- Q: What is the difference between H2A and H2B?
H2A is for temporary production agriculture visas and H2B is for other temporary work visas. The confusing thing is that certain agricultural jobs are classified as non-agriculture by the government. Examples of this are forestry, agricultural processing, landscaping, fisheries.
- Q: What does temporary mean?
These jobs are generally limited to 10 months. Customers are required to justify the temporary nature of their jobs by describing seasonal nature or other factors that make them temporary. Frequently a payroll summary for two years is required to show the (at least) 2 months down time.
- Q: Can jobs ever be more than the 10 months?
Yes there are limited exceptions. If an H2A contract needs to be extended, the request which explains one-time special circumstances can be files. H2B contracts can have a classification of one-time occurrence which can be a one-time contracted job which may last more than 10 months, but once the contract ends, there is no more work.
- Q: How long does it take to have an H2A contract approved?
Can I start earlier than my date of need to be sure I have my workers here on time? An H2A contract can be applied for 60 to 75 days before the date that workers are needed. The application is sent to the state for approval first, and then it goes to the US Department of Labor (USDOL). If it is an emergency application, it must be sent in ASAP to USDOL because they need a minimum of 45 days for processing. We are not allowed to send in applications in advance of the 75 day before date of need limit.
- Q: How long does it take to have an H2B contract approved?
Can I start earlier than my date of need to be sure I have my workers here on time? An H2B contract can be applied for 90 to 75 days before the date that workers are needed, not before, or not after. However a Prevailing Wage Determination is needed before the application can be submitted. These take between two weeks to two months to have completed by USDOL. Therefore applications should be started about 150 days before workers are needed. Special emergency applications are possible under special circumstances.
- Q: What is the CAP, and does it apply to both H2A and H2B?
The CAP is a limitation of workers that are allowed to enter the US under the H2B program. There is no CAP for the H2A program, only H2B. The CAP is an unrealistic limit to workers that are allowed to be approved and to enter under the H2B program. It has no relation to the actual need for workers, and people desperate for workers can be denied their workers if the cap fills.
Some relief to this limit has been realized by the HR classification being reinstated. This means that returning workers are not counted in the CAP. Current CAP limits are 33,000 workers each half year, October-April and April – October.
- Q: How many workers may I request ?
The number of workers you can request depends on your need. Often we must justify numbers by filing a payroll summary for the past two years (or if a new company, a projection for the coming two years. If numbers change from year- to –year, justifications need to be written.
- Q: Can my start dates vary from year-to-year?
Yes, but again a justification must be written if the dates vary more than a couple of weeks.
- Q: What if weather delays the start date of my job?
Again an explanation must be sent to DOL. If workers are delayed in arrival, DOL is also supposed to be notified.
- Q: What audits might be expected over the years?
Audits and investigations can be implemented by DOL at any time. USDOL in Chicago sometimes performs an audit by maila year after a contract is completed. Normally they ask to see advertising records, the final recruitment report, beginning, mid-season, and end season payroll records, contact information for workers, and copies of any contracts provided outside of the ETA 790. They look to see that workers were paid the wage rate required, and that they worked the entire season. The local USDOL conducts investigations (their intimidating name for an audit) usually during the production season. They make a site visit and interview the workers, inspecting the work site and housing. They review all pay records and check pay rates and compliance with the 75% rule and 50% rule.
- Q: What is the 75%rule?
This regulation says that workers are guaranteed to be paid at least 75% of the hours offered in the contract.
- Q: What is the 50% rule?
This regulation says that workers must be reimbursed their travel and visa acquisition expenses when 50% of their contract is completed or before. The Fair Labor Standards Act sometimes takes precedence over the 50% rule, and then workers must be paid during their first week on the job.
- Q: I have a dairy or ranch and need workers year-round. What do I do?
Year-round employment is not allowed under H-2A program. The limit is 10 months. You will need to consider crop production (i.e. feed for the animals, and possible other seasonal activities to justify the temporary need. We can give advice on how to set up a program.
- Q: Workers are not required to have deductions made for taxes. Does this mean they don’t have to pay taxes?
No. All workers are responsible for paying at least federal tax, and in some cases state taxes. They are not required to have deductions made, but are obligated to file tax returns. I always recommend that they request that deductions be made so there is an available “pot” of money to pay taxes when they are due.
- Q: How do minimum production standards fit into the H2A program?
They must be based on adopted industry standards. This becomes challenging sometimes because in many cases these standards don’t exist, and DOL rejects standards we might want to use. Piecework can sometimes give incentive to workers to increase production, but not having standards can be problematic for non-productive workers. One must select workers with care for this reason (among others).
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