A Look at H-2A and DOL Audits: What to Know and How to Prepare
Audit.
It’s a scary word.
When we hear the word “audit” most of us think of taxes and a dreadful Internal Revenue Service (IRS) audit.
Luckily, that’s not what we’re talking about. Your finances are not being investigated.
Today, we’re talking about the H-2A program and DOL audits.
Like most government-run visa programs, the H-2A work visa program is subject to audits. The Department of Labor (DOL), as well as the Wage and Hour Division (a subdivision of the DOL), will conduct semi-random audits of agricultural employers using the H-2A program for seasonal employees to ensure these businesses are complying with the rules and regulations of the program.
There are two types of DOL audits: paper audits and field audits. Today, we’re covering DOL paper audits, but stay tuned for another post that covers field audits, which is an entirely separate process with a different set of expectations and requirements.
What is a DOL Audit?
Aside from normal ongoing H-2A program obligations such as recruitment reports up to the halfway point of the work contract period and maintaining H-2A payroll slips with specific information, the DOL conducts random audits on Temporary Labor Certificate holders to ensure employers are complying with the rules and regulations of the program.
A DOL paper audit involves submitting various requested documents to the National Processing Center (NPC) in Chicago. The DOL can request all types of business information as it relates to the H-2A program.
Audit requests, also known as a Notice of Audit Examination (NOAE) are sent via email from the Foreign Labor Application Gateway (FLAG) and include a case reference number.
Case reference numbers typically begin with a letter followed by 14 numbers, looking something like this: H-300-23145-123456.
If you use an H-2A agency such as USA FARM LABOR, a copy of your audit will be sent to your agent and your State Workforce Agency (SWA).
The DOL will request a range of information for an H-2A paper audit including:
Recruitment Reports: involves submitting a copy of your final recruitment report – filled out, dated, signed, and submitted to the FLAG system after the halfway point of your contract because you must continue recruiting up until the halfway point of your work contract’s specified period of temporary need.
Earnings Records/Payslips: involves submitting a copy of each temporary employee’s earning records, both H-2A and domestic. These will include hours offered each day, hours worked each day, and rate of pay among other details.
Work Contracts: requires submitting a copy of any and all work contracts between an employer and their employees outside of the approved H-2A job order. When the H-2A job order is the only work contract between an employer and an employee, employers will need to submit a written statement affirming that no other contracts exist.
H-2A Agent Contracts: are contracts between an employer and an H-2A agency such as USA FARM LABOR. These contracts outline the agreement between you and your H-2A agent and the nature of that relationship.
Reimbursement Receipts: employers must submit a copy of all payments made to reimburse H-2A employees for travel costs, subsistence, or meals.
Copies of Insurance: are copies of policies such as your worker’s compensation policy during the season in question.
These are just a few examples of the types of information the DOL might request in a paper audit. Failure to provide the DOL with the requested information can ultimately result in disbarment from the H-2A program. Disbarment is rare. The DOL wants to ensure that H-2A employers follow the program's rules and regulations.
Why is Your Farm Business Being Audited by the DOL?
Your farm or agribusiness is probably being audited by the DOL because it randomly chose an H-2A employer to audit and it just so happens to be you. While there are circumstances that will trigger the DOL to audit an employer, most of the paper audits we see come through our office are random. Other events that can trigger a DOL audit include repeatedly receiving complaints about an employer and open, blatant violations of the H-2A program.
There is no real method to the madness, so to speak.
The DOL is a government agency with jobs to do and conducting random audits of H-2A employers is, unfortunately, one of those jobs.
You Submitted Everything, Now What?
You’ve compiled your documents and emailed the DOL, now what?
Well, the waiting begins.
Once you submit all of the requested documentation to the DOL, you’ll receive email confirmation that your audit documents were received by the National Processing Center in Chicago. After a while, you’ll learn the results of your audit. It could be a few days, or it could be a couple of weeks or even months before you hear back.
You’ll receive one of two responses: either the audit is finished and the DOL sends you and your H-2A agent a letter of findings, effectively closing the audit; or the DOL sends you an RSI and needs more documentation regarding a specific area of your program compliance.
Requests for Supplemental Information (RSI)
If you submit your documents for an H-2A audit and don’t satisfy the requirements the DOL is requesting, then you may be subject to a Request for Supplemental Information (RSI). An RSI isn’t the end of the world, but you should proceed with extra caution after receiving one.
RSIs are essentially your last chance to comply with a DOL audit request before the department takes further action such as moving your case to a Field Audit or going ahead with fines or possible disbarment from the program and a revocation of your Temporary Labor Certificate altogether.
RSIs are issued for several reasons, typically because you didn’t submit all of the required documentation requested in the original audit letter. It’s important to read these letters carefully and provide all of the requested documentation. An RSI can be a hassle, so you must submit all of the documentation the DOL has requested the first time around to avoid these time-consuming setbacks.
USA FARM LABOR Offers Full-Service Audit Assistance for Clients
A DOL audit is frustrating, scary, and time-consuming. Your run-of-the-mill H-2A agency is going to charge high audit fees and their carelessness puts you at risk of losing your Labor Certificate and being debarred from the program.
That’s why you need a professional H-2A agency that understands every facet of the H-2A program in your corner.
USA FARM LABOR has our clients’ backs every step of the way. From initial filing to recruitment to employer matching to the dreaded DOL audit process, USA FARM LABOR offers the full range of H-2A services.
Don’t waste your time with fly-by-night H-2A agencies. Contact us today and experience the USA FARM LABOR difference for yourself!
