1. U.S. Department of Labor Wage and Hour Division
Agricultural Enforcement: H-2A

2. Purpose of the H-2A Program
The INA allows employers to import temporary, foreign agricultural workers by applying for certification that
(A) there are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services involved in the petition, and
(B) the employment of the alien in such labor or services will not adversely affect the wages and working conditions of workers in the United States similarly employed

3. WHD Enforcement Authority
The Secretary of Labor is authorized to take such actions, including imposing appropriate penalties and seeking appropriate injunctive relief and specific performance of contractual obligations, as may be necessary to assure employer compliance with terms and conditions of employment under this section.

4. WHD Enforcement Responsibility
Whether U.S. workers were offered employment
Whether U.S. workers were laid off or displaced
Payment of required wages and 3/4 guarantee
Provision of transportation, housing, and meals
Other obligations under the work contract

5. WHD Enforcement Authority
Conduct investigations, and when appropriate:
Impose penalties
Debar from future certification
Recommend revocation of existing certification
Seek injunctive relief and specific performance of contractual obligations

6. WHD Enforcement Scope Workers covered under the H-2A regulations:
H-2A visa holders
Workers in corresponding employment

7. Corresponding Employment
The employment of workers who are not H-2A workers by an H-2A employer in any work included in the job order, or in any agricultural work performed by the H-2A workers
The work must be performed during the validity period of the job order

8. Offer of Employment to U.S. Workers
Preferential Treatment Prohibited: Must offer U.S. workers terms and working conditions which are not less favorable than those offered to H-2A workers
May not impose any restrictions or obligations on U.S. workers that will not also be imposed on H-2A workers

9. Offer of Employment to U.S. Workers
Positive Recruitment: Independently conduct DOL-specified recruitment activities and cooperate with the SWA by accepting referrals of eligible U.S. workers
50% Rule: Provide employment to any qualified, eligible U.S. worker who applies for the job opportunity until 50% of the period of the work contract has elapsed

10. Layoff and Displacement of U.S. Workers
No layoffs within 60 days of the date of need, except for lawful, job-related reasons
If such a layoff has occurred, the employer must first offer the job opportunity to those laid-off U.S. workers before hiring any H-2A workers
Applies to any similarly employed U.S. worker in the occupation that is the subject of the Application in the area of intended employment
During the contract period, permissible only if all H-2A workers are laid off before any U.S. worker in corresponding employment

11. Payment of Required Wages
Highest of the following applicable rates in effect at the time work is performed:
AEWR
Prevailing wage
Agreed-upon collective bargaining rate
Federal or State minimum wage
Wages may be calculated based on hourly or piece rates of pay

12. ¾ Guarantee
Guarantee to offer the worker employment for a total number of hours equal to at least ¾ of the workdays in the contract period
Begins on the first workday after the worker arrives at the place of employment (or the contractual first date of need, whichever is later) and ends on the date the contract expires
Does not apply to H-2A workers displaced due to referrals of U.S. workers after the employer’s date of need

13. ¾ Guarantee
Each workday must consist of a full number of hours of work time as specified in the job order
Employers must maintain accurate records of hours offered and hours actually worked
Failure to meet this provision would require the employer to supplement the worker’s pay to meet the ¾ guarantee

14. Transportation
Inbound: Provide or pay for transportation and daily meals to the place of employment or reimburse workers once 50% of the work contract period has elapsed
Note: FLSA requirement for Federal Minimum Wage and reimbursement in first work week
Outbound: Provide or pay for return transportation and daily meals upon completion of the work contract period
Daily: Provide to/from camp/fields at no cost

15. Transportation
Must comply with all applicable laws and regulations, be properly insured, and be operated by licensed drivers
Safety standards, driver licensing, and vehicle insurance found in MSPA serve as a minimum

16. Housing
Provided at no cost to H-2A workers and those workers in corresponding employment who are not reasonably able to return to their residence within the same day
Inspected and approved by SWA prior to occupancy
Maintained during occupancy to meet the appropriate OSHA or ETA standards
Failure to provide compliant housing may result in revocation of an existing labor certification

17. Housing Rental/Public Accommodations
Must meet local standards
Housing-related charges must be paid directly by the employer to the housing’s management
If certified housing becomes unavailable, substitute housing must still be in compliance with the applicable housing standards

18. Meals
Provide three meals per day to each worker at no more than a DOL-specified cost OR
Furnish free and convenient cooking and kitchen facilities

19. Other Contractual Obligations Disclosure
Provide a copy of the work contract to each worker
No later than the time at which the H-2A worker applies for the visa
No later than on the first day of work for workers in corresponding employment
Must be in a language understood by the worker

20. Other Contractual Obligations Deductions
Specify in the work contract all deductions which are not required by law which will be made
The amount of any deduction must be reasonable
Same principles as used in FLSA
The amount of the deduction cannot include any profit to the employer

21. Other Contractual Obligations Deductions
Certain deductions are specifically prohibited:
Employer’s attorney fees, application fees, and recruitment costs
Tools, supplies, and equipment required
Housing
Daily transportation to/from fields and employer-provided housing

22. Other Contractual Obligations Deductions
Undisclosed deductions are impermissible
Deductions for expenses that are for the primary benefit of the employer may not bring an employee’s wages below the H-2A required wage rate
Examples: visa fees, border crossing fees, and other government- mandated fees related to employment

23. Other Contractual Obligations Notification
Notify DOL (and DHS in the case of an H-2A worker) within two (2) working days regarding abandonment of employment or termination for cause
Abandonment: Failure to report for work for five (5) consecutive working days without the consent of the employer
Employers who provide timely notice are not obligated to meet the ¾ guarantee or provide return transportation for such workers

24. Other Contractual Obligations Notice of Worker Rights
Sets out the rights and protections of H-2A workers and workers in corresponding employment
Poster may be obtained from the DOL
Must be posted in English and in another language, as necessary
Must be posted in a location where employees can readily see it

25. Other Contractual Obligations
Provide state workers’ compensation insurance or its equivalent at no cost to the worker
Provide all tools, supplies, and equipment required to perform the assigned duties at no cost to the worker
Maintain accurate records
Furnish an hours and earnings statement to each worker each payday (which must be at least twice monthly)

26. H-2A Labor Contractor Additional Assurances and Obligations
Meet all the assurances and obligations of any other H-2A employer
Provide FLC Certificate of Registration (if required) and identify FLC activities authorized to perform
Attest that housing and transportation, provided or secured by the fixed-site employer, complies with the applicable standards

27. H-2A Labor Contractor Bonding Requirement
Obtain a surety bond in the appropriate amount
Ensure it is written to cover liability incurred during the term of the period listed on the labor certification
Must remain in force no less than 2 years from the expiration date of the labor certification
Submit the original with the Application for labor certification

28. H-2A Labor Contractor Bonding Requirement
Number of Employees on the H-2A Labor Certification
Amount of Required Surety Bond
less than 25
$5,000
25-49
$10,000
50-74
$20,000
75-99
$50,000
more than 100
$75,000

29. Civil Money Penalties Maximum Each violation of the work contract
$1,500
Each willful violation of the work contract
$5,000
Each act of discrimination
Failure to cooperate with WHD investigation
Layoff or displacement of a U.S. worker
$15,000
Improper rejection of a U.S. worker
Housing or transportation safety/health violation that causes the death or injury of any worker
$50,000
Repeat or willful housing or transportation safety/health violation that causes the death or injury of any worker
$100,000

30. Debarment
Applicable to employers, successors in interest, agents, attorneys, associations, and members of associations
Substantial violation of a term or condition of the labor certification with respect to H-2A workers, workers in corresponding employment, or U.S. workers improperly rejected, laid off, or displaced
Up to 3 years from the date of the final agency decision

31. Revocation Recommendation to ETA
If WHD finds that the employer:
Substantially violated a term or condition of the labor certification,
Failed to cooperate with a DOL investigation, OR
Failed to comply with one or more sanctions or remedies imposed by WHD

32. Other Remedies Institute appropriate administrative proceedings
Recovery of unpaid wages
Make whole relief for any person who has suffered discrimination
Reinstatement and make whole relief for any U.S. worker who has been improperly rejected, laid off, or displaced
Petition any appropriate U.S. District Court for temporary or permanent injunctive relief or for an order directing specific performance of covered contractual obligations

33. Additional Information
Outreach materials, including fact sheets, workers’ rights cards, and posters, are available on the WHD website at
Toll-free information and help line is available 8am-5pm in your time zone at US-WAGE ( )

34. Disclaimer
This presentation is intended as general information only and does not carry the force of legal opinion.
The Department of Labor is providing this information as a public service. This information and related materials are presented to give the public access to information on Department of Labor programs. You should be aware that, while we try to keep the information timely and accurate, there will often be a delay between official publications of the materials and the modification of these pages. Therefore, we make no express or implied guarantees. The Federal Register and the Code of Federal Regulations remain the official source for regulatory information published by the Department of Labor. We will make every effort to keep this information current and to correct errors brought to our attention.

35. Thank You