The H-2A program allows foreign workers to perform agricultural labor or services of a temporary or seasonal nature in the United States. This program, however, has stringent rules carrying substantial civil and criminal penalties for employers violating the program. Five common employer compliance issues are reviewed below.
1. H-2A Workers Should Only Perform Work Identified on the Job Offer.
Only agricultural work of a temporary or seasonal nature qualifies for the H-2A program. While agricultural work encompasses many farm duties, not all agricultural work is of a temporary or seasonal nature. Work of a seasonal nature “is tied to a certain time of year by an event or pattern … and requires labor levels far above those necessary for ongoing operations.”1 Work of a temporary nature is work the employer needs performed for no longer than one year, absent extraordinary circumstances. The U.S. Department of Labor (DOL) recognizes that the majority of activities encompassed in milk production and livestock production “are year-round activities and therefore cannot be classified as temporary” or seasonal.2 Thus, many positions in these industries do not qualify for the H-2A program.
Job offers are the employers’ statement to the DOL, United States Citizenship and Immigration Services, and H-2A workers “describing all the material terms and conditions of employment, including those relating to wages, working conditions, and other benefits.”3 The specific job duties offered to H-2A workers must be provided in the job offer and Form ETA-790A: H-2A Agricultural Clearance Orders ( job order). A common mistake employers make is having H-2A workers perform (1) work not identified on the job offer or order; and (2) agricultural work that is not seasonal or of a temporary nature, such as livestock and milk production.4 This can be an expensive mistake resulting in civil penalties up to $6,386 per violation (each day is a separate violation). Employers can avoid this common mistake by ensuring H-2A workers are performing only those duties on their job offer and order.
2. The H-2A Program Requires Maintenance of Accurate and Extensive Earning Records.
Employers must maintain accurate records of H-2A worker earnings for three years. These records are extensive and include, but are not limited to:
[F]ield tally records, supporting summary payroll records,
and records showing the nature and amount of the work performed; the number of hours of work offered each day by the employer (broken out by hours offered both in accordance with and over and above the three-fourths guarantee at paragraph (i)(3) of [20 C.F.R. § 655.122]); the hours actually worked each day by the worker; the time the worker began and ended each workday; the rate of pay (both piece rate and hourly, if applicable); the worker’s 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.
20 C.F.R. § 655.122( j)(1). Failure to maintain these records may result in civil penalties equivalent to those noted above.
3. Employers Must Provide H-2A Workers Daily Meals or Access to a Free Kitchen.
H-2A workers must receive at least three meals per day or free access to a furnished kitchen to prepare their own meals. Employers opting to provide meals may charge workers for these meals, but the charge cannot be greater than the amount allowed by the DOL. The current maximum charge is $14 per day for three meals.5 Employers cannot charge an H-2A worker more without express authorization from the Office of Foreign Labor Certification. Employers providing meals must identify the meal charge in the H-2A worker’s job offer and (if prepared) work contract. Failure to provide the meals or kitchen as identified can result in civil penalties up to $6,386 per violation. Each day, meal, or inappropriate charge could be assessed as a separate violation.
4. Free Housing and Transportation Must be Provided to H-2A Workers.
The H-2A program requires employers to provide workers free housing that meets applicable OSHA, state, and local standards. Employers cannot charge H-2A workers for this housing or require the worker to pay a deposit, even if the employer does not own the housing facilities. H-2A workers responsible for damage beyond normal wear and tear related to habitation, however, can be charged for such damage.
Like housing, employers must also provide H-2A workers with free transportation from their living quarters to job site(s). Such transportation must meet all applicable federal, state, or local laws and regulations, and safety, licensure, and insurance standards identified at 20 C.F.R. § 655.122(h)(4). Employers have obligations to pay for arriving and (potentially) departing transportation costs as well pursuant to 20 C.F.R. § 655.122(h) (1)-(2).
Housing and transportation arrangements are information that must be included in the H-2A workers’ job offer. Thus, if the employer fails to provide the housing or transportation identified in the offer the employer can be assessed a civil penalty up to $6,386 per violation. Moreover, the DOL can assess additional civil penalties up to $63,232 or $126,463 (repeat or willful violation) per worker for violations of housing or transportation safety or health requirements.
5. H-2A Workers Cannot Displace U.S. Workers.
Federal law prohibits employers from favoring the employment of foreign workers or otherwise discriminating against qualified U.S. workers because of their citizenship. Before employers even submit a Form ETA-9142A: H-2A Application for Temporary Employment Certification (application), employers must contact those U.S. workers they employed the previous year (whose employment was terminated without cause) and offer the former employees the job opportunity to be contained in the job order. By submitting the application and job order, an employer asserts under penalty of perjury that U.S. workers qualified and able to perform the work for which H-2A workers are sought to perform are not available.
In the application, the employer also promises to continue recruiting and hiring qualified U.S. workers for the described employment opportunities. The employer has an affirmative obligation to engage in such recruitment efforts through 50% of the work contract period.6 An employer found to have rejected, laid off, or otherwise displaced a qualified U.S. worker to employ an H-2A worker may be assessed a civil penalty up to $18,970 per rejected, laid off, or displaced U.S. worker and liable for back wages to make that U.S. worker whole.
The civil penalties detailed in this article are reevaluated, and typically increase, annually by the DOL. Employers are encouraged to view the most up-to-date penalty assessments at https://www.dol.gov/agencies/whd/agriculture/h2a. It is further imperative that employers recognize the documents filed with federal agencies for the H-2A program (e.g. application, I-129 petition) are submitted under penalty of perjury. This means in additional to civil penalties, there may be criminal penalties. Indeed, any person submitting information, statements, or data for the H-2A program that said person “knowingly and willfully falsifies, conceals, or covers up a material fact by any trick, scheme, or device, or makes any false, fictitious, or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious, or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than 5 years, or both.” 29 C.F.R. § 501.8 (emphasis added).
1 29 CFR § 501.3(c).
2 See Temporary Agricultural Employment of H-2A Aliens in the United States, 75 Fed. Reg. 6884, 6891 (Feb. 12, 2010). 3 20 C.F.R. § 655.103(b).
3 Herders and livestock production on a range requiring workers to be on call 24 hours a day, 7 days a week are exceptions to this limitation.
4 20 C.F.R. § 655.20.
5 86 Fed. Reg. 10246 (Feb. 23, 2022). This rate is reevaluated annually. 20 C.F.R. § 655.173(a).
6 20 CFR § 655.135(d).
This article does not constitute legal advice. Employers are encouraged to consult with an attorney for advice and counsel on complying with the H-2A laws and regulations.