Section 218 of the Immigration and Nationality Act authorizes the lawful admission into the United States of temporary, nonimmigrant workers (H-2A workers) to perform agricultural labor or services of a temporary or seasonal nature. Before the U.S. Citizenship and Immigration Services (USCIS) can approve an employer's petition for such workers, the employer must file an application with the Department’s Employment and Training Administration (ETA) stating, among other things, that there are not sufficient workers who are able, willing, qualified, and available, and that the employment of aliens will not adversely affect the wages and working conditions of workers similarly employed in the U.S.. Any employer using H-2A workers must have initially attempted to find U.S. workers to fill these jobs. H-2A workers and domestic workers in corresponding employment must be paid special rates of pay that vary by locality, must be provided housing and transportation from that housing to the job site if their employment requires them to be away from their residence overnight, and must be guaranteed an offer of employment for a total number of hours equal to at least 75% of the work period specified in the contract.
Key News
On October 12, 2022, the U.S. Department of Labor (Department) published the final rule, “Temporary Agricultural Employment of H-2A Nonimmigrants in the United States”, effective on November 14, 2022. This final rule amends the Department’s regulations governing the H-2A program to improve program protections for workers and enhance enforcement against fraud and abuse, while modernizing the H-2A application and temporary labor certification process. This final rule strengthens protections for U.S. workers and H-2A workers; enhances program integrity and enforcement capabilities of the Office of Foreign Labor Certification and the Wage and Hour Division; modernizes the prevailing wage determination process; and provides clarity to employers and other stakeholders.
General Guidance
- SEASONALJOBS.DOL.GOV -- One-Stop Source for Seasonal and Temporary Jobs
- ETA's H-2A Compliance Assistance
- H-2A Worker Rights Card - English Version
- H-2A Worker Rights Card - Spanish Version
- H-2A Worker Rights Card for U.S. Workers (PDF)
- Farm Worker Rights Flyer (PDF)
- Agricultural Transportation Safety
Fact Sheets
Fact Sheet #26 - general information concerning the application of the H-2A requirements to the agricultural industry for H-2A applications submitted on or after March 15, 2010.
- Spanish (HTML) - La aplicación de las exigencias H-2A a la industria agrícola para solicitudes H-2A sometidas el 15 o después del 15 de marzo de 2010.
Fact Sheet #26A - Recruitment Requirements under the H-2A Visa Program
Fact Sheet #26B - Disclosure of the Job Order and Notice of Worker Rights under the H-2A Visa Program
Fact Sheet #26C - Records Retention Requirements under the H-2A Program
Fact Sheet #26D - Meal Obligations for H-2A Employers
Fact Sheet #26E - Job Hours and the Three-Fourths Guarantee under the H-2A Program
Fact Sheet #26F - Wage Requirements under the H-2A Visa Program
Fact Sheet #26G - H-2A Housing Standards for Rental and Public Accommodations
Fact Sheet #77D - Retaliation Prohibited under the H-2A Temporary Visa Program
Posters
- WH-1491(PDF)
- WH-1491 Spanish (PDF)
- WH-1490 Haitian (PDF)
- Key Protections for H-2A Workers (PDF)
- Spanish Version (PDF)
Presentations
- H-2A Final Rule Public Rollout WHD 2010
- ETA-OFLC H-2A Rule Briefing Presentation 2010
- OFLC WHD 2022 H-2A Final Rule Overview Recording October 2022
- OFLC WHD 2022 H-2A Final Rule Overview Presentation October 2022
Applicable Laws and Regulations
Law
Civil Money Penalty Inflation Adjustments
Starting in 2016, agencies across the federal government must adjust their penalties for inflation each year. Below is a table that reflects the adjustments that have occurred for penalties under this statute. For more information on the penalty adjustments, go here.
| Type of Violation | Statutory Citation | CFR Citation | Maximum Civil Monetary Penalty on or before 1/15/2023 | Maximum Civil Monetary Penalty on or after 1/16/2023 |
|---|---|---|---|---|
| (1) Violation of the work contract or a requirement of 8 USC 1188, 20 CFR part 655 subpart B, or 29 CFR part 501; | 8 USC 1188(g)(2) | 29 CFR 501.19(c) | $1,898 | $2,045 |
| (i) Willful violation of the work contract or a requirement of 8 USC 1188, 20 CFR part 655 subpart B, or 29 CFR part 501, or for each act of discrimination prohibited by section 501.4; | 8 USC 1188(g)(2) | 29 CFR 501.19(c)(1) | $6,386 | $6,881 |
| (ii) Violation of a housing or transportation safety and health provision of the work contract, or any obligation under 8 USC 1188, 20 CFR part 655 subpart B, or 29 CFR part 501, that proximately causes the death or serious injury of any worker; | 8 USC 1188(g)(2) | 29 CFR 501.19(c)(2) | $63,232 | $68,129 |
| (iii) Repeat or willful violation of a housing or transportation safety and health provision of the work contract, or any obligation under 8 USC 1188, 20 CFR part 655 subpart B, or 29 CFR part 501, that proximately causes the death or serious injury of any worker; | 8 USC 1188(g)(2) | 29 CFR 501.19(c)(4) | $126,463 | $136,258 |
| Violation for failure to cooperate in an investigation; | 8 USC 1188(g)(2) | 29 CFR 501.19(d) | $6,386 | $6,881 |
| Violation for laying off or displacing any US worker employed in work or activities that are encompassed by the approved Application for Temporary Employment Certification for H-2A workers in the area of intended employment either within 60 days preceding the date of need or during the validity period of the job order, including any approved extension thereof, other than for a lawful, job-related reason; | 8 USC 1188(g)(2) | 29 CFR 501.19(e) | $18,970 | $20,439 |
| Violation for improperly rejecting a US worker who is an applicant for employment, in violation of 8 USC 1188, 20 CFR part 655 subpart B, or 29 CFR part 501. | 8 USC 1188(g)(2) | 29 CFR 501.19(f) | $18,970 | $20,439 |