What is the H2A Program?
The H2A program is a federal program that permits employers to apply for nonimmigrant alien workers (guest workers) to perform any type of farm work of seasonal or temporary nature for a maximum of ten months. The H2A program is authorized by the Immigrant Reform and Control Act (IRCA) of 1986.
The purpose of the H2A program is to assure employers a legal and adequate labor force while also protecting the jobs and wages of U.S. workers.
Who May Apply?
Any agriculture employer or group of employers who need workers to perform seasonal labor.
An employer may apply for H2A workers and complete all the necessary government procedures on their own or the employer may have a H-2A Agent to do this for them for a fee. Most farmers will contract with an H-2 Agent due to the burdensome government requirements.
When Should I Apply?
Applications must be filed at least 75 days before your workers are needed. Advance planning of your labor needs is imperative.
All H2A job orders will be posted in a National Electronic Job Registry for the public to see.
An effort must be put forth to recruit U.S. workers. No U.S. workers can be laid off prior to hiring foreign workers.
From the time the foreign workers depart for the employer's place of employment, the employer must provide employment to any qualified, eligible U.S. worker who applies to the employer until 50 percent of the period of the work contract has elapsed.
The rate of pay must be the highest of the AEWR, federal or state minimum wage or the prevailing wage rate. Wages may be calculated on the basis of hourly or "piece" rates of pay. However computed, they must not be less than the rate specified in the job offer/worker contracts.
Housing must be provided by the employer for those workers who cannot return to their own residence the same day. Housing must be inspected and approved by State Workforce Agency. See more information on the housing standards below.
Must provide free and convenient cooking and kitchen facilities for workers to prepare their own meals. Transportation must be provided once a week so workers can purchase food.
Guarantees to All Workers: Employers certified for H-2A must agree to provide each worker employed an offer of at least 75% of the hours in the contract period--called the "three-fourths guarantee." For example, if a contract is for a 10-week period, during which a normal workweek is specified as 5-days a week, 8-hours per day, the worker would have to be guaranteed employment for at least 300 hours (e.g., 10 weeks x 40 hours/week=400-hours x 75%=300). Wages for the guaranteed 75% period would be calculated at not less than the AEWR for the State in which the work was being done. This rate will be stated in the Job Offer/Worker Contracts.
Transportation Costs: Every non-local worker employed on a H-2A contract is entitled to be paid for all transportation costs related to travel from their home to the employer's farm and back. This includes both foreign and U.S. workers. Workers are "non-local" if they cannot reasonably return to their permanent residence every night. Expenses must be reimbursed according to the following schedule:
For transportation "home" the worker must complete the agreed upon contract period. Otherwise, the employer has no obligation to pay return expenses, unless some special provision in the Worker's Contract so provides.
Reimbursements: The employer must reimburse workers for the costs the worker incurs to get to the employer's farm. They are as follows:
Government Interview Fee Overnight Stay at the Consulate OEI Processing Facilitation Fee
H2A workers are exempt from all federal and state taxes. Local taxes may apply. All H-2A workers must file Federal Income Tax.
Termination of Workers: Employers must maintain records concerning any workers 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 local Job Service Office by providing a report of an termination(s), the date of the termination, giving the reason for each. The employer should also indicate if replacement(s) will be sought for such workers(s).