Foreign Labor
H-2A Temporary Agricultural
Process for Becoming Certified
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 any authorized representative* must fill out the ETA 790 application on the Foreign Labor Application Gateway (FLAG) website. H2A applications will no longer be sent directly to DLR. Application tutorials are provided on the website.
Once the application is finished, the ETA 790 will generate and be assigned to the South Dakota Department of Labor and Regulation (DLR) for intrastate clearance. From there, South Dakota DLR will check the H2A portal on a daily basis and process any applications assigned to us. The application must satisfy the job order 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 fill out the ETA 790 application no more than 75 calendar days and no fewer than 60 calendar days before the start date of need. Once the application is submitted, the employer/authorized representative will need to contact the SWA if they wish to make any changes to the application.
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.
*If the authorized representative is filling out the ETA 790, please also include the employer’s email address. It can be added in the additional email field within the application.
Deficiency
If DLR determines the job order fails to meet one or more of the applicable regulatory and program requirements, DLR will do one of two things. The first option is DLR will issue a “Notice of Deficiency” through FLAG. This will send a notification to the email address associated with the application. The employer/agent will need to reach out to the SWA to determine what changes will need to be made for the job order to comply with regulations. The employer/authorized representative will have the opportunity to preserve the original submission date by responding to DLR within five calendar days from the Notice of Deficiency status. The second option is the SWA will reach out to the employer/agent directly to note the deficiency and ask for permission to amend the application. This option depends on the number of deficiencies present within the application.
Acceptance
If DLR determines the job order meets all of the applicable regulatory and program requirements, DLR will open the job order and send the employer/authorized representative a copy of the completed ETA 790 and an acceptance letter. In FLAG, the job order status will be changed to approved and the Chicago National Office will review the case number for the final certification process.
Upon DLR's determination that the job order complies with all regulatory and program requirements, DLR will place the job order in intrastate clearance.
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 ETA 790. 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. If housing changes before or during certification, please communicate this to DLR and the Chicago National Office. The ETA 790 will need to be amended to include or omit an address to reflect the housing situation.
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.
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.
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 Resources
Helpful information from the U.S. Department of Labor on H2A compliance