Agricultural Workers Program

Prior to filing an Application for Temporary Employment Certification, the employer must prepare a job offer on a valid Agricultural Clearance Order (ETA Form 790) containing current OMB expiration date. Then, submit the form and all attachments to the State Workforce Agency (SWA) serving the area of intended employment for intrastate clearance. The following requirements must be met:

• The job order must be submitted to the SWA no more than 75 calendar days and no fewer than 60 calendar days before the start date of the job by using the H-2A@oesc.ok.gov e-mail box;

• The job order must be identified as one that will be used in connection with a future Application for Temporary Employment Certification (ETA Form 9142) with the U.S. Department of Labor; and

• The contents of the job order must satisfy the requirements of 20 CFR Part 653, Subpart F and 20 CFR 655.122.

Upon receipt of the job order, the SWA will review the job order and notify the employer in writing of any deficiencies in the job order within seven (7) calendar days after it has been submitted. The employer must respond to the Notice of Deficiency within five (5) calendar days after receipt of the SWA notification. The SWA must respond to the employers response within three (3) calendar days. The employer will receive a Notice of Acceptance from the SWA providing the job order number, intrastate clearance date and the 50 percent date. The job order will be active until the end of the recruitment period, which will extend through 50 percent of the period of employment.

Please note that during the period of “active recruitment” the employer must hire all U.S. workers that are qualified, able and willing to accept the job.

The employer determines that there is a need for workers. The employer then places a job order with the Foreign Labor Certification (FLC) Department. The application must be submitted through Form ETA 790. Step-by-Step Instructions are located at the back of the document. Once complete, the form should be emailed to H-2A@oesc.state.ok.us and should meet the following requirements:

1. Valid ETA Form 790 containing OMB expiration date 03/31/2019.

2. Identified as job order to be filed in connection with the future H-2A application, if applicable.

3. Submitted no more than 75 and no less than 60 days before the start date of need.

4. All required items contain a response on the face of the form.

5. Documents MUST be signed by employer.

6. If an attachment is necessary, the essential terms and conditions begin on the face of the form with a clear reference to the applicable attachment.

7. Identified as a job order supporting either (a) sole employer, (b) joint employer or (c) agent filing on behalf of its employer members.

   • Associations acting as joint employer may file a single job order signed by the association on behalf of all members.

   • Associations acting as agents must file separate job orders signed by each employer member and must not transfer workers.

8. Does not contain an unlawful discriminatory specification by race, color, religion, national origin, age, sex or mental or physical status unrelated to job performance (handicap).

9. Must be an employer with a business location (physical address) in the U.S.

10. Associations filing as a joint employer should attach a listing of all employer members covered by the job order.

11. All worksite locations must be identified.

12. Directions should be clear, use commonly understood street or highway numbers and accurate distances.

13. Associations filing as a joint employer should attach a listing of all worksite locations covering the employer members in no more than 2 contiguous states.

14. All housing locations must be identified (e.g., type, furnishings) and capacity of each unit stated in number of people.

15. Contains assurance the employer will provide sufficient housing that meets the applicable standards at no cost to the H-2A workers and those workers in corresponding employment who are not reasonably able to return to their residence within the same day.

16. Employer has identified expected hours of work for each day of the week.

17. Total hours must be at least 35 hours to constitute full-time employment.

18. Any special work schedule requirements should be disclosed in an attachment. Additional hours of work, i.e., on Sabbath or holidays may be offered in the job order, but may not be required.

19. Written assurance that the employer will provide U.S. workers the number of hours of work identified on the job order (item #11) for the week beginning with the anticipated start date of need (item #9) unless an amendment to the start date is approved.

20. Disclosure of the First Week Guarantee specified by 1) hours worked; 2) the pay that will be provided; and 3) an indication as to whether or not alternative work will be provided.

21. Workers will be provided with 3 meals a day or the employer will furnish free, convenient cooking and kitchen facilities to workers to prepare their own meals.

22. Job offer states the charge, if any, to the worker for meals provided by the employer.

23. Amount of meal charges is consistent with 20 CFR 655.173.

24. Instructions clearly explain how U.S. workers are to be referred to and considered for the job.

25. Provides the days/hours employer will be available to interview workers or receive referrals.

26. Interviews (telephone or in-person) must be conducted at little or no cost to the applicant.

27. If an agent is identified to receive referrals, proof of a valid FLC license covering these activities has been provided.

28. Provides a detailed explanation of the duties to be performed and, where applicable, describes the step-by-step instructions to perform the work.

29. Identifies the minimum job qualifications and requirements for the position (e.g., education, training, experience, licenses or permits), and all such requirements are consistent with normal and accepted qualifications required by non-H-2A employers in the same or comparable occupations and crops.

30. Explains what tools or equipment will be needed to perform the work and absent a common practice, an assurance the employer will furnish all tools, supplies and equipment at no cost to the workers.

31. If applicable, minimum productivity standards are specified and if pay is based on a piece-rate, are either (a) no more than those required by the employer in 1977, unless DOL has approved a higher minimum or (b) normally required by other employers for the activity in the area of intended employment.

32. The contents of the job order must conform to established prevailing, normal or common practices as determined by the SWA.

33. Provides the appropriate wage rate information for each crop or agricultural activity to be performed in all worksites identified with the job order. If the work involves more than one state, each SWA should determine if the wage is correct.

34. Absent a special procedure, offered wage(s) is the highest of the AEWR, the prevailing hourly or piece rate, the agreed-upon collective bargaining wage or the Federal or State minimum wage.

35. Offered wage is not based on commission, bonuses or other incentives.

36. Verify that the wage rate and hours offered are consistent with the state law.

37. Amount of daily subsistence payments must be at least as much as the employer would charge the worker for providing 3 meals a day but cannot be less than the amount permitted under 655.173(a).

38. Disclosure of the daily subsistence payment, which must be at least as much as the employer would charge the worker for providing the worker with three meals a day during employment (if applicable).

39. Assurance employer will provide workers’ compensation in compliance with the State law covering injury and disease arising out of and in the course of employment. If employment is not covered by or is exempt from the State law, assurance employer will provide, at no cost, workers’ compensation providing benefits at least equal to those under State law or other comparable employment.

40. Cross check with state conducted prevailing practice survey.

41. Special Procedures—include effective means of communication in jobs.

    • Special Procedures are defined as sheepherding and the range production of livestock where more than 50% of the workers time is spent on the range; Itinerant Beekeeping, Sheep Shearing or Custom Combine Harvesting where workers are required to travel across state lines to perform work.

42. Offers the worker employment for a total number of work hours equal to at least three-fourths of the workdays of the total work contract period.

43. Assurance employer will furnish the worker on or before each payday worker’s hours and earnings statements meeting the regulatory requirements at 20 CFR 655.122(k).

44. Assurance all earnings records and statements will be available for inspection or transcription by the Secretary or a duly authorized and designated representative and by the worker or representatives designated by the worker.

45. Statement indicating that workers who voluntarily abandon employment or are terminated for cause, and where the employer provides timely notification to the NPC and DHS, will relieve the employer for subsequent transportation and subsistence costs and the 3/4th guarantee.

46. Statement the employer may terminate the work contract where services are no longer required for reasons beyond the employer’s control due to fire, weather or other Act of God.

47. Assurance that 3/4th guarantee will be provided between the start and termination dates, make efforts to transfer the worker to other comparable work acceptable to the worker and if transfer is not viable, provide outbound transportation and subsistence in accordance with 20 CFR 655.122(o).

48. Assurance to provide workers with a copy of the work contract, including any approved modifications, on the day work commences or as soon as practically possible.

49. Assurance the employer, if acting as a FLC or FLCE on the order, possesses a valid FLC license.

    • For Custom Combine Operators, contracts between them and the farmers can be given directly to CNPC and not provided to the SWA.

50. Is employer requesting small business exemption to the 50 percent rule.

51. Agent agreement or G-28 provided with the ETA 790 demonstrating authority to represent employer.

52. If applicable, valid FLC license has been provided by the agent demonstrating authority to perform covered FLC activities.

1. The FLC Department will review the job order for any deficiencies and create a job order in OKJobMatch.

2. Upon acceptance, the job order will be assigned to the local State Workforce Agency (SWA) for recruitment. At this time, the FLC Department will order the housing inspection (29 CFR 1910.142).

   1. The local SWA will perform a resume search to identify eligible applicants. The local SWA will then make contact each eligible applicant in their area. The local SWA will then submit a recruitment report of each contact made and the results of the contact to the FLC Department.

      • Every contact must be documented and if possible, interested applicants should be brought into the local SWA Office to interview for the job. The job interview should be conducted over the telephone and the local SWA should sit in on the interview if possible. The outcome should be documented, along with any issues that may occur.

      • All interested applicants should be made aware of the required qualifications. Applicants should be provided a copy of the ETA 790, the Job Seeker Checklist, and the Department of Labor Protection for Farmworkers forms, which will be included in the original job order package provided to the local SWA by the FLC Department.

      • Each SWA should maintain a copy of the recruitment report in a file for a minimum of three (3) years.

   2. If not enough local workers are found to fill the available positions, the FLC Department will contact the employer for permission to advertise statewide. If permission is given by the employer, the FLC Department will submit the job order to each local office statewide. Each local SWA Office will perform a resume search for eligible applicants in their area. Each local SWA Office will then submit a recruitment report of each contact made and the results to the FLC Department.

      • Every contact must be documented and if possible, interested applicants should be brought into the local SWA Office to interview for the job. The job interview should be conducted over the telephone and the local SWA should sit in on the interview if possible. The outcome should be documented, along with any issues that may occur.

      • All interested applicants should be made aware of the required qualifications. Applicants should be provided a copy of the ETA 790, the Job Seeker Checklist, and the Department of Labor Protection for Farmworkers forms, which will be included in the original job order package provided to the local SWA by the FLC Department.

      • Each SWA should maintain a copy of the recruitment report in a file for a minimum of three (3) years.

   3. If not enough statewide workers are found to fill the available positions, the FLC Department will contact the employer for permission to recruit on a nationwide basis. If permission is given, the FLC Department will submit the request for interstate clearance from the Regional Monitor Advocate (RMA).

   4. If permission is granted, the RMA will issue a Notice of Clearance order states where recruitment must be conducted.

      • If applicable, the H-2A Process begins in conjunction with Item 4.

        • Once the FLC Department has reviewed and approved the ETA 790, a copy of the approved and completed ETA 790 and a Notice of Acceptance (NOA) will be provided to the employer.

All agricultural employers who desire to hire H-2A foreign agricultural workers must apply for certification from the Secretary by filing the following with the CNPC:

1. Completed Application for Temporary Employment Certification (ETA Form 9142);

2. Completed ETA Form 9142 - Appendix A.2 bearing the original signature of the employer and, if applicable, that of the employer's attorney or agent); and

3. Copy of the ETA Form 790 and all attachments

• The employer submits the approved and completed ETA 790 and all other required documents to the Chicago National Processing Center (CNPC). This can be done through the Department of Labor Foreign Labor Application Gateway. The documents from the SWA will provide the job order number, intrastate clearance date and the 50 percent date. The job order will be active until the end of the recruitment period, which will extend through 50 percent of the period of employment.

• Please note that during the period of “active recruitment” the employer MUST hire all U.S. Workers that are qualified, able and willing to accept the job. Even if the employer has already hired foreign workers through the H-2A Program.

• Upon receipt of the employers’ application, CNPC will contact the FLC Department to confirm the application was filed with the FLC Department, that it was submitted properly, and request the housing inspection report and referral information.

• Once CNPC has completed processing the application, they will issue either a Notice of Acceptance (NOA) or a Notice of Deficiency (NOD)

1. An NOD will list each deficiency and the regulations associated with it. It will also list out the required solutions and a deadline, typically five (5) business days from the issue date.
2. An NOA will provide instructions and the next steps in the certification process. This will include advertising requirements and deadlines.

After reviewing the documents, the department will determine the below two:

1. That there are not sufficient able, willing and qualified U.S. workers available to perform the temporary and seasonal agricultural employment for which nonimmigrant foreign workers are being requested; and

2. That the employment of H-2A workers will not adversely affect the wages and working conditions of similarly employed U.S. workers. The statute and departmental regulations provide numerous worker protections and employer requirements with respect to wages and working conditions. The U.S. DOL Wage and Hour Division (WHD) bears responsibility for enforcing provisions of worker contracts.

A complete application package must be received by the CNPC at least forty-five (45) calendar days before the first date on which the workers are needed. Employer may not file with the ETA Chicago NPC until after the job order has been submitted to and reviewed by the SWA in accordance with the regulatory timeframe (i.e., no more than 75 days and no less than 60 days before the anticipated start date of work).

However, the CNPC may waive the regulatory timeframes for filing in emergency situations pursuant to 20 CFR 655.134 (e.g., first time filers, unforeseen changes in market conditions) and where the employer is unable to resolve deficiencies in the job order with the SWA or the SWA is unable to respond to the employer's job order within the regulatory timeframes.

A complete application package including the ETA Form 9142, ETA Form 790, all attachments and supporting documentation may be mailed or delivered by private mail courier to:

U.S. Department of Labor - ETA
Chicago National Processing Center
536 South Clark Street, 9th Floor
Chicago, IL 60605 -1509
Attention: H-2A Program Unit

For complete and detailed information on the H-2A certification process visit the U.S. DOL/ETA CNPC website.