20 CFR § 655.132 - H–2A labor contractor filing requirements.

§ 655.132 H–2A labor contractor filing requirements.

An H–2A labor contractor (H–2ALC) must meet all of the requirements of the definition of employer in § 655.103(b) and comply with all the assurances, guarantees, and other requirements contained in this part, including § 655.135, and in part 653, subpart F, of this chapter. The H–2ALC must include in or with its Application for Temporary Employment Certification at the time of filing the following:

(a) The name and location of each fixed-site agricultural business to which the H–2ALC expects to provide H–2A workers, the expected beginning and ending dates when the H–2ALC will be providing the workers to each fixed site, and a description of the crops and activities the workers are expected to perform at such fixed site.

(b) A copy of the Migrant and Seasonal Agricultural Worker Protection Act (MSPA) Farm Labor Contractor (FLC) Certificate of Registration, if required under MSPA at 29 U.S.C. 1801 et seq., identifying the specific farm labor contracting activities the H–2ALC is authorized to perform as an FLC.

(c) Proof of its ability to discharge financial obligations under the H–2A program by including with the Application for Temporary Employment Certification an original surety bond meeting the following requirements.

(1) Requirements for the bond. The bond must be payable to the Administrator, Wage and Hour Division, United States Department of Labor, 200 Constitution Avenue NW, Room S–3502, Washington, DC 20210. Consistent with the enforcement procedure set forth at 29 CFR 501.9(b), the bond must obligate the surety to pay any sums to the WHD Administrator for wages and benefits, including any assessment of interest, owed to an H–2A worker or to a worker engaged in corresponding employment, or to a U.S. worker improperly rejected or improperly laid off or displaced, based on a final decision finding a violation or violations of this part or 29 CFR part 501 relating to the labor certification the bond is intended to cover. The aggregate liability of the surety shall not exceed the face amount of the bond. The bond must remain in full force and effect for all liabilities incurred during the period of the labor certification, including any extension thereof. The bond may not be cancelled absent a finding by the WHD Administrator that the labor certification has been revoked.

(2) Amount of the bond. Unless a higher amount is sought by the WHD Administrator pursuant to 29 CFR 501.9(a), the required bond amount is the base amount adjusted to reflect the average AEWR, as defined in § 655.103, and further adjusted if the labor certification will be used for the employment of 150 or more workers.

(i) The base amounts are $5,000 for a labor certification for which an H–2ALC employs fewer than 25 workers; $10,000 for a labor certification for which an H–2ALC employs 25 to 49 workers; $20,000 for a labor certification for which an H–2ALC employs 50 to 74 workers; $50,000 for a labor certification for which an H–2ALC employs 75 to 99 workers; and $75,000 for a labor certification for which an H–2ALC employs 100 or more workers.

(ii) The bond amount is calculated by multiplying the base amount by the average AEWR in effect at the time of bond submission, as provided in paragraph (c)(3) of this section, and dividing by $9.25. Thus, the required bond amounts will vary based on changes in the average AEWR.

(iii) For a labor certification for which an H–2ALC employs 150 or more workers, the bond amount applicable to the certification of 100 or more workers is further adjusted for each additional 50 workers as follows: the bond amount is increased by a value which represents 2 weeks of wages for 50 workers, calculated using the average AEWR (i.e., 80 hours × 50 workers × Average AEWR); this increase is applied to the bond amount for each additional group of 50 workers.

(iv) The required bond amounts shall be calculated and published in the Federal Register after the OFLC Administrator has calculated the average AEWR or any adjustment thereto.

(3) Form of the bond and method of filing. The bond shall consist of an executed Form ETA–9142A—Appendix B, and must contain the name, address, phone number, and contact person for the surety, and valid documentation of power of attorney. The bond must be filed using the method directed by the OFLC Administrator at the time of filing:

(i) Electronic surety bonds. When the OFLC Administrator directs the use of electronic surety bonds, this will be the required method of filing bonds for all applications subject to mandatory electronic filing. Consistent with the application filing requirements of § 655.130(c) and (d), the bond must be completed, signed by the employer and the surety using a verifiable electronic signature method, and submitted electronically with the Application for Temporary Employment Certification and supporting materials unless the employer is permitted to file by mail or a different accommodation under § 655.130(c)(2) or (3).

(ii) Electronic submission of copy. Until such time as the OFLC Administrator directs the use of electronic surety bonds, employers may submit an electronic (scanned) copy of the surety bond with the application, provided that the original bond is received within 30 days of the date that the labor certification is issued.

(iii) Mailing original bond with application. For applications not subject to mandatory electronic filing due under § 655.130(c)(2) or (3), employers may submit the original bond as part of its mailed, paper application package, or consistent with the accommodation provided.

(d) Copies of the fully-executed work contracts with each fixed-site agricultural business identified under paragraph (a) of this section.

(e) Where the fixed-site agricultural business will provide housing or transportation to the workers, proof that:

(1) All housing used by workers and owned, operated, or secured by the fixed-site agricultural business complies with the applicable standards as set forth in § 655.122(d) and certified by the SWA; and

(2) All transportation between all places of employment and the workers' living quarters that is provided by the fixed-site agricultural business complies with all applicable local, State, or Federal laws and regulations and must provide, at a minimum, the same vehicle safety standards, driver licensure, and vehicle insurance as required under 29 U.S.C. 1841 and 29 CFR 500.104 or 500.105 and 500.120 through 500.128, except where workers' compensation is used to cover such transportation as described in § 655.122(h).