H-2A: Temporary Agricultural Employment of Foreign Workers (2024)

The U.S. Department of Labor has published the final rule, “Improving Protections for Workers in Temporary Agricultural Employment in the United States.” Further information on the final rule is found here.

Pursuant tothe Consolidated Appropriations Act of 2022 (Pub. L. 117-103), the department is publishing a report on the enforcement of farm labor contractors (FLCs) in the H-2A program.

Section 218 of the Immigration and Nationality Act authorizes the lawful admission into the United States of temporary, nonimmigrant workers (H-2A workers) 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 of Labor’s Employment and Training Administration (ETA) stating, among other things, 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 workers similarly employed in the U.S. Any employer using H-2A workers must have initially attempted to find U.S. workers to fill these jobs. Workers employed under the H-2A program must be paid special rates of pay that vary by locality, must be provided with safe and clean housing and safe transportation from that housing to the job site if their employment requires them to be away from their residence overnight, and must be guaranteed employment for a total number of hours equal to at least 75% of the work period specified in the contract.

At this time, the resources, fact sheets, and posters linked further below on this page may not yet reflect all changes implemented by the final rule. The Department is currently reviewing its guidance and will soon update all resources as necessary.

Resources

  • SEASONALJOBS.DOL.GOV -- One-Stop Source for Seasonal and Temporary Jobs
  • ETA's H-2A Compliance Assistance
  • H-2A Worker Rights Card - English Version
  • H-2A Worker Rights Card - Spanish Version
  • H-2A Worker Rights Card for U.S. Workers (PDF)
  • Farm Worker Rights Flyer (PDF)
  • Agricultural Transportation Safety
  • ETA Housing Safety and Health Checklist
  • OSHA Housing Safety and Health Checklist
  • Range Housing Safety and Health Checklist
  • Transportation Safety Checklist
  • You have applied for an H-2A Temporary Labor Certification (TLC)

Fact Sheets

Learn more by reading fact sheets that cover a variety of H-2A topics, including recruitment, worker rights, records retention, meal obligations, wage requirements, housing standards, labor contractor surety bonds, and retaliation prohibitions under the H-2A temporary agricultural worker program.

Posters

  • WH-1491(PDF)
  • WH-1491 Spanish (PDF)
  • WH-1490 Haitian (PDF)
  • Key Protections for H-2A Workers(PDF)
    • Spanish Version(PDF)

Applicable Laws and Regulations

Law

  • Section 1188 — Admission of Temporary H-2A Workers

Civil Money Penalty Inflation Adjustments

Starting in 2016, agencies across the federal government must adjust their penalties for inflation each year. Below is a table that reflects the adjustments that have occurred for penalties under this statute. For more information on the penalty adjustments, go here.

CMP
Type of ViolationStatutory CitationCFR CitationMaximum Civil Monetary Penalty on or before 1/15/2024Maximum Civil Monetary Penalty on or after 1/16/2024
(1) Violation of the work contract or a requirement of 8 USC 1188, 20 CFR part 655 subpart B, or 29 CFR part 501;8 USC 1188(g)(2)29 CFR 501.19(c)$2,045$2,111
(i) Willful violation of the work contract or a requirement of 8 USC 1188, 20 CFR part 655 subpart B, or 29 CFR part 501, or for each act of discrimination prohibited by section 501.4;8 USC 1188(g)(2)29 CFR 501.19(c)(1)$6,881$7,104
(ii) Violation of a housing or transportation safety and health provision of the work contract, or any obligation under 8 USC 1188, 20 CFR part 655 subpart B, or 29 CFR part 501, that proximately causes the death or serious injury of any worker;8 USC 1188(g)(2)29 CFR 501.19(c)(2)$68,129$70,337
(iii) Repeat or willful violation of a housing or transportation safety and health provision of the work contract, or any obligation under 8 USC 1188, 20 CFR part 655 subpart B, or 29 CFR part 501, that proximately causes the death or serious injury of any worker;8 USC 1188(g)(2)29 CFR 501.19(c)(3)$136,258$140,674
Violation for failure to cooperate in an investigation;8 USC 1188(g)(2)29 CFR 501.19(d)$6,881$7,104
Violation for laying off or displacing any US worker employed in work or activities that are encompassed by the approved Application for Temporary Employment Certification for H-2A workers in the area of intended employment either within 60 days preceding the date of need or during the validity period of the job order, including any approved extension thereof, other than for a lawful, job-related reason;8 USC 1188(g)(2)29 CFR 501.19(e)$20,439$21,101
Violation for improperly rejecting a US worker who is an applicant for employment, in violation of 8 USC 1188, 20 CFR part 655 subpart B, or 29 CFR part 501.8 USC 1188(g)(2)29 CFR 501.19(f)$20,439$21,101
H-2A: Temporary Agricultural Employment of Foreign Workers (2024)

FAQs

What is the H-2A temporary agricultural program? ›

The H-2A program is authorized by the Immigration and Nationality Act, (INA) sec. 101(a)(15)(H)(ii)(a), 8 U.S.C. 1101(a)(15)(H)(ii)(a), which permits U.S. employers to bring temporary foreign workers into the United States to perform seasonal agricultural work. The H-2A program is managed by three federal agencies.

What jobs qualify for 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, but not limited to, planting, cultivating, or harvesting labor.

What is the 10 month rule for H-2A? ›

The work must be full-time, at least 35 hours (or more) per work week; and, The need for the work must be seasonal or temporary in nature and tied to a certain time of the year by a recurring event or pattern, such as an annual growing cycle, normally lasting 10 months or less.

What are the problems with H-2A? ›

Acting US Labor Secretary Julie Su said in a statement that “H-2A workers too frequently face abusive working conditions” and that the rule seeks to ensure those employed under this visa “are treated fairly, have a voice in their workplace, and are able to perform their work safely.”

Can H-2A get green card? ›

If an employer identifies a permanent job through which they may sponsor an H-2 visa holder for a green card, the process may begin. This lengthy process is often referred to as the EB-3 Green Card Application. The first task for employers is to start the PERM process with the Department of Labor (DOL).

Do H-2A workers have to file taxes? ›

Yes. Wages you earn as an H-2A worker are subject to U.S. federal income tax. TIP: You should receive a Form W-2, Wage and Tax Statement, from your employer for each year you work. You will need the W-2 to file with your U.S.

What are the rules for H-2A employers? ›

H-2A employers must provide employment to any qualified, eligible U.S. worker who applies for the job opportunity until 50 percent of the period of the work contract has elapsed. Employers must offer U.S. workers terms and working conditions which are not less favorable than those offered to H-2A workers.

How many H-2A visas are issued each year? ›

In 2021, 258,000 H-2A visas were issued, whereas, in 2022, this number increased to 298,000. This chart updates information in the USDA, Economic Research Service report The H-2A Temporary Agricultural Worker Program in 2020, published in August 2022.

What is the final rule for H-2A? ›

Lastly, the final rule adds provisions amending the job orders and wage rates for herding and range livestock jobs. Under the final rule, all applicable rates of pay must be included in the job order and employers may prorate the wage rate in specified circumstances. The rule will go into effect on June 28, 2024.

Are H-2A workers paid overtime? ›

Yes. Other Federal wage statutes, such as the Fair Labor Standards Act, apply to these workers in the same manner as any other worker. Additionally, many states have enacted laws that require overtime pay for agricultural workers. H-2A employers must comply with all such applicable laws.

Can a H-2A visa be extended? ›

Question: Can I extend the end date of work on my certified H-2A application? Answer: Yes, the employer may request either a short-term or long-term extension to the end date of work on a certified H-2A application.

Can H-2A adjust status? ›

Yes, you may apply for change of status on H-2A visa.

Why is H-2A bad? ›

The H-2A program has been widely criti- qued for failing to adequately protect migrant workers who face human trafficking and other labor abuses, displacing American workers who are otherwise willing and able to perform agricultural work, and denying U.S. agricultural employers prompt access to a foreign labor supply ...

How long can someone stay in the US with an H-2A visa? ›

The maximum period of stay in H-2A classification is 3 years. A person who has held H-2A nonimmigrant status for a total of 3 years must depart and remain outside the United States for an uninterrupted period of 3 months before seeking readmission as an H-2A nonimmigrant.

Where do H-2A workers come from? ›

The H-2A visa is an uncapped temporary work visa for seasonal agricultural workers in the United States. The majority of H-2A visa holders are from Mexico and work on farms in California.

How are H-2A workers paid? ›

Wages: You must be paid at least twice per month at the rate stated in your work contract, and each payday you must be given a pay stub listing pay rate(s), hours worked, deductions, and earnings. You must be guaranteed at least 3/4 of the total hours of work stated in your work contract.

What does H-2A do? ›

Macro H2A is unique in that it contains a non-histone macro-domain, and is involved in regulation of transcription, chromatin structure, and DNA repair (Han et al., 2011). See additional reading for a review on all the H2A variants.

What are the rules for H-2A? ›

H-2A employers must provide employment to any qualified, eligible U.S. worker who applies for the job opportunity until 50 percent of the period of the work contract has elapsed. Employers must offer U.S. workers terms and working conditions which are not less favorable than those offered to H-2A workers.

How many farms use H-2A workers? ›

Fewer than 10% of the 100,000 U.S. farms that pay UI taxes, and less than 2% of the 500,000 farms that report hiring workers to the Census of Agriculture, are certified to employ H-2A guest workers.

References

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