Employment Law Guide
Chapter: Temporary Agricultural Workers (H-2A Visas)
Updated: July 2007
Sections 101(a)(15)(H)(ii)(a), 214, and 218 of the
and Nationality Act of 1952, (INA) as amended (8 USC §§1101, 1184, and 1188;
20 CFR 655 Subpart B,
and 29 CFR Part 501)
The Immigration and Nationality Act (INA) covers agricultural employers seeking to hire temporary agricultural workers under H-2A visas.
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
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.
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.
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.
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.
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.
The Employment Law Guide is offered as a public resource. It
does not create new legal obligations and it is not a substitute for the U.S.
Code, Federal Register, and Code of Federal Regulations as the official sources
of applicable law. Every effort has been made to ensure that the information
provided is complete and accurate as of the time of publication, and this will
continue. Later versions of this Guide will be offered at
www.dol.gov/compliance or by calling our Toll-Free
Help Line at 1-866-4-USA-DOL (1-866-487-2365).