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H-2A requirements to the agricultural industry

H-2A of the Immigration and Nationality Act (INA) H-2A requirements to the agricultural industry

(February 2010) (PDF)

This fact sheet provides general information concerning the application of the H-2A requirements to the agricultural industry for H-2A applications submitted on or after March 15, 2010. H-2A requirements to the agricultural industry

Introduction

The Immigration and Nationality Act (INA) authorizes the lawful admission of temporary, nonimmigrant workers (H-2A workers) to perform agricultural labor or services of a temporary or seasonal nature. The Department of Labor’s regulations governing the H-2A Program also apply to the employment of U.S. workers by an employer of H-2A workers in any work included in the ETA-approved job order or in any agricultural work performed by the H-2A workers during the period of the job order. Such U.S. workers are engaged in corresponding employment. H-2A requirements to the agricultural industry

Overview of Employer Contractual Obligations -H-2A requirements to the agricultural industry

Recruitment of U.S. Workers: In order for the Department of Labor to certify that there are not sufficient U.S. workers qualified and available to perform the labor involved in the petition and that the employment of the foreign worker will not have an adverse effect on the wages and working conditions of similarly employed U.S. workers, employers must demonstrate the need for a specific number of H-2A workers. In addition to contacting certain former U.S. employees and coordinating recruitment activities through the appropriate State Workforce Agency, employers are required to engage in positive recruitment of U.S. workers. H-2A employers must provide employment to any qualified, eligible U.S. worker who applies for the job opportunity until 50 percent of the period of the work contract has elapsed. Employers must offer U.S. workers terms and working conditions which are not less favorable than those offered to H-2A workers. H-2A requirements to the agricultural industry

Termination of Workers: Employers are prohibited from hiring H-2A workers if the employer laid off U.S. workers within 60 days of the date of need, unless the laid-off U.S. workers were offered and rejected the agricultural job opportunities for which the H-2A workers were sought. A layoff of U.S. workers in corresponding employment is permissible only if all H-2A workers are laid off first. Employers may only reject eligible U.S. workers for lawful, job-related reasons. H-2A requirements to the agricultural industry

In order to negate a continuing liability for wages and benefits for a worker who is terminated or voluntarily abandons the position, employers are required to notify the Department of Labor (DOL), and in the case of an H-2A worker the Department of Homeland Security, no later than two working days after the termination or abandonment.

Rates of Pay: The employer must pay all covered workers at least the highest of the following applicable wage rates in effect at the time work is performed: the adverse effect wage rate (AEWR), the applicable prevailing wage, the agreed-upon collective bargaining rate, or the Federal or State statutory minimum wage.

Wages may be calculated on the basis of hourly or “piece” rates of pay. The piece rate must be no less than the piece rate prevailing for the activity in the area of intended employment and on a pay period basis must average no less than the highest required hourly wage rate.

Written Disclosure: No later than the time at which an H-2A worker applies for a visa and no later than on the first (1st) day of work for workers in corresponding employment, the employer must provide each worker a copy of the work contract – in a language understood by the worker – which describes the terms and conditions of employment. In the absence of a separate written work contract, the employer must provide each worker with a copy of the job order that was submitted to and approved by DOL. The work contract must include:

  • the beginning and ending dates of the contract period as well as the location(s) of work;
  • any and all significant conditions of employment, including payment for transportation expenses incurred, housing and meals to be provided (and related charges), specific days workers are not required to work (i.e., Sabbath, Federal holidays);
  • the hours per day and the days per week each worker will be expected to work;
  • the crop(s) to be worked and/or each job to be performed;
  • the applicable rate(s) for each crop/job;
  • that any required tools, supplies, and equipment will be provided at no charge;
  • that workers’ compensation insurance will be provided at no charge; and
  • any deductions not otherwise required by law. All deductions must be reasonable. Any deduction not specified is not permissible.

Guarantees to All Workers: H-2A employers must guarantee to offer each covered worker employment for a total number of hours equal to at least 75% of the workdays in the contract period – called the “three-fourths guarantee.” For example, if a contract is for a 10-week period, during which a normal workweek is specified as 6 days a week, 8 hours per day, the worker would need to be guaranteed employment for at least 360 hours (e.g., 10 weeks x 48 hours/week = 480 hours x 75% = 360).

If during the total work contract period the employer does not offer sufficient workdays to the H-2A or corresponding workers to reach the total amount required to meet the three-fourths guarantee, the employer must pay such workers the amount they would have earned had they actually worked for the guaranteed number of workdays. Wages for the guaranteed 75% period will be calculated at no less than the rate stated in the work contract.

Housing: Employers must provide housing at no cost to H-2A workers and to workers in corresponding employment who are not reasonably able to return to their residence within the same day. If the employer elects to secure rental (public) accommodations for such workers, the employer is required to pay all housing-related charges directly to the housing’s management.

In addition, employers are required to either provide each covered worker with three meals per day, at no more than a DOL-specified cost, or to furnish free and convenient cooking and kitchen facilities where workers can prepare their own meals.

Employer-provided or secured housing must meet all applicable safety standards.

Transportation: Employers must provide daily transportation between the workers’ living quarters and the employer’s worksite at no cost to covered workers living in employer-provided housing. Employer-provided transportation must meet all applicable safety standards, be properly insured, and be operated by licensed drivers.

Inbound & Outbound Expenses: If not previously advanced or otherwise provided, the employer must reimburse workers for reasonable costs incurred for inbound transportation and subsistence costs once the worker completes 50% of the work contract period. Note: the FLSA applies independently of H-2A and prohibits covered employees from incurring costs that are primarily for the benefit of the employer if such costs take the employee’s wages below the FLSA minimum wage. Upon completion of the work contract, the employer must either provide or pay for the covered worker’s return transportation and daily subsistence.

Records Required: Employers must keep accurate records of the number of hours of work offered each day by the employer and the hours actually worked each day by the worker.

On or before each payday (which must be at least twice monthly), each worker must be given an hours and earnings statement showing hours offered, hours actually worked, hourly rate and/or piece rate of pay, and if piece rates are used, the units produced daily. The hours and earnings statement must also indicate total earnings for the pay period and all deductions from wages.

Additional Assurances and Obligations: Employers must comply with all applicable laws and regulations, including the prohibition against holding or confiscating workers’ passports or other immigration documents. In addition, employers must not seek or receive payment of any kind from workers for anything related to obtaining the H-2A labor certification, including the employer’s attorney or agent fees, the application fees, or the recruitment costs. Employers must also assure that there is no strike or lockout in the course of a labor dispute at the worksite for the H-2A certification which the employer is seeking. In addition, employers cannot discriminate against – or discharge without just cause – any person who has filed a complaint, consulted with an attorney or an employee of a legal assistance program, testified, or in any manner, exercised or asserted on behalf of himself/herself or others any right or protection afforded by sec. 218 of the INA or the H-2A regulations.

H-2A Labor Contractors -H-2A requirements to the agricultural industry

An H-2ALC is a person who meets the definition of an “employer” under the H-2A Program and does not otherwise qualify as a fixed-site employer or an agricultural association (or an employee of a fixed-site employer or agricultural association) and who is engaged in any one of the following activities in regards to any worker subject to the H-2A regulations: recruiting, soliciting, hiring, employing, furnishing, housing, or transporting.

While H-2A does not require labor contractors to register as such with the Department, any person who is subject to MSPA as a Farm Labor Contractor (FLC) must register with the Department and be issued an FLC Certificate of Registration prior to engaging in any farm labor contracting activity. In their H-2A applications, H-2ALCs required to be registered under MSPA are obligated to provide their respective MSPA FLC Certificate of Registration number and to identify the farm labor contracting activities they are authorized to perform.

In addition to meeting the same assurances and obligations as any other H-2A employer, H-2ALCs must fulfill the following requirements:

  • list the name and location of each fixed-site agricultural business to which they expect to provide H-2A workers, the dates of each employment opportunity, and a description of the crops and activities the workers are expected to perform at each area of intended employment;
  • submit a copy of each work contract agreement between the H-2ALC and the agricultural business to which they expect to provide workers;
  • provide proof that all housing and transportation if provided or secured by the fixed-site employer complies with applicable safety and health standards; and
  • obtain and submit the original surety bond with the H-2A Application.

Surety Bond: The surety bond must be written to cover liability incurred during the term of the work contract period listed on the H-2A Application and must remain in effect for a period of at least 2 years from the expiration date of the labor certification. H-2ALCs must obtain the surety bond in the following amounts:

  • $5,000 for a labor certification with fewer than 25 employees;
  • $10,000 for a labor certification with 25 to 49 employees;
  • $20,000 for a labor certification with 50 to 74 employees;
  • $50,000 for a labor certification with 75 to 99 employees; and
  • $75,000 for a labor certification with 100 or more employees.

The bond must be payable to the Administrator, Wage and Hour Division, U.S. Department of Labor, 200 Constitution Avenue, NW, Room S-3502, Washington, DC 20210.

Where to Obtain Additional Information about H-2A requirements to the agricultural industry

This publication is for general information and is not to be considered in the same light as official statements of position contained in the regulations.

For additional information, visit our Wage and Hour Division Website: http://www.wagehour.dol.gov and/or call our toll-free information and helpline, available
8 a.m. to 5 p.m. in your time zone, 1-866-4US-WAGE (1-866-487-9243).

The contents of this document do not have the force and effect of law and are not meant to bind the public in any way. This document is intended only to provide clarity to the public regarding existing requirements under the law or agency policies.

H-2A Visa Program

Are you a farmer who needs seasonal or temporary workers for planting, cultivating, and harvesting crops but domestic workers are in short supply?

The H-2A temporary agricultural workers program – often called the H-2A visa program – helps American farmers fill employment gaps by hiring workers from other countries.

Get started here by:  

  • Learning the H-2A visa application basics
  • Creating a personalized H-2A visa application checklist built around your hiring needs
  • Estimating the costs of hiring workers through the H-2A visa program

Already started an H-2A visa application? Check the approval status of your cases with the Department of Labor or U.S. Citizenship and Immigration Services. To track the status of your cases over time, sign in or sign up for a farmers.gov H-2A dashboard account through login.gov.

About the H-2A Visa Program

The H-2A temporary agricultural program helps employers who anticipate a lack of available domestic workers to bring foreign workers to the U.S. to perform temporary or seasonal agricultural work including, but not limited to, planting, cultivating, or harvesting labor.

Depending on the type of work you need, temporary or seasonal agricultural work can happen on farms, plantations, ranches, nurseries, ranges, greenhouses, orchards, or other similar locations.

  • Seasonal work is when you need more help than usual because the work is tied to a certain time of year by an event or pattern, like a short annual growing cycle.
  • Temporary work lasts no longer than 1 year.

If you have been affected by a strike, work stoppage, or layoff within 60 days of when work will start, you may not qualify for the program.

To participate in the program, you’ll work with your State Workforce Agency to earnestly recruit U.S. workers. The State Workforce Agency will publicly post your job order to recruit U.S. workers. You must accept eligible referrals of U.S. workers who apply for the job, and also contact any former U.S. employees at their last known contact address. When a qualified U.S. worker applies, you must employ them until 50 percent of the work period specified in the work contract has passed.  After 50 percent, there is no continued affirmative obligation to hire.

sources: US Dept of Labor https://www.dol.gov/agencies/whd/agriculture/h2a

H-2A: Temporary Agricultural Employment of Foreign Workers

Section 218 of the Immigration and Nationality Act authorizes the lawful admission into the United States of temporary, nonimmigrant workers (H-2A workers) to perform agricultural labor or services of a temporary or seasonal nature. Before the U.S. Citizenship and Immigration Services (USCIS) can approve an employer’s petition for such workers, the employer must file an application with the Department’s Employment and Training Administration (ETA) stating, among other things, that there are not sufficient workers who are able, willing, qualified, and available, and that the employment of aliens will not adversely affect the wages and working conditions of workers similarly employed in the U.S.. Any employer using H-2A workers must have initially attempted to find U.S. workers to fill these jobs. H-2A workers and domestic workers in corresponding employment must be paid special rates of pay that vary by locality, must be provided housing and transportation from that housing to the job site if their employment requires them to be away from their residence overnight, and must be guaranteed an offer of employment for a total number of hours equal to at least 75% of the work period specified in the contract.

Key News

On January 15, 2021, the U.S. Department of Labor (Department) announced and posted on the Office of Foreign Labor Certification’s website a forthcoming final rule, Temporary Agricultural Employment of H-2A Nonimmigrants in the United States (RIN 1205-AB89), pending publication in the Federal Register with a 30-day delayed effective date.  On January 20, 2021, the Department withdrew this document from the Office of the Federal Register prior to its publication for the purpose of reviewing issues of law, fact, and policy raised by the rule, and therefore it will not take effect.  The Department will notify the public of any further actions as appropriate once it completes its review.

General Guidance

Fact Sheets

Fact Sheet #26 – general information concerning the application of the H-2A requirements to the agricultural industry for H-2A applications submitted on or after March 15, 2010.

Fact Sheet #77D – Retaliation Prohibited under the H-2A Temporary Visa Program

Posters

Presentations

Applicable Laws and Regulations

Law

Civil Money Penalty Inflation Adjustments

Starting in 2016, agencies across the federal government must adjust their penalties for inflation each year. Below is a table that reflects the adjustments that have occurred for penalties under this statute. For more information on the penalty adjustments, go here.

Type of ViolationStatutory CitationCFR CitationMaximum Civil Monetary Penalty on or before 1/15/2022Maximum Civil Monetary Penalty on or after 1/16/2022
(1) Violation of the work contract or a requirement of 8 USC 1188, 20 CFR part 655 subpart B, or 29 CFR part 501;8 USC 1188(g)(2)29 CFR 501.19(c)$1,787$1,898
(i) Willful violation of the work contract or a requirement of 8 USC 1188, 20 CFR part 655 subpart B, or 29 CFR part 501, or for each act of discrimination prohibited by section 501.4;8 USC 1188(g)(2)29 CFR 501.19(c)(1)$6,012$6,386
(ii) Violation of a housing or transportation safety and health provision of the work contract, or any obligation under 8 USC 1188, 20 CFR part 655 subpart B, or 29 CFR part 501, that proximately causes the death or serious injury of any worker;8 USC 1188(g)(2)29 CFR 501.19(c)(2)$59,528$63,232
(iii) Repeat or willful violation of a housing or transportation safety and health provision of the work contract, or any obligation under 8 USC 1188, 20 CFR part 655 subpart B, or 29 CFR part 501, that proximately causes the death or serious injury of any worker;8 USC 1188(g)(2)29 CFR 501.19(c)(4)$119,055$126,463
Violation for failure to cooperate in an investigation;8 USC 1188(g)(2)29 CFR 501.19(d)$6,012$6,386
Violation for laying off or displacing any US worker employed in work or activities that are encompassed by the approved Application for Temporary Employment Certification for H-2A workers in the area of intended employment either within 60 days preceding the date of need or during the validity period of the job order, including any approved extension thereof, other than for a lawful, job-related reason;8 USC 1188(g)(2)29 CFR 501.19(e)$17,859$18,970
Violation for improperly rejecting a US worker who is an applicant for employment, in violation of 8 USC 1188, 20 CFR part 655 subpart B, or 29 CFR part 501.8 USC 1188(g)(2)29 CFR 501.19(f)$17,859$18,970

This information is not intended to be all of the 
H-2A OSHA Housing Requirements.  
These are only general guidelines.

  • There must be at least 100 square feet for each occupant. Of this at least fifty (50) feet must be in the sleeping area.
  • The shelter must provide protection from the elements.
  • The ceiling must be a minimum of seven (7) feet tall.
  • An area for storing clothing and personal articles must be provided to each occupant.
  • There must be one bed for each worker. Single beds, bunks and cots are allowable. Double beds may be used but they can only be assigned to one worker.
  • There must be a minimum of three (3) feet between each bed  side to side, and for bunk beds four (4) feet end to end.
  • Beds must be a minimum of twelve (12) inches off the floor.  Bunk beds must have twenty-seven (27) inches of clearance between the bottom and top bunks and between the top bunk and the ceiling Triple bunks are not allowed.
  • Floor should be wood or concrete. Wood floors must be elevated at least one (1) foot above grade.
  • Windows and doors should equal approximately 10% of floor space on a room-by-room basis.
  • Windows that are designed to open should be able to open so that at least half of the window area is available for ventilation.  Each room must have at least one opening window that is capable of being used for ventilation and emergency exit in case of fire.
  • Exterior doors should have a screen door with a self-closing devise installed and working.
  • There must be one working stove for each ten people. Adequate cabinet and counter space for food storage and preparation should be provided.
  • One (1) refrigerator per six workers must be available.
  • If workers are to be housed during the heating season (approximately October 1 through April 1) an adequate heating system must be available i.e. 70 degrees. Portable non-vented kerosene propane heaters are not acceptable. Open grate fires are not allowed.  Wood stoves are strongly discouraged and the employer must have the installation inspected by the appropriate code enforcement official prior to inspection by DES.
  • If non-vented gas heaters are used, carbon monoxide detectors must be installed.
  • All heating, plumbing and electrical service must be installed in accordance with all current applicable codes. DES reserves the right to request that the employer provide evidence of compliance to codes when requested.
  • Showers and sinks must have a supply of hot water that is adequate for the anticipated number of occupants.
  • There should be one toilet and one showerhead for each 10 occupants.
  • There should be a hand-washing sink for each six occupants.
  • All exterior openings including windows and doors must be screened.
  • There must be a minimum of one light fixture and one wall outlet for each room. It is the employer’s responsibility that occupants do not overload electrical circuits.
  • OSHA housing regulations state that housing for migrant workers must be a minimum of 500 feet from livestock.
  • Laundry facilities should be provided or the employer should provide transportation to a Laundromat at least once a week.
  • Employer must provide the workers transportation to a grocery store at least once a week.
  • A minimum of two garbage receptacles that have closing lids and be rodent proof must be provided. Outside garbage cans should be on a wood or concrete pad. Garbage must be hauled from the site at least once each week or more often if needed. Garbage bags that are stored outside of a closing container are prohibited.
  • There must be at least one type A/B/C fire extinguisher and one physician approved first aid kit for each building used as migrant housing, kitchen or eating facilities or shower/bath house.
  • Smoke detectors must be installed in each sleeping room.
  • Sleeping rooms located above the first floor should have a fixed ladder to the ground installed. 

ADDITIONAL INFORMATION AND RESOURCES FOR WORKFORCE HOUSING CAN BE FOUND AT https://www.wwworkforcehousing.com/

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