The H-2A application process generally takes about 90 days. Several program requirements, including worker housing, must be addressed before beginning the application process, which occurs no earlier than 75 days and no later than 60 days before your start date of need. Please contact másH2A at least 120 days (four months) prior to your start date of need to give our staff time to develop appropriate application materials per your specific needs. We offer early enrollment discounts.

First, másH2A files your ETA 790 – Agricultural and Food Processing Clearance Order (“job order”) with your local State Workforce Agency (SWA). The SWA reviews the job order to determine if it meets all applicable requirements and complies with state law. The SWA then issues a Notice of Acceptance and opens your job order for local (“instrastate”) U.S. recruitment.

Next, másH2A files your ETA 9142 – Application for Temporary Employment Certification with the U.S. Department of Labor (DOL). DOL reviews the application to determine if it meets applicable requirements and complies with federal law. DOL then issues a Notice of Acceptance and provides instructions for recruiting U.S. workers from other states (“interstate” recruitment). másH2A helps you prepare a report documenting your recruitment efforts. After receipt of this initial recruitment report, DOL issues your labor certification.

Finally, másH2A files your I-129 – Petition for a Nonimmigrant Worker (“visa petition”) with U.S. Citizenship and Immigration Services (USCIS), an agency of the U.S. Department of Homeland Security. USCIS reviews the visa petition and the labor certification issued by DOL to determine if you have satisfied the H-2A program requirements. Approval from USCIS allows másH2A to schedule visa interview appointments for your prospective workers at the U.S. Consulate or Embassy in their home country.

No. Employers can obtain permission to hire foreign workers only after demonstrating, to the government’s satisfaction, that insufficient numbers of U.S. workers are available. H-2A employers are also legally obligated to give preference to U.S. workers — they must offer employment to all qualified U.S. workers interested in the job. Contrary to popular belief, hiring foreign workers through the H-2A program is neither cheap nor easy. The H-2A program is often a last resort for employers that cannot locate enough legal U.S. workers to sustain their businesses.

Yes. Federal law requires you to offer employment to all qualified U.S. job applicants willing and able to do the job. You must accept applicants from all sources, including State Workforce Agency (SWA) referrals. This obligation continues through the first half of your H-2A contract period (unless you are an exempt small employer).

You are required to pay all workers in the H-2A job position (U.S. and foreign) the highest of: (1) your state’s Adverse Effect Wage Rate (AEWR); (2) the state prevailing hourly wage or piece rate; (3) an agreed-upon collective bargaining wage rate; or (4) the federal/state minimum wage. In most cases, the AEWR is the applicable hourly wage. DOL updates AEWRs on an annual basis in December or early January, and rates are effective upon publication in the Federal Register.

The Fair Labor Standards Act (FLSA) exempts most agricultural work from federal overtime pay requirements. However, individual states may impose overtime pay in certain circumstances. You should research your state’s overtime requirements before employing H-2A workers.

Your H-2A workers can perform work at any worksite that you own or operate, as long as the worksites are disclosed in your application and are within normal commuting distance from the workers’ housing. Workers cannot perform work at any worksites owned or operated by another employer unless you are an H-2A Labor Contractor (H-2ALC) and satisfy applicable H-2ALC requirements.

In most cases, fixed-site H-2A employers are limited to a single “area of intended employment” per H-2A application. Although the regulations do not provide a specific distance limitation, the area of intended employment generally includes all work locations within your Metropolitan Statistical Area (MSA) and any other work locations within normal commuting distance. As a rule of thumb, this would generally include locations within an hour’s drive of workers’ housing.

In certain circumstances, fixed-site employers may be able to operate in more than one area of intended employment without filing multiple applications. Additionally, certain categories of employers (e.g., commercial beekeepers, custom combine operators) qualify for special regulatory variances that allow itinerant work across multiple areas of intended employment.

You may employ H-2A workers up to 10 consecutive months within a single area of intended employment. Longer employment periods are not considered temporary or seasonal and thus do not qualify for the H-2A program.  Workers may transfer between H-2A employers for up to three years, after which they must depart the U.S. for at least three months before becoming eligible for a new visa. There is no limit to the number of years that you or your workers can participate in the program.

Your H-2A employment offer must reflect a work schedule of at least 35 hours per week. The U.S. Department of Labor (DOL) generally approves H-2A contracts with up to 60 hours per week without issue. Keep in mind, however, that H-2A regulations require you to offer workers at least three-fourths of the H-2A contract hours specified  (the “three-fourths guarantee”). A three-fourths guarantee shortfall means that you must pay workers the difference. Therefore, you should be accurate in your application and avoid overstating your labor need.