H-2A Visa Labor Certification Process

Frequently Asked H-2A Visa Questions

What are the fundamental eligibility requirements for a U.S. agricultural employer to use the H-2A program?

The U.S. employer must be offering a job that is agricultural in nature and is strictly temporary or seasonal, lasting no more than one year. A core requirement is that the employer first demonstrates an insufficient number of able, willing, and qualified U.S. workers are available to perform the work. This necessitates an active, good-faith effort to recruit domestic workers, including coordinating with the State Workforce Agency. The employer must also ensure that hiring foreign workers will not negatively impact the wages or working conditions of similarly employed U.S. workers. Specifically, the offered wage must be at least the highest of the Adverse Effect Wage Rate (AEWR), the federal or state minimum wage, or the prevailing wage. Furthermore, the employer must guarantee each worker employment for at least 75% of the contract period. Finally, the employer must provide the H-2A workers with free, inspected housing and either free meals or access to cooking facilities. An approved Temporary Labor Certification from the Department of Labor is required before filing the final petition with USCIS.

How do you determine if our company's labor need is considered "temporary or seasonal" under the H-2A regulations?

The H-2A program requires that the agricultural job you offer be of a "temporary or seasonal nature." A seasonal need is tied to a certain time of year by an event or pattern, such as a short annual growing or harvesting cycle. Critically, seasonal work must require labor levels far above what is necessary for your ongoing, year-round operations. A temporary need, as opposed to seasonal, means the employer's need for the position will generally last no longer than one year. The Department of Labor (DOL) ultimately reviews your application to ensure your need for workers meets one of these definitions. You must provide a justification for your need, showing why you need workers during the requested period but not during the off-season. This requirement is focused on the nature of your job needs, not the tasks themselves. Evidence such as production schedules or historical payroll can help support your claim of temporary or seasonal need. If your company has a constant, year-round need for the same position, it is unlikely to qualify as temporary or seasonal.

What specific types of agricultural labor qualify for the H-2A visa?

The H-2A visa program is specifically for workers performing agricultural labor or services of a temporary or seasonal nature. This broad definition covers a wide range of tasks directly related to farming and cultivation. Common examples include the essential activities of planting, cultivating, and harvesting crops. The work also encompasses raising, feeding, caring for, and management of livestock, poultry, and other farm animals. Specific job titles that often qualify include Farmworkers and Laborers for crops, nurseries, and greenhouses. Agricultural Equipment Operators, as well as Graders and Sorters of agricultural products, are generally covered. Crucially, the job must be tied to a season or a short annual cycle, typically lasting less than a year. It is important to remember that non-agricultural duties like fruit or vegetable packing, if performed off-site, may not qualify under this program. Final classification depends on whether the work meets the definition of agriculture under federal law.

Can you explain the "adverse effect wage rate" (AEWR) and how it's calculated for our state and crop?

The Adverse Effect Wage Rate (AEWR) is the minimum hourly wage that H-2A employers must offer and pay to both their foreign and U.S. workers for a specific job. Its purpose is to prevent the employment of H-2A workers from negatively affecting the wages of domestic workers in similar jobs. The AEWR is only one component; you must pay the highest of the AEWR, the federal/state minimum wage, the prevailing wage, or a negotiated collective bargaining wage. Under the current rule, AEWRs are determined using data from the Bureau of Labor Statistics’ Occupational Employment and Wage Statistics (OEWS) survey. For the most common "Field and Livestock Workers" occupations, a single, state-specific AEWR is calculated. However, for all other agricultural jobs, the Department of Labor (DOL) publishes occupation-specific AEWRs, such as for truck drivers or equipment operators. These occupational rates are also divided into Skill Level I (entry-level) and Skill Level II (experienced) wages. A mandatory downward adjustment is applied to the calculated rate for H-2A workers to account for the free housing employers must provide. To find the current, precise AEWR for your state and crop's specific job duties, you must consult the official tables published by the DOL.

What are the requirements for providing housing to H-2A workers?

H-2A employers are federally required to provide housing at no cost to all temporary workers who cannot reasonably return to their home residence the same day. The accommodations, which can include employer-owned property or rentals, must meet all applicable safety and health standards. Minimum space requirements are strict, including at least 50 square feet per person in sleeping rooms and a 7-foot ceiling. Workers must be provided with sanitary cooking and kitchen facilities, or the employer must furnish three meals per day. Housing must include an adequate and convenient supply of hot and cold running water for drinking, cooking, bathing, and laundry. Essential amenities must be provided in sufficient ratio to the number of occupants, such as one showerhead per 10 persons. Furthermore, proper heating, lighting, fire safety equipment, and effective refuse disposal must be maintained. The housing must be inspected and certified by the State Workforce Agency before workers are permitted to occupy the site.

How do you ensure the housing we provide meets all federal and state safety and health standards?

We guarantee compliance through a mandatory, pre-occupancy inspection process. Federal law requires that all employer-provided housing be inspected and certified by the State Workforce Agency (SWA). We formally request this inspection by the SWA at least 60 days before the date of need. The SWA inspector checks that the housing meets the higher of either federal Occupational Safety and Health Administration (OSHA) standards or applicable state and local safety and health requirements. These extensive standards cover numerous areas, including fire safety, water supply, sewage disposal, sleeping area square footage, and cooking facilities. We cannot receive our Temporary Labor Certification from the Department of Labor without this official State Workforce Agency housing certificate. This certificate is the final assurance that our housing is safe, sanitary, and fully compliant for all workers. We are also responsible for ensuring the housing remains compliant throughout the entire contract period.

What are the rules regarding providing meals to workers, and can we charge for them?

The employer has a federal obligation to provide H-2A workers with food through one of two options. The first option is to furnish the workers with three meals per day, seven days a week, for the duration of the contract. Alternatively, you must provide free and convenient cooking and kitchen facilities for the workers to prepare their own food. These kitchen facilities must meet specific OSHA standards, including adequate stove-to-person ratios and sufficient refrigeration. If you choose to provide the three daily meals, you are permitted to charge the worker for the cost of those meals. However, any meal charge must be clearly stated in the job offer. The charge cannot exceed the maximum daily rate set by the U.S. Department of Labor (DOL). As of the most recent announcement on March 24, 2025, the maximum allowable charge is $$$16.28 per day. An employer is not permitted to charge more than the maximum daily rate unless a higher amount is specifically approved by the DOL's Certifying Officer. Employers engaging in herding or livestock production on the range must provide meals or food for free.

What are the requirements for providing transportation for workers, both daily and for their journey to the U.S.?

H-2A regulations require employers to provide free, daily transportation between the workers' employer-provided living quarters and the worksite. This employer-provided transportation must meet all applicable Federal, State, and local safety standards, be properly insured, and be operated by licensed drivers. For the inbound journey to the U.S., the employer must either provide, pay in advance, or reimburse the worker for the reasonable costs of transportation and daily subsistence from the place of recruitment to the place of employment. This reimbursement, if not advanced, must be provided once the worker completes 50% of the work contract period. The employer is also responsible for providing or paying for the worker's return transportation and daily subsistence when the worker completes the contract. The amount paid for transportation should be no less than the most economical and reasonable cost. Daily subsistence during travel is subject to minimum and maximum reimbursement rates, which the Department of Labor updates annually. These transportation rules ensure that the cost of travel does not prevent workers from participating in the program.

Are there any specific rules we need to be aware of for returning H-2A workers?

There are specific regulations to consider when re-hiring H-2A workers for a new season. First, an H-2A worker may not be granted H-2A status if they have already stayed in the United States for a total of three years. To reset this three-year maximum period of stay, the worker must remain outside the U.S. for an uninterrupted period of at least 60 days. However, even without the three-year limit, a new Temporary Labor Certification (TLC) from the Department of Labor (DOL) is generally required for each new season. The employer must then file a new Form I-129 petition with USCIS to request an extension of status. For returning workers, you must also extend the same favorable terms and working conditions as new H-2A hires. As part of the recruitment process for a new season, you are required to invite former U.S. workers, who were not terminated for cause or did not abandon the worksite, to return to their jobs. It is crucial to be proactive and file the extension petition well before a returning worker's current employment authorization expires to avoid disruption. If an extension is timely filed, the worker may be authorized to continue working for up to 240 days while USCIS processes the petition. Ultimately, returning H-2A workers are subject to all new application and certification requirements just as first-time workers are.

What countries are currently on the H-2A eligible countries list, and how often is this list updated?

The U.S. Department of Homeland Security (DHS), in consultation with the Department of State, determines which countries are eligible for the H-2A program. This eligible countries list is formally reviewed and re-designated on an annual basis. The new list is typically published in the Federal Register in November and remains valid for a one-year period. However, DHS maintains the authority to modify the list at any time through a Federal Register Notice if a country no longer meets the necessary criteria. For the current period, the list of H-2A eligible countries includes over 80 nations from around the world. These countries feature prominently across the Americas, Europe, Asia-Pacific, and Africa. Notably, a vast majority of the designated countries are eligible for both the H-2A and H-2B visa programs. However, a few countries like Paraguay are only eligible for the agricultural H-2A program. Always refer to the most recent official notice from DHS to confirm the complete and current list of eligible countries before filing a petition.

How long can a worker stay in the U.S. on an H-2A visa?

Workers are generally granted H-2A status for the period specified in the approved temporary labor certification, which is usually for a single season or planting cycle. The initial employment period for H-2A work is typically ten months or less. However, a worker's H-2A status can be extended for qualifying employment in one-year increments. The maximum period of stay in the United States for an H-2A worker is three years. To avoid disruption, employers should file for an extension well before the worker's current status expires. After reaching the three-year maximum, a worker must depart the U.S. and remain outside for an uninterrupted period of at least 60 days. This break in service resets the three-year clock, making the worker eligible for a new full term. New regulations have standardized this required period of absence to a uniform 60 days. The H-2A visa is a nonimmigrant visa and is not a path to permanent residency or a green card. Workers also have grace periods, including up to ten days before employment begins and up to 30 days after the authorized period ends, and up to 60 days after cessation of employment.

What is the "three-fourths guarantee," and how do you help us comply with it?

The H-2A three-fourths guarantee is a mandatory protection for workers on an H-2A contract and those in corresponding employment. It requires the employer to guarantee an offer of work hours equal to at least 75% of the total hours specified in the work contract. This calculation is based on the full work period, beginning on the worker's arrival or the contract start date. For example, a 10-week contract for 40 hours per week (400 total hours) must guarantee at least 300 work hours. If an employer offers less than the guaranteed hours, they must still pay the worker the amount they would have earned for the guaranteed time. We ensure compliance by establishing accurate and realistic hour projections in the initial job order. Our team then monitors your weekly hours offered to track progress against the 75% threshold throughout the entire contract period. This proactive monitoring helps us to advise you on necessary payroll adjustments to meet your financial obligation. Consistent adherence to this rule is crucial for maintaining your H-2A program eligibility and avoiding penalties.

How does the H-2A program handle situations of bad weather or other "Acts of God" that affect the work season?

Bad weather or natural disasters, often called an "Act of God," may allow an H-2A contract to be terminated early, but only with specific approval. This provision is known as "contract impossibility" and requires the employer to petition the Department of Labor (DOL) Certifying Officer. The employer must demonstrate that the event, such as a fire or severe weather, makes fulfilling the job contract genuinely impossible. Importantly, the employer's first obligation is the three-fourths guarantee for the time elapsed until the contract's termination date. This guarantee requires employers to offer workers total hours equal to at least 75% of the total workdays in that shortened period. If approved, the employer must also make reasonable efforts to find and transfer the workers to other comparable employment. If a transfer is unsuccessful, the employer must provide or pay for the worker's return transportation. Furthermore, the employer must reimburse the worker for any inbound travel and subsistence costs. Until the DOL issues a favorable "contract impossibility" determination, the employer remains responsible for all work contract obligations.

Do you handle both large and small-scale farms, and can you provide examples of similar clients you've worked with?

Yes, we proudly serve farms of all sizes, from small family operations to large agricultural enterprises and grower associations. While the core legal obligations like providing the Adverse Effect Wage Rate (AEWR) and complimentary housing remain consistent, the application process is tailored to each client's specific needs. For smaller farms, we understand the cost and compliance burden is significant; over two-thirds of H-2A petitions are for fewer than 10 workers, proving this is a viable solution for you. We assist these clients with all necessary paperwork, including the complex temporary labor certification and housing inspections. For larger operations, we often manage multi-state recruitment efforts and high-volume compliance for dozens or even hundreds of seasonal workers. Our clients have included small, single-crop vegetable farms needing just a few hands for harvest, as well as large orchard co-ops requiring a full seasonal crew for pruning and picking. We also work with Farm Labor Contractors who manage H-2A workers for multiple farms, streamlining the process for smaller-scale growers. No matter your size, our goal is to navigate the H-2A program's complexities to provide you with the reliable seasonal labor you need.

What documents and information will our company need to provide you with at each stage of the H-2A application process?

The H-2A application process begins with the Department of Labor (DOL). For this first stage, you must provide your company's information, including your Federal Employer Identification Number (FEIN), and details of the job opportunity on the ETA Form 790/790A and ETA Form 9142A. Key supporting documents for the labor certification include proof of housing compliance via a State Workforce Agency housing certificate and a copy of your workers' compensation insurance policy. You must also furnish a signed, detailed recruitment report, documenting your efforts to recruit U.S. workers for the position. After DOL approval, the second stage involves the USCIS petition. For this, you will need to submit Form I-129, Petition for a Nonimmigrant Worker, along with a copy of your certified ETA Form 9142A. Finally, for the third stage, your prospective employees must complete the DS-160, Online Nonimmigrant Visa Application, and provide biographical information for consular processing. This multi-stage process requires precise and timely submission of all necessary documentation to ensure a successful outcome.

What is your process for preparing and filing the Form ETA-790, Agricultural and Food Processing Clearance Order, with the State Workforce Agency (SWA)?

Our process begins by preparing the H-2A Agricultural Clearance Order, Form ETA-790/790A, with all required job details, wages, and housing information. This form is submitted electronically through the Department of Labor's Foreign Labor Application Gateway (FLAG) system. The crucial filing window is no more than 75 and no fewer than 60 calendar days before the employer's first date of need. Although filed through FLAG, this submission initiates the process with the State Workforce Agency (SWA) serving the area of intended employment. The SWA reviews the job order for compliance with H-2A regulations, including an initial compliance review and the assignment of the correct Standard Occupational Classification (SOC) code. The SWA's review is vital because the approved job order is then placed on the state's job bank to begin the recruitment of U.S. workers. We continuously communicate with the SWA during this initial clearance period to address any questions or required modifications. This process ensures the job order is approved and ready for the next step: filing the H-2A Application for Temporary Employment Certification (ETA-9142A) with the National Processing Center. Prompt and accurate ETA-790 filing is the necessary first step for a successful H-2A application.