The H-2A Program Causes Employers Confusion but Is Often Worthwhile

H-2A program causes confusion
October 6, 2022

The Department of Labor (DOL) recently investigated some violations of the H-2A program in Mississippi. These investigations show how important it is to ensure that the information used on applications is accurate when hiring workers through the H-2A program.

The recent violation discovered includes failing to state the nature and conditions of the work and failing to pay for the transportation of guest workers. As a result, seven agricultural-based companies in Mississippi received fines of $70,000.

This dramatic increase is because many agricultural employers struggle to find employees. Because of this, they have turned to the H-2A program, consequently improving the program’s popularity. Due to this increase, the agencies that review the program must evaluate it more closely than in previous years.

Unfortunately, mistakes are common when using the H-2A program because you must file with three separate agencies.

Steps in H-2A Process

The first step consists of filing with the State Workforce Agency (SWA). In this step, the employer must provide a detailed job description. The description must include what the worker will do, where they will work, the pay, and information on overtime. This description must be accurate or face a lawsuit by the Department Of Labor Wage Investigations or Legal Services.

The job order should be filed 60 to 75 days before you expect the worker to start work. This expectation allows the order to process through the system and gives the worker time to prepare.

After the SWA, the DOL will do a regulatory review of the job order.

The DOL will decide if your need is seasonal or temporary. They also check to ensure that there are insufficient U.S. workers to fill the jobs, that the Workman’s Compensation is adequate, and that you provide reasonable housing. After meeting all requirements, the DOL will certify the application at least 30 days before the first day of the job.

Once the DOL finishes, the U.S. Citizenship and Immigration Services (USCIS) will verify the legitimacy of the employer and the credibility of the information on the employees. They will also see if employees have violated the law or overstayed their visas.

Employer Responsibilities

Employers must follow federal and state wage laws. They must also provide transportation for the workers to and from their country of origin. Finally, they reimburse workers for recruiter or consulate fees, if any.

Additionally, the employer must pay the workers a per diem for the time spent traveling to their workplace and for the period when they will return home. Some employers do not have a workers’ compensation policy before using the H-2A program. However, employers using this program must establish this policy. It is also essential to have accurate payroll and wage statements, record any reimbursements, and accurately represent your need for H-2A workers.

Final Thoughts

Many employers struggle with adhering to the detailed requirements of the H-2A program, leading to costly penalties for minor mistakes. One typical process where missteps happen is filling out Form I-9. Unfortunately, there are many documents H-2A workers may present for this step, making it confusing and challenging to track.

The most convenient way to ensure accurate and completed Form I-9s is by using an electronic I-9 management system. This system helps guide employers through the process while ensuring safely stored and accessible forms.

Streamline your hiring process with an automated employment eligibility verification and ensure compliance today with I-9 Compliance.