Why must the SWA, and not the employer, make a determination that certain workers are eligible to work legally in the United States?
Section 274A(a)(1)(B) of the Immigration and Nationality Act, as amended (INA), requires every person or entity who hires workers to verify employment eligibility of every such hired worker. Section 274A(a)(1)(B) also requires every agricultural association, agricultural employer, or farm labor contractor who recruits or refers workers for a fee, to verify employment eligibility of every such recruited or referred worker. However, ยง 274A(a)(5) of the INA stipulates that SWAs may verify employment eligibility of referred workers and issue a certification of such verification. Employers in possession of such a certification are deemed to have complied with the verification process. Section 218(c)(3)(A) of the INA stipulates that H-2A labor certifications may only be issued if DOL determines there are not sufficient “eligible individuals who have indicated their ability to perform such labor or services.” The Department of Labor (Department or DOL) fulfilled its statutory mandate by publi
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