Employers (H2A Program)

INFORMATION ABOUT THE H-2A PERMIT FOR PROSPECTIVE AGRICULTURAL EMPLOYERS.

Thank you for your interest in the H-2A Agricultural Worker Visa Program and in retaining our services to assist your organization through the visa process.The H-2A program authorizes U.S. employers to hire foreign agricultural workers on a temporary basis (6 – 10 months). Temporary means the employment is performed during certain seasons of the year, usually in relation to the planting or harvesting of crops, or any other farming activities.

The following general categories of individuals or organizations may file an application:

  • An agricultural employer who anticipates a shortage of U.S. workers needed to perform agricultural labor or services of a temporary or seasonal nature may file an application requesting temporary foreign agricultural labor certification. “Temporary or seasonal nature” means employment performed at certain seasons of the year, usually in relation to the production and/or harvesting of a crop, or for a limited time period of less than one year when an employer can show that the need for the foreign worker(s) is truly temporary.
  • The employer may be an individual, partnership, association, corporation, cooperative, firm, joint stock company, trust, or other organization with legal rights and duties) that:
  1. Has a place of business (physical location) in the U.S. and a means by which it may be contacted for employment;
  2. Has an employer relationship (such as the ability to hire, pay, fire, supervise, or otherwise control the work of employees) with respect to an H-2A worker or a worker in corresponding employment; and
  3. Possesses a valid Federal Employer Identification Number (FEIN)

 

In order to qualify as an H-2A employer, the U.S. employer must make certain legally binding assurances. These assurances include:

  1. Employer will pay the employee not less than the minimum hourly wage as subscribed by hours and wages.
  2. Employers provide, at no cost to the employee, housing that meets Federal and State standards.
  3. Employer will reimburse the employee their transportation cost from and to Country of origin.
  4. Employer maintains Worker’s Compensation Insurance.
  5. Employer provides, at no cost to the employees, tools and supplies necessary to carry out the work.
  6. Employer guarantees to each employee employment for at least ¾ of the work contract.

Under the “Three Quarter Guarantee” the employees will have the opportunity to work at least three-fourths of the total hours in the contract period. This includes both actual hours worked as well as hours offered based on a 35 – hour week. This guarantee is not figured daily, weekly, or monthly, but is calculated as a percentage of all working hours in the season specified by the employer.

  1. Employer has to keep record of hours and days worked as well as payment statements. This must be supplied to the employee at the end of each pay period.
  2. Employer must interview American applicants referred by the Local ES office and record must be kept of their names and reasons for not considering them for the specific job.
  3. Employer must be willing to conduct the recruitment of local employees as subscribed by the Department of Labor.

The H-2A Program requires employers to attempt to recruit U.S. workers. Cape Global International handles the required advertising, which is “Help Wanted” classified advertising for 2 days in a local newspaper and a brief radio ad.

After obtaining a Foreign Labor Certification for the employer, Cape Global International coordinates with its branch abroad to recruit, secure visa approval and arrange transportation for capable, reliable, legal foreign labor.

Under the “50% Rule”, U.S. workers continue to have hiring preferences over foreign workers in the first half of the season, even after foreign workers arrive. While the job is not advertised after the initial 2-day newspaper ad and radio spot, it is listed with the State Job Service, and the employer is obligated to hire qualified Job Service referrals. During the first half of the season, H-2A employers must hire all U.S. job applicants who are ready, willing and able to perform the required job duties.

 

  1. It is the responsibility of the employer to confirm with his bookkeeper or IRS, see IRS Code 3121(b) (1); 26 U.S.C., 3121(b) (1), on the way taxation is supposed to be done on H-2A workers. The employer must provide the employee with either a 1099, W2 or W4 before he leaves and make sure he has the correct mailing address to send it to.
  2. When an employee leaves the service of the employer the State Employment Service Agency as well as USCIS must be notified. This is the responsibility of the employer.
  3. Employer must provide a copy of approved labor Certification as soon as employee arrives at the beginning of the contract.
  4. Employer agrees to follow and comply with all the rules and regulations stipulated by the H-2A Handbook.

 

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