Pitfalls and Potential Consequences of Applying for the H2A Program on Your Own
Self-applying is one of your three H2A Program application options
If you own a U.S. farm or ag business, there’s a high likelihood you’re either considering or already using the H2A Visa Program. The H2A Program is complicated and H2A rules and regulations are always changing. These two things can make farm and ag business owners shy away from participating in the H2A Program. The good news is you have three options for submitting your H2A application, which we covered in a previous blog—applying on your own, using an attorney, or relying on an H2A agency. This blog focuses on what you need to know if you choose the option of applying on your own.
Do most ag businesses apply for the H2A Program on their own?
Despite the fact that all the forms are readily available online for us to file our own taxes—the reality is roughly 50% of us pay for software or hire a professional to do our taxes. A significant portion of do-it-yourselfers still seek professional assistance in the future because, unfortunately, mistakes can be costly.
The same applies to the H2A Program. According to the USDA Economic Research Service (ERS), only 15% of H2A program applications were submitted by individual ag employers (this data is from 2020, the latest year available). Since the program has only become more complex over time, we can assume the 2025 number may be even lower. 85% of applications were filed using third-party agents, such as attorneys or agencies. Agencies accounted for 45%, the largest share. The reasons cited for using third parties were the complexity of the process and desire to avoid compliance issues and risk.
Filing for the H2A Program on your own
There’s much more to the H2A Program process than simply submitting an application. Our previous blog goes into detail about the key steps involved in hiring H2A labor. Even if you can apply on your own and are approved for a Temporary Labor Certification, you still have to find skilled foreign workers and be confident they can actually do the jobs you need them to do. Many of our clients tried the self-filing method before partnering with us. Read what one of our clients, Schilling Feed Lot and Farms, shares about applying for the H2A Program on their own versus working with USA Farm Labor.
One important thing to note, while the direct costs may appear to be less expensive when you apply on your own rather than using an attorney or agency, there may be hidden costs and compliance risks that can end up costing you more in the long run. We’ve identified some of the hidden costs further down in this post.
“I work with USA FARM LABOR and our experience has been positive’ … they will save you money in the end because if you screw something up and you get audited, those fines can be unbelievable.”
– Cheryl (Venturia, ND)
What are common mistakes I should avoid when filing for the H2A program on my own?
H2A rules and regulations aren’t suggestions, they’re mandatory requirements. Even small technical errors can lead to delays, Notices of Deficiency (NODs) or denials. When you apply for the H2A Program yourself, you’re on your own to resolve these issues.
Here are some of the most common mistakes H2A employers make when self-filing for the H2A Program:
Not meeting the eligibility requirements: The H2A Program eligibility criteria are clear, and certain farms, including dairy and poultry, are currently excluded from eligibility. Satisfying these requirements is the first hurdle to participating in the program.
Not meeting all the H2A employer requirements: The H2A Program requires employers to have specific licenses and coverage in place, as well as provide certain benefits and reimbursements to foreign workers. These H2A employer requirements vary depending on the type of ag business you have. Not complying with these requirements, or not providing sufficient documentation for these requirements, can lead to delays, NODs, or denials.
Submitting incomplete, inaccurate, or outdated forms: The H2A Program process can be overwhelming, and the Department of Labor (DOL) and U.S. Citizenship and Immigration Services (USCIS) often update their forms, so it’s not uncommon for employers to submit incomplete or outdated forms.
Failing to provide or providing insufficient documentation: Successfully applying to, and participating in, the H2A Program is all about the details, especially when it comes to providing justification and proof. Key areas where this is especially critical, and H2A employers often fall short, include:
Lack of evidence demonstrating your need for temporary or seasonal ag labor
Failing to prove your inability to find sufficient qualified domestic workers
Lack of sufficient recruitment documentation is a biggie. Many of the H2A Program rules and regulations exist to ensure U.S. workers will not be negatively impacted. Every detail will be scrutinized—even your job ad language, and things like laying off U.S. workers without cause within a certain window prior to your start date.
Not clearly documenting the types of workers and tasks needed
Failure to provide sufficient proof of employer requirements, such as housing and transportation, as mentioned above
Making costly application errors: The details you include on your ETA-790 and 9142A must be meticulous. Things like using the wrong language on your job order, miscalculating wages or AEWRs, not providing clear criteria for additional or bonus pay, or supplying inconsistent or changed dates can cost you.
Missing deadlines: The H2A process has specific milestones and windows for submitted forms, getting housing inspected, and the like. Employers often fail to map out the timeline or underestimate how soon they actually need to start the process to get their workers on time. This also includes not promptly responding to NODs.
Get a detailed breakdown of the H2A Program process timeline
Providing adequate housing: Housing is one of the biggest problem areas for H2A employers when it comes to clearly understanding both state and federal requirements, preparing for their housing inspection, and getting the inspection completed on time
What negative consequences should I be aware of when applying for the H2A Program on my own?
If you choose to go the self-filing route, it’s important that you proceed down that path with your eyes wide open. Here are some potential pitfalls to be aware of:
Significant administrative burden and time drain:
Having to communicate with multiple government agencies can consume more time than you may think
Needing to follow up quickly on any NODs and other requests when you most likely have more pressing business or operational matters to focus on
Satisfying the many compliance requirements means continual, diligent, accurate tracking of every detail—including wages, hours, reimbursements, recruitment, and more
Employers often underestimate the ongoing obligations and unexpected compliance burdens which don’t go away once you’ve applied
Less time for growing your business and spending time with family:
Handling every aspect of the H2A Program process steals precious weeks away from family
Being solely responsible for the H2A Program administration and compliance means less time managing crops, livestock, crews, and operations—and you’re already short-handed
Increased risk:
Since farming is a time-sensitive endeavor, consistency and reliability mean everything, so it’s not surprising that many ag business owners fear unpredictability during critical labor windows even more than having their H2A applications denied
Most employers don’t know how to effectively appeal or overcome a denial, putting future harvests, and profits, in jeopardy
Even minor compliance mistakes can add unexpected costs in fines and penalties
Inconsistent wage practices can trigger discrimination or back wage exposure
NODs, denials, worker delays, and policy changes are common, leaving you to:
Troubleshoot and resolve these on your own
Interpret government notices yourself
Bear the full responsibility for timely responses
Not being able to find skilled, reliable foreign workers, or get them on time, could jeopardize your entire harvest
Hidden costs:
Unexpected fines or penalties that result from compliance issues
Potential waste, lost production, or lost profit due to late filings, delays, denials, or late worker arrival
Emergency labor premiums
Potential back wages due to miscalculations
Penalties that result from DOL audits and/or reclassification of workers from Level 1 to Level 2 retroactively
Re-filing expenses
Missed opportunities that may result from management distraction
What best practices should I follow when applying for the H2A Program on my own?
While there are potentially many mistakes that can be made during the H2A Program application process, following best practices can help improve your chances of approval and reduce your risk and liability.
Here are some important best practices to follow when applying for the H2A Program on your own:
Clearly understand the H2A Program eligibility requirements and ensure you sufficiently justify your need
Clearly understand the H2A employer requirements, including all the worker-related H2A Program responsibilities, and ensure you provide sufficient documentation for how you will satisfy each one
Clearly understand the H2A process timeline and key deadlines, and set reminders to ensure you submit paperwork and complete inspections on time
Think through the types of tasks you need your workers to perform, the skill levels involved, and which SOC codes are the best fit
Clearly understand the minimum wage and AEWR for your state, how taxes are handled, and clearly identify the criteria for higher pay, if applicable, to avoid post-audit reclassification and back wage liability
Respond to all NODs in a timely way
Document everything and stay organized—especially when it comes to hours, wages, housing, and recruitment efforts
Stay current on changes to H2A rules and regulations
Make sure you use the most current versions of DOL and USCIS forms and adhere to the current processes
What are the benefits of using an H2A agency to apply for the H2A Program?
Preparation, attention to detail, and consistently applying best practices are a must if you want to be confident of receiving your Temporary Labor Certification. And, while you can complete all the forms and steps on your own, applying for the H2A Program is a big job—and you already have a very demanding one.
Getting the help of an experienced H2A agency like USA Farm Labor can:
Simplify your life by removing much of the administrative burden, managing all communications with the government agencies, and giving you one convenient place to house all your H2A Program documents
Help ensure consistently profitable harvests by applying best practices and, in the case of USA Farm Labor, giving you access to skilled, verified workers
Minimize your risk by ensuring you’re aware of all the H2A rules and regulations, including all recent changes, and help you avoid any mistakes
Free up time to focus on growing your business
Learn more about what an H2A agency can, and should, do for you
Rest easier with a full-service H2A agency behind you
USA Farm Labor’s experts are with you every step of the way, keeping you informed, applying best practices, managing your paperwork, and putting 6,000-plus skilled, verified workers at your fingertips. We’ll even help you rehire reliable workers.
You can apply for the H2A Program with confidence, knowing USA Farm Labor has a 22-plus-year proven track record of excellence, evidenced by our 99% approval rate, 97% customer satisfaction rate, and 93% successful worker placement rate.
