Department of Labor and Regulation

Title - Foreign Labor

H-2A Temporary Agricultural

About H2A Certification

Process for Becoming Certified

Housing Information

Helpful Resource

H-2A Certification

The H-2A labor certification program establishes a means for agricultural employers who anticipate a shortage of domestic workers to bring nonimmigrant foreign workers to the U.S. to perform agricultural labor or services of a temporary or seasonal nature.

Process

The employer or its authorized representative must submit a job order to the South Dakota Department of Labor and Regulation (DLR) using the Agricultural and Food Processing Clearance Order ETA Form 790 (made available in Microsoft Word format by the U.S. Deprtment of Labor) for intrastate clearance. The job order must satisfy the requirements set forth in 20 CFR 655.122, in order for the DLR to place the employer's job order on our active file for intrastate recruitment of U.S. workers.

The employer must submit the job order to DLR no more than 75 calendar days and no fewer than 60 calendar days before the start date of need.

Upon receipt of the employer's job order, DLR will review the ETA Form 790 and all attachments for compliance with the regulatory requirements contained at 20 CFR 653, subpart F, and 20 CFR 655.122, within seven calendar days.

Deficiency

If DLR determines the job order fails to meet one or more of the applicable regulatory and program requirements, DLR will issue a Notice of Deficiency via email. The employer will have the opportunity to preserve the original submission date by responding to DLR within five calendar days after it receives the Notice of Deficiency and addressing each deficiency noted by DLR.

Acceptance

If DLR determines the job order meets all of the applicable regulatory and program requirements, DLR will issue a Notice of Acceptance via email.

Upon DLR's determination that the job order complies with all regulatory and program requirements, DLR will place the job order in intrastate clearance.

Agricultural and Food Processing Clearance Order ETA Form 790 (link to form in Adobe .pdf format on on ETA website)

Instructions on how to file and additional information can be found on the U.S. Department of Labor website.

Housing Information

It is the employer's responsibility to provide housing for U.S. workers who live outside a normal commuting distance, as well as the foreign workers. The U.S. Department of Labor, Employment & Training Administration, Office of Foreign Labor Certification will not certify an application prior to its receipt of housing confirmation from the State Workforce Agencies (SWA).

DLR's Foreign Labor Certification program (FLC) will inspect only those properties listed on the the ETA 790 and its attachment. The employer is responsible for the address information provided on the ETA 790. Make sure the addresses on the ETA 790 are correct or an inspection will not occur.

  • Housing inspections must be completed by DLR FLC no later than 32 days before the Start Date of Need. Failure to have the inspections approved by that time will cause a delay in the certification, or possibly result in a denial of the application.
  • Failure to produce requested documentation on Rental or Hotel/Motel housing could cause a delay in the certification, or possibly result in a denial of the application.

An Employer's Guide to Migrant Seasonal Housing Standards for H-2A (Adobe .pdf file* formated to be printed on 8.5 by 14 inch [legal size] paper, then folded in four panels.)

Employer Owned Housing

  • Must meet all applicable Occupational Safety and Health Administration (OSHA) and Employment and Training Administration (ETA) regulations.

Upon completion of the housing inspection, the employer will receive an email showing:

  • The housing has been approved; or
  • The housing has not been approved, listing the deficiencies.

The employer has five calendar days to cure those deficiencies. At that time, another inspection will be conducted. If those deficiencies have not been cured, DLR FLC will notify the Chicago National Processing Center the housing was not approved.

Rental Housing/Hotel or Motel

The employer must submit the following with the ETA 790:

  • Statement of Attestation indicating address of rental housing
  • Number of units to be leased
  • Number of persons to be housed at each rental unit
  • Number of bedrooms in each unit
  • Number of beds in each bedroom

How to Schedule a Housing Inspection

If the employer has previously filed an application for Agricultural Foreign Labor Certification (H-2A), the employer's housing may be inspected prior to filing the application. However, if this is the employer's first time to file an H-2A application, a housing inspection cannot be scheduled until the Form ETA 790 is filed with DLR.

To schedule a housing inspection prior to submitting the Form ETA 790, email DLR's FLC program.

Helpful Resource

Helpful information from the U.S. Department of Labor on H2A compliance review

*Opening and printing Adobe .pdf files requires Adobe Acrobat Reader. Click here as needed to download the free Adobe Acrobat Reader.


Marcia Hultman, Secretary
700 Governors Drive
Pierre, SD 57501-2291
Tel. 605.773.3101
Fax. 605.773.6184