With decreasing immigration across the border and a labor population aging out, our best recourse is the H-2A program.
- Salinas Valley Grower
What is the H-2A program?
The H-2A temporary agricultural program allows agricultural employers who anticipate a shortage of domestic workers and who meet specific regulatory requirements to bring nonimmigrant foreign workers to the U.S. to perform agricultural labor or services of a temporary or seasonal nature.
How does it work?
First, an employer must demonstrate to the Department of Labor that its job offer is of a seasonal nature where it is tied to a certain time of year by an event or pattern, such as a short annual growing cycle, and requires labor levels above what is necessary for ongoing operations. Employment is of a temporary nature when the employer's need to fill the position with a temporary worker will, except in extraordinary circumstances, last no longer than 1 year.
Second, the employer must test the U.S. labor market, usually by placing newspaper advertisements and by opening a job order in the local American Job Center. The job order will be placed in intrastate (within the state) and interstate (across state lines) clearance and it will also be placed in an electronic job bank for potential U.S. applicants to view. Through this recruitment process, the Department of Labor must be able to certify that:
there are not sufficient able, willing, and qualified U.S. workers available to perform the temporary and seasonal agricultural employment for which nonimmigrant foreign workers are being requested; and
employment of H-2A workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.
Third, the employer must demonstrate its need for temporary H-2A workers to the United States Citizenship and Immigration Services by filing a petition for nonimmigrant workers along with its Temporary Labor Certification issued by the Department of Labor.
Once an employer's petition for nonimmigrant H-2A workers is approved, workers abroad must apply for a nonimmigrant temporary H-2A work visa at one of the U.S. Consulates abroad.
The entire process should take approximately four months.
See the Department of Labor's H-2A page.
What services does AZTEC provide?
Since we are intimately familiar with the labor certification process, AZTEC will determine whether you have a temporary, seasonal need for foreign labor prior to starting the filing process with the Department of Labor. Be prepared to disclose documentation to support your seasonal need such as two prior years of your Federal Quarterly Tax Returns (IRS Form 941), monthly state returns (if applicable), payroll records, business contracts, and other documentation that demonstrates a temporary need for foreign labor. If it's your first year filing, we will also request documentation of business existence such as your physical business address, address(es) where workers will be employed, Articles of Incorporation and other filings with the Secretary of State.
We will also help you determine how many foreign workers you should request based on your need, wage offer options, experience requirements based on prevailing practices, best housing options, and your start and end date(s) of employment. We will equip you with the necessary housing, wage and safety information to keep you in compliance with applicable State and Federal agricultural laws as well as with H-2A program requirements.
As your full service provider, we will execute each step in the filing process carefully and efficiently, keeping in mind your individual filing needs so that you can focus on your business. Specifically, we will take care of the following actions:
Prepare and submit your Application for Temporary Employment Certification with the Chicago National Processing Center (Chicago NPC);
Prepare and place your H-2A Job Order with the State Workforce Agency (SWA);
Prepare and place your required newspaper advertisements;
Coordinate Housing Inspections with the SWA;
Submit your Recruitment Report to the Chicago NPC;
Prepare and submit any Response to a Notice of Deficiency to the Chicago NPC;
Prepare and file your Petition for Nonimmigrant Worker with the United States Citizenship and Immigration Services (USCIS);
Prepare and submit any response to a Request for Evidence;
Schedule foreign worker applicant appointments with U.S. Consulates abroad; and
Process foreign worker applicants abroad (See Foreign Worker Applicant Services below).
FOREIGN WORKER RECRUITING:
AZTEC no longer recruits workers. We may facilitate the opportunity for an employer to recruit its own workers. Please reach out to us if you would like more information.
Please note that if you plan on using your own recruiter, you should make every effort to ensure they have not charged workers any illegal fees including finder fees, placement bribes or any other recruitment cost/fee attributed to obtaining an H-2A visa unless you plan on reimbursing the worker such costs/fees.
FOREIGN WORKER APPLICANT SERVICES:
If you plan on bringing workers from Mexico or Central America, our Worker Representatives are available to provide the following services:
Schedule applicant appointments with the U.S. Consulate of choice;
Receive and deposit H-2A worker application fee;
Prepare and file the applicant's Nonimmigrant Visa Application with the Department of State;
Represent worker applicants at the U.S. Consulate of choice; and
Arrange hotel accommodations and outbound transportation for H-2A approved workers.
We provide employer consultation regarding H-2 employer best practices, human resources and tax forms, inter-employee relations, housing and transportation recommendations, and a host of other client services related to your H-2 experience. We also offer bilingual (English/Spanish) group-mediated conference calls at the request of either the employer or H-2 workers. In order to better support our H-2 worker clients, we take measures to be available after work hours.