H-2A Visa
Encyclopedia
An H-2A visa allows a foreign national
entry into the U.S.
for temporary or seasonal agricultural work. There are several requirements of the employer in regards to this visa. The H-2A temporary agricultural program establishes a means for agricultural employers who anticipate a shortage of domestic worker
s to bring nonimmigrant foreign workers to the U.S. to perform agricultural labor or services of a temporary or seasonal nature. Currently in the United States there are about 30,000 temporary agricultural workers under this visa program. All of these workers are supposed to be covered by U.S. wage laws
, workers' compensation
and other standards.
Before the U.S. Citizenship and Immigration Services (USCIS) can approve an employer's petition for such workers, the employer must file an application with the U.S. Department of Labor stating that there are not sufficient workers who are able, willing, qualified, and available, and that the employment of aliens will not adversely affect the wages and working conditions of similarly employed U.S. workers. The statute and departmental regulations provide for numerous worker protections and employer requirements with respect to wages and working conditions that do not apply to nonagricultural programs. The Department's Employment and Training Administration
(ETA) administers the labor certification
program, while the Wage and Hour Division
, Employment Standards Administration (ESA) has responsibility for enforcing provisions of worker contracts.
In employing a worker, the employer must guarantee to offer each worker employment for at least three-fourths of the workdays in the term of the contract period. If the employer affords less employment, then the employer is obligated to pay the amount which they would have earned if they had worked the contracted period.
The wage or rate of pay must be the same for U.S. workers and H-2A workers. The hourly rate must also be at least as high as the applicable Adverse Effect Wage Rate
(AEWR), federal or state minimum wage
, or the applicable prevailing hourly wage rate
, whichever is higher. The AEWR is established every year by the Department of Labor for every state except Alaska.
If a worker will be paid on a piece rate
basis, the worker must be paid the prevailing piece as determined by the State Workers Agency, or SWA. If the piece rate does not result in average hourly piece rate earnings during the pay period at least equal to the amount the worker would have earned had the worker been paid at the hourly rate, then the worker’s pay must be supplemented to the equivalent hourly level. The piece rate offered must be no less than what is prevailing in the area for the same crop and/or activity.
Hiring
This means an active effort, including newspaper and radio advertising in areas of expected labor supply. Such recruitment must be at least equivalent to that conducted by non-H-2A agricultural employers in the same or similar crops and area to secure U.S. workers. This must be an effort independent of and in addition to the efforts of the SWA for at least 15 days. In establishing worker qualifications and/or job specifications, the employer must designate only those qualifications and specifications which are essential to carrying out the job and which are normally required by other employers who do not hire foreign workers.
(OSHA) standards that were set forth at CFR 1910.142 or the full set of standards at 654.404-645.417.
An alternative form of housing is rental housing, which has to meet local or state health and safety standards. In North Carolina, the current state standards include no provision for locks on doors and windows, 75 ft3 per person or 27 people per refrigerator, one wash tub per 30 people with hot and cold water, facilities for drying clothes; there are no sanitary requirements for mattresses provided, 1 toilet/15 people or 1 urinal/25 men, and 1 shower per 10 people with no privacy stalls.
The employer must either provide three meals a day to each of the workers or furnish free and convenient cooking and kitchen for workers to prepare and cook their own meals. If the employer provides the meals, then the employer has the right to charge each worker a certain amount per day for the three meals.
The employer must cover the cost of tools and supplies necessary to carry out the work at no cost to the worker, unless this is uncommon and the occupation calls for the worker to provide certain items.
Foreign national
Foreign national is a term used to describe a person who is not a citizen of the host country in which he or she is residing or temporarily sojourning. In Canada, a foreign national is defined as someone who is not a Canadian citizen nor a permanent resident of Canada...
entry into the U.S.
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
for temporary or seasonal agricultural work. There are several requirements of the employer in regards to this visa. The H-2A temporary agricultural program establishes a means for agricultural employers who anticipate a shortage of domestic worker
Domestic worker
A domestic worker is a man, woman or child who works within the employer's household. Domestic workers perform a variety of household services for an individual or a family, from providing care for children and elderly dependents to cleaning and household maintenance, known as housekeeping...
s to bring nonimmigrant foreign workers to the U.S. to perform agricultural labor or services of a temporary or seasonal nature. Currently in the United States there are about 30,000 temporary agricultural workers under this visa program. All of these workers are supposed to be covered by U.S. wage laws
Fair Labor Standards Act
The Fair Labor Standards Act of 1938 is a federal statute of the United States. The FLSA established a national minimum wage, guaranteed 'time-and-a-half' for overtime in certain jobs, and prohibited most employment of minors in "oppressive child labor," a term that is defined in the statute...
, workers' compensation
Workers' compensation
Workers' compensation is a form of insurance providing wage replacement and medical benefits to employees injured in the course of employment in exchange for mandatory relinquishment of the employee's right to sue his or her employer for the tort of negligence...
and other standards.
Process of Employment
Employers anticipating a shortage of agricultural workers and in need must apply at least 45 days before certification is necessary. This includes a requirement of an active effort, including newspaper and radio advertising, to recruit U.S. workers in areas of expected labor supply. Such recruitment must be at least equivalent to that conducted by non-H-2A agricultural employers in the same or similar crops and area. The employer must agree to give preference and engage in active recruitment of U.S. workers. The H-2A certification is valid for up to 364 days. As temporary or seasonal agricultural employment, the work is performed during certain seasons of the year or for a limited time period of less than one year when the employer can show that the need for the foreign worker is truly temporary.Before the U.S. Citizenship and Immigration Services (USCIS) can approve an employer's petition for such workers, the employer must file an application with the U.S. Department of Labor stating that there are not sufficient workers who are able, willing, qualified, and available, and that the employment of aliens will not adversely affect the wages and working conditions of similarly employed U.S. workers. The statute and departmental regulations provide for numerous worker protections and employer requirements with respect to wages and working conditions that do not apply to nonagricultural programs. The Department's Employment and Training Administration
Employment and Training Administration
The mission of the Employment and Training Administration , as part of the U.S. Department of Labor, is to contribute to the more efficient and effective functioning of the U.S. labor market by providing high quality job training, employment, labor market information, and income maintenance...
(ETA) administers the labor certification
Labor certification
Labor certification is a United States of America immigration concept. There are several options available to US employers who wish to hire foreign, non-immigrant workers on a temporary but long-term basis: H-1B visas, L-1 visas, TN status and other options. These temporary options are often...
program, while the Wage and Hour Division
Wage and Hour Division
The Wage and Hour Division of the United States Department of Labor is the federal office responsible for enforcing federal labor laws. The Division was formed with the enactment of the Fair Labor Standards Act of 1938...
, Employment Standards Administration (ESA) has responsibility for enforcing provisions of worker contracts.
In employing a worker, the employer must guarantee to offer each worker employment for at least three-fourths of the workdays in the term of the contract period. If the employer affords less employment, then the employer is obligated to pay the amount which they would have earned if they had worked the contracted period.
Employing H-2A Workers
WagesThe wage or rate of pay must be the same for U.S. workers and H-2A workers. The hourly rate must also be at least as high as the applicable Adverse Effect Wage Rate
Adverse Effect Wage Rate
The Adverse Effect Wage Rate is the minimum wage that the U.S. Department of Labor has determined "must be offered and paid to U.S. and alien workers by agricultural employers of nonimmigrant H-2A agricultural workers"...
(AEWR), federal or state minimum wage
Minimum wage in the United States
, the federal minimum wage in the United States is $7.25 per hour. Some states and municipalities have set minimum wages higher than the federal level , with the highest state minimum wage being $8.67 in Washington. Some U.S. territories are exempt...
, or the applicable prevailing hourly wage rate
Prevailing wage
In government contracting, a prevailing wage is defined as the hourly wage, usual benefits and overtime, paid to the majority of workers, laborers, and mechanics within a particular area. Prevailing wages are established by regulatory agencies for each trade and occupation employed in the...
, whichever is higher. The AEWR is established every year by the Department of Labor for every state except Alaska.
If a worker will be paid on a piece rate
Piece work
Piece work is any type of employment in which a worker is paid a fixed "piece rate" for each unit produced or action performed regardless of time...
basis, the worker must be paid the prevailing piece as determined by the State Workers Agency, or SWA. If the piece rate does not result in average hourly piece rate earnings during the pay period at least equal to the amount the worker would have earned had the worker been paid at the hourly rate, then the worker’s pay must be supplemented to the equivalent hourly level. The piece rate offered must be no less than what is prevailing in the area for the same crop and/or activity.
Hiring
This means an active effort, including newspaper and radio advertising in areas of expected labor supply. Such recruitment must be at least equivalent to that conducted by non-H-2A agricultural employers in the same or similar crops and area to secure U.S. workers. This must be an effort independent of and in addition to the efforts of the SWA for at least 15 days. In establishing worker qualifications and/or job specifications, the employer must designate only those qualifications and specifications which are essential to carrying out the job and which are normally required by other employers who do not hire foreign workers.
Housing and Meals
The employer must provide free housing to all workers who are not reasonably able to return to their homes or residences the same day. Such housing must be inspected and approved according to appropriate standards. The housing provided by the employer must meet all of the Department of Labor Occupational Safety and Health AdministrationOccupational Safety and Health Administration
The United States Occupational Safety and Health Administration is an agency of the United States Department of Labor. It was created by Congress of the United States under the Occupational Safety and Health Act, signed by President Richard M. Nixon, on December 29, 1970...
(OSHA) standards that were set forth at CFR 1910.142 or the full set of standards at 654.404-645.417.
An alternative form of housing is rental housing, which has to meet local or state health and safety standards. In North Carolina, the current state standards include no provision for locks on doors and windows, 75 ft3 per person or 27 people per refrigerator, one wash tub per 30 people with hot and cold water, facilities for drying clothes; there are no sanitary requirements for mattresses provided, 1 toilet/15 people or 1 urinal/25 men, and 1 shower per 10 people with no privacy stalls.
The employer must either provide three meals a day to each of the workers or furnish free and convenient cooking and kitchen for workers to prepare and cook their own meals. If the employer provides the meals, then the employer has the right to charge each worker a certain amount per day for the three meals.
Transportation and Tools
There are several provisions on the transportation of workers. The amount of transportation payment shall be no less (and shall not be required to be more) than the most economical and reasonably similar to the transportation charges for the distances involved.http://www.foreignlaborcert.doleta.gov/h-2a.cfm The employer is responsible for several forms of transportation depending on the situation. After the worker completes at least half of the work contract period, the employer must reimburse the worker for the costs of transportation and subsistence from the place of recruitment to the place of work if these expenses were charged to the worker. The employer must provide free transportation to the worker between the employer's housing and the area of work. And upon completion of the work contract, the employer must pay the costs of a worker's subsistence and transportation back to the place of recruitment. Some special conditions apply when the worker does not return to the area of recruitment because they are moving to another job. If the employer compensates foreign workers for transportation costs then they must do so for US workers as well. If the employer provides transportation for foreign workers, they must provide transportation to US workers as well.The employer must cover the cost of tools and supplies necessary to carry out the work at no cost to the worker, unless this is uncommon and the occupation calls for the worker to provide certain items.