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H-2A FAQ

Question: Who gets H-2A Visas?

Employers with employment that is (1) temporary or seasonal in nature and (2) Agricultural in nature. 

Question: Why do companies get H-2A Visa Workers?

This answer can vary by individual employer. But the primary reason is always the same. In Agriculture, there are types of businesses that find it difficult, if not impossible, to have a steady, reliable, domestic labor force. As such, they supply (or supplement) their labor force with foreign labor. 

Question: How do I find workers? 

Most companies find their workers by referrals provided by current employees. However, if you need help finding workers, this is a service Farmer & Farmer can provide.

Question: What kind of work can the workers perform? 

The work has to be agricultural in nature and seasonal/temporary in nature. The type of agricultural work can vary from the construction of the agricultural confinement facilities (such as hog barns, chicken barns, etc...) to the cultivation and harvesting of crops. If you want to know if your business is qualifies, give Farmer & Farmer a call today to receive free information. 

Question: What is the H-2A Process?

This answer depends on the type of employer. In general, however, the employer has to file with the state workforce agency. After filing with the state workforce agency, the employer has to file with the United States Department of Labor. Once the Department of Labor accepts the labor certification, you must advertise in the appropriate places, with very specific content. Then, once you receive your final labor certification, you must file with the Department of Homeland Security. After this, your workers can go to the consulate to be processed for their visa. There are many detailed and complex steps in each of these, but this is a general outline of the labor certification process. 

Question: What documents must I retain? 

This is a broad question, but brings me to the most important point as it relates to audits, retain EVERYTHING you receive from the government. You will receive many documents in the mail including, but not limited to, Farm Labor Contractors Licenses, Licenses for Farm Labor Contractor Employees, Receipt Notices, and Notices of Acceptance. There are many other things you will receive in the mail through the process, so make sure you retain all of them. 

Question: How do I protect myself from being audited?

You don't. Almost all H-2A employers will be audited by the Department of Labor Wage & Hour Division. The best thing you can do is know you are going to be audited and act accordingly. 

Question: What happens during an audit?

During an audit you will be contacted by the Department of Labor (DOL) and they will let you know you have been chosen to be audited. The more labor certifications and more employees you have, the more likely you are to be audited regularly. After the DOL reaches out to you, they will want to schedule an initial interview. During an initial interview, you will be asked pages and pages of questions. The DOL is attempting to get to know you and your company at this point. They will likely show up with more than one DOL Investigator to ask you questions about your company, your workers, your program as a whole. They can request a tremendous amount of information and, technically, they can require you to have it back to them within the next 72 hours. However, these auditors are human, they know it will likely take you much more time than that to gather all the requested information. As such, you should work your hardest to provide the documentation requested by the DOL. Should you not, you may be debarred from the program (not allowed to continue to use the program). Generally speaking, the DOL is not interested in debarring employers. It is a difficult and expensive process if the employer is fighting it. The DOL is interested in making sure you are (1) not hurting American jobs; (2) doing everything on your job order and contracts with your workers; (3) paying the workers the correct amount (no more no less); (4) abiding by the safety procedures required by US Law (not so much on job sites but more from a sanitation, housing, and transportation perspective); and (5) They want to see improvement in your H-2A compliance from audit to audit. This is a process for which you desperately need an attorney, so call us today if you are being audited. 

Question: So I am being audited, now what?

Being audited by the DOL is no joke. I highly recommend you contact an attorney as soon as possible. Feel free to give us a call today to discuss your audit and your needs for legal representation. We will offer a free consultation. 

Question: What can you do for me during an audit? 

During an audit, our attorneys will guide you through the process, help you during your interviews, make sure the documents being requested by the DOL are necessary for their assessment of your H-2A program, make sure the process is strictly by the book and there is no deviation or threats being put on you, the employer, by the DOL investigator, help you during the exit conference and represent you during the hearing 30 days after, should you need it. Many times, during an investigation, they Investigator will "find" something they take as fact. It is our jobs, as attorneys, to question that fact. The burden of proof is on the investigator to prove a violation, it is not on you the employer to prove a lack of a violation. As such, it is imperative you make the DOL prove every fact. If you are in an exit interview without an attorney, you are very likely to admit to things that are not proven as fact and, as such, pay a hefty fine for violation you or your workers did not commit. Additionally, the DOL maintains records of past violations and will hold that violation against you. Don't be a victim of this. Let our attorneys represent you, the employer, against the government. 

Question: I am an H-2A employer, do I have to pay my employees overtime?

This is a more complicated question than most people lead you to believe. As far is it relates to your H-2A visa workers, no, they are not entitled to overtime because they are agricultural employees. However, lets say, for example, you have a payroll person that works 50 hours per week. You may think, they work for an agricultural employer, so they are not entitled to overtime. This would be incorrect. In fact, this person would be entitled to overtime and you could suffer quite the fine as well as restitution should you not pay them overtime. If you have questions on if someone is entitled overtime, give us a call today to discuss.

Question: I filed a labor certification in one state, but my workers need to work in another state, what should I do? 

Your workers are required to work on the worksite or worksites listed on your labor certification. As such, you will need to file another labor certification. Please give 60-75 days to allow for this type of transfer. I know in agriculture that is a very difficult thing to do, but in order to maintain compliance, it is necessary. Anytime you are transferring your workers from one job site to another, you will need to file another labor certification. 

Question: I have workers on H-2A visas, are there any documents I should have them sign?

Yes, there are several documents we recommend having every H-2A worker sign. The documents will protect you, as the employer, and your worker, as well as show your mentality as it relates to H-2A visas to the DOL during an audit.  

Question: Why does the Department of Labor care if I move my workers from one site to another? 

The DOL wants to make sure the American labor force had a fair opportunity at every job opportunity before it was given to foreign labor. As such, they want to make sure you advertised the job opportunity to American workers. The entire premise of the H-2A program is there is not enough American labor. Therefore, if you move them on a job site location without giving Americans a shot at the job, there is no way to know if there was enough American labor for that particular location. 

Question: If I advertise, won't I get American workers? 

Advertising is part of the H-2A labor certification process. Sometimes, and hopefully so! The purpose of the H-2A program is to fill your labor shortage needs. We should hope they are filled with American labor. However, if they are unable to, we have a quality substitute in foreign labor. Unfortunately, the response to advertisements is extremely low. The jobs being advertised are difficult, labor intensive jobs. They are jobs Americans do not want. They are in rural locations, hard, and in extreme conditions. 

Question: Are H-2A visas in trouble with immigration reform? 

No, Congress understands (at least the congress members from agricultural states) these H-2A visas are not a luxury for employers. They are expensive, time-consuming, and complex, but employers are willing to get them because of the difficulty of filling their labor needs. Without H-2A visas, the productiveness of our agricultural industry would plummet.

Question: What is this new H-2C program? 

The Ag Act of 2017 is a proposal to have have certain H-2 visa workers be able to work year round. This bill is aimed at helping industries, such as dairy, poultry, and swine, that have a very difficult time filling their labor needs with a legal labor force. 

The essence of this bill is very good, it supplies labor by utilizing foreign labor, to supplement the American labor, and not let our precious resources go to waste. 

Question: Would the H-2C program be good for agriculture?

As it is right now, possibly, but it needs work. There is a major issue with the H-2C visa program as amended in Congress. It has a numerical cap. The cap is much higher than the number of H-2A visas given yearly here in the United States. However, that is because much of the agriculture industry still utilizes illegal workers. If the H-2C program passes as is, many agricultural employers would fire their undocumented workforce and bring up H-2C visa workers. This would be a good thing if it wasn't for the numerical cap. However, this would cause the numerical cap to be hit very quickly every year and employers would still be forced to utilize undocumented workers. However, call your Congressman today and urge the lifting of the numerical cap. The very purpose of guest worker programs, such as the H-2 programs, is to supplement American jobs. There is no need for a numerical cap because these jobs should be given to Americans first anyways. So a numerical cap should be irrelevant because every worker brought in should be needed to fully utilize our agricultural resources. 

Question: Do H-2A Visas displace American Workers? 

No. That assertion is based off of the outlying bad actors in the H-2 program and is a complete and utter lie as it relates to the program as a whole. The fact of the matter is, these are not jobs American workers will take and we need someone to fill these jobs. There are measures set up to advertise these jobs. If any of those claiming their job was displaced by an H-2 program want a job, I will be happy to find them one. It will be a seasonal job, pay the Adverse Effective Wage Rate, the employer will providing housing, transportation, and facilities in which they can cook their meals. Send me an email and application. I will be happy to get you an interview. 

    Attorney

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    Kyle Farmer, Esq. is a member of the Iowa Bar and an Iowa Bar Association Member

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