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:

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, contact Jason Resnick ([email protected]). 

[Jason Resnick is senior vice president and general counsel for Western Growers.]

Source: Western Growers, which is solely responsible for the information provided and is wholly owned by the source. Informa Business Media and all its subsidiaries are not responsible for any of the content contained in this information asset.