The H-2A program is quite complex and there is a lot of information to take in at once, so we have summarized some of the most frequently asked questions we get from employers. Feel free to contact us for more details.
Is the H-2A program right for me?
If you meet the following criteria, then most likely, yes:
- The work you perform is agricultural in nature.
- Your labor need is seasonal or you have a significant workload increase during certain months.
- There are not enough U.S. workers willing, able, qualified, and available to perform the work.
How many workers should I ask for?
Based on your business history and/or upcoming season’s forecast, request the number of workers you realistically expect to keep busy on a full-time basis.
How do I choose my dates of need?
A single H-2A need can last up to 10 months. You should set both your start and end dates based on your honest estimation of when you start to get busier and start to slow down.
How many hours should I offer my H-2A Worker?
H-2A contracts are full-time jobs: which means you should offer your H-2As (and workers in corresponding employment) at least 35 hours per workweek. However, these workers typically expect, and are willing to work as many hours as you can provide.
Who determines the wage I am supposed to pay my H-2A workers?
Each year, the DOL sets the hourly wage you must pay H-2A workers and any workers in corresponding employment. We will notify you when the wages are updated for you to make the adjustments accordingly.
Which workers are considered to be in corresponding employment?
Workers in corresponding employment are those who perform any work described on your H-2A job order, or any agricultural work performed by your H-2A workers.
To qualify for corresponding employment, the work must be performed during the period of your H-2A job order.
Will workers have Social Security Numbers (SSNs)?
- If you are their first U.S. employer, they will not have an SSN yet. You are required to assist them in obtaining one, by taking them to the nearest Social Security Administration office ideally within 15 days of arrival.
- If your H-2As worked in the US before, then they already have a SSN and will provide you with a copy when they arrive.
What if some weeks are slower and I can’t offer 35 hours?
This is where the “three fourth guarantee” rule comes into play. H-2A employers must guarantee to offer workers a total number of hours equal to at least three fourths of the workdays of the total contract period. That is, at least 75% of the total number of hours.
- Assuming a 40-hour workweek, and a 40-week contract: 40 hours x 40 weeks = 1,600 hours. So, the 3/4 guarantee rule is reached when workers have been offered 1,200 hours.
- The calculation varies from worker to worker as they might not all arrive or start working for you on the exact same day. The three-fourth guarantee begins with the first workday after the worker arrives. Make sure you keep track and make this calculation before each worker goes home at the end of the season.
- Continuing with the same example, if you were not able to offer your workers 1,200 hours before the end of the season, you are required to pay them the amount they would have earned had they worked the guaranteed number of hours.
What if I don’t have enough work and need to send workers home?
First, ensure you reached the three-fourths guarantee. If workers are unable to secure a subsequent H-2A employer, then you are required to pay for or reimburse their outbound transportation.
Can I extend my contract if the season gets longer or busier than expected?
Yes. If due to unforeseen circumstances, you remain busy and need to keep your workers for longer, you can potentially file an extension. Depending on the scenario, your H-2 Visa Consultants (H2VC) case manager will advise you on the most convenient route.
Are visas replaceable?
Yes. In the event you used all the visas you were certified for, and you lost one of your H-2A workers, we can help you file a replacement petition.
What should I do if my H-2A worker quits or needs to be dismissed?
You are required to notify Department of Labor (DOL) and Department of Homeland Security (DHS) of any early departures within 2 days after the separation. Your H-2 Visa Consultants (H2VC) representative can assist you with that.
Please contact your case manager immediately if a worker leaves early.
What does the onboarding process for H-2A workers involve?
Treat your H-2A workers identically to your American workers. The onboarding process is the same, but please make sure you are taking these additional steps:
- Make copies of your workers’ passport and H-2A visa.
- Take note of your workers’ SSN (or help them obtain one).
- Take note of the workers’ permanent address (not their US address).
When should I pay my H-2A workers?
You must pay your H-2A workers at least every two weeks. On or before each payday, you must provide them with a detailed paystub that includes the following information:
- The workers’ total earnings for each workweek in the pay period.
- Hourly rate and/or piece rate of pay.
- For each workweek in the pay period the hours of employment offered to the worker.
- For each workweek in the pay period the hours actually worked by the worker.
- An itemization of all deductions made from or additions made to the worker’s wages.
- Daily units produced (if paid by piece rate).
- Start and end dates of the pay period.
- Employer’s name, address, and Federal Employer Identification Number (FEIN).
Am I responsible for workers’ visa fees?
Yes. You must either:
- Pay all visa, border crossing, and related fees directly, or
- Reimburse the worker for these expenses within the first workweek.
Should I pay for my workers’ inbound transportation expenses?
Yes. You are required to pay or reimburse your workers’ inbound transportation and subsistence costs (meals and lodging at the consulate city). The U.S. Department of Labor (DOL) considers these expenses from the moment workers leave their homes. Generally, you should reimburse these costs within the first workweek. This includes:
- Visa fee ($205), if you did not provide your credit card to your agent for advance payment.
- Transportation from the worker’s hometown to the consulate city.
- Daily subsistence (per diem) to cover meals and lodging in the consulate city; DOL sets minimum and maximum amounts each year—check with your H2VC representative for current rates.
- Transportation from the consulate city to your company.
- U.S. Customs and Border Protection (CBP) land border crossing fee of $30, if applicable.
Do H-2A workers pay taxes?
H-2A workers are exempt from U.S. Social Security and Medicare taxes, but they might be subject to other Federal and State taxes.
Please refer all your tax-related questions to your CPA for better guidance.
Should I pay for my workers’ outbound transportation?
Yes. When you end the workers’ employment, you must pay for or reimburse their outbound transportation and daily subsistence costs. However, if a worker voluntarily quits before the contract ends or is terminated for cause, you are not responsible for these outbound expenses.
Am I required to provide transportation to and from work?
Yes. You should provide transportation between the housing you provided and the place of employment at no cost to the worker.
Can H-2A workers drive in the U.S.?
Yes, as long as they have or are able to obtain a valid US driver’s license. Generally, workers can go to the DMV after they arrive to the US, and apply for a local driver’s license. This license will expire in line with their work visas. Some Mexican CDL drivers have an international drivers license that is automatically valid in the US, and they don’t have to obtain a US CDL.
Do I have to provide medical insurance to my workers?
Beyond workers’ compensation coverage, you are not required to provide additional medical insurance for your H-2A workers. However, it is recommended that workers explore private medical insurance options themselves, as unexpected medical costs can be significant.
H-2A employers must have workers’ compensation coverage in every state where they will be working.
Am I required to provide housing for my workers?
Yes. H-2A employers must provide housing at no cost to the workers. This could be a place you own, rent, or even a hotel accommodation. The DOL will inspect employee housing and must comply with OSHA standards.
Should I worry about audits?
The H-2A program is a federal visa program, so employers are subject to audits by various government agencies, including:
- Department of Labor’s Employment and Training Administration
- Department of Labor’s Wage and Hour Division
- Department of Homeland Security
Audits are typically random, and if/when the time comes, we will assist you through the process as well. Make sure to notify your H2VC case manager if you have been selected for an audit.
Regulations require you to retain all H-2A related documents including payroll records for three years.
