From which countries can I hire H-2A workers?
The H-2A program only allows you to hire workers from approximately 80 specific countries. We can provide you with the list of approved countries at any time. We can also assist you with the paperwork needed to hire workers from any of the approved countries. However, most of the workers we help find work come from South Africa.
What is the average length from the start of the process to the arrival of a worker?
The whole process generally takes about 90 days. It takes approximately 50 days to get a Temporary Labor Certification from the Department of Labor. After that, it takes, on average, another 20 days for the U.S. Citizenship and Immigration Services to grant you an Approval Notice (if they do not issue a Request for Evidence). With that done, you will need to wait another 15 days for your worker to get an appointment at the Consulate, find a flight to America, and travel to your worksite. Bear in mind, however, that this schedule is based on estimates. Unpredictable issues (like Notices of Deficiencies or Requests for Evidence) can delay the process.
How long can a worker stay once they come to my farm or ranch?
The H2A program is a seasonal program, which you can use to hire a worker for a maximum of ten months every year. However, the U.S. Citizenship and Immigration Services allows a worker to find subsequent employment after his ten-month period with you ends. A worker can stay in the country for up to three years as long as he or she can find consecutive employment. These extensions are dependent on approval by the U.S. Citizenship and Immigration Services. After three years, the worker must return to his or her home country.
What is an extension?
An extension is when a worker requests that the U.S. Citizenship and Immigration Services extend his or her stay in America. Approval of an extension requires the worker to have a job already lined up. In addition to extending the worker’s stay, the U.S. Citizenship grants the worker the right to work at the next job. The worker cannot work at a job without prior approval from the U.S. Citizenship and Immigration Services. How does the US Consulate in the foreign country look upon workers doing extensions? Most US Consulates in foreign countries, especially the South African Consulate, discourage this practice. They expect the worker to return to his or her country as soon as the job ends. Once a worker returns home, the US Consulate there generally expects him or her to remain for a minimum of 3 months. However, the consulate can require the worker to stay for 6 months before it will allow him or her to get a new visa. The US Consulate wants to ensure that workers do not lose their roots in their own country, since they may decide to try to stay legally in America. Any worker who would like to do an extension and transfer to another job must sign a USAFARMLABOR, Inc. disclaimer document, which we will need for our records.
Can I get help during the summer and the winter?
The Department of Labor can grant multiple Temporary Labor Certifications to a business in one year, but each need for temporary labor must be provably temporary and seasonal. The government instituted the H-2A program specifically to help farmers with temporary needs. If you have a year-round need for someone to drive farm equipment, this program does not apply to you. However, if you have two or more separate needs with completely distinct goals and job duties (e.g., if you have a crop-farming operation that produces crops during the spring, summer, and fall, and you also have a livestock operation that needs help during the winter when the cattle cannot be left out in the pasture), each need should be considered separate and temporary. The job duties must not overlap, you must require workers with different skills, and the job duties must only be applicable during their respective seasons. Only under these specific circumstances can an employer apply for multiple, separate Temporary Labor Certifications (e.g., one for the summer and one for the winter).
If each need is connected to a separate business entity, this can help distinguish your separate needs. However, if you only have one business entity, you can still acquire multiple Temporary Labor Certifications as long as you can prove that each Temporary Labor Certification would be tied to a provably temporary and seasonal need.
What is considered a season?
The government considers a need for labor to be temporary and seasonal if the need is shorter than ten months and if the job duties involved are tied to the production of a crop or are effected seasonal weather. For example, a crop-farming season generally runs from March 1 to December 31, since that period is when most crops grow best here in America. As a result, this is the period of time when most farmers need to do things like prepare equipment, plow the fields, plant, spray, harvest, and transport the crops. Furthermore, winter weather halts crop production. On the other hand, some of our clients need help during the winter, since the cold weather does not allow them to keep their livestock out on the pastures. Since livestock require more care during this season because of the weather, such a need is considered seasonal. These winter livestock seasons can start any time between October and December and run, on average, until late April or Early May of the following year. Each farmer’s labor need must be approved by the Department of Labor, which makes decisions on a case-by- case basis.
Can my worker apply for a green card if he desires?
Yes, a worker can apply for a green card, but the process is cumbersome, expensive, backed-up, and nearly impossible to complete. You must contact an immigration attorney to help your worker acquire a green card. We can supply you with a list of attorneys that provide immigration services.
What supplies must I provide for workers?
As an employer, you must provide, at no cost to the worker, all tool and supplies necessary to carry out the work. You must also provide the workers with a means of communication (e.g., a cell phone), free daily transportation to and from the workplace, and free transportation once a week to town to buy food.
What affects the time it takes to process my paperwork?
When it comes to the Department of Labor, in many cases, processing time is subject to how promptly you provide all information requested by the various government agencies (workers’ compensation, for instance) and how promptly you fill in and return the initial application we send to you. The Department of Labor has also acknowledged that they have encountered delays as a result of significant growth in the number of uses of the program, technical challenges, and budget constraints and cuts, so we recommend starting sooner rather than later.
At the U.S. Citizenship and Immigration Services, the processing time frame may vary between seasons. Processing usually takes only two weeks, but as their workload increases between February and May, it is not uncommon to see processing take several weeks. During the summer 2016 season, delays and other internal challenges at the Department of Labor and the US Citizenship and Immigration Services added three more weeks to the normal processing time for some clients.
Unfortunately, when it comes to the U.S. Consulate in the worker’s home country, we have little control over paperwork processing or the period of time a worker has to wait to obtain an appointment. To ensure this process does not take longer than needed, it is critical that an employer who hopes to begin on March 1 chooses workers as soon as possible in February. We try to provide resumes of workers to choose from as early as January.
Below is a list of general time frames:
- We type your app – 2 days
- SWA processes your app – 7 days
- DoL processes your app – 31 days (total, for all DoL steps)
- USCIS processes your request – 9 days for a receipt, 21 days for an Approval Notice
- Foreign Consulate processes the worker’s information and issues a visa – 2-3 weeks during the busy season (February through April) and 2 weeks for the rest of the year
Is there any way to speed the application process up?
In emergency situations, if you can prove that you have extenuating circumstances that justify expedited processing, we can submit an emergency filing, which will save you fifteen days. This can only be done once consecutively.
What does the Department of Labor require that I do when I apply?
The Department of Labor requires each applicant to follow the points below:
- You must provide an explanation (Justification Letter) that your need is seasonal, especially for winter applications.
- You must place two advertisements in your local daily newspaper—once in a Sunday paper and once in a weekly edition (we can assist with this process for a fee).
- You must place one advertisement in a newspaper in 3 other states (as instructed by the Department of Labor).
- You must provide furnished housing that passes a state inspection (by conforming to OSHA regulations) and includes utilities for your workers. Someone from the State Workforce Agency will contact you about performing an inspection.
- You must carry workers’ compensation (Liability insurance is not acceptable) and provide proof to the Department of Labor that your policy’s validity covers your period of need.
- When you send in your application, you agree to pay any workers, at a minimum, the Adverse Effect Wage Rate, the Prevailing Wage Rate, or Minimum wage, whichever is highest in your state.
- You must treat any American workers fairly and not show foreign workers preferential treatment. For example, American workers apply for your job opportunity or get referred to you by the State Workforce Agency, you must consider all of them and hire any that are qualified, willing, able, and available. As the law states “From the time the foreign workers depart for the employer’s place of employment, the H-2A employer must provide employment to any qualified, eligible U.S. worker who applies to the employer until 50 percent of the period of the work contract has elapsed.”
- You must reimburse your worker for his or her travel fees (international and internal), as well as his or her subsistence costs and Consulate fee. You must also reimburse a worker for the expenses he or she incurred while traveling to the consulate to get a visa, including food, gas, and, if applicable, hotel costs.
What is a Letter of Employment?
The letter of employment is a work contract between you and a worker. You are required to provide a Letter of Employment to your worker to take to the Consulate, since that letter is the worker’s proof that he or she has been offered an employment opportunity in America. There are two versions of this document: A compact version and a full version. The worker will use the compact version when he or she goes to the consulate and will sign the full version when he or she arrives at your farm. The full Letter of Employment is eight pages and covers the terms and conditions of the worker’s employment in great length and will be able to be accessed at any time on the database dashboard once that is complete. The Department of Labor requires you to provide a signed Letter of Employment to your worker and to have them sign it on the day he or she arrives at your location (neglecting this step often results in a $1,500 fine, per worker).
Do I need Workers’ Compensation to cover my workers?
Yes, all H-2A Employers must have workers’ compensation for all their workers and will have to submit proof (in the form of a Declaration Page, an Information Page, or a Certificate of Premium Payment Page) to the Department of Labor before they will grant you a Temporary Labor Certification. The Department of Labor no longer accepts liability insurance.
Some states, like South Dakota, also require that proof of Workers’ Compensation be submitted with the initial application to the State Workforce Agency.
How much must I pay a worker?
You must pay your workers, as a minimum, the Adverse Effect Wage Rate (as published by the Department of Labor), the State Minimum Wage, or the Prevailing Wage, whichever is the highest. Usually, the Adverse Effect Wage Rate is the highest. The Adverse Effect Wage Rate was established in order to prevent the employment of foreign workers from adversely affecting wages of similarly employed U.S. workers with equivalent skills and experience. This minimum wage is based on a 48-hour work week. If the wage rate increases, you must begin paying the new rate immediately. You must also keep earnings records for each worker and provide a copy of the pay slips to each worker every payday. Keeping accurate and detailed records is also essential for other reasons. Having earnings records on hand can make solving labor conflicts easier. In addition, the Department of Labor always asks for earnings records when they audit employers. If you did not provide pay slips, the Department of Labor may fine you $1,500 per H-2A worker.
At the end of the season, you should sit down with workers and ensure that you have paid them for all their work and that the number of hours you offered at least met the amount required by the Three-Fourths Rule.
Please Note: You must treat American workers the same as foreign workers. You must pay Americans at least the amount that you are paying H-2A workers if they are performing the same tasks as the foreign workers.
How often should I pay my workers?
You may pay your workers weekly, bi-weekly, or semi-monthly depending on your preference. This will be reflected on your ETA Form 790 application and your Letter of Employment. Must I issue a pay slip with each paycheck or at each pay period? Yes, you must give each worker a pay slip that includes all the necessary information, as required by the Department of Labor, for each pay period worked. This is just as important for the worker’s records as it is for yours. Failure to keep accurate and detailed pay slips can result in hefty fines from the Department of Labor if you get audited. And since audits happen at random, no one is immune. Play it safe and keep accurate and detailed records, just in case. Also, keep these and all other records for 3 years.
We include a pay slip template in the packet that we send out at the beginning of every year (in the set with the pink cover sheet). You can also find the same template in the compliance manual. We have tailored this pay slip template to include all the information required by the Department of Labor. If you cannot find your pay slip template, contact us and we will send you a new one.
What are the rules regarding taxes for employers of H-2A workers?
An H-2A employer is not required to withhold any taxes. You are also exempt from withholding any Medicare, Social Security, or Unemployment tax. Workers are subject to Federal tax withholding (starting at 15%), based on the “Substantial Presence Test”, but Taxes are, ultimately, the worker’s responsibility. You are only responsible for calculating and recording a worker’s pay and providing him or her with a W-2 document before January 31 of the next year.
However, some workers may ask you to withhold Federal taxes. In that case, it is essential that you, as the employer, have the worker sign a W4 form. You must then calculate the taxes and keep a record of them for the purpose of providing a W2 for the worker. These documents are required by the U.S. Consulate in their home country.
Please Note: If the worker does not get a Social Security Number, you may be held responsible for backup withholding, meaning that you will have to pay the worker’s taxes. Therefore, you should ensure that all of your workers get Social Security Numbers.
What are the rules regarding taxes for H-2A workers?
Since 2008, it has been the workers’ responsibility to file their own taxes. Based on the Non- Resident Alien Substantial Presence Test, a worker may be required to pay U.S. Federal taxes. If this is the case, the worker will be responsible for filing their Federal taxes, in the form of a 1040EZ or a 1040 + Schedule C, with the IRS. The worker may also have tax obligations in his or her home country. Whatever the case, the worker must keep records of any taxes paid. The U.S. Consulate in the worker’s home country may require proof before they will allow the worker to return to America.
The applicable Federal withholding tax rate starts at 15% of the annual amount made. A worker may request that his or her employer withhold Federal taxes on their behalf. That worker must sign an W4 form to make the request official. If a worker has questions about taxes, we can put him or her in touch with an accountant who is very knowledgeable about the subject of foreign worker taxes and who can provide a service to the workers for a fee comparable to H&R Block.
What is the Three-Fourths Rule?
You as an employer must guarantee to offer each worker employment and payment for at least three-fourths of the work hours in the contract period that you offered, as reflected on your ETA Form 790. If the Department of Labor determines that you have unfairly terminated the contract, you will be required to pay the amount that the worker would have earned had the worker been employed for the guaranteed number of days at the agreed-upon wage rate. This rule also comes into play if three-fourths of the contract cannot be completed as a result of a catastrophe, like if a flood washes away your crops and ends your farming season. If you are audited and the Department of Labor determines that you did not meet the requirements of the three-fourths guarantee, you will be forced to pay each affected worker to make up the difference, as if they had worked those hours. However, if you hire foreign workers, but then a qualified American worker applies for your job opportunity and you let one of your foreign workers go to make room for the American worker, this rule does not apply with regards to the foreign worker whom the American replaced.
What are the minimum and maximum number of hours that I can ask workers to work?
Most clients agree to offer workers a minimum of 48 hours of work, per week (generally eight hours a day, six days a week). This works well as a minimum. However, you may request that they work more hours if the work is available. The worker has the right to not work extra and cannot be fired for refusing to work more than the agreed-upon 48 hours of work a week. However, in most cases, foreign workers choose to work extra if they can. The most common complaint we hear from them is that they are not getting as many hours as they would like. Work during the season will fluctuate, of course, but your worker knows this.
If you consistently offer more than 48 hours of work per week, please let us know so we can reflect this in your application, which needs to be as accurate as possible.
Can I ask a worker to work on Sundays and Federal Holidays?
You may ask a worker to work on Sundays and Federal Holidays, but he or she has the right to decline without fear of being terminated or victimized in any way. Likewise, you may not refuse to hire a worker (domestic or foreign) on the basis that he or she chooses not to work on Sundays and Federal Holidays. Please note, however, that hours earned on Sundays and Holidays do not count towards the number of work hours needed to fulfill the requirements of the Three-Fourths Rule.
How much does a flight from another country cost?
The travel cost reimbursement for workers coming from South Africa varies between $1800 and $2000 per worker (round-trip). Tickets are cheaper from European countries and slightly more from Australia. The cost to travel from South Africa also varies depending on flight schedules, times of departure, and a person’s age. In 2016, the average cost of a flight from South Africa was about $1,800. If you are willing to pay the ticket upfront from here, that may reduce the cost down to around $1,400-$1,600.
How much must I reimburse for a flight?
You, as an employer, must reimburse a worker for the cost of his or her flight after he or she arrives. You are only required to pay the “common carrier cost” of transportation from the worker’s country of origin and back. For example, if a worker does not get the best price for his flight and the employer feels that the price is too high (as compared to other flights from the same country), the employer is only obligated to pay the average cost of a flight from the same country). We can calculate these costs and provide guidance. We expect to have a running average on your Employer Dashboard when we launch the new database in 2017.
What if my worker does not have an active ticket for his trip home?
If a worker has transferred between multiple employers, the Department of Labor expects the last employer to pay for the worker’s trip home. As a result, if your worker does not have a ticket and he or she plans on returning home after your contract is complete, you must pay the worker’s full plane ticket for the trip home. If the worker does have an active plane ticket, then the second half of that ticket just has to be reimbursed to the worker.
How are the travel arrangements booked?
Agents usually assist workers with booking their flights to America and strive to find the best possible rate for the time of desired arrival. However, workers sometimes book their own travel arrangements, though we do not advise this since it leaves us and the agents in the dark. You may, if you choose, coordinate with workers and book their travel arrangements. We only recommend doing this if you know and trust the worker, since you will have to pay for the flight upfront instead of reimbursing it later. However, if that is the case, this is a good option, since the exchange rate is not directly in play, making it much more cost effective for you to book flights, both international and within the country.
Train (Amtrak) and bus (Greyhound) transportation are good options for internal travel, since they are usually cost-effective. If you arrange for your worker to fly to your area from his or her port of entry, you must reimburse the full ticket amount. If you decide to book travel arrangements, please let us know so that we can stay in the loop and relay the information to the workers and their agents ahead of time. This can reduce or eliminate confusion for all parties involved. Starting in December of 2016, travel time entries in the database, entered by workers, employers, or agents, will alert all parties by e-mail.
Regardless of which method of transportation you decide to purchase for your worker, you are required to make arrangements to pick him or her up at the airport, bus station, or train station when he or she arrives in your area.
Do I have to provide my workers with food?
You and the worker share some responsibility when it comes to food. You as an employer have three options in this matter:
- Option 1: You may provide three meals a day for each worker. In this case, you may charge each worker (or deduct from their pay—this is one of the only allowable deductions) the rate set by the Department of Labor (currently $12.09 per day) for the provided food. This is often the best option for custom harvesters.
- Option 2: The employer may furnish free and convenient cooking and kitchen facilities for workers to prepare their own meals. If workers have to prepare their own meals, the employer must provide free transportation once a week so that the workers may purchase the necessary groceries. Most fixed-site employers choose this option.
- Option 3: The employer can arrange with a restaurant or other food preparation service to provide workers with food. If you choose this option, you may deduct $12.09 from a worker per day. However, if the food ordered by the worker exceeds $12.09, the employer must pay the difference.
Please Note: If the worker presents receipts for food, you must reimburse him or her the full amount, up to a set maximum ($51.00 per day in 2016) or 75% of that set maximum ($38.25 in 2016) for partial days.
What sort of housing must I provide for my workers?
You, as an employer, must provide free, furnished housing (in the form of an approved mobile home, house, apartment, motel, etc.) with cooking and washing facilities. The housing must comply with OSHA standards and will be inspected by the Department of Labor during each application process. In order for the housing to be approved, it must be clean and meet the following basic requirements:
- It must have a fire extinguisher
- It must have a first aid kit
- It must have smoke detectors
- It must have running, drinkable water, switched on by the time of inspection
- It must have electricity, switched on by the time of inspection
- It must have a heating system
- It must have a bed and bedding for each worker
- It must have a basic kitchen, utensils, and equipment
- It must have, posted somewhere visible, the results of the housing inspection and any other necessary posters
The Department of Labor requires a clear description of the housing for the workers and the physical address, with directions.
If you plan on housing workers in a hotel/motel or other rented space, we will need the following information we can provide a contract for this purpose):
- The name of the hotel/motel.
- The address and contact information of the hotel/motel.
- A statement that the hotel/motel has the facilities to house the number of workers.
- The time frame the housing will be provided (period of the permit)
- A rental agreement between you and the owners of the facility