Foreign Labor Certification: H-2A and H-2B

H-2A Visa Program

The H-2A visa program helps employers hire foreign workers for temporary agricultural jobs. The H-2A program was authorized by Congress under the Immigration and Nationality Act of 1952. The program has been used successfully by many agricultural employers as a way to meet their temporary and seasonal labor needs. This provides an overview of the H-2A program for Missouri agricultural producers. 

The H-2A program is available to an employer or association of agricultural producers that anticipates a shortage of domestic workers to do agricultural labor or services on a seasonal or temporary basis. The U.S. Department of Labor (DOL) lists these general guidelines for determining if employers are eligible for the H-2A program:

• Be an employer physically located in the United States; possess a valid Federal Employer Identification Number (FEIN); and be able to hire, pay, fire, supervise or otherwise control the work of the workers employed.
•  The work performed must consist of agricultural labor or services.
• The work must be full-time (at least 35 hours per workweek).
• The work must be seasonal or temporary (normally lasting 10 months or less) and tied to a certain time of the year. 

State workforce agency

The Missouri Office of Workforce Development is the state’s workforce agency. Its Agricultural Employment Services offers free assistance such as publicly posting a job order placed in connection to an H-2A application, recruitment of domestic U.S. workers and hiring event assistance, labor law information, foreign labor certification assistance, and additional training. Their services also include an outreach program for both domestic and H-2A visa workers. In addition, they conduct housing inspections to assure employers meet the requirements of the H-2A program. You can directly contact anita.dixson@dhewd.mo.gov (573)751-3346. 

H-2A process

Employers can apply for the H-2A program using DOL’s online Foreign Labor Application Gateway, or FLAG System. The standard filing process takes around 60 to 75 calendar days prior to the start day of work. The online system allows the application to be created electronically, tracked throughout the process, and reused in future applications.

These are the general steps to complete for H-2A visas: 

1. File an agricultural job order (Form ETA-790/790A) with the Missouri Office of Workforce Development. They will review the job order, work with you on needed corrections, and initiate recruitment of U.S. workers. Examples of approved job orders can be searched by title and state on the DOL’s Seasonal Jobs page
2. File an H-2A application (Form ETA-9142A) with the DOL’s National Processing Center (NPC). The NPC will review your application, let you know if additional information is needed, and provide any additional instructions needed to complete the certification process.
3. Conduct recruitment for U.S. domestic workers after the NPC provides a notice of acceptance. The Missouri Office of Workforce Development will actively recruit in the first two weeks following submission. Recruitment efforts continue until half of the work contract period has been completed.
4. Complete the DOL temporary labor certification process. This step may require submission of additional documents to the NPC for the final determination. You will receive a notice of approval once all documentation is complete. 
5. Recruit foreign workers. If you are not using an outside firm, you can ask other farmers if you know if their H-2A workers have family or friends for referrals. Another option is to ask for assistance from the government in each country from which you are trying to recruit. 
6. File Form I-129 through U.S. Citizenship and Immigration Services (USCIS). They will review your application and filing fee payment. Once they approve your petition, each worker applies for a visa and has an interview at a U.S. embassy or consulate. Once approved, the visa is issued and the worker travels to the U.S. 

Period of stay

An H-2A worker’s period of stay is defined in the temporary labor certification. The H-2A classification can, however, be extended for qualifying employment in increments of up to one year each, with each extension requiring a new, valid temporary labor certification. The maximum period of stay for an H-2A worker is three years. To reset a new period of stay, the worker must remain outside the U.S. for 60 continuous days. 

Employer requirements

Work contract

Employers must give each H-2A worker a written copy of the work contract or job order (ETA Form-790 and attachments). This documentation must be provided between the time the worker applies for a visa and the first workday. The work contract must be in a language understood by the worker. 

Employers must provide their workers with reasonable access to Missouri Office of Workforce Development Migrant and Seasonal Outreach Program staff. 

50% rule 

H-2A employers must provide employment opportunities to qualified U.S. applicants. The job opportunity must be kept open through the first half of the H-2A contract period, and all referred qualified U.S. workers must be hired. 

Worker guarantee

The H-2A program guarantees each worker’s employment hours equal to at least 75% of the workdays in the contract period. This provision is called the three-fourths guarantee. 

Pay rate and deductions 

An H-2A employer must offer and pay at least the highest of the following wage rates: 

• The adverse effect wage rate (AEWR) 
• The prevailing hourly rate or piece rate 
• The agreed-upon collective bargaining wage 
• The applicable federal, state or local minimum wage 

A pay stub must be provided to employees on or before payday. Employers must pay workers at least twice a month but can pay them more frequently per local customs. Payroll deductions must be specified in the H-2A work contract. Any payroll deductions not required by law must be reasonable. 

Workers’ compensation 

The H-2A contract requires that employers provide workers’ compensation insurance, or its equivalent, at no charge to H-2A workers. U.S. workers similarly employed must receive the same provisions. 

Housing 

Employers must provide housing to all H-2A workers at no cost. If you rent housing for H-2A workers, you must pay all the rent, deposits, utilities, etc. directly to the rental housing management. 

Any housing you provide or secure must meet applicable standards. The Missouri Office of Workforce Development provides, at no cost to employers, inspections to determine if H-2A housing meets these safety standards. Housing must include a safe structure and water supply, a bed and sufficient space for each worker, a full kitchen, and access to a laundry facility. Inspections will be conducted 30 days prior to worker arrival. Places available for general rent or public accommodation, such as hotels and motels, do not require an inspection. 

To request a housing inspection contact anita.dixson@dhewd.mo.gov or call (573)751-3346. 

Meals 

Employers must either provide H-2A workers with three meals per day or furnish free and convenient cooking and kitchen facilities where workers can prepare their own meals. Workers can be charged for provided meals, but costs may not exceed those specified by the DOL.

Transportation 

H-2A employers must provide daily transportation to the worksite at no cost. Transportation must be operated by licensed drivers, meet safety standards and be properly insured. Additionally, transportation for weekly errands such as grocery shopping or banking must be provided to H-2A workers. 

Employers are responsible for reasonable costs of H-2A workers’ transportation to the farm from their previous worksite or country of origin. These costs can be paid at the time of inbound transportation or may be reimbursed to the workers once the work contract period is halfway complete. Costs include both transportation and daily subsistence costs during transportation. Employers must also provide or pay for workers’ return transportation at the end of the H-2A contract period. 

Record requirements 

H-2A employers must keep records about their hired workers. These records about H-2A workers should be retained for three years:

• H-2A job order, application, petition and supporting documentation
• Proof of recruitment efforts and recruitment report 
• Each worker’s total earnings, hours offered and worked, locations where work was performed 
• Wage deductions and reimbursement for transportation and subsistence costs 
• Agent contracts, if used 
• Proof of workers’ compensation insurance or state law coverage 

H-2B Visa Program 

The H-2B program allows U.S. employers or U.S. agents who meet specific regulatory requirements to bring foreign nationals to the United States to fill temporary nonagricultural jobs. 

Who can participate

To Participate in the H-2B program, an employer must be a bona fide U.S. employer with possession of a valid Federal Employer Identification Number (FEIN), physically located in the United States and needs to have the means to be contacted for employment.

 The employer's job opportunities must be:

• Temporary (9 months or less, except one-time occurrences), 
• Full-time (35 or more hours per week), and 
• Non-agricultural employment within a specified area(s) of intended employment. 

With the exception of a one-time occurrence need which can last up to 3 years, temporary need will not be approved for longer than 9 months. 

H-2B petitioners must also provide a single valid temporary labor certification from the U.S. Department of Labor (USDOL).

Program Process 

Obtain a Prevailing Wage Form ETA-9141 and Form_ETA-9165:

• Employers must request and obtain a prevailing wage determination (PWD) from the OFLC Nation Prevailing Wage Center (NPWC) before filing an H-2B application.
• Employers are encouraged to file at least 60 days before the determination is needed. 
• Employers must write the job order on the State Workforce Agency’s website with a copy sent to anita.dixson@dhewd.mo.gov. 
• File an Application and Job Order with the National Processing Center (NPC) Employers can apply for the H-2B program using USDOL’s Foreign Labor Application Gateway or FLAG System. 

Employers can choose to file either electronically or by mail. Below is a list of what to include: 

• H-2B Application for Temporary Employment certification (Form ETA-9142B) and appendices 
• A valid PWD tracking number issued by the NPWC 
• A copy of the job order submitted to the State Workforce Agency. 
• Copies of all contracts and agreements with the employer demonstrating the authority to represent the employer (agents and/or recruiters) 
• Contact information for all persons and entities hired by or working for recruiters or agents including any subagents or employees of such person and entities (as applicable) 
• Migrant and Seasonal Agricultural Worker Protection Act (MSPA) Farm Labor Contractor Certificate of Registration (agents, as applicable) 
• Any applicable supporting documentation 

Conduct Recruitment of U.S. Workers 

Within 14 days of receipt of a Notice of Acceptance, the employer must follow the instructions provided in the Notice of Acceptance and conduct recruitment, including: 

• Placing newspaper advertisements, 
• Contacting former U.S. workers, 
• Contacting the bargaining representative (if any) or posting notice of the job opportunity to the employer's current employees, and 
• Conducting any additional recruitment, if directed by the Certifying Officer. For technical assistance contact anita.dixson@dhewd.mo.gov

Wages and the Fair Labor Standards Act

The Fair Labor Standards Act (FLSA) establishes minimum wage, overtime pay, record keeping, and youth employment standards affecting employees in the private sector and in Federal, State, and local governments. Covered nonexempt workers are entitled to a minimum wage of not less than $7.25 per hour effective July 24, 2009. Overtime pay at a rate of not less than one and one-half times the regular rate of pay is required after 40 hours of work in a workweek. For more information on worker rights, please visit the USDOL Wage and Hour Division website. 

Title VII of the Civil Rights Act of 1964

• This act makes it illegal to discriminate against someone or harass someone on the basis of race, color, religion, national origin or sex, and makes employers accountable for providing a work environment that is free from harassment and other kinds of discrimination. 
• The U.S. Equal Employment Opportunity Commission (EEOC) is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person's race, color, religion, sex (including pregnancy, childbirth, or related conditions, transgender status, and sexual orientation), national origin, age (40 or older), disability or genetic information. 
• Most employers with at least 15 employees are covered by EEOC laws (20 employees in age discrimination cases). Most labor unions and employment agencies are also covered. 
• The laws apply to all types of work situations, including hiring, firing, promotions, harassment, training, wages, and benefits. For additional information please visit the Equal Employment Opportunity Commission website. 

Anti-discrimination Information under the Immigration and Nationality Act 

The Immigration and Nationality Act prohibits citizenship status and national origin discrimination in hiring, firing, or recruitment or referral for a fee; unfair documentary practices during the employment eligibility verification process (generally, Form I-9 and E-Verify); and retaliation or intimidation developed by the Department of Justice’s Immigrant and Employee Rights Section. For more information, please visit https://www.justice.gov/crt/immigrant-and-employee-rights-section. 

National Human Trafficking Center Hotline

Human trafficking is a form of modern slavery that occurs in every state, including Missouri. The NHTH works closely with service providers, law enforcement, and other professionals in Missouri to serve victims and survivors of trafficking, respond to human trafficking cases, and share information and resources. 

Human trafficking occurs when a trafficker uses force, fraud or coercion to control another person for the purpose of engaging in commercial sex acts or soliciting labor or services against his/her will. Force, fraud, or coercion need not be present if the individual engaging in commercial sex is under 18 years of age. 

To report human trafficking call 1-888-373-7888 or text Text* 233733. Additional information is available at https://humantraffickinghotline.org.