H2A Decision-Making Guide
What is the H-2A program?
The H-2A program establishes a means for agricultural employers to bring non-immigrant foreign workers to the United States for seasonal agricultural work. The federal program can be a great benefit for farmers, but it’s important to understand the responsibilities and requirements that accompany it.
Simply put, the H-2A program exists to provide the agricultural sector with an additional labor source, but only if those workers are not hired at the expense of domestic workers. The program requires a lengthy and paperwork-heavy application process, and employers must provide transportation, meals, and housing for the farm workers. In exchange, farmer participants can rely on a group of employees for a predetermined contract period.
Please note: This document is designed to help farmers think through the pros and cons of participation in the H-2A program. It is not an exhaustive guide to the application process or a complete list of requirements.
What are key considerations for farmers?
Advantages for employers
- This program can be of great use to farmers who require reliable labor for a set period of time. H-2A employees have a contract with their host farm and are required to fulfill their responsibilities.
- There is one process through which all of a farm’s H-2A employees are hired. This reduces the need to advertise, interview, negotiate, and hire for each individual position. Employers must, however, submit separate job orders for each “date of need,” which is the date on which they want their workers to arrive.
- H-2A workers frequently are experienced agricultural workers who have been doing agricultural labor for multiple years. Incidentally, in Massachusetts, H-2A workers typically come from Jamaica to work on farms in our region and are men.
- Hiring employees through the H-2A program provides the employer with assurance that all their H-2A workers have work authorization.
- The application process for hiring H-2A workers, from start to finish, takes approximately two months and involves many steps and precise attention to detail.
- Farmers seeking to hire H-2A workers usually hire an agent to help them navigate the H-2A application process and regulations. The New England Apple Council in Goffstown, NH serves this role for the majority of farms in our region.
- The employer must prove that there is a lack of domestic workers available for the job. This involves advertising positions through normal outlets that the farm would use to find workers, and there are also additional guidelines that specify where and for how long job advertising must occur.
- If any qualified domestic workers apply for a job during the first half of the H-2A contract, the employer must hire them. This is because the H-2A program is designed to ensure that it does not supplant U.S. workers, but rather that it fills labor needs only when domestic workers are unavailable.
Compensation and work hours
- The minimum pay rate for H-2A workers in 2019 is $13.25 per hour, and this rate, known as the “Adverse Effect Wage Rate,” is updated annually.
- If a farm employs H-2A and non-H-2A workers, all workers who do any tasks that overlap with the H-2A workers must be paid at least as much as the H-2A workers are paid. These workers doing overlapping tasks, known as “corresponding workers,” must also be offered the same benefits that are offered to H-2A workers upon request, such as housing and transportation.
- The employer is responsible for providing work for H-2A employees for at least three-quarters of the total hours specified in the contract period, or to supplement workers’ pay as though they had worked for three-quarters of the contract period.
Transportation, housing, and meals
- The employer is responsible for providing transportation for H-2A workers from their home to the farm, which usually includes international airfare. If the worker completes the contract period, the employer must provide transportation for H2A workers back to their home or to the subsequent place of employment.
- The employer must provide transportation between the workers’ living quarters and the work site at no cost to the workers. Transportation vehicles must be in good repair and meet Department of Labor standards.
- The employer must provide housing for H-2A workers, and the housing must be inspected before occupancy and comply with the appropriate Department of Labor standards — administered either by the Employment and Training Administration (ETA) or the Occupational Safety and Health Administration (OSHA). Employers can either house workers in housing they own or in rented apartments. Farmers may be able to get financial assistance for housing construction, repair, or purchase from USDA Rural Development, which provides grants and low-interest direct loans for farm worker housing.
- The employer must provide three meals per day to workers or provide kitchen facilities. Note that if meals are provided to H-2A workers, they must also be offered to corresponding workers on the same basis.
- Employees are vetted by the H-2A program rather than their particular employer, so the farmer has little control over which individuals are sent to them.
- Because any given H-2A worker’s employment contract in the United States is tied to a single farm employer, H-2A workers have a strong incentive to perform well in their work at this farm to maintain this employment. It is important to note that this arrangement can at times also make workers hesitant to openly express problems and suggest improvements in their work that could lead to improved satisfaction. Employers can counteract this by actively encouraging their employees to openly communicate input and suggestions.
- Given that the purpose of the program is to bring in what are considered to be “unskilled” workers to fill basic labor needs, farmers may not request the same workers from year to year based on their qualifications, or attempt to circumvent the hiring of domestic workers by requesting specialized H-2A workers. However, provided proper procedures are followed, it is often possible for the same workers to return to the same farm year after year.
Those who participate in the H-2A program are likely to be audited by the Department of Labor with more frequency than those that do not use the program. This guide
from the National Council of Agricultural Employers offers information for farm employers on what to expect during a Department of Labor audit.
- There are fees associated with participation in the H-2A program.
This webpage was last updated January 2019 and is based upon work supported by the U.S. Department of Agriculture’s (USDA) National Institute of Food and Agriculture under award 2016-70017-25423, and by the USDA Agricultural Marketing Service through grant 16FMPPMA0002. Its contents are solely the responsibility of the authors and do not necessarily represent the official views of the USDA.