H-2A Process for Employers
The employer obligations and worker safeguards related to wages and working conditions are defined by the Immigration and Nationality Act and regulations, which are collaboratively issued with the U.S. Department of Homeland Security (DHS). The enforcement of worker contract provisions and relevant employment laws falls under the purview of the Department's Wage and Hour Division.
Eligibility
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The employer must have a legitimate job offer for a temporary, seasonal, or peak-load position.
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They must demonstrate a shortage of available U.S. workers for the specific job.
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Employers must provide suitable working conditions and comply with all relevant labor laws.
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If applicable, they must provide adequate housing and transportation for H-2A workers.
U.S. Department of Labor
The Department must determine that:
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Insufficient availability of qualified and willing United States (U.S.) workers capable of performing the temporary or seasonal agricultural labor or services desired by an employer for the hiring of temporary foreign workers (H-2A workers).
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The employment of H-2A worker(s) will not have an adverse impact on the wages and working conditions of U.S. workers engaged in similar employment.
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Filing a Job Order for an H-2A Job Opportunity
Employers and their authorized representatives must electronically submit H-2A job orders ( H-2A Agricultural Clearance Order Form ETA-790/790A) , including required addenda, through the Department's designated electronic filing method, the FLAG System.
The National Processing Center will electronically transmit the job order to the State Workforce Agency (SWA) for intrastate clearance. The SWA will review and communicate any necessary corrections to the employer, initiating the recruitment of U.S. workers. In joint-employer situations, a single job order should be submitted, identifying each employer.
The job order must be filed 75 to 60 calendar days before the employer's first date of need.
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Filing an H-2A Application for Temporary Employment Certification (Form ETA-9142A) and All Required Appendices and Documentation with the NPC.
Submit the H-2A Application for Temporary Employment Certification (Form ETA-9142A) and required documentation electronically through the FLAG system to the National Processing Center (NPC), unless exempted.
The NPC will review the application and job order for compliance, notifying the employer of any deficiencies within 7 calendar days. The OFLC Certifying Officer (CO) will send notices and requests to employers, share approved job orders with State Workforce Agencies (SWAs) for interstate clearance and U.S. worker recruitment. In joint-employer situations, each named joint employer must sign and date the application.
The application should be filed at least 45 calendar days before the employer's first date of need.
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Conducting Recruitment for U.S. Workers
The employer must engage in positive recruitment of U.S. workers. Upon approval of the H-2A Application for Temporary Employment Certification and the associated job order, the Certifying Officer (CO) notifies the employer of acceptance, copying the State Workforce Agency (SWA). The acceptance letter instructs the employer to undertake positive recruitment of U.S. workers, providing details on report preparation and submission to the National Processing Center (NPC).
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Employers must contact previous U.S. workers at the place of employment during the prior year, urging their return. This outreach aligns with the SWA's circulation of the job order for interstate clearance.
The employer submits a recruitment report on a specified date outlined in the Notice of Acceptance.
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Completing the Temporary Labor Certification Process
Upon granting temporary agricultural labor certification, the Certifying Officer (CO) will send a Final Determination notice, the Approval Appendix, and an invoice to all specified emails in the application. Filers can also access certified documents, including the Application for Temporary Employment Certification and job order, through their FLAG accounts. The CO will directly transmit this documentation, along with any approved modifications, to USCIS through FLAG. Typically, Temporary Labor Certifications are issued no later than 30 calendar days before the specified first date of need in the application.
For more information visit: H-2A Temporary Agricultural Program
U.S. Citizenship and Immigration Services
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Petitioner submits Form I-129 to USCIS
Upon obtaining H-2A employment temporary labor certification from the DOL, the petitioner is required to submit Form I-129 to USCIS. With few exceptions, the petitioner must include the original temporary labor certification as initial evidence along with Form I-129.
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Prospective workers outside the United States apply for visa and/or admission.
After Form I-129 receives approval from USCIS, individuals outside the United States seeking H-2A employment must:
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Apply for an H-2A visa through the U.S. Department of State (DOS) at a U.S. Embassy or Consulate abroad, and subsequently, seek admission to the United States with U.S. Customs and Border Protection (CBP) at a U.S. port of entry; or
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If a worker does not necessitate a visa, directly seek admission to the United States in H-2A classification with CBP at a U.S. port of entry.
