Employment Law Guide Chapter: Temporary Agricultural Workers (H-2A Visas)

Who Is Covered Basic Provisions/Requirements Employee Rights Compliance Assistance Available Penalties/Sanctions Relation to State, Local, and Other Federal Laws Return to Table of Contents

Related Information Compliance Assistance By Law The Immigration and Nationality Act (INA) DOL Agency Assistance Wage and Hour Division INA Page ETA H2-A Certification Page Other Government Assistance U.S. Citizenship and Immigration Service (USCIS)

Updated: July 2007

Sections 101(a)(15)(H)(ii)(a), 214, and 218 of the Immigration and Nationality Act of 1952, (INA) as amended (8 USC §§1101, 1184, and 1188;
20 CFR 655 Subpart B, and 29 CFR Part 501)

Who is Covered

The Immigration and Nationality Act (INA) covers agricultural employers seeking to hire temporary agricultural workers under H-2A visas.

Basic Provisions/Requirements

Employers may not import a foreign worker under an H-2A visa unless they have applied to the Employment and Training Administration (ETA) for certification that: (1) there are not sufficient workers who are able, willing, qualified, and available to perform the work; and (2) the employment of foreign workers will not adversely affect the wages and working conditions of similarly employed workers in the United States.

To receive a timely determination, an employer must apply for a temporary labor certification at least 45 days before the date of need. The employer should file the application with both the appropriate ETA office and the office of the State Workforce Agency (SWA) serving the geographic areas where the foreign workers will be employed.

ETA's jurisdiction includes whether the employer conducted positive recruitment, whether a strike or lockout was in progress, whether the employer will provide workers' compensation insurance, whether adequate housing is available, what the prevailing wage rates are, and other similar matters. The regulations addressing issuance and denial of labor certification for temporary, nonimmigrant foreign workers are found at 20 CFR 655 Subpart B.

The procedures for obtaining a labor certification and the contractual obligations of employers using H-2A workers are summarized below. Additional information may be found at H-2A Certification for Temporary or Seasonal Agricultural Work page of the Employment and Training Administration's Web site.

Recruitment of U.S. Workers. Any employer who applies for certification of H-2A job opportunities must first attempt to recruit U.S. workers to fill these openings. Employers must continue to engage in "positive recruitment" of U.S. workers until the foreign workers depart for the place of employment.

In addition, after the H-2A workers have begun work, the employer must agree to accept U.S. workers until 50 percent of the certified contract period has passed.

Rates of Pay. In every H-2A employment situation, the employer must agree to pay all workers employed in certified jobs either (1) the Adverse Effect Wage Rate (AEWR); (2) the Prevailing Rate for a given crop/area; or (3) the legal state minimum wage, whichever is higher. None of these rates may be less than the federal minimum wage, which is $5.85 per hour effective July 24, 2007; $6.55 per hour effective July 24, 2008; and $7.25 per hour effective July 24, 2009.

The U.S. Department of Agriculture (USDA) establishes the AEWR, which is an annual weighted average hourly rate for field and livestock workers (combined) for nineteen USDA regions. Prevailing wages may be calculated on the basis of hourly or "piece" rates of pay. However computed, the rate specified on the job order cannot be less than the prevailing wage.

Job Clearance Order/Worker Contracts. The employer must provide every worker a copy of the worker contract or, as a substitute for the worker contract, a copy of the clearance order. If worker contracts are provided, they must specify at least those benefits required by the regulations. The job clearance order is the "official" document, since it is the one the employer submits and the Department of Labor approves. The job clearance order/contract must state:

• The beginning and ending dates of the contract period;

• Any and all significant conditions of employment, such as 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 during the contract period;

• The crop(s) to be worked and rate(s) for each crop/job;

• The rate(s) of pay for each job to be performed;

• Any tools required, with an indication that employer pays for them; and

• Verification that workers' compensation (or comparable benefits) will be provided consistent with the law of the state where the work is performed.

Guarantees to All Workers. Employers certified for H-2A contracts must agree to provide each worker an offer of employment for at least 75 percent of the workdays in the contract period (with hours as stated in the job offer). Such an offer is called the "three-fourths guarantee." For example, in a contract for a 10-week period, during which a normal workweek is specified as six days a week, eight hours per day, the worker would have to be guaranteed employment for at least 360 hours (i.e., 10 weeks x 48 hours per week = 480 hours x 75% = 360 hours).

Wages for the guaranteed 75 percent period would be calculated at the rate the workers would have been paid under the job order, that is, not less than the average hourly rate, or the AEWR for the state in which the work was done, or the federal or state minimum wage, whichever is higher.

Transportation Costs/Reimbursement. Every non-local worker employed on an H-2A contract is entitled to be paid for all transportation costs related to travel from the place where the worker was recruited to the job site, and then back to the worker's area of residence. Both foreign and U.S. workers are entitled to such payments. Workers are defined as "non-local" if they cannot reasonably return to their permanent residence every night. Generally, employers must reimburse expenses as follows:

• For transportation to the place of employment, the employer must repay the worker when 50 percent of the contract period has been completed.

• For transportation "home", the worker must complete the agreed-upon contract period. The employer has no obligation to pay return expenses if an employee abandons the employment unless some special provision in the worker's contract provides otherwise.

Records Required. Employers certified for H-2A contracts must keep records of the hours each worker actually works. In addition, the employer must retain a record of time "offered" to the worker but which the worker "refused" to work. Each worker must receive a wage statement showing hours of work, hours refused, pay for each type of crop, the basis of pay (i.e., whether the worker is being paid by the hour, by the piece, "task" pay, etc.) The wage statement must indicate total earnings for the pay period and all deductions from wages (along with a statement as to why deductions were made).

Termination of Workers. Employers must maintain records on any worker who abandons employment, either voluntarily or involuntarily. To negate a continuing liability for wages and benefits to workers, the employer must notify the local Job Service of the SWA in writing within 48 hours of either termination or abandonment of employment. The report should state the date of the termination/abandonment and the reason for it. The employer should also state if it will seek to replace such workers.

Employee Rights

H-2A workers and the U.S. workers hired under the job order may file complaints about non-compliance with H-2A labor standards with local Wage and Hour offices. ETA or any SWA will forward any complaint received about contractual H-2A labor standards between the employer and the employee to the local Wage and Hour Division office for appropriate action.

Compliance Assistance Available

Information on how to apply for a temporary labor certification, including application forms and directives, may be obtained from the SWAs. The SWA staffs can help employers fill out applications, place agricultural clearance orders, and provide advice on possible recruitment sources.

Copies of the application forms, regulations, and relevant directives may also be obtained from the ETA national office. Copies of Wage and Hour Division publications may be obtained from the Wage and Hour Division Web site or by contacting your local Wage and Hour Division office. For additional compliance assistance, contact the Wage and Hour Division help line at 1-866-4USWAGE.

Penalties/Sanctions

The Wage and Hour Division of the Employment Standards Administration is responsible for ensuring that employers comply with all contractual and regulatory provisions that apply to the employment of H-2A workers and other workers engaged in “corresponding employment” under Section 218 of the INA (8 U.S.C. §1188). The regulations addressing enforcement by the Wage and Hour Division are found at 29 CFR Part 501.

Relation to State, Local, and Other Federal Laws

Foreign workers employed under the H-2A program are not covered under the Migrant and Seasonal Agricultural Worker Protection Act (MSPA), 29 U.S.C. §1801 et seq., although U.S. migrant and seasonal agricultural workers in “corresponding employment” are covered under MSPA. However, various other laws, such as workers’ compensation, tax (unemployment insurance, local, state, and federal), the Fair Labor Standards Act, and the Family and Medical Leave Act may apply to the employment of these workers.