Sod is a crop. It is grown in a field, cut on a schedule, and it dies if it sits on a pallet. For a sod farm, the sale is not finished when the roll leaves the yard. The sale is finished when that same sod is on the ground and can keep growing. That last step is what some people call “replanting,” and it is what makes other people say the job is landscaping and belongs in H-2B.
That fight is real. It is also narrower than the rumor.
Growing Sod is farming
A turf farm that plants, waters, fertilizes, mows, and harvests sod is producing a horticultural commodity. That work is agricultural labor under the H-2A rules. Seasonal need follows the growing year. Winter stops production. Spring starts it again. That part is not the controversy. Laying the farm’s own sod can be part of that same farm.
Department of Labor rules on nursery and landscaping work say this in plain terms. Employees of the grower who raised the stock are doing agricultural work when they plant that stock on private or public property and do the care needed to keep it alive. The planting is treated as a marketing step of the farm that grew it, not as a separate landscape company. That rule is 29 CFR 780.206(a).
That is the rule sod farms use when they tell the Chicago National Processing Center, in the job order, that workers will harvest the farm’s sod and re-plant that same sod so the commodity survives. Sod is perishable. Industry practice is to harvest, haul, and lay it within a day or two. If the farm only lays what it grew, that install is how the crop is sold.
Other certified H-2A sod orders describe the same work: grow it, cut it, deliver it, and install only the farm’s own product.
The case that got everyone worried.
The scare came from a lawsuit in the Western District of Missouri, Rios-Gutierrez v. Briggs Traditional Turf Farm. H-2A workers said they were brought in as farmworkers and then sent to lay sod and do landscape-type work on homes, businesses, and government sites. They sued for overtime. The farm said laying sod was still agriculture. The judge said an H-2A visa does not automatically make the work FLSA agriculture, and the farm did not prove the off-farm days were incidental to its own farming. The workers won a ruling that the agricultural overtime exemption did not apply to that off-farm work.
Read that carefully. It is a wage-and-hour case about what those workers actually did on those sites. It is not a holding that CNPC may never certify a sod farm that lays its own grass. It is also not a holding that every roll laid on a customer lawn is landscaping.
The fact pattern that gets farms in trouble is the one the regulation already flags. Planting on residential, business, or public property is not agriculture when the employer did not grow the stock, or when the planting is part of landscaping that is principally laying sod plus walks, drives, pools, and the rest of a design-build package. That limit is 29 CFR 780.206(b).
The same idea shows up in the older “purchased stock” cases. Work on plants the employer bought from someone else is not that employer’s farming.
A separate Oklahoma matter against a sod-and-landscape retailer was about retail store workers and overtime, not about CNPC denying a grower’s H-2A order.
What still works
If the employer is a sod farm, the crew grows the sod, and the only grass they lay is that farm’s sod, the H-2A theory is still the one in 29 CFR 780.206(a): subordinate marketing of the grower’s own horticultural commodity.
That only holds if the file matches the facts:
· The employer grows the sod. Not “most weeks we buy extra pallets.”
· Install is the last step of that harvest, not a side landscape company.
· The job order says so. Do not hide re-plant in a need letter that only talks about mowing fields.
· Customer sites are places of employment. Disclose the area.
· Do not add beds, irrigation packages, pavers, or lawns built with other people’s grass on the same order.
That is being transparent with CNPC. The job order should read like the work: plant, grow, harvest, deliver, and re-plant sod grown by this farm.
What does not work:
· A landscape contractor who buys sod and wants H-2A because “it goes on dirt.” That is H-2B.
· A farm that grows some sod and fills orders with purchased rolls. The purchased part is not the farm’s commodity.
· A job order that says, “farm equipment operator” and a season spent only in town on other people’s yards.
· Treating an H-2A approval as an overtime exemption. Certification and the FLSA are different statutes. The Missouri court said exactly that.
Bottom line for Sod Farms
Growing sod is H-2A work. Laying your sod, as the last step of selling a live crop, can stay in that same certification when you tell CNPC the truth and you do not operate a landscaping business on the side of the same job order. The case that scared the industry was about off-farm work the court treated as landscaping, and about a farm that did not prove the grass and the job were its own farming. It did not repeal the regulation that allows a grower to plant the stock it raised.
H2 Visa Consultants files these as sod farms. The commodity is the farm’s turf. The re-plant is how that commodity is sold. We put that in the job order so CNPC is not guessing.
Sources:
· 29 CFR 780.205 and 780.206 (nursery activities; planting the grower’s own stock on private or public property versus landscaping).
· 20 CFR 655.103(c) (H-2A definition of agricultural labor or services).
· Rios-Gutierrez v. Briggs Traditional Turf Farm, Inc., No. 4:21-cv-00374 (W.D. Mo.) (FLSA overtime claim over off-farm sod and landscape-type work; an H-2A visa does not by itself create the agricultural overtime exemption).
· U.S. Department of Labor, Wage and Hour Division, consent judgment involving Rob’s Sod Inc. / Green Acre Sod & Landscape Center (N.D. Okla. 2024) (retail landscape-store work is not the farm exemption)
H2 Visa Consultants, LLC is not a law firm and does not provide legal advice. This article is for general information only. It is not legal advice. H-2A certification, job duties, worksites, and wage obligations depend on the facts of each employer and on current Department of Labor and U.S. Citizenship and Immigration Services rules. Employers should review their own operation, including whether they grow the sod they install, before relying on this summary.
Get In Contact
Questions about an active case? Contact H2 Visa Consultants, LLC at (830) 584-4555 or inquiry@h2visaconsultants.com.
H2 Visa Consultants, LLC is not a law firm and does not provide legal advice. This update is a general summary of publicly reported developments for employer clients. For legal advice on PERM, EB-3, or immigration strategy, consult a qualified attorney.