Understanding the H2A Process/Program Shay Foulk – Ag View Solutons, Profit Manager Pre-RollAround the room solo introductionKeep sending those ideas to [email protected] or find us all over social media. We greatly appreciate YOUR help in growing our audience.Topic for the day – Labor is getting harder to find, could using the H2A program be the solution for you?John Deere Mid-Roll Commercial Introduce Guests:Bio #1Bio#2 What is H2A?The H-2A temporary agricultural program allows agricultural employers who anticipate a shortage of domestic workers to bring nonimmigrant foreign workers to the U.S. to perform agricultural labor or services of a temporary or seasonal nature.What does it take to qualify for the H-2A Program?a business’s need for workers must:• be agricultural in nature,• not involve processing a commodity from its raw state into an altered state (e.g., canning), and• be temporary (generally less than ten months long).The business must also be able to prove that it is unable to find qualified American workers for open job positions—and that hiring H-2A workers will not put American workers at a disadvantage.The ProcessPre-Filing – The government requires a lot of information from you before it will grant you a Temporary Labor Certification.2. SWA – We then submit your Application, on your behalf, to your local State Workforce Agency (SWA).3. DOL – We then submit, on your behalf, the approved Application, along with additional information and documentation, to the U.S. Department of Labor (DOL).4. Advertising – The DOL then posts the details of the job on seasonaljobs.dol.gov. The process then pauses for about a week5. USCIS – We generate a Petition for a Nonimmigrant Worker and submit it, on your behalf, If you are trying to hire workers who are outside of the country, the USCIS sends the visa petitions to the applicable consulate. The workers then go to the consulate and undergoan interview.TimeframesIn general, the whole process, from application to worker arrival, takes about 90 days.When Should You Apply?H-2A regulations only allow employers to submit Applications for Temporary Labor Certification 60-75 days before the date on which they need workers to arrive.During the application process, you will choose a start and end date (your Period of Need) for the workers. These dates should reflect your need for workers as accurately as possible.How Many Workers Should You Request?As with your period of need, the number of workers you request certification to hire must accurately reflect your actual needs.Employers should never request more workers than they expect they will need.If You Need Workers at Different Times of the Year, you may be able to submit multiple applications and obtain certification to hire workers during each period. If the two or more periods are related but do not, together, cover more than 10 months of the year, you can usually submit multiple applications—one for each period.Give an ExampleEmployer ObligationsProvide workers (H-2A and American) with work contracts orcopies of the Approved Job Order (ETA Form 790).Reimburse workers for their transportation and subsistence expenses within the first pay period, including:o the Consulate Fee of $190,o the round-trip plane tickets, ando subsistence costs, including food, lodging, and fuel costs• Help the workers get everything they need upon arrival,including:o a driver’s license/CDL (if required for the job),o a Social Security Card, ando a bank account.• Give the workers what they need for the job, including:o free housing that meets OSHA or ETA standards, depending on when it was built,o free transportation to and from the worksite every day and to the grocery store once a week, ando any required tools, safety gear, including a means of two-way communication (e.g., a cell phone).• Ensure all H-2A workers are covered by Worker’s Compensation at all worksites for the entire contract period.• Pay workers, at a minimum, the state minimum wage, the federal minimum wage, the prevailing wage, or your state’s Adverse Effect Wage Rate (as published by the Department of Labor), whichever is the highest.• Pay workers at least twice per month. • Provide each worker with a pay slip at the end of every pay period. You can find a pay slip template with all the required fields on our database. • If your state requires it, pay workers the time-and-a-half rate for overtime. In most states, H-2A workers are exempt from overtime. However, some states, like California and Minnesota, require employers to pay the overtime rate if workers work more than a set number of hours.• Never take deductions from a worker’s paycheck, except as required by law (e.g., taxes, if applicable) or as specified on your Application for Temporary Labor Certification.• If you have American workers performing the same duties as H-2A workers, pay them at least the same wage rate and offer them the same benefits. Meal ArrangementsEmployers are partially responsible for worker meals. Employers must choose and adhere to one of the following options for the duration of the work period:• Option 1: You provide three meals a day for each worker. In this case, you may charge each worker (or deduct from their pay) the daily rate set by the Department of Labor for the provided food. This rate changes periodically. You can find the current rate on the DOL’s website or by contacting us.• Option 2: You furnish free and convenient cooking and kitchen facilities for workers to prepare their own meals and provide them with free transportation once a week to purchase groceries. Three-Quarter RuleThe Three-Quarter rule requires you to guarantee a worker employment and payment for at least 3⁄4 of the work hours in the contract period.What are some best practices you have seen successful farms using?Can you share labor with a neighboring farmer?What types of penalties exist if you don’t follow the rules?Are the rules subject to change with upcoming legislation? Is the program in jeopardy?Anything else we should cover?Please share contact information and any additional resources.What does Success look like to you?
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