Qualifying Criteria for an agricultural employer to participate in the H-2A program
Must have a Temporary or Seasonal Need for Labor: “Temporary or seasonal nature” means employment performed at certain seasons of the year, usually in relation to the production and/or harvesting of a crop, or for a limited period of less than one year when an employer can show that the need for the foreign workers(s) is truly temporary.
Application with DOL: An employer must file an application with the DOL stating that there are not
sufficient workers who are able, willing, qualified, and available, and that the employment of aliens will not adversely affect the wages and working conditions of similarly employed U.S. workers.
U.S. Recruitment: The employer must agree to engage in independent positive recruitment of U.S. workers. This means an active effort, including newspaper and radio advertising in areas of expected labor supply. Such recruitment must be at least equivalent to that conducted by non-H-2A agricultural employers in the same or similar crops and area to secure U.S. workers. This must be an effort independent of and in addition to the efforts of the State Workforce Agency (SWA). In establishing worker qualifications and/or job specifications, the employer must designate only those qualifications and specifications which are essential to carrying out the job and which are normally required by other employers who do not hire foreign workers.
Wages: The wage or rate of pay must be the same for U.S. workers and H-2A workers. The hourly rate must also be at least as high as the applicable Adverse Effect Wage Rate (AEWR), federal or state minimum wage, or the applicable prevailing hourly wage rate, whichever is higher. The AEWR is established every year by the Department of Labor for every state except Alaska.
Piece Rate Wages: If a worker will be paid on a piece rate basis, the worker must be paid the prevailing piece as determined by the SWA. If the piece rate does not result in average hourly piece rate earnings during the pay period at least equal to the amount the worker would have earned had the worker been paid at the hourly rate, then the worker’s pay must be supplemented to the equivalent hourly level. The piece rate offered must be no less than what is prevailing in the area for the same crop and/or activity.
Housing: The employer must provide free housing to all workers who are not reasonably able to return to their residences the same day. Such housing must be inspected and approved according to appropriate standards. Housing provided by the employer shall meet the full set of DOL Occupational Safety and Health Administration (OSHA) standards. Rental housing which meets local or state health and safety standards also may be provided.
Meals: The employer must provide either three meals a day to each worker or furnish free and convenient
cooking and kitchen facilities for workers to prepare their own meals. If meals are provided, then the employer may charge each worker a certain amount per day for the three meals.
Transportation: The amount of transportation payment shall be no less (and shall not be required to be more) than the most economical and reasonable similar common carrier transportation charges for the distances involved. The employer is responsible for the following different types of transportation of workers:
(1) After a worker has completed fifty percent of the work contract period, the employer must reimburse the worker for the cost of transportation and subsistence from the place of recruitment to the place of work if such costs were borne by the worker.
(2) The employer must provide free transportation between the employer’s housing and the worksite for
any worker who is provided housing.
(3) Upon completion of the work contract, the employer must pay economic costs of a worker’s
subsistence and return transportation to the place of recruitment. Special conditions apply when the
worker will not be returning to the place of recruitment because of another job. If the employer must
advance transportation costs to foreign workers or provide transportation, the employer must advance
such costs or provide transportation to U.S. workers as well. In addition, if it is prevailing practice in
the occupation to provide transportation, the employer must provide transportation to U.S. workers, as
well.
Workers’ Compensation Insurance: The employer must provide workers’ compensation insurance where it is required by state law. Where state law does not require it, the employer must provide equivalent insurance for all workers. Proof of insurance coverage must be provided before certification is granted.
Tools and Supplies: The employer must furnish at no cost to the worker all tools and supplies necessary to carry out the work, unless it is common practice in the area and occupation for the worker to provide certain items.
Three-Fourths Guarantee: The employer must guarantee to offer each worker employment for at least three-fourths of the workdays in the work contract period and any extensions. If the employer affords less
employment, then the employer must pay the amount which the worker would have earned had the worker been employed the guaranteed number of days.
Fifty Percent Rule: The employer must hire any qualified and eligible U.S. worker who applies for a job until fifty percent (50%) of the period of the work contract has elapsed.
No Labor Strike: The employer must assure that the job opportunity for which H-2A certification is being
requested is not vacant because the former occupant is on strike or is being locked out in the course of a labor dispute.
DOL Certification Fee: A fee will be charged to an employer granted temporary foreign agricultural, labor
certification. The fee is $100, plus $10 for each job opportunity certified, up to a maximum fee of $1,000 for each certification granted.
Payroll Conditions: The employer must keep accurate records with respect to a worker’s earnings. The worker must be provided with a complete statement of hours worked and related earnings on each payday. The employer must pay the worker at least twice monthly or more frequently if it is the prevailing practice to do so.
Work contract: The employer must provide a copy of a work contract or the job order to each worker.
For information about FEWA and employer assistance to file for the H-2A program, please visit our website.