Legal Affairs Counsel’s Corner: Employers’ Guide to Recent Regulatory Changes in the H-2A Program

The Trump Administration's ongoing regulatory reforms across federal agencies pose a challenge for H-2A employers in staying informed about relevant changes. At Seso, we prioritize our clients' compliance with this evolving regulatory environment. To assist, our in-house legal team has developed this guide, which outlines key legislative and regulatory updates impacting the H-2A stakeholder community. This guide will be regularly updated and delivered directly to your inbox in the coming months.

All Eyes on Imminent Release of 2025 Unified Regulatory Agenda

As of this morning, the H-2A stakeholder community continues to eagerly await the forthcoming unveiling of the Trump Administration’s Spring 2025 Unified Regulatory Agenda, which is expected to take place within the next several weeks. Published on a semi-annual by the Office of Information and Regulatory Affairs (OIRA), the Unified Agenda provides the public with important insight into the regulatory plans and activities of each federal agency. When released, the Spring 2025 Agenda is expected to include key details regarding the Trump Administration’s short and long term plans to effectuate reforms to the H-2A program, including at DOL, DHS, and the State Department. 

Upon release, the Spring 2025 Agenda will be published on OIRA’s website available here. We are actively monitoring the status of the Agenda and will send out a future update shortly after it becomes available. 

USCIS Rolls Out Partial Update to Filing Fees Per Big Beautiful Bill

On July 18, 2025, USCIS announced a Federal Register Notice (FRN) will be published tomorrow which outlines the implementation of both new and updated filing fees for certain types of benefit requests in accordance with the One Big Beautiful Bill Act (H.R. 1) that was signed into law on July 4, 2025. Importantly, the new/updated fees detailed in the FRN specifically pertain to humanitarian-based visas applications, including those related to asylum, parole, and temporary protected status (TPS). 

USCIS has advised that its announcement does NOT cover the new/updated fees associated with filings by H-2 employers, but rather will be addressed in a future FRN to be published on a date yet to be announced. Such fees include: 

• New Visa Integrity Fee - $250 (non-waivable or reducible)

  • Applicable to all non-immigrant petitions, including H-2A and H-2B visas. 

  • Subject to future increases by DHS and/or annual inflation beginning in 2026

  • May be subject to reimbursement if the individual fully complies with the terms of their visa and either (1) departs the US promptly after their period of authorized stay or (2) timely obtains an extension/adjustment of lawful permanent resident.

  • Responsibility for payment by either the H-2A employer or worker has yet to be determined but it is anticipated to be allocated to the worker. 

• Updated Form I-94 Fee - increased from $6 to $24 

• Updated Electronic System for Travel Authorization (ESTA) Fee - increased from $4 to $13

We will send out a future update shortly after USCIS announces the publication of an FRN regarding these new/update fees. 

DOL Issues Employer-Friendly Guidance Facing OSHA Enforcement Actions

On July 14, 2025, the U.S. Department of Labor (DOL) announced it has updated its internal enforcement policies and procedures allowing for the reduction of penalties assessed against employers facing Occupational Safety and Health Administration (OSHA) enforcement actions to minimize the impact against small business owners and encourage prompt remediation of workplace hazards. OSHA’s new policy, detailed in the Penalties and Debt Collection section of its Field Operations Manual, offers increased penalty reductions for small employers as summarized below. 

Key Revisions:

• Expanded Small Employer Reductions: The 70% penalty reduction, previously for businesses with 10 or fewer employees, now applies to businesses with up to 25 employees.

• Prompt Abatement Reduction: A new 15% penalty reduction is available for employers who immediately address or correct a hazard.

• Expanded History-Based Reductions: A 20% penalty reduction is now offered to employers with a clean inspection history. This includes those never inspected by federal OSHA or an OSHA State Plan, as well as those inspected within the last five years with no serious, willful, or failure-to-abate violations.

Applicability:

• These new policies apply to open investigations where penalties have not yet been issued.

• Penalties issued before July 14, 2025, will remain under the previous penalty structure.

ARB Reaffirms H-2A Employers’ Corresponding Employment Obligations Limited To U.S. Workers Only

In late May 2025, the U.S. Department of Labor’s Administrative Review Board (“ARB”) dealt a major blow to the Wage & Hour Division’s (“WHD”) longstanding enforcement policy. The policy sought to expand the scope of H-2A employers’ obligations to U.S. workers engaged in employment corresponding to foreign nationals employed on non-H-2A temporary employment visas by reaffirming that only U.S. workers are covered (WHD v. Ten West Cattle, Inc., ARB Nos. 2023-0058, 2024-0003 (May 29, 2025). Over the course of a 7-year litigation history, WHD has continued to pursue civil monetary penalties and back wages against the H-2A employer, a feed lot operator, for allegedly failing to pay the AEWR to a number of trainees and interns hosted by the employer through the J-1 visa program on the grounds that they were engaged in corresponding employment with the H-2A workers. 

In ruling against WHD, ARB concluded that only U.S. workers may be engaged in "corresponding employment" with H-2A workers relying upon the legislative history of the H-2A program and DOL’s own published guidance to the stakeholder community in years prior which made clear that only U.S. workers receive the benefit of corresponding employment protections. Further, ARB concluded that since the J-1 program regulations do not authorize participants to engage in any employment whatsoever, but rather merely training, J-1 visa holders do not meet the H-2A program’s definition of a “U.S. worker.” H-2A program regulations specifically define a “U.S. worker” as “[a]n individual who is not an unauthorized alien…with respect to the employment in which the worker is engaging.” Absent proper employment authorization, an alien does not receive the protections afforded to U.S. workers via the H-2A program, including the AEWR. 

Importantly, in a concurring opinion, one of the ARB’s ALJ panel members described WHD’s actions in this litigation as “egregious” and it “put policy ahead of fairness.” The concurrence even goes as far as to conclude that the H-2A employer should be entitled to recover its attorney’s fees and costs under the Equal Access Justice Act (“EAJA”), which requires a government agency to reimburse a prevailing employer for its litigation costs unless it can establish that its position was substantially justified or other grounds exists that would make such a fee award unjust. As a result, the concurrence potentially opens the door for H-2A employers to recover their fees in future WHD enforcement proceedings. 

About two weeks following ARB’s issuance of Ten West, WHD voluntarily dismissed its appeal to ARB of another H-2A enforcement action that resulted in a substantially adverse decision involving TN visa holders who WHD had alleged were engaged in corresponding employment in the case of O’Bryan Composting LLC, 2023-TAE-0005 (Feb. 5, 2025) (Order Dismissing Alleged Violations Pertaining to TN Workers Due to Lack of Jurisdiction), appeal dismissed, Administrator, Wage and Hour Div., USDOL v. O'Bryan Composting, LLC, ARB No. 2025-0052, ALJ No. 2023-TAE-00005 (Jun. 18, 2025). In the underlying appeal, the ALJ dismissed all violations levied by WHD against the H-2A employer pertaining to its employer of TN visa program participants due to a lack of subject matter jurisdiction. The TN visa program allows Canadian and Mexican citizens to work in the United States in prearranged, professional-level jobs under the U.S.-Mexico-Canada Agreement (USMCA) (formerly NAFTA). Similar to the J-1 visa holders in Ten West, WHD alleged the TN visa workers were engaged in corresponding employment with the employer’s H-2A workers. However, unlike the H-2A program, the Secretary of Labor does not have oversight authority of the TN visa program and since the underlying validity of their visas and terms of their employment is a necessary component of a corresponding employment analysis, the ALJ had no authority to adjudicate WHD’s allegations therefore mandating a dismissal. 

Takeaway for H-2A Employers: 

These two recent decisions provide H-2A employers with long overdue clarity regarding their rights and obligations with respect to the employment of J-1 and TN visa holders. The new administration has consistently made clear that it is prioritizing American workers moving forward and if WHD’s dismissal of its appeal to ARB in O’Bryan Composting is any indication of the new DOL leadership’s agenda, H-2A employers may very well see a reduction or change in enforcement actions brought by WHD based on corresponding employment allegations involving foreign nationals employed on a temporary work visa. With these rulings, employers can strictly limit corresponding employment protections to U.S. domestic workers.