H2A Visa

H2A

The H2A is a non-immigrant visa, allowing foreign workers to enter the USA, augment an employer’s US Workforce, perform specific duties in the critical food supply chain as agricultural workers.  The workers have specific guaranteed wages and protections under strict US Department of Labor standards.  At the end of their approved status the workers return to their families and communities in their home countries.

Our agency is one of the most established and respected Foreign Labor Consultant and Facilitator Firms in existence.  Bring us your labor problems and we will strive to find labor solutions that work!

We are a one-stop shop, assisting employers in navigating the difficult US Department of Labor (DOL), US Citizenship and Immigration Services (USCIS), and US Department of State (DOS) processes in obtaining a stable, legal, seasonal foreign workforce to augment their US workforce.

In order to help ensure the on-time arrival of H-2A workers, we can also connect you with experienced service providers abroad who can assist you and your foreign worker visa applicants with the complicated process of consular scheduling and processing, Department of State form DS-160 completion, and transportation from the foreign consulate to your worksite.

The H-2A program is complicated and we also provide access to compliance resources for employers.

We are active with the H-2A & H-2B stakeholder communities in working to convince the government to provide employers and workers with a reasonable and equitable regulatory framework governing the programs.

Members of our staff and other consultants we engage have been active on the frontline of foreign labor issues for both workers and employers since 1978.  Over the years, we have scored several victories on all the playing fields: Legislative, Regulatory and Judicial.  But more work remains to be done.  We know the importance of the program to employers, US workers and H-2 workers.  We ask all our clients and their US and foreign workforces to be active in efforts to improve and protect the H-2 programs.

Details of the H-2A program guidelines and changes to those guidelines are emailed to active clients on a regular basis and can also be viewed at the following government websites:   

Please note that in late 2019, DOL proposed major changes to the H-2A program.  In addition, USCIS has also proposed major changes to the application fees that it charges.  If the DOL regulatory changes are finalized, they could alter significant elements of the program and if the USCIS fee changes are finalized, they could alter the costs associated with the program.

The H2A process involves:

That is responsible for the area of intended employment, including:

  • Complete form ETA 790 Agricultural and Food Processing Clearance Order, including all attachments including benefits, wages, and working conditions you will offer US and H-2A workers.
  • A written cover letter identifying that the job order will be used in connection with a future H-2A application and requesting that an inspection of your housing by the SWA be scheduled.
  • If your housing has been previously inspected by the SWA and your business has a working relationship with the SWA, you (the employer) might be communicating directly with the SWA to arrange for the inspections.
  • If your business is considered a Farm Labor Contractor (phone our offices if you have questions on this) there are additional forms and requirements for Farm Labor Contractors and H-2A Labor Contractors.  Those additional processes may add significantly to the paperwork approval timeline.

Filing forms and completing processes for obtaining an approved USCIS Petition for Nonimmigrant H-2A workers.

Filing forms and completing processes for obtaining approved DOS visas for workers in their home countries; and,   Logistics (transportation, notification of workers, etc.) to ensure workers arrive at the worksite on time.

Clients can choose to use the services of JKJ Workforce Agency, Inc. for the SWA, DOL and USCIS process (1, 2, and 3 above), or for the DOS and logistics process through our consultants abroad (4 and 5 above), or to improve coordination and efficiency, JKJ Workforce Agency, Inc. and our consultants abroad will provide services to help you navigate the entire process (1 through 5 above) – SWA, DOL, USCIS, DOS, and worker transport logistics.

Currently, the H-2A Application process can take 3 to 4 months to complete and the process is separated into several steps.  Each step is dependent upon the successful completion of the prior step.  As your temporary seasonal need for temporary foreign workers is time sensitive, timing is critical, so we urge you to return this contract IMMEDIATELY.

PLEASE NOTE THAT PROCESSES AND FEES DETAILED IN THIS DOCUMENT ARE SUBJECT TO CHANGE WITHOUT NOTICE, AS BOTH THE US GOVERNMENT AND FOREIGN GOVERNMENTS ADJUST FEES, POLICIES AND PROCEDURES ON A CONTINUING BASIS.

I. APPLICATION PROCESS AND FEES FOR DOL AND USCIS

JKJ Workforce Agency, Inc., will assist clients in filing applications and navigating the process for the DOL Temporary Labor Certification and USCIS H-2A Petition for Nonimmigrant Workers (steps 1, 2, and 3 above).   

If you would like to retain us to provide these services for the 2021 season, please complete and return the attached “Professional Consulting Services Agreement”.

  • 2021 FEE STRUCTURE FOR ONE LABOR CERTIFICATION AND ONE PETITION
    • $3,500.00 fee to prepare one DOL labor certification and one USCIS petition
    • Costs and expenses that must be paid by the employer, including:
        • Government filing fees to USDOL.  These fees are currently:
          • $100 per labor certificate, plus $10 per certified worker, up to a total of $1000 per application.
        • Government filing fees to USCIS.  These fees are currently:
          • $610.00 filing fee for I-129 Petition for Non-Immigrant Worker.

(3) Other fees.

(a) Overnight courier service (FedEx).  The short timeframe for filing requires overnight delivery and employers will be invoiced for these charges.

          • Copying charges.  Application filings can often include more than 100 pages and employers will be invoiced for the cost of copies.
    • The total costs and fees are estimated at $5,500.00 to $6,000.00 per labor certification and petition filing, including expenses for  government-imposed fees, courier services and copy expenses, regardless of the number of workers requested.  A deposit of $5,500.00 for 2021 must be provided to JKJ Workforce Agency with this contract to cover estimated costs and fees.  If actual costs are more or less, that will be reflected on your final bill.
    • Preparation of your 2021 filings can only begin if your account is current or a payment plan has been established and is being followed.
  • 2021 FEE STRUCTURE FOR MULTIPLE LABOR CERTIFICATIONS AND PETITIONS
    • If you require multiple labor certifications and multiple petitions due to multiple job categories, each labor certification and petition filing for a job category will incur fees, costs, expenses, and require a deposit as described above.  You need to fill out a separate Professional Consulting Services Agreement for each job category and provide a corresponding deposit for each agreement.
    • If you require multiple labor certifications and petitions due to a split season (different start dates), where the same job category is utilized for different periods of need, each labor certification and petition filing for each period of need will incur fees, costs, expenses, and require a deposit as described above.  A separate agreement is not required in this case, but your split season needs to be detailed on your agreement and you will be invoiced for the work performed and expenses related to each filing.
    • If you require a single labor certification, and multiple USCIS petitions due to, for example, workers originating from different countries or transferring from other employers, the additional USCIS petitions for the same job category will incur USCIS filing fees, costs, expenses as described above.   A separate agreement is not required in this case, but you will be invoiced for the work performed and expenses related to each petition filing.  The JKJ Workforce fee for providing the additional filing is $1,000.00 per additional petition.

II. APPLICATION PROCESS AND FEES FOR DOS (Department of State)

Most of our clients also elect to have JKJ Workforce Agency engage, on your behalf, consultants abroad to arrange Consular Processing of workers through the U.S. Consulate and to handle transportation logistics (steps 4 and 5 above).  If you need to obtain new workers, we will, at your request, arrange for consultants abroad to locate foreign workers for you.

If you would like us to arrange for consultants abroad to provide these services, please complete and return the attached “Consular Processing Services Agreement”.

1. 2021 FEE STRUCTURE FOR WORKER PROCESSING THROUGH THE CONSULATE

  • $300.00 fee per worker to be processed.
  • If your account is up to date and invoice is PRE-PAID AT LEAST 15 DAYS PRIOR TO THE CONSULAR APPOINTMENT, the fee is reduced to $275.00 per worker.
  • If your invoice is not paid within 90 days after consular processing, the fee will increase to $350 per worker.
  • Any accounts not paid in full within 180 days of invoicing are subject to an 18% annual (1.5% monthly) interest charge.

2. FACILITATOR INCURRED COSTS

Per DOL, the Employer is responsible for all transportation and subsistence costs of the employee while in transit to the job site.

              • Travel.  Depending on the distance traveled and method of transportation, travel costs from the U.S. Consulate to the work site average about $300 per worker, including the border crossing fee of $6.
              • Subsistence.  Daily subsistence costs are established by DOL each year through a Federal Register Notice.  Currently, the daily subsistence rate payable to workers in transit is $13 per day without receipts of actual costs incurred, and a maximum of $55 per day with receipts.
              • Unless the Employer arranges otherwise, JKJ Workforce Agency and/or consultants abroad will coordinate and pay for worker transportation from the place of visa issuance (U.S. Consulate) to the worksite and will provide workers with the standard daily rate for subsistence as they travel.  We will then invoice the Employer for these expenses for each worker.

III. ADDITIONAL EMPLOYER RESPONSIBILITIES AND COSTS ASSOCIATED WTH THE H2A PROGRAM

The current regulatory framework also mandates additional costs and responsibilities for H-2A employers. You must be aware of these additional costs and responsibilities and be prepared to demonstrate compliance during a government audit.

  • Pay calculated weekly:  DOL uses a single 7-day work week to compute wages due, however, workers may be paid either on a weekly or bi-weekly basis.
  • Deductions:  Employers may not make any deductions from worker’s wages that are not specifically detailed in the written job offer.  In addition, there are special rules concerning the applicability of federal employment taxes for H-2A farm workers and we encourage you to consult with your tax professional.
  • Tools / Supplies:  Work tools, supplies and equipment necessary to perform the job must be provided to workers at no extra cost.  If uniforms are required, they must be provided at no extra cost.
  • Reimbursement of Costs:  DOL states that all H-2 workers must be reimbursed for all the expenses they incur in coming to work for you.  These expenses include the cost of the visa appointment, visa processing, border crossing, transportation, food and lodging in transit, and other related fees, including those mandated by the government (excluding passport fees).  For efficiency, some of these costs are paid by JKJ Workforce on behalf of the worker and you will be billed for them, as mentioned above and as explained below in paragraph 5.  But some of these costs are paid directly by the worker and must be reimbursed by you to the worker.  Reimbursement of costs to the worker should be done in the first workweek, but no later than the 50% point of the certification period.  In addition to the worker costs that JKJ will bill to you, a worker will generally incur expenses of approximately $310.00 consisting of the visa appointment ($190), transportation from their hometown to the U.S. Consulate ($80) and subsistence ($40) during travel to the U.S. Consulate, but individual amounts may vary.  Each individual worker should have a receipt / accounting of any transportation expenses and the visa appointment fees to present to the employer upon arrival at the work location.  If the employer chooses to pre-pay these worker expenses, please contact JKJ Workforce Business Office at least 15 days prior to the visa appointment date to make arrangements to prepay, and JKJ Workforce will facilitate the prepayment to the worker.  If a worker you designate is denied a visa or denied entry into the U.S., these prepaid expenses cannot be recovered.  Thus, you may prefer to wait and reimburse workers once they arrive in the U.S.
  • Travel & Subsistence:  Once visas are issued to workers, JKJ Workforce and consultants abroad will utilize subcontractors to provide transportation from Mexico to your place of business, considering convenience for the employer and worker, as well as cost, and the need for the workers to arrive on an expedited basis.  The workers will NOT pay for their transportation from the U.S. Consulate to your worksite.  JKJ Workforce will pay in advance for the cost of the transportation from the U.S. Consulate to the worksite, provide the workers with border crossing fees and will provide the workers with the current standard daily subsistence amount.  JKJ Workforce will bill the employer for these transportation, border crossing fees and subsistence costs for the workers.
  • Housing Charges:  The H-2A program mandates that housing be provided to all H-2A workers at no cost to the worker and that the housing conform to specific guidelines and be approved by the state prior to occupancy.

H-2A FAQs

What are employer responsibilities on Housing?

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How much do I pay my H2A Workers?

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Although JKJ Workforce Agency, Inc. seeks the advice of legal and accounting professionals regarding the H-2 program requirements, we are not a law firm or accounting firm and we do not provide legal or accounting advice to our clients or to H-2 foreign workers.  We encourage you to seek your own counsel regarding legal and accounting issues related to the H-2 program.  Government regulations and policies concerning the H-2 program are complicated, subject to change, and interpretations may differ (even among government agencies).  Any information we provide, whether oral or written, shall not create any warranty, representation or guarantee unless expressly stated. 

Note that JKJ Workforce Agency, Inc., is not, nor are any consultants or subcontractors that we utilize on your behalf, an employer, joint-employer, or co-employer of any H-2 worker processed or transported for you, the client-employer.  Furthermore, JKJ Workforce Agency, Inc., is not, nor are any consultants or subcontractors that we engage to locate workers for you (if applicable) an employer, joint-employer, or co-employer of any H-2 worker that is employed by you, the client-employer.  JKJ Workforce Agency, Inc. acts only as a consultant to you the employer in filing H-2A application paperwork with government agencies and in arranging for others to provide you services such as locating workers, consular processing and/or travel logistics, where applicable.

INSTRUCTIONS

To assist us in preparing your filings with government agencies, please find enclosed the following documents that require your attention, review and approval.  Once you have gathered the requested information, documents and retainer/fee deposit, please send them to JKJ Workforce Agency, Inc., for processing.  You can fax or email a scanned copy of the agreement(s), but we cannot begin work until we have received the signed agreement(s) with deposit.    

  • Company Profile:  Please complete and sign where indicated.
  • Retainer Agreement:  Please review, sign and provide initial payment of $5,500.00 ($3,500 fee plus $2,000 deposit on expenses) so that we can commence work on your DOL and USCIS filings.  If you have multiple job categories, please sign a separate Professional Consulting Services Agreement and provide a separate retainer for each job category.  If you wish for us to arrange for consultants abroad to provide consular processing and transportation logistics, please sign the Consular Processing Services Agreement.
  • 2021 Locations & Contracts:  We will need to document that you have legal control over the physical location(s) where the farm labor will occur. If you contract with other entities to lease/rent land or facilities for your farming operation, we will need copies of agreements indicating you control the land/facility.  If you are a farm labor contractor, DOL requires that you provide copies of executed contracts and/or letters of intent for each location where you expect to work in 2021.
  • Payroll Reports: To document your seasonal need to DOL and USCIS we may be required to submit copies of your prior years’ payroll documentation.

Each employer that hires H-2 workers is subject to audits by the DOL Chicago National Processing Center and by DOL’s Wage and Hour Division.  The Chicago Processing Center audits a large percentage of employers.  These are “paper audits” where the audit notice is sent to the employer and the agent by mail or email and the responses are prepared and submitted to the Chicago National Processing Center.  If the employer can demonstrate that they have been compliant with the DOL’s interpretations of the regulations, then the audit process ends.  If the employer has not been compliant with the DOL’s interpretations of the regulations then the Chicago National Processing Center may refer the matter  to the DOL Wage and Hour Division for a full-scale in-person audit, which can result in an assessment of back wages and penalties and can also lead to the employer being banned from the H-2A program.   DOL’s Wage and Hour Division also routinely conducts unannounced in-person audits/investigations of H-2A employers.  The Wage and Hour audits/investigations are extensive and include interviews of workers, inspection of housing and vehicles, and review of your employment records.

As a result of substantially increased audit activity by DOL, we have limited ability to assist employers in responding to audit requests and if the audit is extensive, we will recommend specialized legal assistance.   In addition, we are not a law firm and our conversations and review of your audit documents would not be attorney-client protected.  We highly recommend that any employer being audited does NOT respond directly to the audit without first consulting with us and/or an attorney.  We can recommend to employers one of the few attorneys in the USA who has proven to be an advocate for employers, understands the Department of Labor, the H-2A program and the complexities involved.  If you receive an audit notice, please contact our office immediately and we can put you in touch with this attorney, who offers discounted rates to our clients.

If you have been pleased with our service, please recommend our agency to your friends and associates.  If there have been any issues that you need to bring to our attention, please do not hesitate to email me at H2A@jkjworkforce.com or call our offices at 956-440-8720.