H-2A Employers and Agents

The federal H-2A temporary agricultural worker program establishes a means for agricultural employers who anticipate a shortage of domestic workers to bring non-immigrant foreign workers to the U.S. to perform agricultural labor or services of a temporary or seasonal nature. Employment 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 or a specific aspect of a longer cycle, and requires labor levels in excess of those necessary for ongoing, year-round operations. Employment is of a temporary nature where the employer's need to fill the position with a temporary worker will, except in extraordinary circumstances, last no longer than 10 months.

For further information, including a detailed description of the program, time line and best practices, please watch our informational webinar below. 

Please note that the AEWR and subsistence rates have been updated since this video was produced. The current Adverse Effect Wage Rate is $17.80 per hour effective January 1, 2024. The current subsistence rate minimum is $15.46 per day, and the current subsistence rate maximum is $59.00 per day. Please also note that all H-2A applications are now filed through the online FLAG system, discussed below.

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Current H-2A Adverse Effect Wage Rates

In order to participate in the H-2A program, the employer must use the online FLAG system to prepare the federal ETA Form 790 Agricultural and Food Processing Clearance Order. The New York State Department of Labor's Foreign Labor Certification Unit (FLCU) pre-approves the job order. The employer must submit the completed ETA 790 to the FLAG system no more than 75 days and no fewer than 60 days prior to the employer's date of need.

After the job order is received and entered into the New York State Job Bank by FLCU staff, the employer will receive confirmation that the job order is approved. He or she may then submit the pre-approved ETA Form 790 and ETA Form 9142A to the USDOL's Chicago National Processing Center (CNPC). The job order must be identified as one that will be used in connection with a future Application for Temporary Employment Certification (ETA Form 9142A). The job order must meet the terms and conditions of 20 CFR 653.501 and 20 CFR 655.135.

For more information about the H-2A program, read our introductory document.

In November 2023, the New York State Department of Labor provided an H-2A webinar to the external filing community. The webinar provides a general overview of the H-2A program, highlights the State Department of Labor’s role in the H-2A process and offers guidance regarding filing H-2A job orders in the State of New York. You can view a recording of this webinar by clicking on the link below.  As always, please feel free to contact us with any questions you may have.

NY SWA H2A UPDATES: What Agriculture Employers Need to Know

On February 28, 2023, the US DOL Employment and Training Administration (ETA) announced a Final Rule in the Federal Register regarding changes to the AEWR calculation methodology, for work outside of the six standard field and livestock Standard Occupational Classification (SOC) codes.

The new methodology was applicable March 30, 2023. It applies to H-2A job orders submitted for non-range occupations. For most H-2A job opportunities, the rule does not change the methodology in place since 1987. For H-2A job opportunities that require performance of duties outside the six SOC codes, the rule introduces a new methodology. This methodology will yield a statewide hourly AEWR, adjusted annually, for each SOC code outside the six codes.

These are the 6 SOC codes that remain under the traditional AEWR methodology:

1. 45-2041 - Graders and Sorters, Agricultural Products
2. 45-2091 - Agricultural Equipment Operators
3. 45- 2092 - Farmworkers and Laborers, Crop, Nursery, and Greenhouse
4. 45-2093 - Farmworkers, Farm, Ranch, and Aquacultural Animals
5. 53-7064 - Packers and Packagers, Hand
6. 45- 2099 - Agricultural Workers, All Other

When employers submit their H-2A job orders to the US DOL’s Foreign Labor Application Gateway (FLAG) system, we, the State Workforce Agency (SWA) will perform the initial compliance review; this includes a review of the tasks and assigning of the appropriate SOC code. The SWA has always assigned the SOC code to the job order. The NY SWA works with employers, and their agents, to determine the most appropriate SOC codes for H-2A job orders, based on the tasks listed. This SOC code will determine the hourly wage to be paid.

The SOC codes and definitions can be found on the ONET webpage. The ONET system is a database of the SOC codes, with occupational characteristics and requirements. The SWA does not have any room for interpretation in assigning the appropriate SOC code to the job order. The assigned SOC code must match the tasks detailed in the job order.

Once an SOC code is assigned to the job order, if it is outside of the top 6 codes listed above, then the applicable wage for the code is retrieved from the US Bureau of Labor Statistic’s (BLS) Occupational Employment and Wage Estimates (OEWS). The corresponding mean hourly wage for the SOC code is applied to the H-2A job order. The NYS wage data can be found at bls.gov/oes/current/oes_ny.htm.

Please keep in mind, after the SWA review, the US DOL Certifying Officers (COs) at the Chicago National Processing Center (CNPC) will also perform their review of the job order. At that time, they may agree with the SWA’s SOC coding of the job order or may make the case that a different code must be assigned. In the event a CNPC CO disagrees with the NY SWA SOC coding, both the NY SWA and the employer/agent will be directed by the CO on how to proceed with the proper coding and applicable hourly wage.

The US DOL has posted FAQs on this final rule. The NY SWA encourages stakeholders to review the following resources:

• All H-2A FAQs
• H-2A Temporary Agricultural Labor Certification Process State Workforce Agency (SWA) Refresher (Powerpoint presentation)

And effective 2/9/2023, the minimum subsistence rate increased to $15.46, while the maximum of $59 remained the same.

• Prevailing Wage Information and Resources: Meal Charges and Travel Subsistence

We would also like to remind stakeholders that H-2A job orders where work is performed in NYS, must comply with all NYS Labor Laws, including Paid Sick Leave (PSL) and the Farm Laborers Fair Labor Practices Act (FLFLPA).

Lastly, per the Farm Laborers Wage Board, the overtime threshold for farm laborers has dropped from 60 to 56 hours/week, effective 1/1/2024.

As always, please do not hesitate to contact the NYS SWA to discuss the H-2A process. We can be reached directly at [email protected].

The agents/attorneys listed are those that New York’s H-2A employers currently hire to complete H-2A related paperwork, recruit workers from foreign countries, and provide general assistance in the H-2A process. New York’s FLCU is not allowed to endorse any one representative over any others. This list of agents may be provided to employers who would like to utilize the services of these individuals.

Recruitments

Participation in the H-2A Guest Worker Visa program carries with it a number of requirements for employers including documentation of his or her efforts in recruiting domestic workers for the H-2A job order.  Several H-2A employers have contacted the New York State Department of Labor's Agriculture Labor Program asking if there is a template for the recruitment report. Since the U.S. Department of Labor does not currently provide such a template, the New York State Department of Labor has created a tool, Form AL 156,  to assist employers in complying with this federal requirement.  The tool was created as a service to agricultural employers, but employers are not required to use it. For a more detailed explanation about the tool, please view this description of the H-2A Referral Tool.

Terminations

This form, Form AL 156.4 offers guidance to help H-2A employers comply with federal and New York State requirements related to terminating employment of workers under an H-2A contract.

In order to assist employers in achieving compliance with New York’s Wage Theft Prevention Act (WTPA), a number of forms and other resources are provided for your use.

Pay Notice and Work Agreement for H-2A employers

Federal form ETA 790 when properly completed, partially satisfies the requirements of New York's Wage Theft Prevention Act (WTPA). The U.S. Department of Labor has developed an instruction document to assist with completing the ETA 790. While the ETA 790 is required for Foreign Labor Certification, it can also be used for participation in the Agricultural Recruitment System and is a useful tool for all agricultural employers in complying with the WTPA.

Employers may use the Pay Notice and Work Agreement LS309 as a supplement to the ETA 790 job order to meet the WTPA requirements.

Wage statements for H-2A employers

New York State Department of Labor Form FL 446 is a blank wage statement containing the fields that employers of H-2A workers must provide to document each pay period to comply with the WTPA.

H-2A Housing Inspection Process

Under the Farm Laborer Fair Labor Practices Act (FLFLPA), all migrant farmworker housing is required to obtain a permit from the Department of Health and comply with Part 15 regulations. Prior to 2021, only housing that was offered to five or more individuals was required to obtain a Migrant Farmworker Housing permit from the Department of Health (DOH). Since 2021, all employers providing migrant farmworker housing with an occupancy of 1 or more, must obtain a permit from the health department.  

Because of the FLFLPA,  the Department of Labor (DOL) is no longer conducting H-2A preopening housing inspections and DOH inspections showing compliance with Part 15 are accepted  to satisfy the necessary housing inspection required under the federal H-2A program. We recommend prospective H-2A employers that provide worker housing contact their local health department as soon as possible to start the permitting and inspection process. Local health departments are in the best position to properly guide you on the process and timeframes for inspections and permits.

An approved housing inspection report must be received by the Chicago National Processing Center (CNPC) at least 32 days prior to your date of need. Therefore, it is your responsibility to ensure you have the necessary inspection completed in a timely manner.

Please note, depending on the dates of need, if you submit more than one H-2A job order annually, you may be required to submit an additional (updated) housing inspection during the processing period for a subsequent application. Our office will advise you of housing inspection needs when we issue your Acceptance Notice from the State Workforce Agency (SWA). 

Housing Note: 

Please note that an employer is not permitted to change or add on housing after an H-2A job order is certified (except in circumstances where the original housing becomes unavailable due to circumstances outside the employer's control as determined by the Chicago National Processing Center). As such, any and all housing that an employer intends to use during an H-2A contract must be listed and inspected when the H-2A application is submitted.

You may also send questions or correspondence to our H2A mailbox.
 

OFLC Announcements, Resources, and Links

• Link to Office of Foreign Labor Certification Announcements
• Link to USDOL H-2A Information Page
• Link to Foreign Labor Application Gateway
• More Announcements

Foreign Labor Certification Unit Supervisor: Melissa BuckleyOffice phone: 716-851-2609Mobile phone: 716-803-0402E-Mail: [email protected]

Foreign Labor and Outreach Specialist: Christine Tavares-HamiltonOffice Phone: 212-775-3679Mobile Phone: 347-930-7648E-Mail:  [email protected]

Foreign Labor and Outreach Specialist: Silvia RayOffice phone: 212-775-3358Mobile phone: 917-708-1807E-Mail: [email protected]

Foreign Labor and Outreach Specialist: Katya DePoalaMobile phone: 845-701-0432E-Mail: [email protected]

Division of Compliance and Education Deputy Director: Reyna MorenoOffice Phone: 212-775-3785E-mail: [email protected]

Foreign Labor Certification Unit Program Emails and Fax: H-2A: [email protected]H-2B: [email protected]Fax: 716-541-9615

USDOL Contact Information

Find details at http://www.foreignlaborcert.doleta.gov or contact the USDOL's CNPC at (312) 886-8000.