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Effective April 1, 2011 all Incoming ETA 790 Forms Being Filed for New H-2A Applications Must be Submitted with an Original Employer Signature; Therefore ETA 790 Forms for H-2A PRE Filings are Required to be Mailed into the Texas Workforce Commission (TWC) Foreign Labor Certification (FLC) Unit.

Faxes and Emails will no Longer be Accepted for Processing at the TWC FLC Unit for New H-2A PRE Filings.

alienlabor@twc.state.tx.us has changed to foreignlabor@twc.state.tx.us

Additional delivery time should be added for onsite mail delivery to the TWC FLC Unit. Overnight next day delivery mail service is recommended to ensure the employer's new H-2A pre-filing arrives at the TWC FLC Unit 60-75 days from the employer's start date of need on the ETA 790, Item 9 as required in the H-2A regulations.

At this time, the Texas Workforce Commission (TWC)Foreign Labor Certification (FLC) Unit is the employer's first point of contact for pre-filing recruitment for H-2A temporary agricultural job opportunities in Texas under the February 2010 H-2A regulations.

Employers should use the most current version of the U.S. Department of Labor (DOL) Form ETA 790 (OMB. Approval No. 1205-0134 Expires 11/30/2012). The employer should complete the ETA 790 job order form Item by Item and file with the appropriate state agency 60-75 days prior to the employers start date of need. The ETA 790 job order must satisfy the requirements for agricultural clearance orders in 20 CFR Part 653 subpart F and the requirements set forth in 20 CFR 655.122.

The H-2A temporary agricultural program establishes a means for an agricultural employer who anticipates 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. Before the U.S. Citizenship and Immigration Services (USCIS) can approve an employer's petition for such workers, the employer must file an application with the Department of Labor (DOL) stating that there are not sufficient workers who are able, willing, qualified, and available, and that the employment of foreign workers will not adversely affect the wages and working conditions of similarly employed U.S. workers. The statute and Departmental regulations provide for numerous worker protections and employer requirements with respect to wages and working conditions that do not apply to nonagricultural programs. The Department's Wage and Hour Division (WHD) has responsibility for enforcing provisions of worker contracts.

When an employer is unable to fill a local agricultural job opportunity or who anticipates a shortage of U.S. workers needed to perform agricultural labor or services of a temporary or seasonal nature the employer may file an application requesting temporary foreign agricultural labor certification. "Temporary or seasonal nature" means employment performed at certain seasons of the year, usually in relation to the production and/or harvesting of a crop, or for a limited time period of less than one year when an employer can show that the need for the foreign worker(s) is truly temporary.

Pursuant to 20 CFR 655.121, prior to filing an Application for Temporary Employment Certification (ETA Form 9142), the employer must submit a completed job order, ETA Form 790 and all attachments, to the State Workforce Agency (SWA) serving the area of intended employment for intrastate clearance. The job order submitted to the SWA must satisfy the requirements for agricultural clearance orders in 20 CFR Part 653, Subpart F, and the requirements set forth in 20 CFR 655.122.

To start the H-2A process under the current DOL H-2A regulations, the employer must prepare the U.S. Department of Labor Form ETA 790 Agricultural and Food Processing Clearance Order, with the required attachments of assurances, terms and conditions for the employer's contract period and file with the State Workforce Agency in which the employer job opportunity is located.

If the employer work location is in Texas, the employer would file with the Texas Workforce Commission (TWC) Foreign Labor Certification (FLC) Unit 60-75 days prior to the employer's start date of need. The employer must identify it as a job order to be placed in connection with a future Application for Temporary Employment Certification for H-2A workers.

NOTE: Overnight next day delivery to the TWC FLC Unit is recommended to ensure the receipt date at the TWC and the employer's start date of need on the ETA 790, Item 9 meets the 60-75 pre-filing timeframe as required in the DOL regulations. Employers that fail to meet the pre-filing 60-75 day window with the states should contact the Department of Labor and/or review the regulations at 20 CFR 655.134. Please include additional time for onsite mail delivery to the TWC FLC Unit.

Under normal pre-filing procedures the ETA 790 form and Attachment of Assurances of their work contract should be submitted to the following:

The Department of Labor (DOL) Form ETA 790 and Form ETA 9142 are available at the following DOL web site: www.foreignlaborcert.doleta.gov.

***See The Following Webpage Step 1 For Example of Assurances ***

STEP 1: Pre-Filing with the Texas Workforce Commission Foreign Labor Certification Unit in Austin, Texas

To begin the pre-filing process 60 to 75 days prior to the employer's start date of need and for recruitment in the employer's area of the intended employment in Texas, employers that have a temporary or seasonal agricultural job opportunity should submit the ETA 790 with attachments (assurances and employer's terms and conditions of the work contract) to the Texas Workforce Commission Foreign Labor Certification (FLC) Unit in Austin, Texas.

Upon receipt of the ETA 790, the TWC FLC Unit will review the ETA 790 and attachment of Assurances documents according to 20 CFR 653 and 20 CFR 655 DOL regulations, policies and procedures. TWC FLC Unit will notify the employer/agent by the most expeditious manner of the start of recruitment or deficiencies.

Recruitment:

TWC FLC will notify the employer their ETA 790 job order is accepted for recruitment and the job posting number has been entered into the WorkinTexas (WIT) computer based system for intrastate recruitment in the employer's area of intended employment. The employer is required to accept TWC referrals starting with the entry of the job order.

- OR -

Deficiencies:

TWC FLC will notify the employer (or agent/attorney if representation of the employer has been supplied with the pre-filing) of deficiencies and the response must be received no later than 5 days to continue the process. The response must be complete with amendments /documents as requested that are required to be able to proceed. The employer must pay the appropriate wage as determined by the DOL regulations, the wage must be as high as the Adverse Effect Wage Rate (AEWR), federal or state minimum wage, or the applicable prevailing hourly wage rate, whichever is higher, provide no cost housing to workers that are unable to return to their principal place of residence the same day on a daily basis, transportation, and additional assurances according to the 20 CFR 655 and 20 CFR 653 regulations.

NOTE: The employers housing should be ready for inspection at this time. If the employer is unavailable to schedule the inspection or the employer housing is not ready, the housing inspection will be delayed as will the H-2A process. Under the new 2010 regulations, certification will not be issued without approved housing that meets the total capacity of the number of workers on the ETA 790, Item 10.

STEP 2: Filing with the U.S. Department of Labor Chicago National Processing Center

If the employer's pre-filing recruitment with TWC FLC has not produced any qualified available applicants and the employer is ready to proceed with the labor certification process, the employer must submit the ETA 790 previously submitted to the TWC FLC Unit with Items 4 through Item 8 completed by the TWC FLC Unit and ETA 9142 Application for Temporary Labor Certification to the Chicago National Processing Center Department of Labor (CNPC DOL) at least forty five days prior to the employers start date of need:

U.S. Department of Labor
Employment and Training Administration
Office of Foreign Labor
Chicago National Processing Center
536 South Clark Street
Chicago, Illinois 60605-1509
ATTENTION: H-2A PROGRAM UNIT

Employers who file outside of the 60-75 day window should review the DOL website and contact DOL.

The Department of Labor (DOL) Form ETA 790 and Form ETA 9142 are available at the following DOL website: www.foreignlaborcert.doleta.gov.

H-2A Labor Certification Process for Employers applying for Nonimmigrant Aliens to perform Temporary or Seasonal Work in Agriculture. Important changes for the H-2A program per the United States Department of Labor (USDOL)

• July 1, 2010: In accordance with the H-2A 2010 Final Rule (in effect as of March 15, 2010), the Department has published in the Federal Register a Notice announcing the release of a new web-based tool, the H-2A Public Job Registry. The H-2A Public Job Registry will be fully integrated into the Office of Foreign Labor Certification's iCERT Visa Portal System (http://icert.doleta.gov), and will provide the public with access to both active and archived H-2A agricultural job orders submitted under the 2010 Final Rule. The H-2A Public Job Registry is part of the Department's Employment and Training Administration's Open Government Initiative and will be accessible to the public on July 8, 2010. Learn more about the H-2A Public Job Registry (PDF). Read the Federal Register Notice (PDF).
  
  
• March 29, 2010, H-2A 2010 Final Rule FAQ: The Department has posted the first round of Frequently Asked Questions (FAQ) (PDF) addressing the H-2A program under the new regulations, which took effect March 15, 2010.
  
  
• March 15, 2010: To support implementation of the new H-2A regulations and current H-2B regulations, the Office of Foreign Labor Certification is making available the ETA Form 9142 (PDF) - Application for Temporary Employment Certification in a fillable Adobe PDF format to provide users with the option to save and reuse the information on the form for future applications.
  
  
• March 5, 2010 H-2A Regulations Mailbox Open for Inquiries: After the publication of the H-2A Final Rule addressing the Temporary Agricultural Employment of H-2A Aliens in the United States, the Department's Office of Foreign Labor Certification has reopened its H-2A Regulations mailbox for public inquiries. The interested public should direct all general inquiries regarding the H-2A program to the H-2A.Regulations@dol.gov mailbox. However, any case specific inquiries should be directed to the Chicago National Processing Center mailbox at TLC.Chicago@dol.gov
  
  
• February 18, 2010: The Department has published in the Federal Register a Notice announcing the 2010 Adverse Effect Wage Rates, the allowable charges for meals, as well as maximum travel subsistence reimbursement amounts applicable to the H-2A temporary agricultural labor certification program. Read the full text of the Notice (PDF).
  
  
• February 12, 2010: Temporary Agricultural Employment of H-2A Aliens in the United States. The Department has published in the Federal Register a Final Rule amending the regulations governing the labor certification process for the temporary agricultural employment of H-2A aliens in the United States, codified at 20 CFR part 655, and enforcement of employer obligations under the H-2A program, codified at 29 CFR Part 501. The new regulations will go into effect on March 15, 2010. Beginning on that date, all program users will be required to file their applications under the new regulations and to comply with all applicable program requirements. To read the full text of the Final Rule, please click each of the following links.
  
  H-2A Final Part 1 (PDF)
  H-2A Final Part 2 (PDF)
  H-2A Final Part 3 (PDF)
  
  Read a Fact Sheet on the Final Rule (PDF).

Please e-mail questions or comments to alienlabor@twc.state.tx.us

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