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2. ABCs of Immigration Law: H-2A Temporary Agricultural Visas   The H-2A temporary agricultural visa is a nonimmigrant visa which allows foreign nationals to enter the U.S. to carry out temporary or seasonal agricultural labor or services. Given estimates that more than half of America’s agricultural workers are undocumented immigrants, the use of the H-2A visa is becoming more and more important.     What are employers required to do to obtain workers on H-2A visas?    Generally, employers must satisfy two criteria to hire nonimmigrant workers when filing an application with the USCIS:  The employer must show that able, willing, and qualified US workers are not available at the time and place needed The employer must show that an adverse effect on wages or working conditions of similarly employed US workers will not result from the employment of foreign workers Who may file an application for an H-2A visa?  An agricultural company or employer who expect a shortage of U.S. workers needed to perform temporary or seasonal agricultural labor or services An authorized agent filing on behalf of an agricultural employer   The employer may be an individual proprietorship, a partnership or a corporation.  A collective of agricultural producers may file as either a sole employer, a joint employer with its members, or act as an agent on behalf of its members.   From which countries can an employer hire workers using the H-2A visa?   H-2A petitions may only be approved for nationals of countries designated by the Secretary of Homeland Security.  For 2010, nationals from the countries listed below are eligible to participate in the H-2A program:   Argentina, Australia, Belize, Brazil, Bulgaria, Canada, Chile, Costa Rica, Croatia, Dominican Republic, Ecuador, El Salvador, Ethiopia, Guatemala, Honduras, Indonesia, Ireland, Israel, Jamaica, Japan, Lithuania, Mexico, Moldova, the Netherlands, New Zealand, Nicaragua, Norway, Peru, Philippines, Poland, Romania, Serbia, Slovakia, South Africa, South Korea, Turkey, Ukraine, United Kingdom, and Uruguay.   What steps must employers follow to do to obtain workers via the H-2A process?    First, the employer must prepare a job offer on the ETA Form 790 and submit the form and all attachments to the respective State Workforce Agency (“SWA”) for the state in which work is sought.  This application has to be submitted between 75 and 60 days before the H-2A temporary workers are needed.  The application fees, which must be paid by the employer, include a $100 base fee plus $10 for each position certified, up to a maximum of $1000.    Second, recruitment efforts follow, which are directed by the SWA for H-2A positions in one of three ways: the SWA refers candidates to the employer (with the employer using the state’s electronic data bank), the employer conducts independent recruitment, or the recruitment is conducted after the SWA certifies the applications.  Generally, referrals come from the state agencies.  Employers are required to hire US workers who apply for work until half of the contract period is over.    The DOL no longer requires employers to use recruitment ads (either through print or broadcast) outside the employer’s geographical area of intended employment.  In circumstances where the employer has one or more worksite locations in different states, the employer should file a single H-2A application concurrently with the SWA in the state where the work will begin.    Third, following the recruitment period, a decision is made regarding certification.  The SWA subtracts the number of US workers successfully referred from the total number of workers requested by employers to calculate and certify the remaining job openings.     Once certification is granted, the application is then filed with the DOL national processing center using ETA Form 9142 and the application can cover multiple unnamed workers.  As they become available, however, the DOL must be provided with workers’ names.  Finally, following DOL approval, the workers can then apply for visas at the appropriate consulate office.    What might be some reasons for which the DOL might not issue certification?    One pitfall which might prevent certification is if the DOL determines that US workers have filled all the job openings, or for example, if the DOL determines that H-2A candidates have been offered better working conditions than their US counterparts.  Another reason preventing certification could be if a strike or a lockout results, or if the employer is in significant violation of the H-2A program with the previous two years.  Other obstacles include the employer failing to show that H-2A workers will be covered by workers compensation or the employer failing to comply with the recruitment efforts.     How long are the H-2A visas valid?    Generally, the H-2A visas are valid for a one year maximum.  Extensions of up to one year, however, are possible but with a maximum of three years.  After the alien has spent three years in the US under the H-2A status, then the alien must leave for three months before continuing H-2A employment.  Subsequent to this time, however, the alien can reenter the US in any status not based on the performance of agricultural work.       How do employers calculate workers’ earnings?    Usually farm workers receive either an hourly wage or are paid by the piece.  Under the H-2A program, however, workers have to be offered a wage equal to that of US workers.  In the past, this has been interpreted to mean the higher payout of the following:  The prevailing industrial wage in the relevant labor market The state or federal minimum wage The "adverse effect wage rate" ("AEWR")   As of February 12, 2010, the 2010 Final Rule stipulates that the H-2A AEWR be based on the USDA data compiled through its Farm Labor Survey (FLS) Reports.  The AEWRs applicable to all agricultural employment for which temporary H-2A certifications are being sought will be the annual average of combined crop and livestock workers’ wages applicable for each state as reported by the USDA FLS reports.  The applicable 2010 AEWRs can be found at the following link: 2010 Adverse Effect Wage Rates.   For workers earning money by the piece, an employer must pay any difference between worker earnings and the AEWR.  Additionally, on or before each day the H-2A worker is paid, the employer must provide the worker with an earnings statement listing total earnings, hours of work offered versus actually worked, and whether the worker is paid hourly or by the piece. What benefits are employers required to provide the workers?   Transportation to and from the workers’ temporary home to the workplace When the contract period is up, transportation home or to their next workplace Housing to all workers who do not commute, which must be inspected by the Department of Labor as well as meet minimum federal standards for temporary labor camps Either three meals a day or facilities in which the workers can prepare food Any tools and supplies necessary to perform the work Workers compensation insurance where required by state law; if state law does not require it, the employer must provide equivalent insurance.

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