The 2010 Final Rule
Helpful Factsheets from DOL
Wage and Hour Division Local Offices
State Workforce Agencies (SWA)
Pre-filing Procedures
Application for H-2A labor
Adverse Effect Wage Rate
Employer Contractual Obligations
Housing
Workers’ Compensation Insurance Coverage
Employer-provided Tools and Supplies
Allowable Meal Charges
Transportation; Daily Subsistence
Three-fourth Guarantee
Earnings Recordings
House and Earnings Statements
Frequency of pay
Abandonment of Employment or Termination for Cause
Contract Impossibility
Deductions
Disclosure of Work Contracts
The 2010 Final Rule
On February 12, 2010, the Department of Labor published in the Federal Register a Final Rule governing the labor process and enforcement mechanisms required under the H-2A temporary agricultural worker program.
The 2010 Final Rule is the result of the DOL’s review of the policy decisions underlying the 2008 Final Rule. There are some major changes in terms of the determination of the adverse effect wage rate, labor certification as opposed to labor attestation, calculation of the employer’s reimbursement of inbound and outbound transportation expenses from the place the worker came as opposed to the U.S. consulate or point of entry.
The 2010 Final Rule will apply to all applications filed on or after March 15, 2010.
Please visit the following link for the detailed features of the Final Rule.
http://webapps.dol.gov/FederalRegister/PdfDisplay.aspx?DocId=23525
Helpful Factsheets from DOL
- Fact Sheet #26: Section H-2A of the Immigration and Nationality Act (INA)
This fact sheet provides general information concerning the application of the H-2A requirements to the agricultural industry for H-2A applications submitted on or after March 15, 2010. For applications submitted between January 17, 2009 and March 14, 2010, see Fact Sheet 26A
- Fact Sheet #50: Transportation under the Migrant and Seasonal Agricultural Worker Protection Act
This Fact Sheet provides information concerning the transportation requirements of MSPA.
Wage and Hour Division Local Offices
The local offices of the Wage and Hour Division of the Department of Labor, can be found at http://www.dol.gov/whd/index.htm
State Workforce Agencies (SWA)
To locate your State Workforce Agency (SWA), please click on the following link and select the state in which you reside: http://www.foreignlaborcert.doleta.gov/contacts.cfm
Upon receipt of the job order, the SWA will review the job order and notify the employer in writing of deficiencies in the job order no later than seven (7) calendar days after it has been submitted. The employer must respond to the SWA within five (5) calendar days after receipt of the SWA notification. The SWA must respond to the employer's response within three (3) calendar days.
Once accepted by the SWA, the job order will be active until the end of the recruitment period, which will extend through 50 percent of the period of employment. In other words, employers must provide employment to any qualified, eligible U.S. worker who applies for the job opportunity until 50 percent of the period of the work contract has elapsed. In addition, agricultural employers who are applying to the Department of Labor for hiring H-2A workers are required to meet certain contractual obligations.
Pre-filing Procedures
Employers participating in the H-2A program are required to initiate pre-filing 75 to 60 days before their first date of need by submitting a job order to a State Workforce Agency (SWA) serving the area of intended employment.
The form that employers are required to use in order to submit their job orders to the State Workforce (SWA) is called the Agricultural and Food Processing Clearance Order ETA Form 790. Downloaded here
Application for H-2A labor
All agricultural employers who desire to hire H–2A foreign agricultural workers must apply for a certification from the Secretary of Labor by filing an Application for Temporary Employment Certification with the National Processing Center (NPC).
If you desire to file applications to hire H-2A labor, you must use both:
Supporting documents submitted to the National Processing Center along with the application for H-2A labor certification include:
- SWA approved job order (ETA Form 790)
- Proof that the employer’s housing is in compliance with applicable program requirements.
- Proof of workers' compensation insurance coverage.
A package of completed ETA Form 9142, completed ETA Form 9142 - Appendix A.2 bearing your original signature along with a copy of the ETA Form 790 and all attachments and supporting documents may be mailed or delivered by private mail courier to the following address:
U.S Department of Labor
Employment and Training Administration
Office of Foreign Labor Certification
Chicago National Processing Center
536 South Clark Street, 9th Floor
Chicago, IL 60605-1509
Attention: H-2A Program Unit
Adverse Effect Wage Rate
Adverse Effect Wage Rate (AEWR)
The current regulation requires farm employers to offer, advertise, recruit at and pay the highest of the AEWR, the prevailing hourly or piece rate, the agreed upon collective bargaining rate (if an employer is subject to a collective bargaining agreement), or the Federal or State minimum wage rate. Since the AEWR has most often been the highest of the three indicators, it can be expected that AEWR will be the effective wage rate that farm employers will be required to offer, advertise, recruit and pay to their prospective workers.
Under the 2010 Final rule, the DOL has decided to formulate the H-2A Adverse Effect Wage Rate (AEWR) based on the USDA data compiled through its quarterly Farm Labor Survey (FLS) Reports. This methodology sets the AEWR in each year for the H-2A workers based on the average combined hourly wage for field and livestock workers for the four quarters of the prior calendar year, as computed by the USDA’s NASS quarterly farm labor surveys.
The 2010 annual average combined hourly wage rates for field and livestock workers by region as published by the National Agricultural Statistics Service (NASS) of the U.S. Department of Agriculture (USDA) will thus constitute the AEWR for 2011.
Find the AEWR and for all states
Find a comprehensive listing of States minimum wage rates
Employer Contractual Obligations
For a summary of the contractual obligations in hiring H-2A workers, please visit
Housing
Employers must provide housing at no cost to H-2A workers and to workers in corresponding employment who are not reasonably able to return to their residence within the same day. If the employers elect to secure rental (public) accommodations for such workers, they are required to pay all housing-related charges directly to the housing’s management.
Concurrent with the filing of the job order, they must request a housing inspection. The housing inspection must be completed before issuance of the H–2A certification.
Employers must ensure that housing that they provide complies with all the applicable federal and state safety and health standards.
Depending on when the housing was built, either the Department of Labor Employment or Training Administration (ETA) standards (Housing for Agricultural Workers) or Occupational Safety and Health (OSHA) Temporary Labor Camp standards apply. For the details, please contact your State Workforce Agency (SWA)
Workers’ Compensation Insurance Coverage
Employers have a statutory obligation to provide workers’ compensation insurance coverage in compliance with (or equivalent to) State law. They are required to provide the Certifying Officer (CO) with proof of workers’ compensation insurance coverage, including the name of the insurance carrier, the insurance policy number, and proof that the coverage is in effect during the dates of need.
Employer-provided Tools and Supplies
Employers are required to provide to the worker, without charge, all tools, supplies and equipment necessary to complete the job.
Allowable Meal Charges
Employers are required to provide their workers with meals three times day, or free and convenient kitchen facilities to the workers enabling them to prepare their own meals. Should the employer choose the first option, the meals must provide a reasonable balance of food groups and nutrients intended to supply sufficient nutrition. You are encouraged to consult the USDA’s Dietary Guidelines for Americans 2005 report.
Note that the employer may only charge the workers for the actual cost of the meals and may not profit from the provision of food.
The U.S. Dept. of Labor has announced that the allowable maximum amount for 2011 that employers may charge their H-2A workers for providing them with three meals a day shall be no more than $10.73 unless the Department has approved a higher charge.
Transportation; Daily Subsistence
All employer-provided transportation must comply with all applicable laws and provide, at a minimum, the same transportation safety standards, driver licensure, and vehicle insurance. The rules and standards in the Migrant and Seasonal Agricultural Worker Protection Act (MSPA) as relates to transportation may serve as a minimum. Please visit
Employers are also required to pay the workers for the reasonable costs incurred for transportation and subsistence from the place from which the worker has come to the place of employment if the worker completes 50 percent of the work contract period and the employer has not previously advanced or provided transportation to the place of employment and subsistence costs. They are also required to provide or pay for the worker’s transportation and daily subsistence from the place of employment to the place from which the worker, disregarding intervening employment, departed to work for the employer, if the worker completes the work contract period or is terminated without cause.
Note that the 2010 Final Rule specifies that reimbursed transportation shall be from the place from which the worker came, not from the U.S. consulate or point of entry.
The maximum travel subsistence reimbursement for 2011
The U.S. Dept. of Labor has announced that workers who qualify for travel subsistence reimbursement in 2011 are entitled to reimbursement up to the Standard Continental United States (CONUS) meal rate, which is now $46 per day, when they provide receipts.
In determining the appropriate amount of subsistence reimbursement, the employer may use the General Services Administration (GSA) system under which a traveler qualifies for meal expense reimbursement at 75 percent of the subsistence for the first partial day of travel and 75 percent of the subsistence for the last partial day per quarter of a day. If a worker has no receipts, the employer is not obligated to reimburse above $10.73, which is the rate that the employer would charge the worker for providing the worker with three meals a day during employment.
Three-fourth Guarantee
Employers must offer the worker employment for a total number of work hours equal to at least three-fourths of the workdays of the contract period, beginning with the first workday after the worker arrives at the place of employment.
Earnings Recordings
Employers are required to retain payroll records for not less than 3 years.
House and Earnings Statements
Employers are required to provide earnings statements to workers each pay period, including the beginning and ending dates of the pay period, and the employer’s name, address and Federal Employment Identification Number.
Frequency of pay
Workers shall be paid at least twice monthly or according to the prevailing practice in the area of intended employment, whichever is more frequent. In addition to stating the frequency of pay in the job order, the rule adds a clarification that employees must actually be paid at the time specified in the job order (i.e., when wages are due).
Abandonment of Employment or Termination for Cause
A worker is deemed to have abandoned employment after he or she fails to report for work for 5 consecutive working days.
Contract Impossibility
Employers are required to make efforts to transfer the worker to other comparable employment acceptable to the worker in the event the employer is prevented from fulfilling the requirements of the work contract.
Deductions
Employers are required to make all deductions required by law and to specify all other deductions in the job offer.
Disclosure of Work Contracts
Employers are required to provide a written copy of the work contract to an H–2A worker no later than the time at which the H–2A worker applies for the visa in a language understood by the worker. The written copy can be provided at any point in the hiring process prior to this point to ensure that the H–2A worker has written notice of the terms and conditions of employment prior to departing the worker’s home country.
Contact This Department
Center for Tobacco Grower Research
302B Morgan Hall
2621 Morgan Circle Drive
Knoxville, Tennessee 37932
Phone: 865.974.0414
ctgr@utk.edu