an overview of the h-2a visa program to source seasonal agricultural employees

What is the H-2A Program? 

The H-2A program is a government-mandated visa program that allows American farmers and agribusinesses to hire seasonal foreign employees when there aren’t enough interested or qualified domestic (American) employees to work for these businesses and fill these critical positions. These foreign employees legally come to the United States on an H-2A work visa as nonimmigrant farm employees. 

To use this unique visa program, an agricultural (ag) employer must demonstrate the need for seasonal employees and apply for Temporary Labor Certification. Certification is the first step in utilizing the H-2A program to source seasonal ag employees for a farm or agribusiness. 

The H-2A program is managed by two government bodies – the Department of Labor (DOL) and the Department of Homeland Security (DHS) by way of the United States Citizenship and Immigration Services (USCIS). The DOL is responsible for processing an employer’s application, scrutinizing seasonal needs, and issuing Temporary Labor Certification while the USCIS is responsible for issuing work visas to foreign employees. 

H-2A Program Requirements for Employers

As with any government program, employers must meet several requirements before applying for Temporary Labor Certification and eventually hiring foreign employees through the H-2A visa program. 

Here are some of the employer requirements of the H-2A program.

Housing

H-2A employers must provide housing for seasonal, temporary H-2A employees. Housing will be inspected at the state level and needs to be approved before an employer can move forward with an H-2A application and be awarded Temporary Labor Certification. The employer can own housing, which is most common, or employers can lease or rent housing for H-2A employees. Employers must have housing in place before we can begin processing an application. 

Transportation

H-2A employers are required to cover the cost of subsistence (food) and transportation to and from an employee’s home country. Transportation costs often include plane tickets or bus tickets, where applicable. 

H-2A employers must also provide transportation for their H-2A employees to get back and forth from the farm or job site to their employer-provided housing. Employers must provide weekly transportation so H-2A employees can complete personal errands such as banking and grocery shopping. Employers must allow H-2A employees to travel to the nearest town center once per week to run errands and provide transportation for employees to accomplish these tasks. Transportation can include personal vehicles such as cars or trucks and must be equipped with standard safety equipment including seatbelts. 

Job Duties, Wages, and Hours Offered

H-2A employers must offer H-2A visa employees at least 35 hours per week as well as a government-mandated wage rate, known as the Adverse Effect Wage Rate (AEWR), based on the job codes associated with duties and occupation. The point of this is to offset the potential negative impacts these H-2A visa employees have on the domestic job market. 

The DOL does not want the presence of foreign H-2A visa employees to drive down wages for American workers. Furthermore, employers must also guarantee wages for H-2A employees up to the three-quarter mark of the period of seasonal need associated with the job order. Employers must guarantee at least 75% of the work contract with very few exceptions such as acts of God.  

Domestic Recruitment

H-2A employers have ongoing domestic recruitment requirements they must adhere to. Domestic recruitment involves advertising the open positions online, at the place of employment, and in some cases, in the local newspaper. Employers must continue to accept domestic applicants and referrals from their State Workforce Agency (SWA) up to the halfway point of the period of need advertised on the job order (ETA-790). 

Employers are obligated to interview any potential domestic employees as well as make contact with former U.S. employees. USA Farm Labor ensures our clients adhere to recruitment requirements and we assist with these efforts every step along the way. 

Worker’s Compensation

H-2A employers must have an active Worker’s Compensation Policy before they can begin the application process. Like employers in most industries, H-2A employers need to ensure their employees are covered in the event of an accident. Suppose an employer’s policy expires before the end of the job contract. In that case, the employer will sign an attestation form to assure the DOL they will renew the policy before it expires and visa employees are no longer covered. 

Federal Employer Identification Number (FEIN) 

Before a farmer or agribusiness owner can lawfully use the H-2A work visa program, they must have applied for and received a Federal Employer Identification Number (FEIN), also known as a Tax-ID number. Employers can apply for a FEIN online and, many times, employers will receive a FEIN the same day. From there, the Internal Revenue Service (IRS) sends a Proof of FEIN document which our agency needs to file an application for Temporary Labor Certification. 

Ongoing H-2A Program Compliance

All of the regulations listed above combine for ongoing compliance with the rules and regulations of the H-2A program. Employers must maintain housing, transportation, and workman’s compensation, and continue to provide the agreed-upon hours at the set wage rate. 

We continue to assist our clients with ongoing compliance and employee support. Our skilled, knowledgeable Worker Placement Coordinators liaise with our clients, recruiters, foreign consulates, and the H-2A employees we help place to ensure a smooth experience. 

USA farm labor is the H-2A Program Experts

Not only do we continue to provide support throughout the job order, but we are the leading authority on H-2A program compliance. Our heralded H-2Advantage Compliance Manual sets the industry standard for H-2A Agencies. Our clients can rest assured that we have their back every step of the way and beyond. 

Call us at 828-246-0659 or fill out the contact form below to get started with the H-2A program and transform the future of your business. 

Want to know more about the impacts that H-2A has on our clients' businesses? 

Check out our case studies – H-2A Success Profiles – to understand what this program means from a client’s perspective.