How H2A Program Employers Can Stay Compliant and Audit-Ready
Compliance with the H2A Visa Program is scrutinized now more than ever. Today’s H2A Program employers face increased oversight, liability, and risk—which is why H2A compliance needs to be an integral part of your daily operations. The reality is, H2A employers are ultimately liable, even when issues originate with employees, facilitators, recruiters, or subcontractors.
Good intentions don’t mitigate liability. Enforcement agencies evaluate compliance strictly based on documentation, disclosures, and statutory responsibility, not perceived fairness. This blog is designed to help H2A Program employers clearly understand their ongoing H2A compliance responsibilities once H2A employees have arrived, plus gain some helpful best practices for how to maintain compliance and always be audit-ready.
Maintaining H2A compliance once workers have arrived
The Department of Labor (DOL) occasionally audits H2A employers to make sure they’re following the H2A Program rules and regulations. If an audit uncovers violations, you could be subject to hefty fines and/or debarment from the H2A Visa Program, so it’s best to be prepared. Accurate, comprehensive documentation is your strongest defense.
H2A compliance best practices for ag employers
The following outlines best practices for each of the main H2A compliance areas.
Wages, hours, and payroll
Pay H2A workers weekly, bi-weekly or twice per month (at a minimum)
Pay H2A workers the highest applicable wage, which may include the AEWR, prevailing wage, state minimum wage, federal minimum wage, or a collective bargaining agreement rate
Monitor state minimum wages and state surveys:
In states with rising minimum wages or active State Workforce Agencies (SWAs), your real floor may not be the federal AEWR
Watch for:
State prevailing wage determinations
State guidance on use of the Adverse Compensation Adjustment (ACA)
Local minimum wage ordinances that single out agriculture
Maintain accurate records for hours, wages, and payroll
Pay overtime if it’s a requirement in your state
Pay domestic workers in corresponding jobs the same or higher wage
Provide H2A Program workers with a wage statement for each pay date (USA Farm Labor provides a pay slip template)
Don’t show the ACA as a deduction or discount on worker pay statements
Don’t charge workers for safety or protective equipment
Keep payroll records for a minimum of 3 years after end of season (USA Farm Labor has an H2A payroll partner that can help)
Comply with the 3/4 Guarantee, paying H2A Program workers for at least 75% of the total hours outlined in your approved ETA-790 Job Order unless:
The worker quits
The worker is fired for just cause
An Act of God occurs (i.e. flood, hurricane)
You have to let the H2A worker go due to the 50% recruitment rule which requires you to hire a capable, available U.S. worker
Get more details on applying the Interim Final Rule for H2A compliance
Reimbursement and prohibited fees
Reimburse H2A Program workers for travel, subsistence, and visa costs within the first pay period. While DOL allows a later timeframe, H2A employers are still subject to the Fair Labor Standards Act (FLSA) which is a stricter requirement. We recommend following the stricter of the two.
Remember that travel reimbursements and visa fees aren’t wages, so they can’t be offset through deductions
Failure to reimburse travel properly can now be treated as a prohibited fee violation under the new Department of Homeland Security (DHS) framework and can:
Trigger findings of prohibited fees
Result in petition denials, not just back wages
Affect future filings
Reimburse H2A Program workers directly for prohibited fees charged by anyone acting on their behalf as well as:
Investigate the scope of the violation
Disclose the issue in future filings
Demonstrate remediation steps to DHS and USCIS
Failure to disclose or remediate can lead to petition denial and/or program exclusion
Domestic recruitment and the 50% rule
Your SWA and the DOL will both advertise your opening(s) on their seasonal jobs board to help with domestic recruitment efforts
You’re required to continue to interview and consider all domestic applications through the halfway point of your stated period of need
You’re required to hire domestic applicants if they’re qualified, willing, and able to perform the tasks of your job, even if that means sending an H2A worker home to make room for the new domestic hire
Overlooking this requirement can lead to DOL investigations, audits, and in some cases, monetary fines
Job duties
Make sure H2A workers only perform the job duties listed in the approved ETA-790 Job Order
Track roles in practice, so you can defend your coding if the Wage and Hour Division (WHD) asks
Avoid letting one worker become a full-time driver if coded as a farmworker
Housing
Continually ensure all housing meets DOL standards for safety, sanitation, and occupancy
Conduct and document on-going scheduled housing inspections
Handle repairs quickly and document each one
Transportation
Ensure vehicles are maintained and in good working order
Maintain proper insurance on vehicles
Document all accidents
Don’t attempt to deduct repair costs from worker wages
If audited, insurance lapses plus improper deductions would almost certainly result in violations, penalties, and back wages
Worker treatment and performance
Respect H2A Program worker rights
Follow legal guidelines for work hours, breaks, and termination
Perform comprehensive onboarding and follow clear, known daily Standard Operating Procedures (SOPs)
Follow a published protocol for worker conflict management that includes documenting the type of problem, proposed action plan, disciplinary actions, timeline, and escalation actions
Address misconduct, performance and safety issues immediately, consistently, and document every detail
If performance issues aren’t documented in real time, they can’t credibly justify later adverse actions
Drug testing:
Must be disclosed in the Job Order or Employment Terms
Specify refusal or failure in your documented termination standards
Reasonable suspicion testing must be clearly defined/documented and consistently applied
Retaliation and non-rehires:
Deciding not to rehire a worker after they raise wage or compliance concerns creates a serious retaliation risk
Be careful not to use a non-rehire decision as a workaround instead of applying proper discipline or termination practices
Get onboarding tips and an SOP blueprint
Get tips for resolving worker conflicts and documentation best practices
Consequences of H2A Program non-compliance
The DOL’s WHD has the authority to impose various consequences for failing to comply with H2A compliance rules and regulations. These consequences include:
Civil monetary penalties/fines
Payment of back/unpaid wages
Suspension or debarment from the H2A Visa Program
Criminal charges in cases involving fraud, trafficking, or abuse
Damage to the company’s reputation and potential civil litigation
Civil monetary penalties
The WHD arrives at the penalty amount by considering the type of violation, the gravity of the violation, and its impact on the worker(s), and the circumstances surrounding the violation. According to data on the WHD’s website, H2A compliance violations accounted for 63% of civil money penalties assessed to all agricultural employers between FY2018 and FY2023.
Back wages
WHD may order an employer to pay back wages to make up the difference between what the worker was paid and the amount they should have been paid. According to data on the WHD’s website, H2A compliance violations accounted for 54% of back wages assessed to all agricultural employers between FY2018 and FY2023.
Here’s a sample of some of the monetary penalty and back wage amounts:
Debarment
The DOL has the authority to debar employers for substantial violations. Debarment means a temporary ban from participating in the H2A Visa Program for up to three years. In recent years, the DOL has taken steps to ensure the effectiveness of its actions to prevent debarred employers from participating in the H2A Visa Program, including developing a standard operating procedure for cross-referencing debarments with DHS data, among other things.
Debarment is reserved for substantial violations and is used sparingly. The DOL debarred 121 H2A employers from FY2018 through FY2023.
Examples of offenses subject to debarment include:
Failing to pay or provide the required wages, benefits, or working conditions
Intimidation, threats, coercion, or blacklisting of workers who file complaints
Failing to pay civil money penalties or back wages
Committing a single heinous act showing such flagrant disregard for the law that future compliance with program requirements can’t reasonably be expected
Here are two specific examples of debarment violations:
May 2022: The DOL debarred an Ohio nursery owner for 3 years for repeatedly violating H2A Visa Program rules, intimidating and threatening workers, and denying workers their full wages
October 2022: The DOL debarred a Florida-based FLC from participating in the H2A Visa Program for 3 years. Two DOL investigations found that the FLC failed to pay workers the minimum required wage and failed to provide employees with copies of their work contracts, among other violations.
Key H2A compliance takeaways for ag employers
Ensure Job Orders include deduction, drug testing, and reimbursement language
Take the necessary time during emergencies—never sacrifice documentation for speed
Treat third-party misconduct as your problem
Assume every compliance failure may be examined in a future filing
Count on USA Farm Labor’s compliance-focused approach
USA Farm Labor wrote the book on H2A compliance, literally. Every new client receives both an online and hardcopy compliance guide that’s even used by some government agencies. All clients undergo an onboarding process that clearly outlines the qualifications as well as the H2A compliance rules and regulations of the H2A Visa Program. Our expert team follows best practices, including helping you maintain accurate, organized documentation. From housing checklists to pay slip templates, we make it easy to ensure you’re maintaining H2A compliance. And our Strategic Compliance Alliance connects you with legal, payroll, tax, and timekeeping experts to guide and protect you every step of the way.
