An employer who relies upon temporary guest labor to plant or harvest crops should be aware of changes going into effect for the H-2A Visa Program on March 15, 2010. Following are the salient points of the program, followed by the strict deadlines now incorporated into the H-2A program effective March 15.
Recruitment: The employer is required to advertise in an attempt to recruit US workers who are able, willing, and qualified to perform the job and must cooperate with the State Workforce Agency, which is the North Carolina Employment Security Commission (NCESC), in its referral of US workers to the employer.
Copy of Job Order or Contract to be Provided to Worker: Either must be provided by the employer to the H-2A worker no later than when he or she applies for a visa. The contract must be in a language that the H-2A worker understands and if a contract, it must be detailed and specify any deductions being taken, without which the deduction is illegal.
Housing: The employer must provide free housing to workers who are not reasonably able to return to their residences that same day. Such housing must be inspected and approved by the NCESC prior to the Department of Labor approval to bring in H-2A workers.
Accounting: The H-2A worker must be paid at least twice monthly and be provided with an hours and earnings statement listing hours offered, hours worked, hourly rate or piece rate of pay, total earnings for that pay period and any deductions taken.
Meals: The employer must provide free cooking facilities to its H-2A workers or provide three meals per day. If the employer elects to provide three meals per day, it may charge the worker(s) a certain amount per day for the meals which must be indicated up front in the job offer. The permissible charge for 2010 is no more than $10.64/day.
Transportation: By the time one half of the work contract is complete, the employer must pay the H-2A worker for travel and subsistence costs incurred by the worker from the place of recruitment to the place of employment. Upon completion of the contract, the employer must pay for the worker's return trip and daily subsistence from the place of employment to the place from whence the worker came. The employer must also provide free transportation between the provided housing and the worksite at no cost to the worker.
Worker's Compensation Insurance: The employer must provide worker's compensation insurance for work-related injuries and illnesses. Such coverage must include medical care, including prescriptions, 2/3 of the average weekly wage for any days missed after 7 calendar days, transportation to the doctor, and payment for any permanent injury.
Tools & Supplies: The employer must provide the necessary tools to perform the job duties at no cost to the worker.
Three-fourths Guarantee: The employer must guarantee employment for at least three-fourths of the workdays in the work contract.
Broken down below is the normal timeline for bringing in workers under the H-2A Program:
- 60-75 days from date of need: Employer commences process by submitting job order to the NCESC for clearance which will place it on the state job bank website. At that time, the employer must request an inspection of the prospective H-2A workers’ housing.
- 60-75 days from date of need: Employer begins accepting job applicant referrals from the NCESC.
- 45-75 days from date of need: Employer continues to accepts referrals from the NCESC, conducts interviews, and begins to compile its recruitment report.
- 45 days from date of need: Employer files Application for H-2A Certification with the Department of Labor.
- 38-44 days from date of need: Employer receives instructions from the Department of Labor, NCESC commences interstate recruitment which means outside North Carolina, and employer conducts its own recruitment efforts (e.g., advertising) and continues to compile its recruitment report. (In fact, employer must continue its recruitment efforts until the H-2A workers leave for the employer's place of business or the first date of need whichever is earlier.
- 30-38 days from date of need: Department of Labor either certifies or denies.
Even after a certification to bring in H-2A workers, the employer must continue to accept referrals from the NCESC of US job applicants until 50% of the contract period is complete.
Seasoned counsel can assist and track each step so as to avoid or successfully respond to an audit conducted by the DOL’s Office of Foreign Labor Certification (“OFLC”). An unresolved audit can lead to revocation of an approved H-2A program authorization, or debarment from future H-2A program approval. Moreover, a finding by the OFLC that the employer discouraged US workers from applying or failed to hire, discharged or discriminated against an eligible US worker is referred to the Department of Justice, Civil Rights Division’s Office of Special Counsel for Unfair Immigration-Related Employment Practices. Planning ahead and keeping detailed records are key to a successful H-2A program under the new regulations.