H-2A 101: Guide to a Temporary Foreign Labor Certification
Years ago, the U.S. government realized there was a strong need among employers in various industries to hire seasonal, temporary foreign labor. There weren’t enough interested domestic employees to work in these businesses as temporary, seasonal employees, so the H-2 visa program was born.
In the mid-80s, these H-2 work visas were split into two categories – H-2A and H-2B.
H-2A is designated for the agriculture industry while H-2B is designated for those industries other than agriculture with seasonal needs for employees.
The H-2A work visa program allows employers in the agriculture industry with a need to fill critical positions to bring over temporary, seasonal agriculture employees from a foreign country when there aren’t enough interested domestic, U.S.-based applicants to fill those open positions.
Many agricultural employers in America rely on the H-2A program to find and source skilled, qualified, seasonal, temporary farm and farm contracting employees. H-2A employees are so important to the agriculture industry in America that it’s safe to assume this industry would be crippled without the program.
But, before you as an ag employer can legally hire temporary, seasonal employees from outside of the U.S., you’ll need to obtain a Temporary Labor Certificate. Once you’ve applied for and been awarded a Temporary Labor Certificate, you can then legally hire employees for your agriculture business through the H-2A work visa program.
However, a lot goes into getting your business certified to hire employees on H-2A work visas. The application process is extensive and very involved.
So, to help give you a better idea of using the H-2A program, we’re going over a few of the steps you’ll take to obtain your Temporary Labor Certificate.
We’re breaking down the processes, the required documents needed for each step, and some of the common pitfalls that ag employers run into throughout these steps.
Step 1: The Application Creation Process, the ETA-790, and the ETA-9142A
Applying for a Temporary Labor Certificate is the first step to being able to hire seasonal foreign employees for your ag business. The Department of Labor (DOL) is the government agency in charge of issuing certificates, but you’ll need to submit information to various government entities before you’re officially certified, starting with the State Workforce Agency (SWA).
Your initial application contains all of the information the DOL and the SWA need to issue your certificate including a list of documents that verify your business. We call these VIBE documents.
A few examples of VIBE documents include:
Most Recent Tax Return
Most Recent Bank Statement
Bills from Local Suppliers
These can all be redacted for your privacy. These documents are used to verify the legitimacy of your ag business. Once you have those documents ready, it’s time to gather some more information and a few additional documents needed for your application.
Here’s a list of some of the documents and other information you’ll need to get started with your application for a Temporary Labor Certificate:
Worker’s Compensation Policy
Federal Employer Identification Number (FEIN)
Jobs/Positions of Need and Job Descriptions
Housing Details for H-2A Employees (more on this later)
Transportation Details for H-2A Employees (back and forth to your farm or job sites)
All of this information and documentation is organized for your application, put into the ETA-790 form, and that form is submitted to your SWA.
How Does the SWA Use Your ETA-790?
The ETA-790 is the form submitted to your SWA to demonstrate your business’s eligibility and need for employees. The ETA-790 is an official government form declaring your need for seasonal labor complete with a job description and other information such as housing details, transportation info, and the number of employees you wish to hire.
The SWA uses the information contained in the ETA-790 to determine whether your business qualifies for the H-2A program. The SWA scrutinizes your application, creates job orders, and then schedules and performs your H-2A housing inspection.
The SWA scrutinizes your application to either approve your job order, ask for more information, or determine that your business does not qualify for the program, which is rare in our agency’s experience.
The ETA-790 is also what your state government uses to create seasonal job orders and advertise your open job(s) to domestic employees. The SWA may also refer qualified applicants to apply for your job. It’s important to interview and consider these referrals with an open mind.
If they’re qualified, willing, able, and agree to the terms of your job, you must hire these domestic applicants.
Should you hire a domestic worker through this referral process, that worker will take one of your spots on your temporary labor certificate and will reduce the number of H2A workers you can hire for the season.
These job ads are often directed at domestic employees on unemployment benefits or displaced workers from other sectors, typically due to factory closures or businesses relocating. This initial statewide recruitment phase is important in demonstrating the need for more interested, qualified domestic job-seekers for your positions.
It’s also important to keep in mind that some states, such as Mississippi, still require ag employers to advertise their job openings in newspapers to satisfy this requirement.
If you choose to work with USA Farm Labor, our team will take care of this very tenuous process where required.
The SWA and H-2A Housing Inspections
H-2A housing inspections are also performed by your SWA or another designated party, such as OSHA, and each state has its own H-2A housing requirements as well as its own H-2A housing inspectors. Individual states can expand basic H-2A housing requirements with things such as state-specific or municipal building codes but these inspections and requirements are standard, for the most part.
A good rule of thumb is to offer H-2A housing that you would feel comfortable letting your family live in and create an environment that you would find acceptable if the roles were reversed and you were a temporary employee in a foreign country.
Waiting for an H-2A housing inspection or any issues with your housing can hold up the process and cause delays in moving on to the next step. This is also where having an experienced H-2A agency in your corner such as USA FARM LABOR comes back into play.
A reputable agency understands what SWA housing inspectors are looking for and can advise you on grey areas of the program, such as housing. Here at USA FARM LABOR, we go the extra mile and employ an H-2A Housing Specialist who can help you expedite the housing inspection process and who has a working relationship with various SWA housing inspectors.
Simply put, do not let housing requirements deter you from applying for a Temporary Labor Certificate.
Although housing seems like an enormous upfront cost, it’s nothing compared to the production lost from not having ag employees to help plant, cultivate, and harvest your crops.
For farm labor contractors (businesses that perform work on farms for farmers), skilled, qualified, employees make all the difference in your ability to fulfill your work contracts or take on new clients and grow your business.
The ability to take on one extra contract or meet the needs of one new ag client during busy times of the year, such as harvest, can cover the cost of your H-2A housing and beyond.
In the long run, the benefits of this program outweigh the financial costs. Otherwise, no one would use the program to source their ag employees.
Once your SWA approves your need for temporary, seasonal employees and performs its housing inspection, it’s time to submit your application to the DOL.
All of the information from your ETA-790 and the original documents you submitted to the SWA will need to be transferred to an ETA-9142A and everything is then submitted to the DOL.
Step 2: Submitting the ETA-9142A to the DOL
Once the SWA approves your ETA-790 job order, the next step is to submit those details and an ETA-9142A to the DOL. The ETA 9142-A is your application to the DOL for a Temporary Labor Certificate just like the ETA-790 is the application to the SWA.
The DOL is also the agency in charge of ensuring that your hiring of H-2A employees will not negatively impact the domestic job market. The ETA-9142A can be filled out online at the DOL’s website and submitted.
The DOL will scrutinize your application more thoroughly than most SWAs before determining whether your business qualifies for a Temporary Labor Certificate.
Exact processing times at this stage of the process can vary greatly depending on several factors such as the nature of your application, the current workload at the DOL, and whether there’s anything off about your application.
Examples of the latter include odd beginning and end dates of seasonal job orders or inaccurate job descriptions for the positions you need to fill. If everything looks good at this step, the DOL will accept your application and it’s on to the next step.
Step 3: Advertising Your Job Order(s) and Ongoing Employee Recruitment
Once the DOL accepts your application and all of your information looks “good” to them, you still have to meet a couple of more requirements before you’re officially awarded a Temporary Labor Certificate.
The biggest requirement goes back to advertising your open jobs to the domestic, U.S. labor market and keeping detailed records of any domestic applicants.
The overall purpose of these job advertising efforts is to give domestic, U.S. job seekers a chance to apply for seasonal job openings.
The DOL’s purpose is to help domestic, U.S.-based employees and U.S. employers first, so in this case, they’re advertising your open positions for FREE, which is technically helping you with hiring employees for your ag business.
Off of this, if you do have any interested domestic applicants, you must interview them and offer them the position given they are qualified, willing, able, and available. Of course, any interested domestic applicants must also agree to the terms of the seasonal job order including wages, hours, and the duration of the temporary position.
The DOL will also help advertise your job(s) on its seasonal jobs board, www.seasonaljobs.dol.gov using the information from your ETA-9142A. If you’re contacted by a domestic applicant at any time up to the halfway point of your specified period of need, so after you’ve already received your certificate, you must give them a fair chance at the position.
It’s important to document any contact with domestic applicants, interview them, keep notes on the interactions you have with them, and continue to do so up til the halfway point of your seasonal job order. We call these recruitment reports and they’re an integral part of complying with the rules and regulations of the H-2A program.
Failure to treat domestic applicants fairly WILL result in fines and lawsuits and can cause the DOL to revoke your Temporary Labor Certificate.
Step 4: Receiving Your Temporary Labor Certificate
Once you’ve submitted your various forms to the SWA and the DOL and gone through the domestic recruiting process and you’re approved for the program, you’ll receive your official Temporary Labor Certificate. The certificates are emailed to you to keep for your records, and if you hire USA FARM LABOR, a copy will also be sent to us.
Although you’ve received a Temporary Labor Certificate, you’ll still have several more steps ahead of you before your H-2A employees arrive from their home country. You also have several ongoing obligations to comply with the regulations of the H-2A program such as the aforementioned recruiting efforts up to the halfway point in your specified period of seasonal need.
Receiving your Temporary Labor Certificate is just the beginning of your journey into the H-2A program. If it sounds like a lot, that’s because this process is extensive.
At USA FARM LABOR, we understand that ag employers don’t have the time and energy to focus on this convoluted process, and that’s where we come in.
USA FARM LABOR Makes the h-2a program easy
Obviously, there are a lot of steps to the certification process.
If you decide to hire an H-2A agency such as USA FARM LABOR, we’ll compile the information you send us into the ETA-790 and ETA-9142A and send it back to you for a signature using Adobe Acrobat for digital correspondence and signing.
Other than sending us a copy of your Worker’s Compensation Policy, or purchasing a policy if you don’t already have one, and sending us housing or vehicle information, you won’t have to do much at all to complete your application.
Our associates can generally get all of the information they need from you to complete the ETA-790 and submit your application to the appropriate government agencies in one 20 to 30-minute phone call.
We also make this process easy by giving you a username and password to access our proprietary H-2A database designed to make submitting your documents simple and help you stay informed on the progress of your application.
You can answer a few questions and submit the documents we need to complete your ETA-790 right from the database.
It doesn’t get much easier.
We also provide you with the tools you need to comply with all aspects of the H-2A program including our renowned H-2Advantage Compliance Manual.
We’re committed to your success in the program and as a whole. When our clients succeed, we succeed, and that’s the USA FARM LABOR difference.
Call us today at 828-246-0659 or fill out a contact form and one of our knowledgeable H-2A associates will get in touch with you right away.
Next season is coming fast and you can’t afford to go through another crop cycle without the skilled, qualified, legal employees you need to get the job done.
