by Deborah Jeanne Sergeant
Whether you have an H-2A program or are interested in becoming involved, it’s a great time to refresh your knowledge of compliance. Caylin Gwise with the New York Department of Labor’s (NY-DOL) Division of Immigrant Policies and Affairs (DIPA) spoke on the topic for a recent webinar hosted by the DOL.
Gwise described the H-2A Foreign Guest Worker Visa Program as “a federal program which allows U.S. employers to hire foreign workers on a temporary basis when there are not sufficient U.S. workers available.”
Before farmers can petition for H-2A workers, they must receive approval from U.S. Citizenship and Immigration Services by proving they cannot attract enough U.S. workers who want to and are qualified to do the work. A U.S. worker could be a citizen or national, a lawfully admitted alien for permanent residence, or any other person who’s not an unauthorized alien with respect to employment.
In addition, the work must be agricultural in nature, full-time — 35 hours per week or more —and temporary.
Gwise directed attendees to the U.S. Office of Foreign Labor Certification for a general guide for the application process. She also indicated a few important points about the NYS DOL role in H-2A.
“The Foreign Labor Certification Unit is involved in various aspects of processing of the employer’s application,” she said.
These include aspects such as to provide documents and forms as requested by US DOL ETA on a timely basis; review the application’s NYS compliance; answer questions from employers or agents regarding the application process; communicate regularly with employers about issues arising at the federal level that might impact the process; and provide specific guidance to the employer or agent based on feedback from US DOL ETA.
“The AgLP field staff provides support by conducting federally required housing inspections, field checks and processing apparent violations,” Gwise said.
The adverse effect wage rate (AEWR) is not calculated by the DOL, nor is it set by the DOL’s Annual Apple & Pear Survey.
“The AEWR is the regional weighted average hourly wage rate for field and livestock workers combined, as measured by the USDA annual Farm Labor Survey of non-supervisory farm and ranch workers,” Gwise said. “Most regions include more than one state.”
She added that when the prevailing wage is per piece, employers must pay by the piece, but must guarantee at least the AEWR on an hourly basis.
“The employer submits ETA 790 and attachments to the NYS DOL 60 to 75 calendar days prior to the date of need,” Gwise said. “The employer places the application package to CNPC with the US DOL no less than 45 calendar days prior to the date of need.”
As the next step, the employer should have an approved housing inspection, which could be DOH or DOL, depending upon capacity at least 32 days before the date of need.
The now-certified employer uses the certified order to petition the USCIS for visas.
Costs of the H-2A program to the employer are the cost of the US DOL’s ETA Form 9142A filing fee ($100, plus $10 per worker, not to exceed $1,000); USCIS’s I-129 Form fee ($460 per application. Multiple workers may be entered on one application); cost of the worker’s visa (but not passports); inbound and outbound transportation; and subsistence for workers while they travel.
Gwise said employers lacking the time to learn about the H-2A program can use a third-party agent. She said a list of agents is available at https://labor.ny.gov/formsdocs/dipa/fl6pdf.
The H-2A general requirements are that workers may do only the job duties listed on the certified job order and only for the approved employer. Workers must be paid weekly or bi-weekly (when paid up to date) and the pay must meet the Three-Quarter Guarantee for the entire contract. Workers must also receive the Adverse Effect Wage Rate (AEWR).
“Most H-2A orders in New York state are for a single employer,” Gwise said. “However, joint orders or orders with multiple employers are possible. Joint orders must contain similar crops.”
One example would be multiple vineyards sharing H-2A workers.
“With joint convenience and cooperation comes joint liability,” Gwise added.
The H-2A program has two common types of workers: farmworkers and laborers in crops with three months’ experience required and agricultural equipment operators with six months experience required.
“The job duties should represent the actual work to be done,” Gwise said. “Vague or very lengthy descriptions including too many duties are not recommended.”
The descriptions should include legally required language and additional items for consideration, which may include house rules.
“Be careful to not include unnecessary language or language contradictory to New York State Labor Law,” Gwise said. “Keep in mind, the longer the application, the longer it takes to be reviewed and approved.”
Employers are required to try to recruit local workers by placing ads on two separate days, which may be consecutive. One has to appear on a Sunday in a local newspaper of general circulation or, if that’s not available, advertise in the daily edition of a paper with the widest area of circulation in the area of employment.
H-2A domestic referrals may be through the NYS DOL or self-referrals. Gwise said employers must hire all domestic applicants who are qualified, available the entire period, and have been fully apprised in their primary language of the job’s terms and conditions.
Gwise also explained the 50% Rule and the Small Business Exemption.
“H-2A employers must provide employment to any qualified, eligible U.S. worker who applies for the job until 50 percent of the work contract has elapsed,” Gwise said, “unless the employer applied for and received a small business exemption from the CNPC during the processing period.”
To qualify for the exemption, the employer must demonstrate that the farm didn’t use more than 500 man-days of agricultural labor in any calendar quarter in the preceding calendar year; isn’t a member of an association that has petitioned for certification under this subpart for its members; and has not otherwise associated with farms petitioning for temporary foreign workers.
H-2A may be used in settings other than harvesting. Gwise sited seasonal work on dairies and animal farms as examples; however, their tasks must be seasonal in nature, such as snow removal on dairies or breeding horses on horse farms.
“We typically think of seasonal crops,” Gwise said. “Typically, dairy farms don’t meet this description. Typically, they tie their need for specific duties on the farm that are seasonal.”
She reiterated the tasks that temporary employees do must be on their job order.
As any farmer knows, things don’t always go as planned. For example, a late planting season may mean the harvest comes later. Or a bumper crop could mean a longer harvest time. Farms can file for extension of their period of employment to adjust to these kinds of needs; however, the application is subject to approval.