What Are NODs? Breaking Down The Most Common Deficiencies Flagged by the Department of Labor
An NOD is a Notice of Deficiency.
When you apply for Temporary Labor Certification, the Department of Labor (DOL) and the State Workforce Agency (SWA) ask for a lot of specific information about your business. If you don’t give them the information or details they need in a specific way, then you can expect to receive an NOD.
The DOL or the SWA will issue a Notice of Deficiency (NOD) when one of them needs more information, documentation, or proof that a farm or agribusiness has a seasonal need for H-2A employees. These agencies are also looking at a business’s capacity to employ an H-2A staff plus fulfill the requirements of the H-2A program. In the end, there are all sorts of deficiencies and errors that could cause the DOL or the SWA to flag an application and issue an NOD.
Don’t panic.
To help you prepare, and possibly alleviate some of your concerns, we’re breaking down some of the most common NODs and offering a few tips for the types of information to include and how to respond.
The Different Types of NODs
There are several types of deficiencies that might cause an application to be flagged by the DOL or the SWA and ultimately sent back for more information, additional documentation, or to have errors fixed. Some deficiencies are minor while others could be considered major.
A Notice of Deficiency doesn’t mean that the application for Temporary Labor Certification has been denied, but if an employer doesn’t reply within 7 days for the DOL or 5 days for the SWA, it WILL run the risk of a denial.
We process thousands of applications every year, so we understand what triggers an NOD and how to respond. We have taken our experience and classified NODs into a few different categories.
Here are some of the most common issues that trigger an NOD.
Clerical
Clerical NODs typically involve small errors on an application such as missing signatures, wrong email addresses, or absent appendixes. Clerical NODs can also involve missing or wrong information such as not listing the proper Adverse Effect Wage Rate (AEWR) for the proper job code, also known as a SOC number. Clerical NODs are simple to avoid but easy to fix and resolve.
Transportation
Transportation NODs are fairly self-explanatory in they involve a deficiency related to the transportation requirement of the H-2A program. Employers will need to provide transportation to and from the farm or the work site as well as back and forth to run weekly personal errands such as grocery shopping and banking.
The most common type of transportation NOD we see includes not listing viable modes of transportation or not including transportation details such as the make, model, and seating capacity of a vehicle. After that, we see a lot of transportation NODs involving inadequate insurance or the lack of a worker’s compensation policy covering travel.
Agricultural Need
An application for Temporary Labor Certification must be tied to a business that is agricultural in nature. This is where NODs can be difficult to handle. The application must be for agricultural jobs, whether for a fixed-site crop farm or a business defined as a Farm Labor Contractor (FLC). If the DOL or the SWA scrutinizes an application and determines that an agricultural need has not been established, they will issue an NOD.
“Agricultural Need” NODs typically need to be answered with supporting evidence or more details. Answers will have to establish how a business is related to agriculture by noting the types of crops a farm grows or how an agribusiness serves farms growing crops.
For example, a crop dusting business might need to further support its agricultural nature by listing various clients' locations, the types of crops those clients cultivate, and how the crop dusting business serves those clients and those crops (i.e. spraying fertilizer or applying pesticides and herbicides).
An “Ag Needs” NOD requires a thorough, professionally written response. This is when it’s important to have a trusted and experienced H-2A workforce agency handling your agribusiness’s Labor Certifications.
Worker’s Compensation
One of the requirements for businesses to utilize the H-2A program for their farm or agribusiness is a valid Worker’s Compensation Policy. If you don’t include a copy of an active, paid policy, the DOL will issue a deficiency. Likewise, a Worker’s Compensation Policy will need to cover transportation and housing.
All of these deficiencies are easily fixed by providing an active policy that covers the appropriate areas, and uploading a copy of a current Worker’s Compensation Certificate on the DOL’s Foreign Labor Application Gateway (FLAG).
SWA NODs
A Temporary Labor Certification application is sent to the SWA before it goes to the DOL. The SWA needs basic information about a business such as the Employer Identification Number (FEIN), the correct address of the business, and the address of the housing where the H-2A employees will live during the job contract.
The SWA is responsible for inspecting H-2A housing and sets the requirements for advertising open jobs to domestic applicants, also known as active recruiting. Housing must pass the safety inspection and the SWA will issue an NOD if housing is subpar. Keep in mind that these requirements vary by state.
Likewise, if any of the addresses don’t match or the FEIN doesn’t match the name of the business, the SWA will issue an NOD. SWA NODs can hold up the entire Certification process since applications must pass the SWA phase before going to the DOL.
Seasonal/Temporary Need
The DOL issues Temporary Labor Certification based on a farm or agribusiness’s seasonal or temporary need. The job orders (ETA-790s) must be for seasonal or temporary positions and must be agricultural.
Suppose a business applies for Certification using certain dates and tries to apply again next year using different dates. In that case, the DOL is likely going to question the seasonality of the job(s).
For example, a business applies in 2022 for the dates 4/1/2022 through 10/31/2022 and is approved. Then the business applies in 2023 but changes the dates of need to 3/1/2023 through 12/1/2023.
The change in dates will cause the DOL to question the seasonality of the position and issue a Seasonal/Temporary Need NOD. The DOL will request a response explaining these changes to the dates of need, but simply WANTING employees sooner is not sufficient.
Similar to an “Ag Needs” NOD, these responses should be thorough and professionally written to accurately convey the seasonal needs of an agribusiness.
SOC Code
Applications for a Temporary Labor Certificate must contain the proper job code(s) that coincide with the job duties. The job duties and the job code, also known as a Standard Occupational Classification (SOC) code, are listed on the ETA-790 job order submitted as part of the application. The DOL will issue an NOD if the job duties don’t match the job code or vice versa. Much of this also has to do with pay rates.
Ag employers must pay the Adverse Effect Wage Rate (AEWR) and different SOC codes have different AEWRs. Any change in job SOC codes will trigger a different AEWR, so the job duties, SOC code, and AEWR must match.
A SOC code NOD means that one of these areas doesn’t match and since the DOL must ensure that all H-2A and domestic employees are paid a fair wage, the DOL will request permission to change an application’s SOC codes and subsequently advertise the correct wage rate.
Replying to this type of NOD typically consists of giving the DOL written permission to change the SOC code, change the job description, and/or change the advertised wage rate.
Contact USA FARM LABOR for Help with Temporary Labor Certification
NODs are not the end of the world, and it’s fairly common for the DOL to flag various aspects of an application. That said, do not try to navigate this process on your own, especially after receiving a NOD. If you’re applying for Labor Certification and received an NOD, please don’t panic. Contact the professionals at USA FARM LABOR.
The last thing you want is a denial.
Our professionally trained staff understands what the DOL and the SWAs are looking for in an application, and we’re professionally trained on how to respond to NODs.
You have enough to worry about without piling annoying NODs and Temporary Labor Certification application management on your plate.
Rest easy and leave this process to the professionals at USA FARM LABOR.
Contact us using the button below or give us a call directly at 828-246-0659 to speak with one of our knowledgeable associates.
