Many employers feel really stressed when faced with a DOL inspector. Someone receives notifications with a requirement to provide documents, and someone hears a knock on the door that promises an inspector’s check. What an employer needs to know, and how to protect your business from penalties? Let’s dwell on the details.
The Essence of The H-2A Program
The essence of this program is that it allows you to hire foreign citizens, that is, non-US residents for employment. This program applies to temporary or seasonal work in the agricultural industry. The duration of such employment should not exceed a year. There are exceptions to this period in the form of extraordinary circumstances when the term of employment of foreign citizens may exceed one year.
You should also keep in mind that you can use this program in case when there are no available employees among US residents. When applying for a program, there will be a thorough check for compliance with the requirements of this program and within 7 days the applicant must receive a response.
What Will the Department Determine?
Under current legislation, the department will determine the following:
- There is a shortage in the labor force who are residents of the country to perform temporary and seasonal work in the field of agriculture.
- How will the hiring of foreign workers affect the working conditions and wages of the workers with US citizenship? Accordingly, in case of a negative impact, the employer will receive a refusal from the department.
How to Submit Application to This Program?
Employers can apply for this program using the online FLAG system. The submission process consists of the following steps:
- Filling a Job Order form to your state’s SWA. This includes submitting such forms as ETA-790, ETA-790A. At this stage, you will work out your forms, fix mistakes, and launch the process of recruiting workers from the USA. Please note that this process must be started 60-75 calendar days before starting work.
- Filling for H-2A to the NPC. After this, the NPC will begin reviewing your application. This process will report any deficiencies, and you are likely to receive additional instructions to complete the application approval process. This process must be started at least 45 calendar days from the date of commencement of work.
- The process of hiring employees who are residents of the country. The process of recruitment for a job is the responsibility of the employer. That is, the employer himself has the right to decide how and when to advertise the hiring campaign. You will need to prepare a hiring report. This process begins after receiving a notice from the NPC.
- The next step is the final one. At this stage, additional documents may be required for the NPC to obtain a final decision. This process must take place not less than 30 days before the date of work start.
Please note that H-2A filing is possible through the FLAG system. On the official website, there are guides as well as video tutorials with which you can figure out how to fill out a form in an online format.
If it is not possible to submit documents online, you can send documents using postal services. In this case, the employer must necessarily indicate there is no access to the online system.
What Penalties Are In This Program
After you have discovered the application process, it may seem that this is a simple process. But in practice, many are faced with both refusals and subsequent fines due to ignorance, misunderstanding, and lack of deepening in particularities of the law. As for the penalties after the approval of this program, keep in mind the following cases:
- Violation of work contract (8 USC 1188 (r) (2)). A fine is $1,766.
- Willful violation of work contract (8 USC 1188 (r) (2)). A fine is $5942.
- Violation of the terms of the employment contract in the context of housing, health provision, transportation safety, and so on, which leads to serious injury or death. A fine is $58,833.
- Repeated breach of an employment contract in the context of housing, health provision, transportation safety resulting in serious injury or death. A fine of $ 117,664.
- Employer’s refusal to cooperate in an investigation. A fine is $5942.
- Violations associated with the laying off/dismission of both local and foreign workers. A fine is $ 17,650.
- Violation in the context of rejecting a US worker applying for employment. A fine is $17,650.
All this makes the process of obtaining this program, as well as the activities within its program, very complicated. The services of a professional lawyer will protect you as an employer from refusal to receive approval for the program, as well as from penalties, which will be a waste of time and money.
How to Find An Experienced H-2A Attorney to Avoid Problems with DOL Wage and Hours Inspector
A specialist with relevant experience is a kind of life vest when an inspector comes to you. Firstly, the specialist will help you even at the stage of filing applications and all other documents. As you have already seen above, it is vital to adhere to the deadlines, and the whole application approval process is complicated. Secondly, the law-savvy professional will eliminate the risks of receiving fines and help to cope with all the legal issues, avoiding penalties.
If you are interested in quality services from a specialist with many years of successful experience, then you should contact an experienced Southern Illinois H-2A Law Firm. Their team will allow you not to worry about receiving approval to participate in the program or an inspector’s sudden visit. It is better to spend reasonable money for the services of professionals than to waste insane sums to pay off penalties later. Don’t discount your work and your time.
We kindly advise you not to rely on the fact that an inspection will bypass your business. Cooperate with a professional law firm and protect your business from troubles and penalties. P.S. A protection for your nervous system is included as well.