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 the South Dakota Department of Labor and Regulation (DLR). Application tutorials are provided on the website.
Once the application is finished, the ETA 790 will generate and be assigned to 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 does not meet regulatory or program requirements, the following process will occur:
- Review and Notification: DLR will review the ETA 790 and notify the employer and/or agent of any deficiencies. Notification may be issued through the Foreign Labor Application Gateway (FLAG) or by direct contact, depending on the nature of the deficiencies.
- Correction Period: The employer or authorized representative has 5 calendar days from the date of notification to respond and submit corrections. Responding within this timeframe allows the original submission date to be preserved.
- No Response: If no response is received, DLR will document the lack of response in FLAG.
- Application Denial: If no response is received within 12 calendar days, the job order will be considered abandoned and denied.
- The denial will be recorded in FLAG.
- An email notification will be sent to the employer and agent.
Acceptance
If DLR determines the job order meets all applicable regulatory and program requirements:
- The job order will be written by DLR staff.
- In FLAG, the job order status will be updated to Approved.
- The employer or authorized representative will be able to download from FLAG:
- A copy of the completed ETA 790
- An acceptance letter
- The job order will be placed in intrastate clearance.
- The National Processing Center will review the case for final certification.
For additional information about the H-2A program, you can visit the United State’s Citizenship and Immigration 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 will inspect the properties listed on the ETA790. The employer is responsible for the address information provided on the ETA790. If you are working with an agent or attorney, you’ll want to make sure the addresses on the ETA790 are correct before submitting each year. If there are any changes needed to your housing locations after your application has been submitted, please be sure to inform your inspector of this when they call to schedule your appointment for inspection.
Housing inspections must be completed by DLR FLC no later than 35 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.
DLR does not inspect public hotel or motels or apartments located within an original structure apartment building. In lieu of inspection, a copy of the hotel reservations or lease agreement is required which shows coverage of the dates of need and number of workers requested. 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.
The following regulations are used based on the age of your housing unit:
- If the housing unit was built on or before April 3, 1980, the Employment and Training Administration (ETA) Housing Regulations will be used.
- If the housing unit was built after April 3, 1980, or an addition has been added onto a housing unit built prior to April 3, 1980, then the Occupational Safety and Health Administration (OSHA) Housing Regulations will be used.
The inspector will confirm the age of your housing unit with you when they schedule the inspection and send to you in a confirmation email a copy of the appropriate checklists they will be using during the scheduled inspection. This will help provide you with an opportunity to ensure all regulations are followed and that your housing unit is prepared at the time of inspection, as if the workers were to be moving in that day.
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 ETA790 is filed with DLR.
If you meet the requirements listed above, to schedule a housing inspection prior to submitting the Form ETA 790, please reach out to the inspector you worked with previously. If you no longer have contact information, please email DLR's FLC program with the following information:
- Employer name used to file the application
- Address of the housing unit requesting inspection
Workplace Rights and Protections
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