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. 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, 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 circ*mstances, last no longer than 1 year.
Determine eligibility
A U.S. employer or an association of agricultural producers who has full-time work that needs to be performed on a temporary or seasonal basis may apply to the OFLC for an H-2A temporary labor certification. The general guidelines below will help you understand whether you are eligible to participate in the H-2A Program.
- You must be an employer with a place of business physically located in the United States, possess a valid Federal Employer Identification Number (FEIN); and have the ability to hire, pay, fire, supervise, or otherwise control the work of the workers you employ;
- The work to be performed must consist of agricultural labor or services, such as the planting, raising, cultivating, harvesting, or production of any agricultural or horticultural commodity;
- The work must be full-time, at least 35 hours (or more) per work week; and,
- The need for the work must be seasonal or temporary in nature and tied to a certain time of the year by a recurring event or pattern, such as an annual growing cycle, normally lasting 10 months or less.
H-2A Temporary Labor Certification Process
The process of obtaining a temporary labor certification from the OFLC under the H-2A Program involves the following four basic steps:
Step 1: Filing a Job Order with the State Workforce Agency (SWA)
This involves preparing and submitting an agricultural job order (Form ETA-790/790A) to the SWA that serves the state where the actual work will be performed. The SWA will review the job order, work with you on any needed corrections, and initiate recruitment of U.S. workers.
When: 75 to 60 calendar days before the start date of work
Step 2: Filing an H-2A Application with the Chicago National Processing Center (NPC)
Submit an H-2A application to the OFLC’s Chicago NPC. The Chicago NPC will review your application, notify you of any deficiencies, and provide you with additional instructions for completing the temporary labor certification process.
When: No less than 45 calendar days before the start date of work
Step 3: Conducting Recruitment for U.S. Workers
The recruitment of U.S. workers you will be conducted by the employer and includes where and when to advertise, what content the advertisem*nts must contain, and how to prepare your recruitment report.
When: Recruitment beginning on the date you receive the Notice of Acceptance from the Chicago NPC until you complete the recruitment steps
Step 4: Completing the Temporary Labor Certification Process
The final step in this process identifies the additional documents you must submit to the Chicago NPC in order to receive a final determination; and, should labor certification be granted, moving on to the USCIS.
When: No less than 30 calendar days before the start date of work
H-2A Temporary Labor Certification for Range Herding or Production of Livestock Workers
The H-2A temporary agricultural program allows employment of foreign workers in jobs related to the herding or production of livestock on the range (the H-2A Herder Final Rule). Separate standards and procedures are necessary for these occupations because some of the requirements of the general H-2A Final Rule do not apply to these unique occupations, which are located in remote areas and require non-traditional regular work schedule involving workers generally being on call 24 hours per day, 7 days per week. Due to the unique requirements of the occupations, which are located in remote areas and require non-traditional work schedules with workers generally on call 24 hours per day, 7 days per week, variances from the general H-2A program are necessary.
Step 1: Filing a Job Order and an H-2A Application with the Chicago National Processing Center (NPC)
This involves preparing and submitting an agricultural job order (Form ETA-790/790A) directly to the Chicago National Processing Center (NPC) along with a completed H-2A Application for Temporary Employment Certification (Form ETA 9142A), and an attachment with the names of each farmer/ rancher the physical locations (with as much geographic specificity as possible), where work will be performed and the start dates and end dates of need for the work.
The Chicago NPC will review your application package, notify you of any deficiencies, and provide you with additional instructions for completing the temporary labor certification process.
When: No less than 45 calendar days before the start date of work.
Step 2: Recruitment of U.S. Workers
When the Chicago NPC determines that the regulatory requirements for the job order are met, the Chicago NPC will issue a Notice of Acceptance. The Notice of Acceptance authorizes conditional access to the interstate clearance system and will contain recruitment instructions. The employer will receive a copy of the Notice of Acceptance.
The Chicago NPC will also transmit the job order to the State Workforce Agency (SWA) and direct the SWA to place the job order into intrastate and interstate clearance for recruitment of U.S. workers.
Step 3: Completing the Temporary Labor Certification Process
At this point, applications for jobs related to the herding or production of livestock are processed in a manner similar to other H-2A program applications. If the application is accepted or amended within the required time frame and complies with the regulations, the Chicago NPC will make a final determination thirty (30) calendar days prior to the employer's date of need.
