H-2A is designed so U.S. workers get the first chance at the job. Recruitment records are a standard part of any audit.

Recruiting U.S. workers first

Once your job order is posted, you must (20 CFR 655.135):

  • accept U.S. workers referred by the state workforce agency
  • contact U.S. workers you employed in the previous season, unless they were let go for cause or quit
  • do any additional recruitment DOL requires
  • interview by phone or at little or no cost to the applicant
  • hire every qualified, available U.S. applicant, and reject only for lawful, job-related reasons

The 50% rule

After your H-2A workers depart for your farm, you must keep hiring qualified U.S. applicants until 50% of the contract period has passed (655.135(d)).

Some small employers are exempt, but only if they certify all of these:

  • they used no more than 500 days of farm labor in any quarter of the prior year
  • they are not a member of an association that filed for them
  • they are not otherwise joined with other filing employers

Equal treatment

U.S. workers in the same jobs must get at least the same wages, benefits and working conditions as H-2A workers (655.122(a)). You cannot place requirements on U.S. workers that H-2A workers do not face.

Layoffs

You cannot have laid off U.S. workers in the same job and area within 60 days of your date of need, unless you offered them the job first. During the season, H-2A workers must be laid off before U.S. workers in the same jobs.

Records to keep

  • proof the job order was posted
  • letters or messages to former U.S. workers
  • an applicant log: each U.S. applicant, the date, and the outcome with a reason
  • resumes and contact details for applicants
  • the final recruitment report

Keep the applicant log open until your 50% date. Battenkill Ag tracks that date for you and keeps the log in your season file. Talk to us.