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About the H-2A Visa

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 planting, cultivating, or harvesting labor to name but a few.

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.

Expenses

Expenses You May Be Able to Collect
 
As the employer, you can seek or receive payment from workers for anything related to:

- Transport expenses and daily subsistence from wages, but you must reimburse these costs once 50% of the contract is completed.
- Up to $12.26 per day (for providing 3 meals per day) if cooking facilities aren't available.

Deductions are subject to Fair Labor Standards Act requirements.

Expenses You Can't Deduct
 
As the employer, you can’t seek or receive payment from workers for anything related to obtaining the H-2A labor certification, including:

- Your attorney or agent fees
- Application fees
- Recruitment costs 

Costs 

Understand and estimate the costs you'll be responsible for when hiring and employing foreign workers under the H-2A Visa Program.

IMPORTANT: You must report to the Department of Labor if you're made aware that workers were charged a fee for employment by recruiters or any other representatives.

Labor Certification

- Processing sole employers    - $100 application fee, plus $10 per certified worker (not to exceed $1000)

Non-Immigrant Worker Petition

- Filing fee - $460

H-2A Visa Application

- Consulate fee - $190 per worker (worker must be reimbursed in first paycheck)
- Border stamp fee - $6 per worker
- Agent fees - Approximately $100 per worker

Transportation

- Transport from home country to work site - $400 to $650 per worker (cost varies depending on the country of origin)
- Weekly travel to and from a grocery store and other incidentals    Cost varies

Miscellaneous costs

- Association fees if applicable - $200
- Housing and livable fittings - Approximately $9,000 to $13,000 per worker

Extending Workers Application Path

Farmers have two options for extending workers on a current H-2A visa contract.

A short-term extension of less than two weeks

- The farmer submits a Petition for a Non-Immigrant Worker to the US Citizenship and Immigration Services.

A long-term extension of more than two weeks

- The farmer submits a Petition for a Non-Immigrant Worker to the US Citizenship and Immigration Services.
- The farmer sends a notice to the US Department of Labor’s Chicago National Processing Center that explains the request for an extension. 

Immediate Need Application Path

Farmers who need workers in 44 days or less should email the Department of Labor’s National Processing Center to ensure there’s enough time to complete all H-2A visa program steps before the start date.  The email subject line should say “H-2A Program Question: Immediate Need for H-2A Workers.  Farmers will need to provide justification for using the emergency filing process.

Emergency Application Path

The farmer should consider the emergency filing process if H-2A workers are needed in less than 75 days.

During emergency filing, the farmer should submit a job order with the State Workforce Agency and apply for a temporary labor certification with the Department of Labor’s National Processing Center at the same time. Then the farmer should follow the same steps as a standard filing.

- Department of Labor’s National Processing Center provides the farmer with its final determination.
- The farmer completes an H-2A visa petition with US Citizenship and Immigration Services.
- Workers apply for the H-2A visa with the Department of State’s National Processing Center and complete consulate interviews.
- Approved workers travel to the worksite and arrive on the start date with an arrival/departure record.

Standard Application Path

The standard filing process for hiring H-2A workers should take around 75 days and will include the following steps.

- The farmer applies for a domestic job order with the local State Workforce Agency.
- The farmer applies for a temporary labor certification with the Department of Labor’s National Processing Center.
- Department of Labor’s National Processing Center provides the farmer with its final determination.
- The farmer completes an H-2A visa petition with US Citizenship and Immigration Services.
- Workers apply for the H-2A visa with the Department of State and complete consulate interviews.
- Approved workers travel to the worksite and arrive on the start date with an arrival/departure record.

Eligibility  

Employer’s Eligibility

The following general categories of individuals or organizations may import foreign workers under the H2A visa:

- An agricultural employer who anticipates a shortage of U.S. workers needed to perform agricultural labor or services of a temporary or seasonal nature

- The employer may be an individual proprietorship, a partnership or a corporation. An association of agricultural producers may file as a sole employer, a joint employer with its members, or as an agent of its members

- An authorized agent, whether an individual (e.g., an attorney) or an entity (e.g., an association), may file an application on behalf of an employer. Associations may file master applications on behalf of their members

The employer must satisfy the following conditions to import foreign workers under the H2A visa:

- Recruitment: The employer must engage in independent positive recruitment of U.S. workers. This means an active effort, including newspaper and radio advertising in areas of expected labor supply. Such recruitment must be at least equivalent to that conducted by non-H2A agricultural employers to secure U.S. workers

- Wages: The wage or rate of pay must be the same for U.S. workers and H2A workers. The rate must also be at least as high as the applicable Adverse Effect Wage Rate or the applicable prevailing wage rate, whichever is higher

- Housing: The employer must provide free and approved housing to all workers who are not able to return to their residences the same day

- Meals: The employer must provide either three meals a day to each worker or furnish free and convenient cooking and kitchen facilities for workers to prepare their own meals. If meals are provided, then the employer may charge each worker a certain amount per day for the three meals

- Transportation: The employer is responsible for the following different types of transportation of workers:

    - After a worker has completed 50 per cent of the work contract period, the employer must reimburse the worker for the cost of transportation and subsistence from the place of recruitment to the place of work

    - The employer must provide free transportation between any required housing site and the worksite for any worker who is eligible for such housing

    - Upon completion of the work contract, the employer must pay return transportation or transportation to the next job

- Workers’ Compensation Insurance: The employer must provide Workers’ Compensation or equivalent insurance for all workers. Proof of insurance

- Tools and Supplies: The employer must furnish at no cost to the seasonal agricultural workers all tools and supplies necessary to carry out the work, unless it is common practice for the workers to provide certain items

- Three-fourths Guarantee: The employer must guarantee to offer each worker employment for at least three-fourths of the workdays in the work contract period and any extensions

    - Fifty per cent rule: The employer must employ any qualified U.S. worker who applies for a job until 50 per cent of the contract period has elapsed.

- Labor Dispute: The employer must assure that the job opportunity for which the employer is requesting H2A certification is not vacant due to a strike or lockout.

- Certification Fee: A fee will be charged to an employer granted temporary alien agricultural labor certification

- Other Conditions: The employer must keep accurate records with respect to a worker’s earnings. The worker must be provided with a complete statement of hours worked and related earnings on each payday. The employer must pay the worker at least twice monthly or more frequently if it is the prevailing practice. A copy of the work contract must be provided by the employer to each worker

Employee’s Eligibility

You are eligible for the H2A seasonal agricultural workers visa provided:

- You have a valid job offer from a U.S. employer to perform temporary or seasonal agricultural work
- You intend to return to your home country on expiration of the visa

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.

About the H-2A Visa
Eligibility
Standard Application Path
Emergency Application Path
Immediate Need Application Path
Extending Workers Application Path
Costs 
Expenses
3/4 Guarantee
Taxing Workers
Laws and Obligations

Laws and Obligations

Keep these laws and obligations in mind throughout the H-2A application and work contract period.

- Employers can’t hold or confiscate workers’ passports or other immigration documents.

- There can be no strike or lockout during a labor dispute at the worksite.

- Employers can’t 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

 

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Guaranteed Payment (3/4 Guarantee)

Under the H-2A Visa Program, employers must guarantee workers employment hours equal to at least 75% of the workdays in the contract period. The employer will pay workers who weren’t offered sufficient hours.

For example, if a contract is for a 10-week period, where a normal workweek is 6 days a week, 8 hours per day, the worker would need to be guaranteed employment for at least 360 hours (10 weeks x 48 hours per week = 480 hours x 75% = 360 hours)

Taxing Workers

H-2A workers aren't required to pay Social Security and Medicare taxes on their wages. In addition, the employer is not required to pay these taxes on the worker either.

Workers may owe U.S. federal income tax when they file income tax returns for the year. If both the worker and the employer agree to withhold federal income tax, employers can withhold. In order for the employer to withhold taxes from the worker's compensation, the worker must complete and return Form W-4, Employee's Withholding Allowance Certificate, to the employer. Note that some states allow employers to withhold the employee’s portion of workers compensation.