Volume 16, Issue 12
Overview of the H-2A Visa Program
Demand for foreign workers under the H-2A temporary visa program has significantly expanded in recent years.
Initially established in 1986, the program allows eligible agricultural employers to bring in foreign workers from a number of specified countries to legally work in the United States on a seasonal or temporary basis. The program has grown from just over 16,000 visas granted in 1997, to more than 200,000 per year in the last three years. The vast majority of H-2A workers come from Mexico, but significant numbers come from South Africa, Guatemala, Jamaica and other countries.1
Farm Credit East and the law firm Harris Beach, PLLC recently presented a webinar covering key aspects of the H-2A visa program on November 30, 2022. Click here to request a copy of the recording.
The webinar presented an overview of the visa process, best practices, site visits, program audits and other compliance topics.
One key aspect of the H-2A visa program is that the work must be seasonal or temporary, which can limit the participation of some types of farms, such as dairy, which have year-round needs. Another thing to keep in mind is that while the H-2A program is federal, state laws apply as well, so there are some differences from state to state.
H-2A workers must be paid at least the adverse effect wage rate (AEWR), the prevailing wage, the agreed-upon collective bargaining rate, or the federal or state minimum wage, whichever is highest. In practice, this is usually the AEWR. For New York, Connecticut, and Massachusetts, the 2023 AEWR will likely be $16.95 per hour, based on the USDA NASS farm labor survey.
There is a proposed rule which may split the AEWR wage rate by job classification. This rule is pending final review and should be released soon. It is important to note that domestic employees in “corresponding employment” must also be offered at least the AEWR rate.
Employers must provide H-2A workers with housing at no cost to the workers. Rental or public accommodations, such as hotels, may be used, but must meet applicable local, state or federal safety and health standards. Employers must demonstrate that adequate domestic workers are unavailable. Part of this requirement includes contacting former U.S. workers (from the prior year or season) to solicit them to return to work, as well as publicly posting the job as required.
In order to apply for workers under the H-2A program, the employer must submit a job order request to their State Workforce Agency (SWA), which will then review the application for completeness. Once the SWA has accepted to job order, the state must inspect the housing.
The employer must provide: housing, workers compensation insurance, all needed tools, supplies, equipment, meals or cooking facilities, transportation to and from their home to the work site and guarantee at least ¾ of the contract period of employment, among other requirements. Any deductions from their pay must be declared and agreed upon. Employers should not deduct Social Security or Medicare assessments from H-2A workers. Federal tax withholding is permitted, but again, the employee must authorize it, and a written authorization is best. All housing the employer intends to use must be listed on the job order and inspected.
Because of the required form filings and inspections, employers should plan several months ahead of their need for workers. Qualified U.S. workers have preference over H-2A workers. Employers must prepare a recruitment report, detailing any U.S. workers who applied for the job, and the disposition of each worker. Employers must consider and hire U.S. workers until 50% of the certified period of work has elapsed. The employer must update their recruitment report throughout the required period and keep it on file. Documents relating to the H-2A certification must be retained for three years.
Wage and hour audits are common. Any early termination or separation of workers from employment, even if voluntary, requires notification of the department of labor (DOL).
Once DOL issues the H-2A certification, a petition must be filed with US Customs and Immigration Services (USCIS). Workers will subsequently be processed by the US Consulate in their home country.
After workers arrive and begin work, H-2A employers are subject to field visits by DOL. If violations of labor regulations are observed, in New York for example, the state DOL will work with the employer to bring the situation into compliance. Only if voluntary compliance cannot be achieved will DOL initiate enforcement action.
DOL is also required to conduct field checks where the SWA has made placements of domestic workers. This is to ensure that all employees, foreign and domestic are receiving the terms and benefits of employment as listed in the H-2A contract.
Some common violations which may occur include discouraging workers from cooperating with DOL, under-reporting of hours, vague job duties, performing job duties not listed and illegal payroll deductions. Workers may not be charged for damage to housing, equipment or product.
While recruiting foreign workers through the H-2A visa program brings additional costs and complexity, many agricultural employers feel that it is beneficial in order to obtain legal and reliable workers for their businesses.
This is a high-level overview of the H-2A process. For more information, request the webinar recording.
1 U.S. Department of State, Nonimmigrant Visa Statistics
Editor: Chris Laughton
Contributors: Tom Cosgrove and Chris Laughton
Farm Credit East Disclaimer: The information provided in this communication/newsletter is not intended to be investment, tax, or legal advice and should not be relied upon by recipients for such purposes. Farm Credit East does not make any representation or warranty regarding the content, and disclaims any responsibility for the information, materials, third-party opinions, and data included in this report. In no event will Farm Credit East be liable for any decision made or actions taken by any person or persons relying on the information contained in this report.