Authorized by the Immigration and Nationality Act, the H-2A Temporary Agricultural Program allows for foreign workers to enter the United States as seasonal farm workers. Efforts must have been made to recruit U.S. workers for the open positions, and farm employers must demonstrate that they were unsuccessful in filling them to qualify for the H-2A program.
Due to the nature of the labor H-2A workers provide, it has grown significantly over the past decade, and trends show Ohio farmers have increasingly been taking advantage of the H-2A labor program. 100,000 H-2A visas were issued nationally in 2013, whereas through the 3rd quarter of Fiscal Year 2023 H-2A workers held over 302,000 certified positions.
Not only do farm employers have to qualify for the H-2A program, they have certain obligations to the workers as well. These obligations include, but are not limited to the following:
U.S Recruitment
Farm employers must petition the Department of Labor certifying a lack of U.S. workers both qualified and available to perform the duties of the job they recruit H-2A workers to fill. They must make their case for the need for a specific number of H-2A workers and prove no adverse effect of wages and work conditions for U.S. workers. During the first 50% of the contract period, farm employers using H-2A workers must provide jobs for any qualified U.S. worker who applies, and must offer the at least the same working terms and conditions than what is currently offered to H-2A workers.
Termination
If a farm employer wishes to hire H-2A workers, they must prove that no U.S. workers were laid off during a period of 60 days prior to their hiring needs. However, if an opportunity was offered to and rejected by a U.S. worker for that position, this rule no longer applies. Furthermore, all H-2A workers must be laid off prior to laying off any U.S. workers. If layoffs or voluntary abandonment of H-2A workers occurs, farm employers are required notify the Department of Labor and the Department of Homeland Security within two working days of the termination or job abandonment.
Payment considerations
Pay rates can be determined on an hourly basis or a “piece” rate. However, the farm employer must pay H-2A workers at least the highest applicable wage rates of the following per pay period:
• Adverse effect wage rate (currently $17.17 in Ohio)
• Applicable prevailing wage
• Previously agreed-upon collective bargaining rate
• Federal or State statutory minimum wage
In addition to the pay rate for work performed, the farm employer must pay H-2A workers for their transportation and food costs during their travels from their home to the temporary location. This payment can be made in advance, or reimbursed no later than when an H-2A worker completes 50% of the work contract period. Once the contract is complete, the farm employer must also provide or pay for the worker’s return transportation and daily food allowance during this time.
H-2A workers must be paid at minimum twice monthly, and be given an earnings statement including the following information:
• Hours offered
• Hours worked
• Hourly rate or Piece rate (if used)
• If piece rates are used, the number of units produced on a daily basis
• Total earnings for the pay period, including all deductions from wages
Written Disclosure
H-2A workers must be provided copies of the work contract translated to a language they understand both at the time they apply for the visa and no later than the first day of work. The work contract should describe all terms and conditions of employment. If not work contract is available, the farm employer must provide a copy of the Department of Labor approved job order.
The following information must be included in the work contract:
• Start and end dates of the contract period with the location of the work
• All conditions of employment
• Hours per day and days per week expectations
• Crops to be worked and jobs to be performed
• Applicable pay rates for each crop/job
• Required tools, supplies, or equipment which will be provided at no charge
• Workers’ compensation insurance is provided at no cost to the worker
•Any deductions not required by law must be listed in advance and reasonable
Guarantees
Farm employers must guarantee H-2A workers employment for at least 75% of the contracted working days. This is referred to as the “three-fourths guarantee.” Should the total amount of workdays result in failing to comply with the three-fourths guarantee, the farm employer must compensate the H-2A workers as if they had worked 75% of the contracted time. Any payment to meet this minimum must be calculated at the stated rate per the contract.
Housing
Housing is to be provided at no cost to H-2A workers by the farm employer, who will bear the costs of managing and maintaining it. In addition to housing, employers are required to either provide three meals each day to each H-2A worker, or provide a free and adequate kitchen so they may prepare their own meals. Prior to housing H-2A workers, the dwelling provided will be inspection by the Department of Labor and must meet all appliable safety standards.
Transportation
Daily transportation must also be provided to the H-2A workers between their housing area and the farm. All costs related to this transportation must be paid by the farm employer and meet all applicable safety standards, be properly insured, and operated only by licensed drivers.
There are many considerations involved with the hiring of H-2A workers. If you believe your farm would benefit from having H-2A workers, there are some insurance regulations you should also consider. When you’re ready, I’d be happy to discuss the subtle nuances with you and ensure you are properly protected.
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