H-2A application processing procedures, Change 1

Accessible letter PDF: https://www.dol.gov/sites/dolgov/files/ETA/advisories/TEGL/2007/TEGL11-07c1acc.pdf

CLASSIFICATION
                                                             H-2A Agricultural Program
  EMPLOYMENT AND TRAINING ADMINISTRATION
             ADVISORY SYSTEM                                 CORRESPONDENCE SYMBOL
        U.S. DEPARTMENT OF LABOR
           Washington, D.C. 20210                            OFLC
                                                             ISSUE DATE
                                                             November 14, 2007

ADVISORY:       FOREIGN LABOR CERTIFICATION
                TRAINING AND EMPLOYMENT GUIDANCE LETTER NO. 11-07, Change 1

TO:             OFLC NATIONAL PROCESSING CENTER DIRECTORS
                STATE WORKFORCE AGENCY ADMINISTRATORS

FROM:           EMILY STOVER DeROCCO /s/
                Assistant Secretary

SUBJECT:        Clarification of Certain Procedures for Processing H-2A Labor
                Certification Applications

1. Purpose. To modify TEGL No. 11-07 to further clarify certain procedures for State
   Workforce Agencies (SWAs) and Employment and Training Administration (ETA)
   National Processing Centers (NPCs) involved in the processing of H-2A labor
   certification applications for temporary agricultural employment of foreign workers in
   the United States (U.S.).

2. References. Immigration and Nationality Act (INA) Section 101(a)(15)(H)(ii)(a); INA
   Section 218; 20 Code of Federal Regulations (CFR) § 651.10; 20 CFR Part 653
   Subparts B and F; 20 CFR Part 654, Subpart E; 20 CFR Part 655, Subpart B; 20 CFR
   Part 658, Subpart F; Field Memorandum No. 16-00; Training and Employment
   Guidance Letter No. 31-01; General Administration Letter No. 1-02; Training and
   Employment Guidance Letter No. 11-07 (November 6, 2007).

3. Background. The H-2A nonimmigrant visa program permits employers to hire foreign
   workers to perform agricultural labor or services of a temporary or seasonal nature.
   The H-2A visa classification requires the intending employer, prior to filing a petition for
   one or more H-2A workers with the Department of Homeland Security’s U.S.
   Citizenship and Immigration Services (USCIS), to apply to the Secretary of Labor for a
   certification that: (1) there are not sufficient workers who are able, willing, qualified,
   and available at the time and place where the H-2A worker is to perform the work; and
   (2) employment of the H-2A worker will not adversely affect the wages and working
   conditions of similarly employed U.S. workers.


 RESCISSIONS                                                     EXPIRATION DATE
 TEGL 11-07                                                      Continuing


   The NPC having jurisdiction over the state(s) in which the area of intended
   employment is located is responsible for processing a request for H-2A labor
   certification. NPC responsibilities include reviewing the application for acceptance,
   directing the SWA to clear the job order through the intrastate and interstate clearance
   system, ensuring the employer meets positive recruitment requirements, and making a
   final determination with respect to granting or denying certification for all or some of
   the job opportunities requested.

   The SWA serving the area of intended employment, with which the employer files a
   concurrent request for H-2A labor certification, is responsible for placing a job order,
   using information submitted by the employer on its job offer for intrastate and interstate
   clearance, and, where necessary, performing inspections to ensure that housing
   meets the applicable standards.

4. Clarification of Procedures for H-2A Applications. This Training and Employment
   Guidance Letter (TEGL) clarifies certain procedures the SWAs and NPCs must use in
   processing temporary labor certification applications under the H-2A program. These
   clarifications replace and supersede prior corresponding operating procedures issued
   for the H-2A program, as noted. However, these clarifications do not affect the special
   procedures established by ETA for sheepherders and goatherders, for occupations
   involved in the open range production of livestock, for multi-state custom combine
   owners and operators, and for itinerant animal shearing.

   A. Filing.

       i.   SWA Locations. The specific location of each SWA may be obtained directly
            from the Office of Foreign Labor Certification’s website at
            http://www.foreignlaborcert.doleta.gov/contacts.cfm. Each SWA must notify the
            appropriate NPC of any changes to its location or mailing address.

       ii. Worksite(s) Crossing State Jurisdictional Boundaries. In circumstances
           where a fixed-site employer has one or more worksites located in the same
           area of intended employment and that lie in one or more state jurisdictions, the
           employer should file a single H-2A labor certification application concurrently
           with the SWA in the state where the work will begin and the NPC that covers
           this state. This provision does not apply to Farm Labor Contractors (FLCs)
           filing as employers. SWAs are reminded that, in circumstances where work will
           be performed in multiple states, unless special procedures apply, the job order
           for recruiting U.S. workers must be transmitted to all other state jurisdictions in
           which any work will take place in order that they post the opportunity in their
           respective job clearance system.

       iii. Timing. The Secretary of Labor is required to make a labor certification
            determination at least 30 calendar days before the employer’s date of need,
            unless the initial or modified application was not filed timely. INA Section
            218(c)(3)(A). As such, the SWA must conduct a housing inspection, the
            employer must provide a recruitment report to the NPC, and the employer must
            provide evidence of workers’ compensation insurance coverage to the NPC, all
            before the date that is 30 calendar days before the date of need.


B. Recruitment.

   i.   Contact Information. In accordance with the regulatory requirements at 20
        CFR § 655.103(d)(2)(ii), each advertisement the employer places in a
        newspaper of general circulation serving the area of intended employment
        must direct interested applicants to apply or send resumes to the nearest office
        of the SWA for referral to the employer’s place of work. This regulatory
        requirement also applies to job orders placed by the SWA in intrastate and
        interstate clearance to ensure that all U.S. workers referred through such job
        orders are apprised of the terms and conditions of employment.

        Absent a SWA referral, however, an employer must still respond to
        employment inquiries from individuals who appear at the employer’s place of
        business or otherwise contact the employer directly. While the employer is not
        required to be consistently available to answer every inquiry placed by an
        interested individual, the employer should have a mechanism in place to take
        messages (e.g., an answering machine) and should respond to such messages
        within 24 hours. The employer may not reject for other than a lawful, job-
        related reason any U.S. worker’s application.

        An employer is required to engage in positive recruitment of U.S. workers in the
        area of intended employment until the foreign worker(s) have departed for the
        employer’s place of work (20 CFR § 655.103(d)). The Department may also
        require employers to recruit in other states of “traditional or expected labor
        supply.” 20 CFR § 655.105(a). The imposition of such out-of-state recruiting
        requirements shall be based on current information provided by a state agency
        or other sources “that there are a significant number of able and qualified U.S.
        workers” in each state designated for recruitment “who, if recruited, would likely
        be willing to make themselves available for work at the time and place needed.”
        Id. As required by regulation, the Department will not require employers to
        “recruit in areas where there are a significant number of local employers
        recruiting for U.S. workers for the same types of occupations.” Id.

   ii. Verification of Employment Eligibility. The Department’s statutory duties
       under the H-2A program require it to ascertain the employment eligibility of all
       referred workers. INA Section 218(c)(3)(A) mandates that the Department
       issue a labor certification “not later than 30 days before the date such labor or
       services are first required to be performed … if (1) the employer has complied
       with the criteria for certification (including criteria for the recruitment of eligible
       individuals as prescribed by the Secretary), and (2) the employer does not
       actually have, or has not been provided referrals of, qualified eligible individuals
       who have indicated their ability to perform such labor or services….” The
       Department has fulfilled its statutory mandate by instructing SWAs via
       regulation and through this guidance letter that workers cannot be referred to
       employers unless the SWA has determined that the worker is “able, willing, and
       eligible” to take the job. 20 CFR § 655.106(a). Eligibility is clearly defined by
       statute to mean “with respect to employment, an individual who is not an
       unauthorized alien . . . with respect to that employment.” INA Section 218(i)(1).

        The Department has also required by regulation that all local SWA offices must
        “determine whether or not applicants are MSFWs [migrant and seasonal
        farmworkers] as defined at 20 CFR § 651.10 of this chapter.” “Farmworker” is


      defined by 20 CFR § 651.10 as an “agricultural worker,” which is in turn defined
      as “a worker, whose primary work experience has been in farmwork … whether
      alien or citizen, who is legally authorized to work in the United States.”

      Accordingly, SWAs must verify the employment eligibility of any worker
      referred to an employer in response to an H-2A job order. The Department
      strongly recommends that SWAs use the E-Verify web-based system
      administered by U.S. Citizenship and Immigration Services (USCIS).
      Information on the E-Verify system may be obtained directly from USCIS by
      clicking on the “E-Verify” link at www.uscis.gov. The Department is aware that
      many, and perhaps most, SWAs do not currently have reliable employment
      verification systems in place. Therefore, the Department will not enforce the
      employment verification requirements specified in this Training and
      Employment Guidance Letter against the SWAs until December 15, 2007.

      SWAs should be aware that employers can rely on INA Section 274A(a)(5) only
      where the documentation complies with all statutory and regulatory
      requirements, including 8 CFR § 274a.6. SWAs are strongly encouraged to
      provide this documentation. The Department will offer training between now
      and December 15 to provide SWAs additional guidance on how to comply with
      the applicable requirements.

   iii. SWA Referrals during Contract Period. Once an employer’s H-2A workers
        have departed for the employer’s place of work, SWAs should, in order to
        minimize disruption during the H-2A contract period, first make all reasonable
        efforts to refer an interested U.S. worker to a non-H-2A job order in the area of
        intended employment or to an unfilled H-2A job order in the area of intended
        employment in which the H-2A workers have not yet departed for the place of
        employment.

C. Housing.

      Housing Standards. SWAs are reminded that employers must provide
      housing at no cost to any worker not reasonably able to return to his/her
      residence within the same day. Employer-provided housing, depending on
      when it was built, must meet either the USDOL Occupational Safety and Health
      Administration (OSHA) standards set forth under 29 CFR § 1910.142
      (standards for temporary labor camps), or the ETA standards at 20 CFR §
      654.404-654.417 (standards for H-2A housing), whichever are applicable
      pursuant to the regulations. In circumstances where rental, public
      accommodation, or another substantially similar class of habitation is used, the
      housing must first meet any local standards for such housing or, in the absence
      of applicable local standards, any applicable state standards. In the absence
      of both local and state standards, the housing must meet the OSHA standards
      for temporary labor camps. In accordance with the Federal regulations at 20
      CFR 655.102(b)(1)(vi), when it is the prevailing practice in the area of intended
      employment and for the occupation to provide family housing, the employer
      must provide family housing to all workers who request it. Open range housing
      – for sheepherders or others engaged primarily in the range production of
      livestock – must comply with OSHA housing standards or, alternatively, DOL
      guidance. In the absence of OSHA standards, ETA has added housing-related
      guidance to its TEGL 15-06 (February 9, 2007), which governs the processing


            of H-2A labor certification applications for occupations involved in the open
            range production of livestock.

       i.   Housing Inspections. SWAs are encouraged to perform housing inspections
            in a timely manner so that processing of an employer’s application is not unduly
            delayed. SWAs should be prepared to conduct housing inspections prior to the
            date an employer will file an H-2A labor certification application, if so requested
            by the employer.

       ii. Certified Housing that Becomes Unavailable. For situations in which
           housing certified by the SWA later becomes unavailable for reasons outside
           the employer’s control, the employer may substitute other rental or public
           accommodation housing that possesses a valid certificate of occupancy. The
           employer must notify the SWA, in writing, of the change in accommodations
           and the reason(s) for such change. The SWA may inspect such
           accommodations, prior to or during occupation, to ensure it meets applicable
           housing standards.

5. Effective Date. This guidance applies to all H-2A labor certification applications
   pending with or received by the NPC and SWA on or after the date this TEGL is
   issued.

6. Action Required. NPC Directors and SWA Administrators are directed to provide
   NPC, SWA and other state staff involved in the processing of H-2A applications with a
   copy of these procedures.

7. Inquiries. Questions from SWA staff should be directed to the Office of Foreign Labor
   Certification at (202) 693-3010.