Summary of H-2A Employer Obligations
Positive Recruitment of U.S. Workers
H-2A employers must hire all eligible, willing and qualified U.S. workers who make themselves available to perform the work. Unless exempted from the Fifty Percent Rule, this obligation lasts until 50% of the work contract period.
Fifty Percent Rule
The 50% Rule requires H-2A employers to hire all qualified, able, willing and available U.S. referrals until 50% of the work contract has elapsed. If you employ no more than 7 farm workers throughout the season, then you may be eligible for exemption from the 50% Rule by letting us file your application as an individual employer. To qualify for the exemption you must not have used more than 500 man-days of agricultural labor during any calendar quarter of the preceding year. We can help small employers that meet this criteria obtain exemption from the 50% Rule. For those employer exempt from the 50% Rule, the recruitment period typically ends 3 days before the H-2A contract start date.
Adverse Effect Wage Rate
The AEWR is the H-2A wage rate set by U.S. Department of Labor for each State. Typically, the published AEWR will be the hourly wage an employer must pay H-2A workers and any U.S. workers in corresponding employment. Piece rates must be at least as much as the prevailing rate, if any, for the particular crop activity published by your State Workforce Agency. If a piece rate worker does not make at least the AEWR, then the employer will be required to make up the difference so that the worker earns at least the AEWR.
Guarantee
H-2A employers must guarantee that H-2A workers and any U.S. workers in corresponding employment are offered no less than 3/4 of the total hours in the work contract. The guarantee is not measured daily, weekly, or monthly. It is measured over the life of the work contract and begins on the day the worker arrives on site to begin work. There may be days or even weeks during which little or no work is offered. The guarantee will be met so long as the employer offers enough hours during the remainder of the work contract to make up the number of hours required by the guarantee.
Worker's Compensation Insurance
H-2A employers must provide worker's compensation insurance coverage to all employees. A certificate of worker's compensation insurance coverage is required in order to begin the application process.
Housing
For those workers who cannot reasonably return to their principal residences at the end of each workday, the employer must furnish free housing with free and convenient cooking and kitchen facilities where workers can prepare their own meals. Employer-provided housing must be registered with your State Workforce Agency in order to begin the application process. All housing must be inspected and certified no later than 45 days before your contract start date.
Relocation Costs
For those workers who cannot reasonably return to their principal residences at the end of each workday, the employer must provide or pay for the worker's relocation costs. Relocation costs include inbound transportation from the worker's home to the farm, visa fees, border crossing fees and subsistence expenses. Although the H-2A regulations say inbound transportation is to be reimbursed when the season is half complete, in order to ensure compliance with the federal Fair Labor Standards Act, all relocation costs should be paid at the end of the first payroll period immediately following the worker's arrival and commencement of work.
Free daily transportation must be provided for all workers to and from the job sites. For those workers living in employer provided housing, transportation to town at least once a week must be provided for the workers to buy groceries.
For those workers who complete the entire work contract, the employer must provide or pay the reasonable cost of returning the worker home or to the next sponsoring employer, plus subsistence pay.
We make computation of these amounts easy and certain. Just prior to the arrival of your H-2A workers, worksheets are sent to you that detail what you need to reimburse and when.
Tools and Supplies
H-2A employers furnish all tools and supplies necessary to perform the work at no cost to the workers.
Recordkeeping and Reporting
In addition to keeping up-to-date and accurate payroll records, as is required of all employers, H-2A employers must document all referrals of domestic workers to the job and report all separations from employment in writing to U.S. Department of Labor. If a foreign worker abandons the job or is terminated, then U.S. Department of Homeland Security must also be notified.
We provide the necessary forms for you to report worker abandonments and terminations to us. Upon receipt of this information from you we promptly notify the appropriate agency on your behalf and retain an electronic record as proof of compliance.
DISCLAIMER: Because of the generality of this information, what is provided herein may not be applicable or suitable in all situations and should not be acted upon without specific legal advice based on your particular situation.