H-2A Agricultural Worker Visas

The H-2A program allows U.S. agricultural employers to bring foreign workers to the United States to perform agricultural labor or services of a temporary or seasonal nature when there are not enough U.S. workers who are able, willing, qualified and available. Unlike the H-2B program, there is no annual limit on the number of H-2A visas. The program is, however, heavily regulated, and the obligations it places on the employer are extensive.

The purpose of this memorandum is to describe the process and those obligations, so that an employer can decide whether the program is right for its operation.

I. WHO QUALIFIES

1. The work must be agricultural. This includes planting, cultivating and harvesting crops, raising livestock, and related work performed on a farm. Certain packing and processing work also qualifies.
2. The need must be temporary or seasonal. Seasonal work is tied to a certain time of year by an event or pattern, such as a growing cycle. An employer’s need is generally temporary if it lasts no longer than one year. In practice the Department of Labor (“DOL”) expects a season of ten months or less.
3. The employer may be an individual farmer, an association of growers, or an H-2A labor contractor. It must have a valid Federal Employer Identification Number and a physical place of business in the United States.

II. THE H-2A PROCESS

The timing of each step is fixed by regulation, and a missed deadline can cost the employer its start date. We count back from the first day workers are needed (the “date of need”).

Workers who are already in the United States in H-2A status may move to a new H-2A employer without leaving, and an employer does not have to name the workers it will hire abroad when it files the petition.

III. WHAT THE EMPLOYER MUST PROVIDE

In filing the H-2A application the employer agrees to all of the following. These obligations apply to the H-2A workers and to U.S. workers doing the same work.

1. The employer must pay the highest of the Adverse Effect Wage Rate (“AEWR”) set by DOL for the state, the prevailing wage, any agreed collective bargaining wage, and the federal or state minimum wage.
2. The employer must provide housing at no cost to workers who cannot reasonably return home each day. The housing must be inspected and approved before the workers arrive.
3. The employer must either provide three meals a day, for which it may charge no more than the amount DOL sets, or provide free and convenient cooking and kitchen facilities.
4. The employer must provide free daily transportation between the housing and the worksite. It must reimburse the worker’s travel and subsistence costs from home to the worksite once half of the work contract has been completed, and must pay for the trip home when the contract is completed.
5. The three-fourths guarantee. The employer must offer each worker employment for at least three-fourths of the workdays in the contract period, or pay the difference.
6. Tools, supplies and workers’ compensation. These are provided at no cost to the worker.
7. No fees. Neither the employer nor its recruiters may charge workers any fee for the job. The employer must also pay or reimburse visa and border-crossing fees.
8. S. workers. The employer must hire any qualified U.S. worker who applies until half of the contract period has passed, and may not lay off U.S. workers to make room for H-2A workers.
9. Records and notice. The employer must give each worker a copy of the work contract in a language the worker understands, keep detailed hours and earnings records, provide pay statements, and notify DOL and USCIS if a worker leaves early or does not report.

IV. LENGTH OF STAY

H-2A status is granted for the period of the labor certification. It may be extended in increments of up to one year, each supported by a new certification, to a maximum of three years. A worker who has spent three years in H-2A status must then leave the United States for a period before returning in H-2A status. The worker’s spouse and unmarried children under 21 may accompany him or her in H-4 status, but may not work.

V. EMPLOYER CONSIDERATIONS

The DOL Wage and Hour Division audits H-2A employers, and it can do so without a complaint. Violations can result in back wages, civil money penalties for each violation and each worker, and debarment from the program. The most common problems we see are housing that fails inspection, missing or incomplete time records, and deductions from pay that were not disclosed in the job order.

Obviously, this is not a simple process. But with planning and care it can be smooth and problem free, and for many growers it is the only reliable source of legal seasonal labor. We recommend that a first-time employer contact us at least four months before the date of need.

SUPPORT DOCUMENTATION FOR H-2A APPLICATION

1. Employer’s Federal Employer Identification Number, legal name and all worksite addresses;
2. Description of the crops or livestock, the tasks to be performed, and the first and last dates of need;
3. Number of workers needed, and the number of U.S. and H-2A workers employed in each of the last three seasons;
4. Payroll summaries showing the seasonal pattern of the work;
5. Address, capacity and ownership of all worker housing, with any prior inspection reports;
6. Proof of workers’ compensation insurance covering the full period;
7. Description of the daily transportation to be provided, with vehicle registration and insurance and driver’s licenses;
8. Names of any recruiters or agents used abroad, and copies of the agreements with them; and
9. Full name and title of the employer’s contact person and authorized signatory.

DISCLAIMER: The confidential information provided in this memorandum is for information purposes only and is not intended to be legal advice. This information is not intended to create an attorney-client or other relationship between Kuck Baxter Immigration LLC and the recipient. The reader should consult with an immigration attorney before acting in reliance on any such information.