Mark A Ivener, A Law Corporation

OFLC Issues FAQs on H-2A Temporary Agricultural Foreign Labor Certification Program

The Office of Foreign Labor Certification (OFLC) of the Department of Labor’s Employment and Training Administration recently released rounds 7 and 8 of its FAQs on the 2010 final rule on the H-2A temporary agricultural foreign labor certification program.

Round 7 FAQ (PDF). The round 7 FAQ includes information on pre-filing; filing; job offers, assurances, and obligations; rates of pay; post-certification; labor certification fee requirements and processes; and labor certification determinations.

Among other things, the FAQ notes that dairy farmers who perform milking operations are not able to qualify for an H-2A labor certification. OFLC explained that to qualify, the employer’s need must be seasonal. OFLC said it considers each employer’s specific circumstances on a case-by-case basis, but that the majority of dairy activities, and milk production in particular, “are year-round and therefore cannot be classified as either temporary or seasonal.”

The FAQ also notes that nonpayment or untimely payment (later than 30 calendar days after the date of certification) of H-2A labor certification fees may be considered a substantial violation and subject the employer to debarment from the H-2A program.

OFLC noted that when the prevailing wage rate for a specific crop in a specific state changes after a certification has been granted, the agency posts the new prevailing wage rate, including the effective date, on its website in the Agricultural On-Line Wage Library (AOWL), available at Also, the Chicago National Processing Center (NPC) sends a letter to all potentially affected employers notifying them of the change. Because OFLC receives new wage findings from states for different crops/occupations on a rolling basis, it encourages employers to periodically check the AOWL to ensure that they are paying the appropriate required wage throughout the certified period of employment.

Round 8 FAQ (PDF). The round 8 FAQ includes information on special procedures (such as for employers engaged in itinerant custom combine activities); pre-filing; filing; job offers, assurances, and obligations, including rates of pay, pre-employment costs, and reimbursements; H-2A labor contractors; and positive recruitment and hiring of U.S. workers.

Among other things, the FAQ notes that an employer may request a pre-occupancy housing inspection well in advance of its date of need. Early contact with the state workforce agency (SWA) will provide the employer with time to resolve potential housing compliance issues without affecting the issuance of the temporary labor certification, OFLC noted. An employer is not required to submit proof that its housing complies with applicable program requirements at the time of filing its Application for Temporary Employment Certification (ETA Form 9142), but OFLC said the Department cannot grant a temporary labor certification without proof, which is typically provided in the form of a confirmation from the SWA that the employer-provided housing has sufficient capacity and complies with applicable requirements.

OFLC encourages an employer who has not already obtained the SWA’s approval of its housing to contact the SWA to schedule the required pre-occupancy housing inspection as part of its initial preparations to submit the ETA 9142. At the latest, the employer must request the housing inspection when submitting its job order (ETA Form 790) to the SWA.

The FAQ notes that the Agricultural Online Wage Library reflects the current prevailing wage rate for agricultural occupations.

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Mark A. Ivener, A Law Corporation, a nationally recognized law firm, has successfully assisted hundreds of clients in immigration matters.