Hiring H2A visa program workers? Make sure to follow these best practices:
Ensure You Aren’t Harming U.S. Workers
One of the key considerations in carefully ensuring you properly follow the law in processing an H2A visa program application is your representing to the government that you will not harm any U.S. workers or their labor market by not only failing to hire them but by lowering the standards of the pay and working condition for that job in your labor market, generally.
For example, if you are hiring for a slaughterhouse that normally pays $14/hour but you decide you want to cut the salary for foreign workers, you will be violating the law and could risk not only denial, but also being excluded from using the H2A guest worker visa program for several years. The law explicitly requires that all workers brought to the U.S. on the H-2A worker program receive equivalent salary, benefits, and working conditions that are standard for that position.
Consolidate H2A Visa Program Applications, When Applicable
Another important consideration is the ability to combine applications among several employers.
For example, this may work within a particular market segment and geographic location where a handful of employers among different businesses all have a need for labor at the same time. In this case it is possible to combine your H2A guest worker visa applications into one application and simultaneously process all of your workers together, without the need for multiple applications.
This process can save you attorneys’ fees and ensure that you stick to your timeline. It will reduce the time and attention required on the government end as well, which makes them happy and may make them more likely to approve your application! It is important to note that a geographic area covering at most two contiguous states is permissible under this combined process.
Follow All Laws, Not Just Immigration Laws
A final caution in ensuring you properly avail yourself of the H2A visa programs is to carefully ensure in consulting with your immigration and business counsel that all laws are being completely followed by the business, not just the immigration laws. Even foreign workers are becoming more and more savvy about their rights, and they often file complaints for accidents, for discrimination, wage and hour issues, among other allegations, so you always need to be on top of knowing that you are engaging the best practices with regard to all of your legal obligations so that you don’t open yourself up to lawsuits unnecessarily.
The H2A visa program can be a huge relief in time of great labor demand, but this does not permit the cutting of corners where other legal requirements need be respected—indeed, many businesses have shut down for their failure to ensure their compliance with the law.
Health and safety laws and regulations, overtime laws, Fair Labor Standards Act provisions, among others, need always be comprehensively understood and carefully followed by all employers. Examples of unlawful behavior that has gotten businesses in trouble include the keeping of workers’ passports and visas until the work is completed, or the hiring of independent contractor workers in order to avoid the need to check authorization for U.S. employment for those you know are undocumented.
None of the advice contained in these materials serves as a substitute for individualized legal representation by a licensed attorney with experience in the practice area.