A Checklist for First-Time H2A Employers
Tips for maximizing your success with the H2A Visa Program
The H2A application process can be daunting—especially if you’re a farm or ag business owner who’s new to the H2A Visa Program. First, you must answer the question as to whether your business fits the eligibility criteria for the H2A Program. Then there’s a laundry list of H2A employer requirements that vary based on your specific business type, as well as worker-related H2A rules and regulations to understand and comply with. But the benefits of the H2A Program are undeniable which is why so many farms and ag businesses participate year after year.
Preparation is everything. This blog is designed to provide farm and ag business owners applying for the H2A Visa Program for their first time with tips to help make their first season a success.
First-timer tips for how to succeed with the H2A Visa Program
Clearly understand all the requirements
H2A is a government-mandated visa program. It involves three government agencies—your local State Workforce Agency (SWA), the Department of Labor (DOL), and United States Citizenship and Immigration Services (USCIS)—as well as the foreign consulates. In order to avoid any negative impact on U.S. workers, the H2A Program comes with a list of H2A employer requirements that must be adhered to for compliance. There are also a whole host of worker-related H2A Program requirements that must be followed.
USA Farm Labor’s Onboarding Specialists take the time to get to know you, your operation, specific challenges, and needs. Then they educate you on the H2A Visa Program to ensure you have a complete understanding of all the requirements.
Start earlier than you think
The biggest mistake you can make as a new applicant is starting too late. We advise our clients to prepare for and begin the process at least 90 - 120 days or more before their anticipated start date. This sounds like a lot of time, but it goes by quickly. Allowing this amount of time provides a buffer in the event of delays from your SWA, the DOL, USCIS, or the consulate. USA Farm Labor’s proprietary database allows you to see your application progress, petition progress, and workers' consulate status in real time.
Government agency and consulate processing time is currently running behind compared to previous seasons, particularly around visa petition processing and visa issuance. The bottom line is, the sooner you start to prepare and apply, the better.
Get tips on preparing to apply for the H2A Visa Program
Choose an H2A application strategy that works for you
It’s up to you whether you submit your H2A Visa Program application on your own, use the services of an attorney, or rely on an H2A agency. There are advantages and disadvantages to each option but, if it's your first time, chances are high you could use some expert guidance.
For 23 years, USA Farm Labor has delivered end-to-end support—from program qualification, submitting your application, managing government agency communications on your behalf, and sourcing verified, skilled workers to filing visa petitions, preparing for worker arrival, managing worker travel and consulate logistics, ensuring compliance, and supporting both you and your workers through the entire season. This helps eliminate hassle, minimizes risk, and provides you with predictable, reliable farm labor year after year.
Learn about the pros and cons of:
Applying for the H2A Program on your own
Get your date of need right
Your date of need specifies the start and end dates of your season. These dates should reflect your actual crop or livestock cycles. It’s important to get these dates right because, if the DOL sees a change in start or end dates, they may assume your period of need is flexible, rather than tied to seasonal cycles. Date changes are one of the most common causes of Notices of Deficiency (NODs), and we’ve seen denials due to date changes. Also, avoid inconsistent dates of need across your Job Order (ETA-790) and your application (ETA-9142A) or it may trigger a NOD or denial. USA Farm Labor’s Onboarding Specialists can help you determine accurate start and end dates after assessing your needs.
Build a realistic plan
You’ll want to avoid asking for too few or too many workers. Take a look at your total acres, yield expectations, historical labor needs, and specific job duties to arrive at your best good-faith estimate of how many workers you're going to need. Also keep in mind that, while your contract start and end date remains the same, you can now stagger the arrival time of workers throughout your season based on workload. For example, you may plan to bring just one worker at the start for planting, then plan to bring two more for harvest.
Write a clear, defensible job description
Accurate job descriptions are essential to not only justify your need, but they’re the foundation of your Job Order, or ETA-790, which serves as your job contract and specifies the only tasks that workers are approved to perform. This also helps ensure you know what to look for when recruiting and interviewing workers. You’ll need to consider the specific tasks workers must perform (planting, harvesting, fertilizing, repairing, etc.), work conditions (temperature, hours, etc.), and required experience (if any).
Learn more about seasonality and labor levels above those for ongoing operations
Learn more about the most common types of job duties and SOC codes
Clearly understand all the costs
Your H2A Visa Program costs consist of more than an application fee and workers’ wages. You want to make sure you fully understand your potential costs before submitting your H2A application. The various costs fall into these main categories—application fees, worker fees, government fees, program fees, hourly wages, and other possible fees.
Learn more about what falls within each of these cost categories
Get compliant housing in place as soon as possible
H2A employers are required to provide their H2A employees with safe and sufficient housing that meets OSHA (if built after April 3, 1980) or DOL/ETA (built before April 3, 1980) standards. Worker housing must be inspected by your SWA, which typically happens within weeks of submitting your application to them. Housing issues are one of the biggest causes of delays. USA Farm Labor provides clients with a housing checklist and we recommend you proactively schedule your inspection once we submit your application to the SWA to avoid delays.
Learn more about H2A housing requirements
Be diligent about domestic recruitment requirements
The H2A Visa Program’s 50% Rule requires H2A employers to interview all U.S. applicants and SWA referrals, and offer the job to all that are qualified, willing, and able. This requirement runs through the halfway point of your period of need. At that point, you must complete a Final Recruitment Report, and submit a report of any domestic applications and referrals to the DOL. Failure to comply may result in penalties or audits, and could impact your ability to continue participating in the H2A Program. Documentation is critical. USA Farm Labor submits this recruitment report on your behalf.
Know that compliance is an ongoing commitment
Complying with all the initial H2A rules and regulations in order to be approved for your Temporary Labor Certification is just the tip of the iceberg. Your day-to-day operations throughout your season must comply with additional H2A Program requirements, including:
Wage requirements
Pay slips
Hours
3/4 Guarantee
Ensuring tasks performed don’t deviate from those specified in your approved Job Order
Learn more about additional ongoing H2A employer requirements
USA Farm Labor provides guidance around all these requirements, as well as helpful documentation, such as pay slip templates and worker arrival documents.
Keep meticulous records from day one
Good recordkeeping is the best way to document that you’re in compliance and protect yourself in the event of an audit. Be sure to track and maintain detailed records for:
Recruitment efforts
Housing inspections
Work hours
Payroll
Reimbursements
USA Farm Labor’s proprietary database provides a central hub to house all your H2A Program documentation.
Set workers up for success
Start workers off on the right foot by having a comprehensive onboarding process, supported by an employee handbook and policy manual, that clearly communicates your expectations around pay, hours, housing, transportation, productivity, and other important details. This minimizes the likelihood of complaints, conflicts, and schedules being missed. USA Farm Labor advises our clients to, upon arrival, assist new H2A employees with getting their Driver’s License, Social Security Number, and bank account. This allows workers to drive as needed, pay their taxes, and receive their wages.
Address worker concerns promptly to reduce turnover and maintain productivity
Maintaining open communication with your workers and being responsive to their questions and concerns makes for a healthy work environment. Unresolved issues can quickly turn into resentment and frustration that leads to lower productivity. USA Farm Labor clients are assigned a Worker Placement Coordinator (WPC) who works with our recruiters that handle consulate and travel arrangements. Your WPC also coordinates worker arrival, addresses questions and concerns, and helps resolve worker conflicts.
Review DOL updates regularly to stay informed about changes in H2A regulations
The H2A Visa Program is continually issuing changes to existing H2A rules and regulations, as well as issuing new ones. For example, the DOL recently issued changes in how AEWRs are calculated. Not staying in-the-know can put you at risk of non-compliance and may result in penalties or trigger an audit. USA Farm Labor keeps a constant pulse on H2A legislation, rulings, and updates. We attend the NCAE Ag Forum as well as participate in weekly NCAE calls to stay informed, so we can best serve our clients.
Plan for the next season before the current one is over
As we stated in the beginning of this blog, planning is everything, so you’ll want to start mapping out your needs for the next season before your current one ends. The process is much easier the second time around when you partner with USA Farm Labor since we already have all your company details and documents in our database. It only takes a few minutes to re-submit each season. Plus, we make it easy to see your current workers and extend job offers for them to return.
Partnering with USA Farm Labor may be the best tip of all
USA Farm Labor’s comprehensive and structured system ensures you understand and meet all the H2A Program requirements and stay on track with key deadlines. Your Case Manager helps you fine-tune Job Descriptions and responds to any NODs on your behalf. Our proprietary database not only houses all your documents, it puts 6,000-plus verified and skilled workers at your fingertips. While many agencies don’t even recruit workers (which means you have to do all the work), and only provide support up to the time your workers arrive, our expert team is by your side all season, every season. We’re also are actively involved in staying up on, educating you on, and advocating for you in the face of program changes, new regulations, and processing delays.
