March 10, 2022

Best Practices: Screening Foreign H-2A Applicants

It has become increasingly common for H-2A employers to receive unsolicited emails and phone calls from international applicants seeking employment.  Such inquires frequently come from Haiti, Turkey, and South America, but can come from any nation.  This is the result of the U.S. Department of Labor posting all approved H-2A labor certifications on its SeasonalJobs website, which mercifully replaced the H-2A employer’s previous costly and futile obligation to post newspaper ads as a condition for H-2A certification.  Now the entire world can see the DOL’s job board, and some third-party recruiting platforms scrape the information on the government’s website to blast lists of open ag positions to their subscribers around the world. As a result, some H-2A employers are being inundated by job seekers worldwide.

As an H-2A employer, do you have an obligation to respond to these inquiries?  The short answer is yes, you do.

H-2A employers must offer employment to all qualified U.S. applicants who are able, willing and available to perform the job listed in the H-2A job order.  Any person with legal work authorization to work in the U.S. (e.g., U.S. citizen; permanent resident alien (green card), Temporary Protected Status (TPS), refugee/asylum, etc.) is eligible to be hired under the H-2A program, regardless of the country they currently reside in, if they are otherwise able, willing and available for the job. Failure to make that initial threshold determination of U.S. work authorization runs the risk of the employer later being found to have unlawfully rejected a qualified U.S. worker.

The Magic Question

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? 

Best Practices

Employers who receive unsolicited inquiries about H-2A job opportunities from individuals located outside 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 meet one of the following criteria:
    • Natural born U.S. citizen or 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.

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