The H 2A visa is a US temporary work route that allows foreign nationals to take up seasonal or temporary agricultural employment when there are not enough domestic workers available It provides US farms and agribusinesses with a lawful mechanism to fill labour shortages while ensuring protections for the foreign workers recruited
What this article is about This guide explains the H 2A visa in full It covers what the visa is for who qualifies and how it works It then examines employer obligations such as wages housing recruitment and transportation before moving to the step by step application process The article also addresses compliance rules visa duration family member eligibility and worker rights DEC updates have been applied to reflect DOLs current AEWR methodology housing allowance exceptions where permitted the prohibition on recruitment fees and the role of DOLDHS audits and inspections
Section A Understanding the H 2A Visa
1 What is the H 2A visa
The H 2A visa is reserved for agricultural roles that are temporary or seasonal in nature Employers may petition to bring in foreign nationals for farm work such as planting cultivating or harvesting crops as well as related roles in livestock care or equipment operation The programme is strictly regulated requiring employer certification from the Department of Labor DOL before any petition can be filed with US Citizenship and Immigration Services USCIS Its twin aims are to safeguard the domestic workforce by ensuring foreign labour is used only when there are insufficient US workers and to guarantee fair treatment for foreign workers on pay housing and working conditions
2 Who can apply
Employers US agricultural employers associations of agricultural producers or authorised H 2A labour contractors can sponsor workers They must demonstrate a genuine seasonal or temporary need and meet all DOL certification requirements
Workers Foreign nationals from countries designated by the Department of Homeland Security as eligible for H 2A participation may apply through a US consulate after petition approval The eligible country list is reviewed and updated periodically
3 Seasonal and temporary work definition
Seasonal need arises where agricultural activity is tied to a particular season or event within the year for example planting or harvest Temporary need refers to employment that is not ongoing or permanent typically limited to one year or less Employers must evidence that the duties fit these definitions The DOL scrutinises applications to ensure the role genuinely reflects seasonal or temporary agricultural work and not permanent staffing needs
Section A Summary The H 2A route fills proven seasonal or temporary labour gaps in US agriculture Employers must qualify as agricultural sponsors and workers must be from DHS listed countries The programme design balances access to labour with protections for US and foreign workers
Section B Employer Requirements
1 Proving domestic worker shortage
Before hiring H 2A workers employers must demonstrate that there are not enough US workers who are willing able and qualified to perform the temporary or seasonal agricultural work This is established through the DOL temporary labor certification process supported by evidence of timely and good faith recruitment through the State Workforce Agency and other prescribed channels
The certification will only be granted if DOL is satisfied that i an insufficient number of US workers is available and ii employing H 2A workers will not adversely affect the wages and working conditions of similarly employed US workers
2 Recruitment obligations
- File a job order with the relevant State Workforce Agency within the required timelines
- Advertise locally as prescribed and accept referrals of US workers
- Continue to hire qualified US workers through the 50 point of the contract period
- Provide terms and conditions that meet or exceed program standards and are not less favorable than those offered to H 2A workers
Recruitment fees are prohibited Employers and their agents may not seek or accept payment from workers for recruitment application processing or job placement directly or indirectly If discovered fees must be remediated and can trigger penalties or debarment
3 Wage and housing requirements
Wages Employers must pay the highest applicable rate among a the Adverse Effect Wage Rate AEWR b the prevailing wage or c the federal or state minimum wage Under DOLs current methodology the AEWR is occupation and region specific and is updated periodically employers must use the published rate that applies to the job classification and work location for the period of employment and adjust prospectively when a new rate takes effect
Housing Employers must provide free housing that meets federal and state safety standards and is inspected and approved before occupancy In limited circumstances permitted by program rules and applicable state law a housing allowance may be used instead of employer provided housing but only where expressly authorised and documented otherwise compliant housing must be provided in kind
4 Transportation and subsistence costs
- Provide or reimburse inbound transportation and subsistence from the place of recruitment to the place of employment once the worker completes 50 of the contract period
- Pay the reasonable costs of return transportation and subsistence upon completion of the contract or early termination not attributable to the worker
- Cover daily subsistence during travel at or above DOLs published minimum and not exceeding the applicable maximum
5 Record keeping audits and inspections
Employers must maintain accurate payroll hours worked housing inspection and recruitment records and make them available upon request Compliance is enforced through investigations random audits and on site inspections by the DOL including the Wage and Hour Division and DHS Breaches can result in back wage orders civil money penalties certification denials or revocations and program debarment
Section B Summary H 2A sponsors must prove a bona fide seasonal or temporary need recruit US workers first pay at least the applicable AEWRprevailingminimum wage provide compliant housing or a permitted allowance where authorised fund required transportation and subsistence and keep robust records Prohibited recruitment fees and lax compliance expose employers to investigations penalties and debarment
Section C Application Process
1 Employer petition process
The H 2A process is employer driven The first step is to file a temporary labor certification application with the DOL This includes evidence of seasonal or temporary need recruitment efforts housing compliance and wage assurances Employers must file at least 45 days before the start of work Many initiate the process earlier due to strict procedural timelines and seasonal demand
2 Department of Labor certification
The DOL reviews the application and recruitment record Certification will only be issued if DOL finds that i there are not sufficient US workers who are willing able and qualified and ii hiring H 2A workers will not adversely affect wages and working conditions of similarly employed US workers Without this certification the employer cannot proceed to USCIS
3 USCIS petition approval
Once certified the employer files Form I 129 Petition for a Nonimmigrant Worker with USCIS This filing must include the temporary labor certification and evidence supporting the temporary or seasonal nature of the work USCIS approval authorises the employer to recruit named or unnamed foreign nationals abroad
4 Consular visa application for workers
With USCIS approval foreign nationals apply for the H 2A visa at a US consulate abroad The steps include
- Completing Form DS 160 the Online Nonimmigrant Visa Application
- Paying the visa application fee
- Attending a consular interview with supporting documents
If approved the visa is stamped into the passport Admission at a US port of entry remains subject to CBP inspection which makes the final determination
Section C Summary The H 2A process involves three stages DOL labor certification USCIS petition approval and consular visa issuance Each step is mandatory time bound and designed to protect US labor while enabling lawful recruitment of foreign agricultural workers
Section D Rights Compliance and Limitations
1 Worker rights under H 2A
H 2A workers are entitled to extensive protections including
- Payment of at least the highest of the AEWR prevailing wage or statefederal minimum wage as adjusted by DOLs regional and occupational methodology
- Free housing that has been inspected and approved under federal and state standards or a permitted housing allowance only where authorised
- Provision or reimbursement of required transportation and subsistence costs
- Coverage by workers compensation insurance for job related injuries
Workers may not be charged recruitment application or placement fees either directly or indirectly They also have the right to report violations free from discrimination or retaliation and can file complaints with DOLs Wage and Hour Division
2 Employer compliance duties
Employers must uphold strict compliance standards including
- Maintaining accurate records of wages hours housing inspections and recruitment activity
- Continuing to hire qualified US applicants until the midpoint of the contract period
- Employing H 2A workers only in certified roles and worksites
- Submitting to oversight DOL and DHS conduct random audits investigations and on site inspections to enforce compliance
Non compliance can result in fines back wage liability civil penalties or debarment from the H 2A program
3 Length of stay and extensions
The H 2A visa is granted for the certified contract period typically a few months Extensions may be approved in increments of up to one year where justified The maximum continuous stay is three years After three years the worker must remain outside the US for at least three consecutive months before reapplying
4 Family members H 4 dependants
Spouses and unmarried children under 21 may accompany an H 2A worker on H 4 visas H 4 dependants may reside in the US and attend school but are not authorised to work If they wish to work they must qualify under a separate visa route
Section D Summary H 2A workers receive statutory protections on pay housing transport and safety Employers must adhere to rigorous compliance duties under active oversight by DOL and DHS Visa terms are limited to seasonal employment with a three year maximum stay and while family may accompany they cannot work under H 4 status
FAQs
How long can you stay on an H 2A visa
The visa is granted for the certified contract period Extensions may be approved in increments of up to one year where justified The maximum continuous stay is three years after which the worker must spend at least three consecutive months outside the US before seeking H 2A status again
Can H 2A workers bring family
Yes Spouses and unmarried children under 21 may apply for H 4 visas H 4 dependants may live in the US and study but are not authorised to work
What happens if the job ends early
If employment ends before the contract is completed for reasons not attributable to the worker the employer must pay the reasonable cost of return transportation and subsistence The worker must depart the US unless they secure another lawful status or a new approved H 2A petition tied to a certified position
What protections do H 2A workers have
Protections include payment of at least the highest of the AEWR prevailing wage or applicable minimum wage free inspected housing or a permitted allowance where authorised reimbursement or provision of required transportation and subsistence workers compensation coverage and the right to file complaints without retaliation
Do workers have to pay recruiters
No Recruitment application and placement fees are prohibited Employers must ensure their agents and recruiters do not charge workers Any fees discovered must be remediated and can trigger enforcement action
Can H 2A workers change employers
Only if the new employer obtains a DOL temporary labor certification and USCIS approves a new H 2A petition covering the role and location Workers may not begin work for a different employer until approval is granted
Conclusion
The H 2A visa provides a structured and lawful route for US agricultural employers to address seasonal and temporary labour shortages while embedding safeguards for both domestic and foreign workers Employers must adhere to strict compliance duties on recruitment wages housing and transportation with active oversight from the DOL and DHS Workers benefit from guaranteed protections but must comply with visa conditions to maintain lawful status
Although the H 2A visa is not a path to permanent residence it plays a critical role in sustaining US agriculture by supplying labour when domestic workers are unavailable For employers compliance is not optional but central to program participation for workers understanding rights and limitations is essential to ensuring fair treatment and lawful employment
Glossary
| H 2A Visa | A temporary nonimmigrant visa allowing foreign nationals to work in US agriculture for seasonal or temporary roles |
| Department of Labor DOL | The federal agency that certifies labour shortages sets wage standards inspects housing and enforces worker protections |
| USCIS | US Citizenship and Immigration Services which adjudicates employer petitions for H 2A workers |
| Temporary Agricultural Work | Seasonal or peak load farming activity that is not permanent and usually lasts no more than one year |
| Adverse Effect Wage Rate AEWR | A wage rate published by the DOL specific to region and occupation to ensure foreign labour does not undercut US workers wages |
| H 4 Visa | A dependant visa for spouses and children under 21 of H 2A workers it allows residence and study but not employment in the US |
Useful Links
| USCIS H 2A Temporary Agricultural Workers |
| US Department of Labor H 2A Agricultural Program |
| US State Department Temporary Worker Visas |
| DOL Employment Training Administration H 2A Program |
Author
Founder & Principal Attorney Nita Nicole Upadhye is a recognized leader in the field of US business immigration law, (The Legal 500, Chambers & Partners, Who's Who Legal and AILA) and an experienced and trusted advisor to large multinational corporates through to SMEs. She provides strategic immigration advice and specialist application support to corporations and professionals, entrepreneurs, investors, artists, actors and athletes from across the globe to meet their US-bound talent mobility needs.
Nita is an active public speaker, thought leader, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals.