The program has a number of benefits for employers, most notably the assurance of a legal, documented workforce and the reduction of labor turnover with the resulting loss in productivity. The program is not without costs, however. The negotiation of bureaucratic hurdles in receiving labor certification and issuing visas to the workers can take time and cause frustration. This publication provides background information on the program and details the criteria for qualifying to recruit and hire temporary or seasonal workers from outside the United States. The procedures for applying to the program and contact information and references for those wishing to find out more about participation in the program are also in this publication.
Background
The temporary foreign agricultural worker program was first authorized as the H-2 program under the Immigration and Nationality Act of 1952 and was amended as the H-2A visa program under the Immigration Reform and Control Act of 1986. The H-2A visa is for temporary workers performing "agricultural labor or services of a temporary or seasonal nature," as defined in the INA. Workers under this definition typically are farm workers, orchard workers, and ranch hands. The H-2A program provides for the admission of foreign agricul-tural workers to perform work that is temporary in nature, provided U.S. workers are not available. In contrast to the H-2B program for nonagricultural workers, no restrictions are made on the number of H-2A workers that are admitted yearly. While the 15,628 H-2A workers admitted to the United States in 2002 represent a small percentage of the estimated 1.2 million farm workers, they are concentrated in the southeastern United States. The Department of Labor estimates that 42 percent of these workers were destined for this area of the country. The program had increased to 33,292 workers admitted in 2001. For national security reasons, restrictions were placed on the program in 2001 and 2002 to slow processing of visa requests. The number of visas requested in the program is expected to increase during the next few years.
The H-2A program allows agricultural employers to recruit foreign workers if they can prove that they have attempted without success to hire local workers. The U.S. Department of Labor reviews and makes decisions on H-2A visa applications and, along with the Bureau of
Citizenship and Immigration Services, enforces federal regulations regarding the program. The H-2A visa only allows individuals to work for the original employer that submitted the visa request. Workers are not allowed to apply for a green card or other immigration status
during their stay in the United States. After an H-2A contract is finished, workers must return to their home countries and wait for their employers to hire them again, or they can apply for a different visa status.
Qualifying Criteria
An agricultural employer who anticipates a
shortage of U.S. workers needed to perform
agricultural labor or services of a temporary or
seasonal nature can file an application requesting
temporary foreign agricultural labor certification.
Temporary or seasonal nature refers to employ-
ment performed at certain seasons of the year,
usually in relation to the production or harvesting
of a crop or for a limited time period of less than
one year when an employer can show that the
need for the foreign workers is truly temporary.
The employer can be an individual proprietor-
ship, a partnership, or a corporation. An
association of agricultural producers can file as a
sole employer, as a joint employer with its members, or as an agent of its
members.
An authorized agent, whether an individual, such as an attorney, or an entity, such as an association, can file an application on behalf of an em-ployer. Associations can file master applications on behalf of their members.
How to Apply
Applications for labor certification (Form ETA
750) are filed with the regional administrator and
local State Workforce Agency. In Alabama, the
SWA is the Alabama Department of Industrial
Relations. Their contact information is at the end
of this publication.
The regional administrator will review an
employer's application promptly. Typically, the
regional administrator will notify the employer of
the decision to accept or reject an employer's
application within seven days after receipt of the
application.
After an employer's application is accepted for
consideration, the regional
administrator will require the
employer to independ-
ently engage in specific
recruitment efforts within
the region. This is done
if the regional
administrator determines that
there may be a sufficient supply
of labor to be recruited.
Recruitment usually involves
advertising in local news-
papers, checking electronic
databases, and consulting with local employment
agencies and unions.
If the regional administrator determines that the
employer has complied with all conditions, the
employer is granted the temporary foreign
agricultural labor certification for the number of
job opportunities that were not filled by U.S.
workers during the recruitment period. Qualified
and eligible U.S. workers who are seeking
employment and who apply in the first half of
the contract period will continue to be referred
to the employer by the SWA. The employer must
hire these U.S. workers.
After receiving certification from the DOL, the
employer uses the BCIS Form I-129, Petition for
Nonimmigrant Worker. The Labor Certification
Determination and the Form I-129 are submitted
to the BCIS along with filing fees.
When BCIS approves the petition, it forwards the
notice of approval to the appropriate Department
of State consulate in the country where the
foreign worker resides. The worker then applies
for the H-2A visa at the consulate. The
Department of State issues the visa for up to 1
year, but, in practice, it is rarely for more than
9 months.
Requirements
The H-2A has visa requirements intended to protect workers from exploitive working conditions. Employers are required to provide the following benefits to workers:
The employer must offer the H-2A worker the
same wages as comparable U.S. workers. This follows the prevailing wage established by the DOL.
The employer must provide the worker with an earnings statement detailing the worker's total earnings, the hours of work offered, and the hours actually worked.
The employer must provide transportation
to and from the worker's temporary home as
well as transportation to the next workplace
when the contract is fulfilled.
The employer must provide housing to all H-2A
workers. The housing must be inspected by DOL
and must satisfy appropriate minimum federal
standards.
The employer must provide the necessary tools
and supplies to perform the work.
The employer must provide meals or facilities in
which the workers can prepare food.
The employer must provide worker's compensa-
tion insurance to the H-2A workers.
For More Information
All initial applications to the H-2 program begin
at the State Workforce Agency.
Contact the SWA in Alabama at the following:
Alabama Department of Industrial Relations
649 Monroe Street, Room 2805
Montgomery, AL 36131
Phone: (334) 242-8020
Fax: (334) 242-8585
http://dir.alabama.gov/
Contact the U.S. Department of Labor Regional
Office at (404) 562-2131 or consult the U.S.
Department of Labor Web page at
http://www.workforcesecurity.doleta.gov/
foreign/h-2a.asp.
Al French, the USDA coordinator of Agricultural
Labor Affairs, maintains an informative Web site
on this subject at http://www.usda.gov/oce/oce/
labor-affairs/1910_142.htm.
Another source of information is the Bureau of
Citizenship and Immigration Services. Contact
their Atlanta District Office at the following:
Bureau of Citizenship and Immigration Services
Atlanta District
Martin Luther King Jr. Federal Building
77 Forsyth Street SW
Atlanta, GA 30303
(800) 375-5283
http://www.immigration.gov/graphics/
index.htm