Employment Law Guide

Work Authorization for Non-U.S. Citizens: Temporary Agricultural Workers (H-2A Visas)

Updated: December 2016

Sections 101(a)(15)(H)(ii)(a), 214, and 218 of the Immigration and Nationality Act of 1952, (INA)(http://www.uscis.gov/portal/site/uscis/menuitem.f6da51a2342135be7e9d7a10e0dc91a0/?vgnextoid=fa7e539dc4bed010VgnVCM1000000ecd190aRCRD&vgnextchannel=fa7e539dc4bed010VgnVCM1000000ecd190aRCRD&CH=act) as amended (8 USC §§1101, 1184, and 1188;
20 CFR 655 Subpart B(/elaws/leave-dol.asp?exiturl=http://www.ecfr.gov/cgi-bin/text-idx^Q^SID=63897809ad4456751d89724b48501343|node=20:3.0.2.1.28|rgn=div5@20:3.0.2.1.28.4&exitTitle=www.ecfr.gov&fedpage=yes), and 29 CFR Part 501(/elaws/leave-dol.asp?exiturl=https://www.ecfr.gov/cgi/t/text/text-idx^Q^c=ecfr|amp;sid=48d6ee3b99d3b3a97b1bf189e1757786|amp;rgn=div5|amp;view=text|amp;node=29:3.1.1.1.2|amp;idno=29&exitTitle=www.ecfr.gov&fedpage=yes))

Who is Covered

The Immigration and Nationality Act (INA) regulates the admission of foreign workers into the United States and in certain circumstances allows agricultural employers who anticipate a shortage of domestic workers to bring nonimmigrant foreign workers to the U.S. to perform agricultural labor or services of a temporary or seasonal nature.

Employment is of a seasonal nature where it is tied to a certain time of year by an event or pattern, usually in relation to the production and/or harvesting of a crop. Employment is of a temporary nature when the employer's need to fill the position with a temporary worker is for a limited time period of less than one year.

Important Notice. All program users and other interested parties should frequently consult the Office of Foreign Labor Certification Web site,(https://www.dol.gov/agencies/eta/foreign-labor) where the Department of Labor will post updates concerning the H-2A temporary agricultural labor certification program.

Basic Provisions/Requirements

The H-2A temporary agricultural program establishes a means for agricultural employers who anticipate a shortage of domestic workers to bring nonimmigrant foreign workers to the U.S. to perform agricultural labor or services of a temporary or seasonal nature. Before the U.S. Citizenship and Immigration Services (USCIS) can approve an employer's petition for such workers, the employer must file an application with the Department stating that there are not sufficient workers who are able, willing, qualified, and available, and that the employment of aliens will not adversely affect the wages and working conditions of similarly employed U.S. workers. The statute and Departmental regulations provide for numerous worker protections and employer requirements with respect to wages and working conditions. The Department's Wage and Hour Division has responsibility for enforcing provisions of worker contracts.

Any employer who has been certified for a specific number of H-2A jobs must have initially attempted to find U.S. workers to fill these slots. Even after H-2A workers are recruited employers must continue to engage in "positive recruitment" of U.S. workers.

Employee Rights

An employer who files an application for temporary foreign labor certification pursuant to the H-2A regulations must meet many specific conditions, including those concerning recruitment, wages, housing, meals, transportation, workers' compensation insurance, tools and supplies, certification and recruitment fees, labor disputes, and other conditions.

Workers who believe that their rights under the H-2A regulations were violated may file their complaints through the Job Service Complaint System, as described in 20 CFR part 658, Subpart E.

H-2A workers as well as non-H-2A workers who are engaged in corresponding employment (i.e., performing any agricultural work performed by the H-2A workers or any other work included on the employer's job order) during the validity period of the H-2A contract may file complaints about non-compliance with H-2A labor standards with a local Wage and Hour Division office. In addition, ETA or any State Workforce Agency will forward any complaint received about contractual H-2A labor standards between the employer and the employee to a local Wage and Hour Division office for appropriate action.

Recordkeeping, Reporting, Notices and Posters

Notices and Posters

The Department's Employment and Training Administration and Wage and Hour Division published a final rule implementing changes to the H-2A program effective March 15, 2010. One of the requirements in the rule is for employers who employ H-2A workers to display the H-2A poster where employees can readily see it. The poster is also available in Spanish. It will be made available in other languages in the coming months.

Recordkeeping

Employers certified under H-2A must keep accurate and adequate records with respect to the workers' earnings as well as 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. Records must also include the time the worker began and ended each day, the rate of pay, the earnings per pay period, the worker's home address, and the amount of and reasons for any and all deductions taken from the worker's wages. These records must be kept for three years after the date of the H-2A certification.

Each worker must be provided a wage statement showing hours of work, hours offered, pay for each type of crop, the basis of pay (i.e., whether the worker is being paid by the hour or per piece, and the beginning and ending dates of the pay period. The wage statement must indicate total earnings for the pay period, all deductions from wages (along with an explanation as to why deductions were made), and the employer's name, address, and FEIN.

Employers must maintain records concerning any worker who was terminated and the reason for such termination. The employer, in order to negate a continuing liability for wages and benefits to workers, must notify the Employment and Training Administration National Processing Center (NPC) of any worker termination for cause or abandonment or abscondment within two working days after such abandonment occurs. The employer should also indicate if replacement(s) will be sought for such worker(s).

Reporting

The worker must be provided with a complete statement of hours worked, hours offered, pay for each type of crop, the basis of pay (i.e., whether the worker is being paid by the hour or by the piece), and the beginning and ending dates of the pay period on each payday. The wage statement must indicate total earnings for the pay period, all deductions from wages (along with a statement as to why deductions were made), and the employer's name, address, and FEIN.

The employer must provide a copy of the work contract to the H-2A worker no later than the time at which the worker applies for the visa and to the worker in corresponding employment no later than on the first day of employment. The contract must be in a language understood by the worker as necessary or reasonable.

Penalties/Sanctions

The Wage and Hour Division has a primary role in investigating and enforcing the terms and conditions of employment. The Wage and Hour Division is responsible for enforcing the contractual obligations employers have toward employees, and may assess civil money penalties and recover unpaid wages. Administrative proceedings and/or injunctive actions through Federal courts may be instituted to compel compliance with an employer's contractual obligations to employees.

ETA has the authority to audit applications for which certifications have been granted and may refer its audit findings to DHS or another appropriate enforcement agency. ETA may revoke a temporary agricultural labor certification if the employer substantially violated a material term or condition of the certification, if fraud or misrepresentation was found in the application, or if the employer failed to cooperate with a DOL investigation or audit.

Both WHD and ETA may debar an employer or any successor in interest to that employer from receiving future labor certifications for up to three years if the employer substantially violated a material term or condition of its temporary labor certification.

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); 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.

Compliance Assistance Available

Copies of the application forms, regulations, and relevant directives may be obtained from the Employment and Training Administration's national office. Copies of Wage and Hour Division publications may be obtained from the Wage and Hour Division Web site or by contacting the local Wage and Hour Division office.

The Department of Labor provides employers, workers, and others with clear and easy-to-access information and assistance on how to comply with the Immigration and Nationality Act. Among the many resources available are:

• Section H-2A of the Immigration Act(https://www.dol.gov/whd/regs/compliance/whdfs26.pdf): This fact sheet provides general information concerning the application of the H-2A requirements to the agricultural industry.

The Department's Employment and Training Administration offers many helpful materials on its H-2A Temporary Agricultural Program webpage.

DOL Contacts

Employment and Training Administration, Office of Foreign Labor Certification(https://www.dol.gov/agencies/eta/foreign-labor)
Contact the Office of Foreign Labor Certification
Tel: 1-877-US-2JOBS (1-877-872-5627) or 1-202-693-3010; TTY

Wage and Hour Division(https://www.dol.gov/whd/)
Contact WHD(https://webapps.dol.gov/contactwhd/Default.aspx)
Tel: 1-866-4-US-WAGE (1-866-487-9243)*
*If you are deaf, hard of hearing, or have a speech disability, please dial 7-1-1 to access telecommunications relay services.

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