The current AEWR is different from one state to another. For example, in California, the current wage offered for H-2A workers is $17.51 and in states like Alabama or South Carolina it’s $11.99. This disparity in wage rates can result in H-2A workers seeking better options, applying for a job directly with H-2A employers offering higher wages while the workers are still in the United States under a current labor certification.

As an H-2A employer, you may wonder if you are obligated to respond to these inquiries; if the applicant can change his employer; and ultimately if you do want to hire the applicant, how can you petition to bring them onto your labor certification.

Best Practices 

As an H-2A employer, you have an obligation to respond to these inquiries.

To ensure that you do not inadvertently discriminate against someone who qualifies as a “U.S. worker” by virtue of having legal status in the U.S., you must ask them (preferably by email): Do you currently have authorization to work in the U.S. without sponsorship?   

Employers who receive unsolicited inquiries about H-2A job opportunities from individuals located inside the U.S. should take the following steps: 

• Respond politely to the email or phone call. Thank them for their interest. Ask them to confirm whether they are currently legally authorized to work in the U.S. without sponsorship by confirming they have met one of the following criteria: 
  • Natural born U.S. citizen or a naturalized citizen; 
  • Permanent resident alien;  
  • Refugee/asylee/temporary protected status; or 
  • Any other category that permits them to work legally.   
• Inform them that eligibility to obtain an H-2A visa in a foreign country does not qualify as having work authorization.  
• Ask the applicant to reply by email with their complete name and contact information if they believe they meet the above qualifications and still wish to be considered for the position.  

Having documented evidence of the company’s responses to such contacts included as part of the employer’s recruitment log will help demonstrate that the employer is taking seriously its obligation to determine the availability of U.S. workers for the job opportunity. 

If the applicant holds an H-2A visa, it will disqualify them as they are approved to work only with their current employer, the following applies to them:

• H-2A workers can only work for the employer, the application, and the dates that are stated on their H-2A Visa.
• The workers are not able to move from one employer to another if they have absconded their current employer.
• If they decide to abandon their work, they must return to their country of origin within a short time to avoid any immigration consequences for overstaying their work visa.

Read our next newsletter “Best Practices: Part 2, Transfer of H-2A workers” where we will answer if it’s possible to transfer them to your labor certification from a different employer.

For questions about H-2A program compliance or Western Growers H-2A Services, please contact Jason Resnick ([email protected]).