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Department of Labor

H-2A Employers and Agents

Our office is conducting required housing inspections for upcoming H-2A job orders through a virtual process. As we anticipate the usual high volume of H-2A applications in late May, June, and July this year, we are inviting employers to get started on submitting their housing inspection information early.

Typically, the inspection process begins after you have submitted an H-2A job order request. However, if you would like to get started on the housing inspection early, we welcome and encourage you to do so. Please feel free to begin the inspection process for your H-2A worker housing before you submit your harvest season job order request. To request an "inspection packet", please send an E-mail to [email protected]

Additional details and guidance for beginning the inspection process:

Depending on the year constructed or substantially remodeled, your housing will be required to comply with either Employment Training Administration (ETA) or Occupational Safety and Health Administration (OSHA). Farmworker housing built prior to April 3rd, 1980 should apply ETA regulations. Housing built or substantially remodeled after April 3rd, 1980 should apply OSHA regulations.

The following items are required for FLCU review:

•1)    Completed employer attestation document, acknowledging that you have reviewed the regulations and that the farmworker housing complies (please complete top informational section as well as attestation section);

•2)    Well water test results (within the last 6 months) that indicate that the water is potable (not required for housing on municipal water); and  

•3)    Accurate photos representing the current condition of the farmworker housing. Photos for each facility offered to workers will be required, including:

  • o Exterior of housing
  • o Kitchen Area, including the fridge and garbage can with lid
  • o Kitchen Stove, including the hood range
  • o Common Area, which can be a living room or dining room for communal eating
  • o Bathroom(s)
  • o Bathroom Shower/Tub(s)
  • o Bedroom (s) including storage for workers (closets, dressers, lockers)
  • o Laundry facilities, inside and outside of housing (washer, dryer or clothing line)
  • o First aid kit, with bandages and first aid materials
  • o Fire extinguishers, including the label or tag on the extinguisher
  • o Smoke and CO Detectors
  • o Cooking and Dining Items, includes pots, pans, plates, drinkware and eating utensils, etc.
  • o Clean bedding available which can include clean linen available in linen closets

•4)    New housing may require additional information, such as room dimensions or window dimensions, to determine capacity.

You can submit the required items to our office by E-mail to [email protected]. Please send the photos in a way that we can identify the photos - including the farm name, identifying the housing unit, etc. One email for each housing unit (containing all requested photos, the attestation, and any well water information) is ideal and will help ensure that your inspection is reviewed as quickly as possible.

To request an "inspection packet" with the necessary documents, or for any other questions, please send an E-mail to our designated mailbox, [email protected].

 

Frequently asked questions

In response to questions we have received regarding the housing inspection process this season, we have put together the following FAQs to address different scenarios:

  • 1) Q: My local Department of Health has scheduled their yearly Part 15 housing inspection for my labor camp. Can I submit the DOH inspection instead of completing the DOL virtual inspection process?
  • A: Yes. Our office will continue to accept Department of Health housing inspections for the purposes of H-2A job orders. However, due to the pandemic, the Department of Health is not currently operational in all parts of the state, and Department of Health inspectors may not be able to complete inspections within the timeframe required for the H-2A program. Therefore, we are offering the virtual housing inspection process to ensure that housing is inspected timely for H-2A job orders.
  • Should an employer choose to wait for the Department of Health inspection to be completed, instead of the DOL virtual inspection, the employer will be responsible for submitting a copy of an approved Department of Health inspection report, no later than 32 days prior to their date of need, to the DOL at [email protected]  Please note that the inspection report is required; a copy of an inspection permit will not be sufficient. In this scenario, it is the employer's responsibility to be proactive about contact with the Department of Health, and to provide our office with the completed inspection report within the appropriate timeframe. If the employer is not confident that they can obtain the DOH inspection report within this timeframe, we strongly recommend completing the DOL virtual inspection with our office.

    If an employer intends to work with the Department of Health instead of completing the virtual inspection process, they should let our office know.

  • 2) Q: The Department of Health inspected my housing earlier this year, and I have a permit to operate. I am using this same housing on my harvest season H-2A job order request. Why am I being told that a virtual inspection now needs to take place?
  • A: Per 20 CFR 654.1304, the employer "must make a request to the SWA for a housing inspection no less than 60 days before the date of need." The NYSDOL must inspect the housing and submit, on behalf of the H-2A employer, an approved pre-occupancy housing inspection for all housing used in connection with the H-2A job order 32 days before date of need.  In our executed Memorandum of Agreement (MOA) with the NYS Department of Health we agree to accept compliant pre-occupancy or occupancy reports dated within five months of the new H-2A job order request. Therefore, if a job order has a date of need that is less than five months from when the most recent inspection took place, a new inspection will not be required. If the date of need extends beyond five months from the most recent inspection report, a new inspection is required.
  • 3) Q: I submitted a job order earlier this year, and already completed and submitted my housing inspection report and photos. I am not planning to submit another H-2A job order this season. Do I need to complete another DOL virtual housing inspection?
  • A: No. A new or updated inspection is only required for H-2A employers that are submitting new H-2A job order requests and their previous housing inspection reports are older than 5 months.
  • 4) What do I do if I want to add additional housing so that my workers can spread out and have more space or as additional housing in case my workers get COVID19?
  • A: Our office and the USDOL issued concurrent guidance indicating that employers can request an emergency housing inspection for the purposes of increasing housing capacity due to COVID19. An emergency virtual inspection can take place for this purpose. Please see our website for details on the virtual inspection process and the USDOL FAQs for additional information.

 

As a general reminder, please note that potable well-water test results are also part of the housing inspection process for those properties sourced by well water and cannot be older than 6 months old.  Also, please keep in mind that any housing with 5 or more occupants must continue to work with their local Department of Health to meet those permitting requirements. Contact information for your local office can be found here: https://www.health.ny.gov/environmental/water/drinking/doh_pub_contacts_map.htm

 

A Rule by the Homeland Security Department on 04/20/2020

Temporary Changes to Requirements Affecting H-2A Nonimmigrants Due to the COVID-19 National Emergency

A federal register announcement regarding temporary changes to requirements affecting H-2A workers has been released:  

Federal Register announcement 20 April 2020 "Temporary Changes to the Requirements Affecting H-2A Nonimmigrants Due to the COVID-19 National Emergency"

Please note the following language:

"Namely, the Department will allow H-2A employers whose extension of stay H-2A petitions are supported by valid temporary labor certifications (TLCs) issued by the Department of Labor to begin work immediately after the extension of stay petition is received by USCIS. The Department is also temporarily amending its regulations to allow H-2A workers to stay in the United States beyond the 3 years maximum allowable period of stay. DHS will apply this temporary final rule to H-2A petitions requesting an extension of stay, and, if applicable, any associated applications for an extension of stay filed by or on behalf of an H-2A worker, if they were received on or after March 1, 2020 and remain pending as of the effective date of this rule, as well as H-2A petitions for an extension of stay, received on or after the effective date of this rule, ending on the last day this rule is in effect."

In summary, the temporary changes are as follows:  

  • Employers can have their H-2A workers continue to work while awaiting approval from USCIS on their extension request.
  • H-2A workers can stay beyond the 3 year period of stay.  This will apply to request of extensions of stay filed on March 1, 2020 or after. 

Please note that H-2A workers may choose to return home at the end of their H-2A contract (prior to request for extension).  H-2A workers can agree to stay and work beyond the 3 year period of stay.

Also, please remember to check the Office of Foreign Labor Certification webpage for their on-going updates and announcements: Office of Foreign Labor Certification

 

Novel Coronavirus Disease 2019 (COVID-19) and your Seasonal Workforce

I. Update on housing inspections for H-2A Job Orders

In many cases, in-person housing inspections have been temporarily suspended. For the time being, housing will be inspected via the new virtual inspection process.

For housing for 5 or more workers, please note that this inspection is for the purposes of the H-2A program only. You are still required to work with the Department of Health, when available, to ensure that your migrant farmworker housing is permitted per NYSDOH Part 15 requirements.

To complete the virtual inspection process, employers must submit requested photos, a signed attestation form (provided by our staff), well water test results, if applicable, and any other documentation that the FLCU deems necessary for review (for example, measurements may be requested in some cases, to determine square footage).

The virtual inspections should be completed with the understanding that the FLCU will follow-up with in-person inspections when needed, and particularly for any new housing.

Please contact the Foreign Labor Certification Unit with any questions:

Caylin Gwise
Office phone: 585-258-8855
E-Mail: [email protected]

II. Basic Housing Requirements: Information for new H-2A Employers

Regulations

Regulations Applied: Either ETA or OSHA regulations will be applied, depending on the year that the housing was constructed. Housing constructed before April 1980 will have ETA regulations applied. Housing constructed after 1980 will have OSHA regulations applied.

Sleeping Space

Square footage requirements: In sleeping rooms, either worker must have 50 square feet of space. If bunk beds are used, under ETA regulations, workers must have 40 square feet of space. In both instances, ceiling height must be at least 7 feet.

Windows: Each sleeping room must have an openable window. The size of the window must be at least 10% of the room's square footage.

Beds and bedding: Each worker must be provided with a bed and bedding. The bed must be on a bedframe, raised from the floor. The bed and bedding must be clean and comfortable.

Storage: A reasonable amount of storage space (closets, dressers, etc) must be provided for each worker.

Egress: Under ETA regulations, any sleeping space on the second floor must have a secondary means of egress. This may be in the form of a secondary stairway, an escape ladder with a sufficient sized window, or a sufficient sized window alone if the drop to the ground is less than 14 feet.

Gender Separation: Should both male and female workers be living in the housing, separate bathroom bedrooms be provided for each gender. Each bedroom must have working locks on the doors for privacy.   

Kitchen and Cooking Facilities:

Facilities: Provided that the employer is not providing all meals to the workers, a kitchen and cooking facilities must be available.

Utilities: A stove and refrigerator, in good working order, clean, and of sufficient size for number of workers, must be provided.

Cookware and Dining Items: All reasonable items needed for cooking and eating should be provided: pots, pans, utensils, flatware, cutlery, etc.

Safety: All kitchens must be equipped with a smoke detector, fire extinguisher, and CO detector (if applicable). All items must be current and in good working order. Flammable items should not be stored near sources of heat. Keeping a first aid kit in the kitchen is a good idea.

Bathroom Facilities

Facilities: Workers must be provided with functional and clean bathroom facilities with clean and working toilet, sink, and shower/bath; with hot and cold water under pressure.

Gender Separation: Should both male and female workers be living in the housing, separate bathroom facilities must be provided for each gender. Each bathroom must be labeled "male" or "female" and have working locks on the doors for privacy.  

Common/Dining Area

Facilities: Each housing unit must have a common/dining area where workers may congregate to eat their meals, etc. A dining table and chairs must be provided.

First Aid Kit: Each housing unit must have a complete first aid kit, with the basic items for general illness/wound care available. Make sure the items are not expired and that the kit is well-stocked. Good places to store the first aid kit are in the kitchen and the bathroom. Having two is not a bad idea!

Smoke and CO Detectors: All smoke and CO detectors must be functional, not disabled, and kept in good repair. Detectors should be placed, at minimum, in the kitchens and in the sleeping areas.

Fire extinguisher: A properly charged and inspected fire extinguisher must be provided. One should be kept in the kitchen; keeping additional extinguishers elsewhere is a good practice.

General Housing

Screening: All windows and exterior openings (including doors) must be screened.

Site: Exterior of the housing must be well-maintained, site must be clear of debris.

Utilities: Housing must have all necessary utilities functional, including heat, electricity, and hot and cold water under pressure

Water Source: Housing that uses well water must have water tested by an ELAP certified lab: https://apps.health.ny.gov/pubdoh/applinks/wc/elappublicweb/

Laundry Facilities: Laundry facilities must be provided on-site.

Please contact the Foreign Labor Certification Unit with any questions:

Caylin Gwise
Office phone: 585-258-8855
E-Mail: [email protected]

 

You can download a copy of the pertinent regulation(s) below.

ETA OSHA Housing Information NYSDOL

ETA Housing Regulations 20 CFR 654.400 eCFR

OSHA Housing Regulations 29 CFR 1910.142 eCFR

 

Protect Yourself and Your Workforce

Protect Yourself and Your Family from COVID-19: English

Protect Yourself and Your Family from COVID-19: Spanish

Protect Yourself and Your Family from COVID-19: Bengali

Protect Yourself and Your Family from COVID-19: Chinese

Protect Yourself and Your Family from COVID-19: Haitian Creole

Protect Yourself and Your Family from COVID-19: Korean

Protect Yourself and Your Family from COVID-19: Russian

 

USDOL's Office of Foreign Labor Certification Announcements

April 9, 2020: OFLC Releases Round 3 of Frequently Asked Questions Regarding COVID-19

April 1, 2020: OFLC Releases Round 2 of Frequently Asked Questions Regarding COVID-19

March 20, 2020: OFLC Releases Round 1 of Frequently Asked Questions Regarding COVID-19

More Announcements

 

New process for submitting H-2A applications effective October 1, 2019

The H-2A program is switching over to the FLAG system (https://flag.dol.gov/), a new online portal for filing the H-2A application. Employers and agents must create an account to access the system.

  • Beginning on October 1st, employers should use the new forms within the FLAG system to submit their H-2A applications.
    • Under this new system, users will submit their ETA 790s directly through the FLAG system, not to the SWA.
    • Our office will get a notification from the FLAG system that your application has been submitted for review.
    • Our correspondence with you regarding the  ETA 790 application will still take place via email or telephone. Therefore, it is crucial that the employer/agent provide good contact information for the SWA to use for questions and additional correspondence.
  • Job orders that have already been submitted directly to the SWA, with a start date on or before December 14th, 2019, can continue their filing in the iCert system.

For more details regarding the roll-out of the FLAG system, as well as other information, please see the OFLC announcement related to the change (scroll down to the H-2A-specific announcement, posted 8/27): https://www.foreignlaborcert.doleta.gov/

We also encourage you to reach out to the USDOL with any technical questions that you may have related to the system and the filing timelines. Technical resources from the USDOL are located on the FLAG system page at https://flag.dol.gov/programs/H-2A.

 

Sexual Harassment Prevention

For information and resources to help business owners comply with New York's new sexual harassment prevention regulations, visit our page on combating sexual harassment in the workplace

General Information

The federal H-2A temporary agricultural worker program establishes a means for agricultural employers who anticipate a shortage of domestic workers to bring non-immigrant foreign workers to the U.S. to perform agricultural labor or services of a temporary or seasonal nature. Employment is of a seasonal nature where it is tied to a certain time of year by an event or pattern, such as a short annual growing cycle or a specific aspect of a longer cycle, and requires labor levels in excess of those necessary for ongoing, year-round operations. Employment is of a temporary nature where the employer's need to fill the position with a temporary worker will, except in extraordinary circumstances, last no longer than 10 months.

For further information, including a detailed description of the program, timeline and best practices, please watch our informational webinar below. Please note the minimum subsistence rate was recently changed and it is now $12.46 per day, not $12.07 per day as stated during the webinar.

In order to participate in the H-2A program, the employer must prepare the federal ETA Form 790 Agricultural and Food Processing Clearance Order. The New York State Department of Labor's Foreign Labor Certification Unit (FLCU) pre-approves the job order. The employer must submit the completed ETA 790 to the FLCU no more than 75 days and no fewer than 60 days prior to the employer's date of need.

After the job order is received and entered into the New York State Job Bank by FLCU staff, the employer will receive confirmation that the job order is approved. He or she may then submit the pre-approved ETA Form 790 and ETA Form 9142A to the USDOL's Chicago National Processing Center (CNPC). The job order must be identified as one that will be used in connection with a future Application for Temporary Employment Certification (ETA Form 9142A). The job order must meet the terms and conditions of 20 CFR 653.501 and 20 CFR 655.135.

For more information about the H-2A program, read our introductory document.

Agents Acting on Behalf of New York’s H-2A Employers

The agents/attorneys listed are those that New York’s H-2A employers currently hire to complete H-2A related paperwork, recruit workers from foreign countries, and provide general assistance in the H-2A process. New York’s FLCU is not allowed to endorse any one representative over any others. This list of agents may be provided to employers who would like to utilize the services of these individuals.

H-2A Recruitment Tool

Participation in the H-2A Guest Worker Visa program carries with it a number of requirements for employers including documentation of his or her efforts in recruiting domestic workers for the H-2A job order.  Several H-2A employers have contacted the New York State Department of Labor's Agriculture Labor Program asking if there is a template for the recruitment report. Since the U.S. Department of Labor does not currently provide such a template, the New York State Department of Labor has created a tool, Form AL 156,  to assist employers in complying with this federal requirement.  The tool was created as a service to agricultural employers, but employers are not required to use it. For a more detailed explanation about the tool, please view this description of the H-2A Referral Tool.

H-2A Termination Tool

This form, Form AL 156.4 offers guidance to help H-2A employers comply with federal and New York State requirements related to terminating employment of workers under an H-2A contract.

Resources related to water sanitation

Federal regulations require that farmworker housing be equipped with a “safe and adequate” water supply. For more information on maintaining a safe and adequate water supply, please see the resources below.

Questions? Contact:

Foreign Labor and Agriculture Labor Specialist: Caylin Gwise
Office phone: 585-258-8855
Mobile phone: 585-746-2409
E-Mail: [email protected]
Fax: 716-541-9615
Mailing address: 276 Waring Road Rochester NY 14609

Foreign Labor and Agriculture Specialist: Stacey Rice
Office phone: 585-258-8858
Mobile phone: 585-402-4344
E-Mail: [email protected]
Fax: 716-541-9615
Mailing address: 276 Waring Road Rochester NY 14609

Foreign Labor and Agriculture Labor Supervisor: Melissa Buckley
Office phone: 716-851-2609
Mobile phone: 716-803-0402
E-Mail: [email protected]
Fax: 716-541-9615
Mailing address: 290 Main Street, Room 213 Buffalo NY 14202

Outreach and Program Liaison: Silvia Ray
Office phone: 212-775-3358
Mobile phone: 917-708-1807
E-Mail: [email protected]
Fax: 716-541-9615

Division Director: Jeanette Lazelle
Office phone: 518-457-7304
Mobile phone: 518-461-2599
E-Mail: [email protected]

USDOL Contact Information

Find details at http://www.foreignlaborcert.doleta.gov or contact the USDOL's CNPC at (312) 886-8000.

New York State Wage Theft Prevention Act resources for H-2A employers

In order to assist employers in achieving compliance with New York’s Wage Theft Prevention Act (WTPA), a number of forms and other resources are provided for your use.

Pay Notice and Work Agreement for H-2A employers

Federal form ETA 790 when properly completed, partially satisfies the requirements of New York's Wage Theft Prevention Act (WTPA). The U.S. Department of Labor has developed an instruction document to assist with completing the ETA 790. While the ETA 790 is required for Foreign Labor Certification, it can also be used for participation in the Agricultural Recruitment System and is a useful tool for all agricultural employers in complying with the WTPA.

The New York State Department of Labor created Supplement to ETA 790, which, when properly completed and signed by both the employer and the worker, assists the agricultural employer in achieving compliance with the WTPA. You can read a more thorough description of this tool.

The Supplement to ETA 790 is also available in Spanish.

Wage statements for H-2A employers

New York State Department of Labor Form FL 446 is a blank wage statement containing the fields that employers of H-2A workers must provide to document each pay period to comply with the WTPA.

Other services for agricultural employers

Visit the Agriculture Labor Program's Services for Agricultural Employers page

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