Preparing to Apply for the H2A Program: What You Need to Know
There are various levels of requirements that farms and ag businesses must meet in order to leverage the H2A Program. At the most basic level are the criteria to be considered eligible to participate in the program, which include:
The work is agricultural, meaning the worker must carry out farm work physically on a farm or directly for a farming operation
The need is temporary, which according to the government means seasonal and 10 months or less
You’re unable to find willing, qualified American workers
You grow and own at least 51% of the commodity/product (Fixed-Site farmers)
Next, there are specific types of farms and ag businesses that can participate, and some that aren’t eligible due to the government deeming their need as year-round.
Learn more about these two levels of requirements
There are also requirements that differ based on whether you fit into the Fixed-Site farm, Farm Labor Contractor, or Custom Harvester category.
Learn more about specific requirements based on business category
This blog provides additional details on the core H2A Program requirements to help you pull together everything you’ll need to submit your application for a Temporary Labor Certification.
Preparing to apply for your Temporary Labor Certification
The process to apply for your Temporary Labor Certification, which allows you to legally hire foreign farm labor under the H2A Program, requires a lot of documents and forms. Pulling together all the necessary documents and making sure you’ve satisfied all the requirements before you apply helps ensure a smooth, timely process that results in your workers arriving on time. It also helps ensure you’re compliant with all the H2A rules and regulations from day one.
Key documents and requirements you’ll need to have ready
A Federal Employer Identification Number (FEIN)
Your FEIN is basically your tax ID number. Most businesses already have this in place but, if you don’t currently have one, you can apply online.
An active Workers’ Compensation policy
As a general rule, ag businesses aren’t required to have a Workers’ Compensation policy. However, this is a requirement to participate in the H2A Program. The cost of a Workers’ Compensation policy varies by region and by state. Your insurance agent should be able to help you get a policy in place.
You may not require workers to purchase medical insurance as a condition of employment—if you do, you’re required to pay for it. You may recommend they purchase optional health insurance to cover injuries and illnesses that occur outside of work.
Housing
Some employers question why they have to provide housing for H2A labor. We advise our clients to look at housing as an investment they can use year after year, while possibly gaining some tax benefits. Remember, H2A workers are coming to the U.S. strictly to work for you, and providing decent housing helps ensure they have their basic needs met and can focus on doing a good job for you. Also, while housing is considered a free benefit to workers, the latest Interim Final Rule includes a new calculation of the Adverse Effect Wage Rate that recognizes housing as a real economic benefit.
Acceptable forms of housing include:
A house you own
A rental, such as a house, apartment, hotel or motel room
A camper, trailer or RV (some states have restrictions)
Tiny houses typically won’t pass as there’s not sufficient space and no separation or doors for bathrooms. If your housing doesn’t contain adequate kitchen facilities for workers to make their own meals, you’ll be required to provide three meals per day, including non-work days.
Here are the main criteria that your housing must meet:
Meets either OSHA (built after April 3, 1980) or DOL/ETA (built before April 3, 1980) standards
Accommodates the total number of workers you’re requesting
Furnished and move-in ready (think of how you’d evaluate an Airbnb)
We advise our clients to equip their housing with everything they’d want their son or daughter to have if they went to work in another country.
Get a more comprehensive list of H2A housing requirements
Don’t currently have any housing available? Consider asking nearby farmers who currently participate in the H2A Program if they have extra space available to rent. It’s acceptable to share housing with other H2A employers so long as there’s adequate space for all workers. Also be aware that, if you bring a worker’s family over on H4 visas, your housing must be adequate to accommodate them as well.
You can submit your application to us before your housing is completely finalized but be aware that all your housing details—such as the type of housing, address, and how many people it will accommodate—must be included on your ETA 790, the form we submit to your State Workforce Agency (SWA) on your behalf. And once we submit your application to your local SWA, it automatically triggers a SWA housing inspection.
Housing inspections are required each year (inspections in a few states are valid for two years). Keep in mind that some states inspect rental properties. Be prepared for inspectors to assess the following:
Structure
Water supply
Kitchen and food prep areas
Bathrooms and laundry facilities
Lighting
Heating and cooling
Garbage and waste
Floors
Window and door screens
Meals
As an H2A employer, you must provide the means for your H2A workers to have three meals a day, seven days a week. Meals must be calorically sufficient, nutritionally balanced, and safe.
You have two basic options to fulfill this requirement:
Option 1: You provide housing with adequate kitchen facilities
If your housing has full kitchen facilities for workers to make their own meals, you’ll still have to provide trips for groceries a minimum of once per week for them to buy provisions. You can either drive them or provide a vehicle for them to drive themselves, provided they have a valid driver’s license. Keep in mind that, if you have a worker transporting other workers to town, it’s considered compensable time. And, since this task isn’t agriculture in nature, you may have to pay overtime if your state requires it.
Option 2: You provide catered meals
If you cater meals in, you’re allowed to deduct the daily rate set by the DOL from the worker’s pay. The current daily rate is $16.28 per day but it changes periodically, so it’s good to double check the daily rate for H2A meals. Be advised that complimentary breakfasts at hotels don’t satisfy the meal requirement.
Transportation
The H2A Program requires that you provide transportation for workers to get to and from the job site every day, as well as make weekly errands to take care of banking, laundry, grocery shopping, and other essentials. Transportation must be provided at no cost to the worker. The make, model, and number of seats for each vehicle must be provided on your ETA 790, which is essentially your Job Order.
Vehicles used for transportation must be equipped with standard safety equipment. You may either drive workers or provide a vehicle for them to use, so long as they have a valid driver’s license. If you supply a vehicle for them, you must also provide gas or reimburse workers for fuel costs. While not a requirement, we advise our clients to take workers straight from the airport upon arrival to get both their Social Security card and driver’s license.
Travel
As an H2A employer, you’re required to reimburse H2A workers for their travel to and from their home country to the U.S., as well as to and from the consulate to get their visa. Here’s a summary of specific reimbursable expenses:
Round-trip tickets for inbound and outbound travel (for the most economical options)
Subsistence (e.g., meals and lodging) during travel at a minimum of $16.28 per day, maximum of $68 per day with receipts
Transportation to and from airport to housing
Consulate fees as well as transportation, fuel, and subsistence to and from the consulate
Workers can book their own travel but we advise working with one of our recruiting agencies to find the best rates. The Department of Labor requires H2A employers to reimburse inbound and outbound travel, as well as subsistence, by the halfway point of the job contract. But per the Fair Labor Standards Act and given the potential variables involved, we advise our clients to reimburse workers within the first pay period to avoid any issues or liability later.
Get help every step of the way
The H2A rules and regulations can be overwhelming. But you don’t have to go it alone. USA Farm Labor Onboarding Specialists take the time to understand your specific needs, and walk you through the entire process, including what you’ll need to make the process of applying for your Temporary Labor Certification a smooth one.
