Exploring H-2A Farm Workers
November 6, 2024 12pm ET
The H-2A visa program makes it possible for farmers to bring in citizens of other countries for agricultural work in the United States. With a tight labor market, the visa program is experiencing a lot of growth – farmers who have never considered it before are taking a closer look. This program will help farmers assess whether H-2A might help address their labor shortage issues. We’ll also go over the extensive regulatory obligations that come with participation in this program. With human trafficking also on the rise, we’ll address key ways producers can guard against worker vulnerability in this program.
Presented by Farm Commons
Our presenter, Chloe Johnson, shared this fabulous information in a follow up email:
“I am following up on last week's webinar with answers to questions I wasn't able to answer on the spot, as well as those links I promised! I would appreciate it if you could pass this on to the participants. The links will be behind a paywall for non-members, but as you know, you have a license to distribute our materials to your members. The second guide is available in PDF.
Farmers' Guide to Hiring Obligations- chapter on workers' compensation
Farmers' Guide to In-Kind Wages- housing requirements (Part II)
Here are the questions I had written down to follow up on:
Can you fire a H2A worker?
If you fire without cause and that worker has no other immediate H2A work, you must provide outbound transportation and subsistence (you can’t just leave them to their own devices). You also MUST comply with the 75% of the contract rule (you must pay at least 75% of the contract no matter how much work was done). You must notify USCIS and DHS (Dept of Homeland Security) of all terminations and resignations of H2A workers.
If you fire for cause (e.g., the worker shows up drunk for work each day or does not show up), you are not responsible for outbound transportation and subsistence, nor are you responsible for paying 75% of the contract. But, you do have to report the abandonment or termination for other reasons to the Department of Labor or Department of Homeland Security within 2 days.
How do I structure the job offer/contract to be as flexible as possible?
You have to name the activities and crops the H2A workers will be doing/working with. It is good practice to name all possible activities and crops that the workers could be working with that season so there are no surprises that could lead to conflicts or issues. However, you do have to be descriptive; you can’t be so vague that no one would understand what is being asked of the workers. Your description can’t mislead workers; it has to be accurate.
Here is the ETA-790 if you are curious about what the application looks like!
Can two farms apply together?
Yes, there is a joint application option! This is intended for employers who cannot offer at least 35 hours/week. All employers applying together have to offer the same type of agricultural work, and the work locations have to be close together. Each farm has a 34-hour-per-week MAX for each H2A worker, which can’t be exceeded.
Here’s a DOL factsheet on joint applicants.
Other ways to have multiple farms apply together would be through a grower’s association, which is usually a member-based nonprofit organization. The association could apply for the temporary labor certification and have H2A workers work at the member farms. Alternatively, farms can work together by using the same Farm Labor Contractor, who can file the application and then provide H2A workers to multiple farms in a given area.
Hope this is helpful!
Chloe”