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For Employers Applying For Non-immigrant Foreign Workers To Perform Temporary Or Seasonal Work In Agriculture

What the Program Does

  • This program allows agricultural employers wishing to employ foreign workers on a temporary or seasonal basis to file a Labor Certification Application. 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 or a specific aspect of a longer cycle, and requires labor levels far above the necessary for ongoing operations. Employment is of a temporary nature where the employer's need to fill the position with a temporary worker will, except in extraordinary circumstances, last no longer than 1 year.

Regulations

  • 20 CFR Part 655, Subpart B

Validity Period

  • "Temporary or seasonal nature" means agricultural employment performed at certain seasons of the year or for a limited time period of less than one year when the employer can show that the need for the foreign worker(s) is truly temporary.

Qualifying Criteria

  • 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:
      • Has a place of business (physical location) in the U.S. and a means by which it may be contacted for employment;
      • 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
      • Possesses a valid Federal Employer Identification Number (FEIN)
    • An association of employer producers may file as a sole employer, a joint employer with its members, or as an agent of its members. Associations filing as a joint employer with its employer-members may file master applications on behalf of their members. A farm labor contractor who meets the definition of an employer and is not a fixed-site employer or agricultural association may file an application for temporary foreign workers as an "H-2A Labor Contractor" (H-2ALC).
  • In circumstances where an authorized agent, whether an individual (e.g., an attorney) or an entity (e.g., an association), the agent may file an application on behalf of an employer along with documentation demonstrating the agent is authorized to represent the employer.

Filing of Application

  • A complete application package must be filed with and received by the ETA Chicago NPC at least forty-five (45) calendar days before the first date on which workers are needed.Employer may not file with the ETA Chicago NPC until after the job order has been submitted to and reviewed by the SWA in accordance with the regulatory timeframe (i.e., no more than 75 days and no less than 60 days before the anticipated start date of work).
  • However, the ETA Chicago NPC may waive the regulatory timeframes for filing in emergency situations pursuant to 20 CFR 655.134 (e.g., first time filers, unforeseen changes in market conditions), and where the employer is unable to resolve deficiencies in the job order with the SWA or the SWA is unable to respond to the employer's job order within the regulatory timeframes.
  • Prior to filing an Application for Temporary Employment Certification, the employer must prepare a job offer on the ETA Form 790 - Agricultural and Food Processing Clearance Order and submit the form and all attachments to the State Workforce Agency (SWA) serving the area of intended employment for intrastate clearance. The following requirements must be met:
    • The job order must be submitted to the SWA no more than 75 calendar days and no fewer than 60 calendar days before the start date of the job;
    • The job order must be identified as one that will be used in connection with a future filed Application for Temporary Employment Certification (ETA Form 9142) with the U.S. Department of Labor; and
    • The contents of the job order must satisfy the requirements of 20 CFR part 653, subpart F and 20 CFR 655.122.
  • If the job opportunity is located in more than one State within the same area of intended employment, the employer may submit a job order to any one of the SWAs having jurisdiction over the anticipated worksites. Where the job order is being placed in connection with a future master application to be filed by an association of agricultural employers as a joint employer, the association may submit a single job order to be placed in the name of the association on behalf of all employers that will be duly named on the future filed ETA Form 9142.
  • Upon receipt of the job order, the SWA will review the job order and notify the employer in writing of deficiencies in the job order no later than seven (7) calendar days after it has been submitted. The employer must respond to the SWA within five (5) calendar days after receipt of the SWA notification. The SWA must respond to the employer's response within three (3) calendar days. Once accepted by the SWA, the job order will be active until the end of the recruitment period, which will extend through 50 percent of the period of employment.
  • All agricultural employers who desire to hire H-2A foreign agricultural workers must apply for certification from the Secretary by filing the following with the ETA Chicago NPC:
    • Completed ETA Form 9142 - Application for Temporary Employment Certification;
    • Completed ETA Form 9142 - Appendix A.2 bearing the original signature of the employer and, if applicable, that of the employer's attorney or agent); and
  • Copy of the ETA Form 790 and all attach

Housing

  • The SWA must ensure that a housing inspection within its jurisdiction is inspected as expeditiously as possible and arrangements made directly with the employer.
  • For links to additional information, answers to frequently asked questions and complete details on processing labor certification requests under the H-2B Regulations, visit USDOL H-2A Labor Certification.

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New Hampshire Employment Security (NHES)
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