H-2A Employers and Agents
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Overview

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 $14.99/hour. The current subsistence rate minimum is $13.17 per day, and the current subsistence rate maximum is $55.00 per day. Please also note that all H-2A applications are now filed through the online FLAG system, discussed below.

 

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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.

Agents Acting on Behalf of New York’s H-2A Employers

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.

H-2A Recruitment & Termination Tools

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.

Wage Theft Prevention Act resources for H-2A employers

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 Inspections

Our office is conducting required H-2A housing inspections for housing for four or fewer workers through a virtual process. For more information about the virtual inspection process, please see below.

If your housing has a capacity of 5 or more workers, please contact your local health department to schedule an inspection.

Inspections are due to the Chicago National Processing Center 32 days before the date of need of the job order.

Virtual Housing Inspections - Four or Fewer Workers

Depending on the year constructed or substantially remodeled, your housing will be required to comply with either Employment Training Administration (ETA) or Occupational Safety and Health Administration (OSHA). Farm worker housing built prior to April 3rd, 1980 should apply ETA regulations. Housing built or substantially remodeled after April 3rd, 1980 should apply OSHA regulations.

You can download a copy of the pertinent regulation(s) below.

ETA OSHA Housing Information NYSDOL

ETA Housing Regulations 20 CFR 654.400 eCFR

OSHA Housing Regulations 29 CFR 1910.142 eCFR

 

The following items are required for FLCU review:

  • Completed employer attestation document, acknowledging that you have reviewed the regulations and that the farm worker housing complies (please complete top informational section as well as attestation section);
  • Well water test results (within the last 6 months) that indicate that the water is potable(not required for housing on municipal water);and
  • Accurate photos representing the current condition of the farm worker housing. Photos for each facility offered to workers will be required, including:

        o Exterior of housing

        o Kitchen Area, including the fridge and garbage can with lid

        o Kitchen Stove, including the hood range

        o Common Area, which can be a living room or dining room for communal eating

        o Bathroom(s)

        o Bathroom Shower/Tub(s)

        o Bedroom (s) including storage for workers (closets, dressers, lockers)

        o Laundry facilities, inside and outside of housing (washer, dryer or clothing line)

        o First aid kit, with bandages and first aid materials

        o Fire extinguishers, including the label or tag on the extinguisher

        o Smoke and CO Detectors

        o Cooking and Dining Items, includes pots, pans, plates, drinkware and eating utensils, etc.

       o Clean bedding available which can include clean linen available in linen closets

  • 4)  New housing may require additional information, such as room dimensions or window dimensions, to determine capacity Please note that new housing, or housing that was new during the 2020 season, may be inspected in-person to ensure compliance..

Please send the designated items by email to your designated housing contact, who will reach out to you to conduct the inspection. the farm name, identifying the housing unit, etc. One email for each housing unit (containing all requested photos, the attestation, and any well water information) is ideal and will help ensure that your inspection is reviewed as quickly as possible.

 

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

Additional Housing Information

  • Our office and the USDOL have issued concurrent guidance indicating that employers can request an emergency housing inspection for the purposes of increasing housing capacity due to COVID19. An emergency virtual inspection can take place for this purpose. Please contact our office or see the USDOL FAQs document for additional information.
  • As a general reminder, please note that potable well-water test results are also part of the housing inspection process for those properties sourced by well water and cannot be older than 6 months old. Also, please keep in mind that any housing with 5 or more occupants must continue to work with their local Health Department to meet those permitting requirements
  • 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, such as quarantine requirements due to COVID-19 or other scenarios, 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.

Resources related to water sanitation

Federal regulations require that farm worker housing be equipped with a “safe and adequate” water supply. For more information on maintaining a safe and adequate water supply, please see the resources below.

COVID-19 Related Information

Temporary Changes to Requirements Affecting H-2A Nonimmigrants Due to the COVID-19 National Emergency

A federal register announcement regarding temporary changes to requirements affecting H-2A workers has been released:  

Federal Register announcement 20 April 2020 "Temporary Changes to the Requirements Affecting H-2A Nonimmigrants Due to the COVID-19 National Emergency"

Please note the following language:

"Namely, the Department will allow H-2A employers whose extension of stay H-2A petitions are supported by valid temporary labor certifications (TLCs) issued by the Department of Labor to begin work immediately after the extension of stay petition is received by USCIS. The Department is also temporarily amending its regulations to allow H-2A workers to stay in the United States beyond the 3 years maximum allowable period of stay. DHS will apply this temporary final rule to H-2A petitions requesting an extension of stay, and, if applicable, any associated applications for an extension of stay filed by or on behalf of an H-2A worker, if they were received on or after March 1, 2020 and remain pending as of the effective date of this rule, as well as H-2A petitions for an extension of stay, received on or after the effective date of this rule, ending on the last day this rule is in effect."

In summary, the temporary changes are as follows:  

  • Employers can have their H-2A workers continue to work while awaiting approval from USCIS on their extension request.
  • H-2A workers can stay beyond the 3 year period of stay. This will apply to request of extensions of stay filed on March 1, 2020 or after.

Please note that H-2A workers may choose to return home at the end of their H-2A contract (prior to request for extension).  H-2A workers can agree to stay and work beyond the 3 year period of stay.

Also, please remember to check the Office of Foreign Labor Certification webpage for their on-going updates and announcements: Office of Foreign Labor Certification

 

Office of Foreign Labor Certification Announcements Related to COVID-19:

USDOL's Office of Foreign Labor Certification Announcements

Main Page: Office of Foreign Labor Certification: https://www.dol.gov/agencies/eta/foreign-labor

More Announcements

New process for submitting H-2A applications effective October 1, 2019

The H-2A program is switching over to the FLAG system, a new online portal for filing the H-2A application. Employers and agents must create an account to access the system.

Employers should use the new forms within the FLAG system to submit their H-2A applications.

  • Under this new system, users will submit their ETA 790s directly through the FLAG system, not to the SWA.
  • Our office will get a notification from the FLAG system that your application has been submitted for review.
  • Our correspondence with you regarding the  ETA 790 application will still take place via email or telephone. Therefore, it is crucial that the employer/agent provide good contact information for the SWA to use for questions and additional correspondence.

For more details regarding the roll-out of the FLAG system, as well as other information, please see the OFLC announcement related to the change (scroll down to the H-2A-specific announcement, posted August 27, 2019)

We also encourage you to reach out to the USDOL with any technical questions that you may have related to the system and the filing timelines. Technical resources from the USDOL are located on the FLAG system page

Contact Us

Foreign Labor and Agriculture Labor Specialist: Caylin Gwise
Office phone: 585-258-8855
Mobile phone: 585-746-2409
E-Mail: [email protected]
Fax: 716-541-9615

Foreign Labor and Agriculture Specialist: Stacey Rice
Office phone: 585-258-8858
Mobile phone: 585-402-4344
E-Mail: [email protected]
Fax: 716-541-9615

Foreign Labor and Agriculture Labor Supervisor: Melissa Buckley
Office phone: 716-851-2609
Mobile phone: 716-803-0402
E-Mail: [email protected]
Fax: 716-541-9615

Outreach and Program Liaison: Silvia Ray
Office phone: 212-775-3358
Mobile phone: 917-708-1807
E-Mail: [email protected]
Fax: 716-541-9615

Division Director: Jeanette Lazelle
Office phone: 518-457-7304
Mobile phone: 518-461-2599
E-Mail: [email protected]

USDOL Contact Information

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