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Office of Foreign Labor Certification Employment and Training Administration

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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Office of Foreign Labor Certification Employment and Training Administration

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  1. 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

  2. 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)

  3. H-2A Final Rule Overview Briefing Section I Regulatory Overview: Key Provisions and Employer Obligations - 3 -

  4. 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

  5. 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

  6. 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

  7. 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

  8. 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

  9. 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

  10. 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

  11. 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

  12. 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.

  13. 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

  14. 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

  15. 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

  16. 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

  17. 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

  18. 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

  19. 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”

  20. 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

  21. 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

  22. 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

  23. 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

  24. 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

  25. 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

  26. 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

  27. 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).

  28. 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

  29. 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

  30. 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

  31. Navigating the H-2A Visa Program Briefing Section II Employer Application Filing:Processing Model and Form - 31 -

  32. 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

  33. 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 -

  34. Navigating the H-2A Visa Program Briefing Section II.A H-2A Final Rule Transition Procedures - 34 -

  35. 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 -

  36. 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 -

  37. 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 -

  38. 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 -

  39. 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 -

  40. Navigating the H-2A Visa Program Briefing Section II.B H-2A Final Rule Full Implementation Procedures - 40 -

  41. 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 -

  42. Navigating the H-2A Visa Program Step 1Understanding the Application Filing Requirements - 42 -

  43. 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 -

  44. 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 -

  45. 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 -

  46. 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 -

  47. 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 -

  48. 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 -

  49. 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 -

  50. Navigating the H-2A Visa Program Step 2Obtaining An Offered Wage Rate from the NPC - 50 -

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