By Rich Schell J.D.

It seems like a match made in heaven: U.S. farmers growing vegetables, fruits and flowers need lots of labor, and many people from foreign countries want U.S. dollars and are willing to work hard for them. At first glance matching up the labor and need for it would seem to be a straightforward process. And it can be, but like any other process, market farmers need to do their homework well in advance of their labor needs. Harvest time is on mother nature’s schedule but visa processing is on the U.S. Government’s schedule and the grower is stuck in the middle.
This article explores what the grower needs to do if he or she decides to not only expand their labor resources by hiring employees but what happens if they expand the search so far that they run out of U.S. citizens.
Agricultural workers from foreign countries may be employed in the U.S. under certain requirements. Any foreign visitor including a temporary agricultural worker needs permission to enter the U.S. in the form of a visa. A visa is basically the advance permission of the government of the United States to a citizen of a foreign country to enter the United States. However, a visa, even it is perfectly valid and properly granted, may not necessarily allow the holder of it to work after he or she comes to the U.S.
Temporary farm workers need a type of visa known as an H-2A visa, named for the section of law that created it. To get a visa for a temporary agricultural worker, the person who needs the labor must complete a process known as labor certification before the visa can be issued.
Congress passes the laws which set the conditions under which aliens may enter the United States. After Congress passes the law, the Executive Branch administers and enforces them. Immigration laws always reflect two competing agendas. First, Congress wants foreign business travelers and workers to be able to enter the U.S. fairly easily because the U.S. can benefit from international trade, and the free movement of international business workers and travelers into the U.S. helps make that trade possible. But at the same time, Congress always wants to protect American jobs and workers. In the immigration and Nationality Act, Congress created the H-2A visa category which allows for temporary and seasonal agricultural workers. Although the law Congress passed authorized these aliens to enter the U.S. and work to help promote U.S. commerce and trade, Congress also required that employers show that the presence of foreign workers would not hurt American workers or lower the amount paid to U.S. workers.
In the aftermath of the September 2001 terrorist attacks, Congress and the Executive Branch took actions to tighten the government’s control over the whole immigration process. As a result of these actions, the visa issuing process has become slower and far more complex. Many different agencies now have an interest in visa applications. Traditionally, visas were issued at the discretion of the U.S. Secretary of State at U.S. embassies and consulates in foreign countries. Once the person arrived in the U.S., the INS (Immigration and Naturalization Service) regulated foreign visitors. However, after 9-11, the name of the INS was changed to the Bureau of Citizenship and Immigration Services (BCIS), and it was merged into the Department of Homeland Security. The Department of Homeland Security took over the functions of the former INS and began working more closely with the Department of State on processing visas. For certain visa applications, labor issues were also important and this meant applicants had to also deal with federal and state Departments of Labor.
The H-2A visa is one of the more complex visas to acquire. The most important thing for the grower to be aware of is that he or she has to be able to show the Department of Labor that there are not enough domestic U.S. workers to fill the need. This is accomplished by going out and trying to fill the position with U.S. workers by advertising the position and listing with state employment offices. After they receive the application the local state Employment Service office will prepare a local job order and begin recruiting U.S. workers.
After the farmer concludes there are not enough U.S. workers to fill the need, he or she must file a farm worker labor certification application with the appropriate U.S. Department of Labor office in his or her region as well as the local office of the state Employment Service. Several forms must be sent, including the Application for Alien Employment Certification (Form ETA 750, Part A. Offer of Employment), and the Agricultural and Food Processing Clearance Order (Form ETA 790). Additional forms may need to be submitted as well. If the employer used an association or agent, then a statement of authorization should be included. There are also requirements as to when the applications must be sent in. The person applying will need to have a completed accurate and ready to process application and supporting documents submitted at least 45 calendar days before the first day that the agricultural workers are going to be needed. However ,anyone contemplating doing this should call and check for processing times and local procedures. Few things could be more frustrating than losing harvest yield because there were delays in processing.
If all goes well, and the DOL finds the application to be sufficient, then they should give their approval at least 20 days out from when the agricultural workers will be needed. The applications can be filed in person, mailed certified return receipt requested, or delivered by guaranteed commercial delivery to the appropriate RA and local office of the State Employment Service. Note: an ironclad rule of dealing with government agencies is that you should keep copies of everything that is sent to the government and all receipts which show that the papers were mailed in a timely manner. There has been a major push to put immigration forms and applications on the web. Filings for agricultural workers are no exception to this push. Applications may be completed on line at the DOL web site at www..h2a.doleta.gov.
If the employer meets all the H-2A requirements, then they will get a certificate, which will allow them to hire foreign workers to fill the shortfall between the number of workers they need and the U.S. workers they can recruit. After certification, the employer must continue to recruit U.S. workers until the H-2A workers have departed for the place of work. U.S. workers can still apply for the job and they should be hired if they apply.

Cost of hiring
Employers will also have to pay a fee for the agricultural labor certification. The fee for each employer receiving a temporary alien agricultural labor certification is $100 plus $10 for each job opportunity for H-2A workers certified. The fee to an employer for each temporary alien agricultural labor certification received will be no greater than $1,000. However, anyone applying should call to check. Immigration fees can change.
Foreign labor does not necessarily mean cheap or cheaper labor. H-2A workers must be paid at the same rate of pay or the same amount per hour that a U.S. worker would receive. This means the money paid to the H-2A worker must be at least as high as the applicable Adverse Effect Wage Rate (AEWR) or the prevailing wage rate for the work performed.
Employers must provide travel expenses for the worker to travel from his or her home country and then return there after the work is done. Some states require workers’ compensation coverage for farm workers and others do not. Employers also have to furnish customary tools and supplies.
Employers must guarantee to each employee that they can work at least three-fourths of the work days in the work contract period. If there are any extensions, those must be offered to the worker as well. Employers also have to offer U.S. workers a chance at the job too until it is half done. Foreign workers cannot be used to break domestic strikes. The employer must keep accurate records of the workers’ earnings.

Rich Schell is a lawyer and small farm owner in Illinois. He is the co-author of U.S. Immigration and Citizenship Q&A. This article does not constitute legal advice and it does not form an attorney client relationship.

Resources
•Extension Offices and Crop Associations
•State Department of Labor Offices
•U.S. Department of Labor
Frances Perkins Building
200 Constitution Avenue, NW
Washington, DC 20210
1-866-4-USA-DOL
TTY: 1-877-889-5627
www.dol.gov

•Bureau of Citizenship and Immigration Services
www.bcis.gov
1-800-375-5283