The United States H-2A visa program allows U.S. companies and employers to employ foreign agricultural workers on a temporary basis. All workers admitted to the U.S. under the H-2A visa are guaranteed certain rights regarding wages, housing, workplace safety, and other requirements. Let’s take a closer look at employee rights under the H-2A visa program.
What is the H-2A Visa program?
The H-2A visa program grants temporary work visas to agricultural laborers so that they can live and work in the U.S. on behalf of a U.S. company or employer. Here is a brief overview of the process employers must undergo in order to obtain an H-2A visa:
- Submit an agricultural work order with a State Workforce Agency (SWA)
- Initiate recruitment of U.S. agricultural workers
- File an H-2A application with the Chicago National Processing Center (NPC)
- Complete the Temporary Labor Certification Process
- The U.S. Department of Labor grants a temporary labor certificate to the employer
- The employer then completes Form I-129 with U.S. Citizenship and Immigration Services
Upon approval, the employer can then offer work contracts to foreign nationals, who then use that work agreement to file for an H-2A visa.
Who qualifies for an H-2A Visa?
To qualify for an H-2A visa, the term of work must be less than one year. While an H-2A visa can be extended for longer than a year, the maximum period of time a worker can stay in the U.S. on an H-2A visa is three years.
As seen here, the H-2A visa is only open to nationals of specific eligible countries, determined by the Department of Homeland Security. The applicant must also have a work agreement from their employer, and meet the qualifications for entry as set by Customs and Border Patrol and the Department of Homeland Security.
An H-2A worker may also bring their spouse and unmarried children under the age of 21 to live in the U.S. Note however, family members who are eligible for an H-4 visa cannot work while in the United States.
What are H-2A employee rights?
The Department of Labor and the Occupational Safety and Health Administration guarantee several rights to H-2A employees. Here is an overview of employee rights and employer obligations under the H-2A visa program:
- Rates of pay. All H-2A workers are covered by the Fair Labor Standards Act (FLSA), and must be paid the highest of one of the following rates:
- The Adverse Effect Wage Rate (AEWR);
- The applicable prevailing wage;
- The agreed-upon collective bargaining rate; or
- The Federal or State minimum wage.
- While rates may be hourly or “piece” rate, a piece rate must be no less than the prevailing rate, and the total amount paid each pay period must average out to at least the highest required wage above.
- Employees must be paid at least twice a month
- Guarantees to all workers. All H-2A workers are entitled to the “three-fourths guarantee.” This means that every employee is guaranteed to earn at least 75% of the total amount of the contract, even if the employer does not offer sufficient work days/hours to reach that amount.
- For example, if a worker has a 10-week contract to work 6 days a week and 8 hours a day, the contract promises them 480 hours. Therefore, the employer is required to pay them for at least 75%, or 360 hours, even if the employee actually works fewer than 360 hours over the 10 weeks.
- Housing. If H-2A employees and other agricultural workers cannot be reasonably expected to return home at night, the employer must provide housing at no cost to the employee. Housing must meet a wide range of safety and health standards, including:
- In rooms where workers cook, live, and sleep, a minimum of 100 square feet per person is required
- In rooms where workers sleep, each occupant must have at least 50 square feet of floor space.
- In camps with shared cooking facilities, one stove per 10 occupants shall be provided
- Housing will have a safe and adequate water supply for cooking, cleaning, and bathing
- Housing will be adequately heated, lit, kept clean, maintained, etc.
- H-2A employee housing should be inspected by the State Workforce Agency every 36 months in order for the employer to qualify for the H-2A visa program. In non-inspection years, the employer may “self-certify” that their housing meets all the necessary standards. Each state may conduct H-2A housing inspections slightly differently or on different schedules
- Meals. Employers must provide three meals per day at the Department of Labor-approved cost, or provide free and convenient facilities for workers to store food and prepare meals (i.e a kitchen).
- Transportation. Employers must provide daily transportation between housing and the worksite at no cost.
- Inbound and outbound expenses. Once the worker has completed 50% of the contract, the employer must reimburse them for reasonable costs related to transportation and subsistence necessary to emigrate to the job. Upon completion of the contract, the employer must provide or pay for transportation and subsistence for the employee to return home.
- Equipment. Any required tools, supplies, and equipment necessary to do the work will be provided to the employee at no charge.
- Earning records. Employers must keep accurate written records that include the number of work hours offered each day, and the number of hours actually worked by the employee. On or before each payday, the worker will be given a written earnings statement that includes:
- Hours of work offered;
- Hours actually worked and/or units actually produced;
- Hourly rate and/or piece rate;
- Total earnings; and
- Any and all deductions from earnings.
- Written agreements. No later than the time at which the H-2A worker applies for their visa, the worker must be given a written copy of a contract or work agreement, in a language that the employee understands. At the very least, the work agreement must include the information the employer provided to the Department of Labor, which includes:
- The beginning and end of the contract period;
- The location(s) of work to be performed;
- The hours per day and days per week that they will be expected to work;
- The crop(s) to be worked and/or each job that will be performed
- The applicable rate(s) for each job;
- Any and all conditions of employment, including payment for the migrant’s incoming transport expenses, housing and meals that will be provided, and any specific days where work will not be required (holidays);
- Worker’s compensation insurance will be provided to the employee at no charge; and
- Any allowable deductions (meals at DOL-approved rates, applicable taxes, etc.).
- Additional protections. H-2A workers also have a broad range of protections under the law. Employers may not hold passports or immigration documents or seek payment for anything related to the costs of the H-2A visa (including immigration fees, attorney costs, application fees, etc.). Employers may not discriminate or retaliate against employees who have exercised or asserted any of their rights, including by consulting with an attorney, filing a complaint, or testifying in court.
How can Farmer Law help with H-2A employee rights?
The H-2A visa process can be complicated, and both employees and employers have to comply with a variety of laws, regulations, and standards. An immigration attorney who specializes in agriculture and migrant workers can help guide employees and employers efficiently through the process. For H-2A employees who suspect that their rights are not being respected, consulting a qualified attorney is the first step toward ensuring your rights and protecting your interests.