The H-2A nonimmigrant is a worker admitted to the US on a temporary or seasonal basis to perform agricultural labor or services. Based upon Congress’ findings that the 2008 Final Rule for hiring temporary agricultural workers, known as the H-2A Guest Worker Program, did not provide an adequate level of protection for either U.S. or foreign workers, new regulations go into effect on March 15, 2010. The previous H-2A regulatory process deferred many determinations of program compliance until after an application for H-2A workers was approved, whereas the new rules require compliance before permission to hire H-2A workers will be accorded.

Changes Under the New Regulations
Under the new regulations, an employer must follow extremely detailed steps and fulfill some labor-intensive requirements to obtain approval to bring in H-2A workers. Before an application can be filed for H-2A workers, the Department of Labor (DOL) must certify (1) that there are not sufficient US workers able, willing, qualified and available at the time and place needed to perform the labor and (2) the employment of the foreign worker will not adversely affect the wages and working conditions in the US by those who are similarly employed. Unlike the 2008 Rules, the State Workforce Agency, which in North Carolina is the North Carolina Employment Security Commission (NCESC), must complete a housing inspection of the H-2A workers’ accommodations prior to the issuance of the labor certification authorizing H-2A employment.

The employer must now pay the higher of the 2010 Adverse Effect Wage Rates (AEWR), the prevailing hourly wage rate, the prevailing piece rate, the agreed upon collective bargaining rate or the Federal or State minimum wage rate. The AEWR is the wage determined by the DOL to be the minimum below which there would be an adverse impact and depress wages of local workers. The AEWR rate for North Carolina for 2010 is $9.59/hour. It is noteworthy that the AEWR averages a 4% increase each year, significantly more than cost of living increases.

Up-front costs increase with the employer paying visa fees, any recruitment fees and reimbursement of travel expenses during the first week of employment rather than at the 50% point under the 2008 Rules. Additionally, the employer must provide each worker with three meals a day, which it can charge for, or alternatively, offer free and convenient kitchen facilities. If the employer chooses to provide meals to its workers, it must state in the job offer what it will charge for those meals which can be no more than $10.64 per day for 2010.

Loggers continue to be eligible for H-2A visas but reforestation workers and pine straw gatherers are not. The oversight and surety bond of H-2ALC contractors are increased. An H-2ALC is a person who meets the definition of an “employer” under the H-2A program but does not otherwise qualify as a fixed-site employer or an agricultural association and is engaged in recruiting, soliciting, hiring, employing, furnishing, housing, or transporting H-2A workers.

How to Get Started
The employer must initiate its request for H-2A labor certification 60 to 75 days prior to the date of need by submitting an Agricultural and Food Processing Clearance Order to the NCESC in the area of intended employment to be placed by that agency as an intrastate “job order”, a web-based job offer site. Concurrent with submitting the job order, the employer must request a housing inspection by the DOL. Meanwhile, the NCESC reviews the proposed terms and conditions of employment to ensure that the wage offered meets the required wage.

The NCESC keeps the job order posted and refers job applicants to the employer until 50 percent of the employer's contract period is complete. If the employer is able to hire sufficient able, willing, and qualified U.S. workers during the pre-filing recruitment period, then it does not need to file a labor certification application for foreign workers with the DOL’s National Processing Center (NPC).

If the employer is unable to hire enough US workers to meet its needs, then it applies for permission to hire H-2A workers by filing an application with the NPC at least 45 days prior to the date of need. Upon review by the NPC, the employer will either receive a Notice of Acceptance or a Notice of Deficiency. If the employer receives a Notice of Deficiency, it will have no more than 12 days to correct the application and return it to the NPC.

Once the NPC accepts the application, the employer will be required to begin further recruitment as specified in NPC’s Notice of Acceptance. The employer will also be required to accept referrals not only from the NCESC, but also from other State Workforce Agencies that the NPC has designated as traditional supply states and to which the NCESC has sent an interstate job order. The interstate job order becomes part of a national and publicly accessible job registry. As part of its required recruitment efforts, the employer must place and track newspaper advertising for two consecutives days, one of which is either on a Sunday or on the day of the week of largest circulation if there is no Sunday edition.

By the deadline set by the NPC in the Letter of Acceptance, the employer must complete a recruitment report and submit it to the NPC. However, the employer must continue positive recruitment efforts until the H-2A workers leave for the employer's place of business or the first date of need, whichever is earlier. During the first half of the contract period, the employer must continue to accept any referral of US workers from the NCESC and update the recruitment report for the NPC. At the end of the first half of the contract period, the employer finalizes the recruitment report and retains it along with copies of the advertisements placed throughout the recruitment period to show in the event of a DOL audit. The NPC issues either a certification or denial for H-2A workers no later than 30 days prior to the date of need. A denial is appealable by administrative review of a hearing before an Administrative Law Judge which must be requested within 7 days of the date of the denial.

Caution: Recent Lay-Offs?
An employer may not hire H-2A workers if US workers have been laid off within 60 days of the date of need unless those US workers were offered and rejected the jobs for which the H-2A application is being made.

Conclusion
The new Rules are certainly more onerous and expensive for the employer, and many farmers associations protest the burden being placed on growers. However, they have supplanted the 2008 Rules for the time being and, with enough advance planning, an H-2A guest worker program can be implemented or modified to comply with these new requirements.