Given the current agricultural workforce challenge presented by COVID-19, many farmers are scrambling to find employees. The federal and state agencies involved with H-2A recognize the problem and are allowing farm employers to file emergency applications to participate in the program. This is a strategy worth consideration but it will not solve every problem, pandemic-related travel restrictions and limited visa services in some countries are preventing some H-2A workers from entering the U.S. to get to their jobs.
The following guidance was provided by the U.S. Department of Labor:
#3. Employers can file for an emergency H-2A order due to the pandemic.
QUESTION: Due to the impact of the COVID-19 pandemic, my business has a critical need for H-2A workers to perform agricultural labor or services. However, I do not have sufficient time to prepare all required documentation in order to file a completed job order with the State Workforce Agency and H-2A application with OFLC within the regulatory filing timeframes. Can I file an emergency H-2A application with OFLC?
ANSWER: Yes. Under 20 CFR 655.134, the OFLC Certifying Officer may waive the time period for filing for employers who did not make use of temporary alien agricultural workers during the prior year’s agricultural season or for any employer that has other good and substantial cause, provided that the Certifying Officer has sufficient time to test the domestic labor market on an expedited basis to make the determinations required by 20 CFR 655.100. Good and substantial cause may include the substantial loss of U.S. workers due to weather-related activities or other reasons, unforeseen events affecting the work activities to be performed, pandemic health issues, or similar conditions. Therefore, for employers whose business operations are impacted by the COVID-19 pandemic, OFLC considers this situation to qualify as good and substantial cause and, if these employers are unable to meet the regulatory filing timeframes, they should request a waiver of the regulatory filing timeframe for this reason under 20 CFR 655.134. 8 An employer that requests a waiver of the regulatory filing timeframe must submit a statement describing the good and substantial cause necessitating the waiver request, a completed Application for Temporary Employment Certification (Form ETA-9142A and appendices), a completed H-2A Agricultural Clearance Order (Form ETA-790/790A and addendums), and all applicable documentation meeting the requirements of 20 CFR 655.130- 133. See 20 CFR 655.134(b). To ensure delivery of the highest quality customer service, OFLC strongly encourages all employers and their authorized attorneys or agents to electronically prepare and file emergency H-2A job orders and applications using the OFLC FLAG system.
Resources for First-time H-2A Employer Applicants
H-2A is a complicated program and it’s not for everyone. Among other things, employers must provide certified housing free of charge, pay for transportation into and out of the country, and pay the H-2A minimum wage (AEWR). Watch this 20-minute video if you are unfamiliar with the program. Following are resources to help you get started if you want to pursue applying for H-2A workers.
- NYS Dept of Labor’s Division of Immigrant Policies and Affairs (DIPA) is your first point of contact for H2-A in New York and offers many resources. You will also find a list of DIPA contacts at this website: https://labor.ny.gov/immigrants/foreign-labor-certification-unit/h-2a.shtm.
- DIPA provides a list of agents who can help with the H2-A application process here: https://labor.ny.gov/formsdocs/dipa/fl6.pdf
- USDA offers the Farmers.gov website: https://www.farmers.gov/manage/h2a
- The U.S. Dept of Labor (USDOL) administers the H-2A program: https://www.foreignlaborcert.doleta.gov/h-2a.cfm
- U.S. Citizenship and Immigration Service (USCIS) controls the issuing of visas for guest workers: https://www.uscis.gov/working-united-states/temporary-workers/h-2a-temporary-agricultural-workers
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By Richard Stup, Cornell University. Permission granted to repost, quote, and reprint with author attribution.
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