DOL Policy Change: Staggered Entry for H-2A Workers is Back!

Key Takeaways for Employers:

• Staggered Start Dates Are Now Allowed: The Department of Labor (DOL) has reversed its long-standing policy that required H-2A workers to arrive on the same date. Employers can now stagger worker arrivals throughout the season.

• Three-Quarter Guarantee Still Applies: DOL specifically noted the policy change is intended to benefit H-2A employers that may have challenges accurately predicting their labor needs because the timing of their diversified agricultural work is highly sensitive due to unpredictable weather conditions.

• Uncertainty to DOL’s Future Standards for Staggering: While we welcome the Department’s policy change, DOL also posted an announcement on the OFLC website on 08/25/2025, indicating the employer should “identify other subsequent date(s) of need using Field A.8.a on the job order to more accurately represent their seasonal labor demands, so prospective U.S. applicants are better informed and have a fair opportunity to fill these jobs…” where the employer intends on staggering workers. In other words, it appears that DOL is expecting the employer to list out anticipated staggering dates, which is not currently captured in a field on the ETA-790A. Moreover, DOL publicly represented at the FFVA Labor Forum on 08/27/2025, with Seso in attendance, that WHD may consider staggered arrivals at times other than those indicated in the job duties section of the ETA-790A could be considered a violation. Based on these early indicators, we anticipate further guidance from DOL.

• Domestic Recruitment Obligations Remain: The domestic recruitment obligations still apply, even when workers arrive at different times. Employers must adhere to these requirements even with staggered entry.

• Stay Strategic: Staggering workers can increase flexibility, but it requires strategic planning to avoid unintended consequences. Employers should be careful with consolidating contracts and ensure that staggered entry is aligned with the peak labor needs.

In a groundbreaking move for agricultural employers, the U.S. Department of Labor (DOL) has decided to rescind the 2011 Frequently Asked Question (FAQ) that prohibited staggered start dates for H-2A workers. This change, effective immediately, offers significant flexibility for employers to adjust their labor force according to fluctuating seasonal demands.

Under the DOL’s previous guidance, employers had to file separate applications for workers arriving on different dates, leading to unnecessary paperwork and delays. With the new policy, employers can now bring in workers at different stages of the season without the administrative burden of multiple filings. This change opens up the possibility of aligning worker arrivals with crop cycles, making the hiring process smoother and more efficient.

However, as with any policy change, it’s essential for employers to navigate this new flexibility with caution. Here’s a breakdown of what’s changing and what remains the same.

What’s Changing:

1. Staggered Start Dates Are Allowed:
Previously, all H-2A workers had to arrive on the same date. With the DOL’s updated policy, employers can now stagger their workforce's entry dates throughout the season. This flexibility is especially beneficial for crops with unpredictable harvest schedules or varying labor needs.

2. Strategic Consolidation of Contracts:
Employers may be able to consolidate multiple contracts into a single, longer-term contract with staggered worker arrivals, assuming the labor need is consistent with staggering arrivals towards a continually building labor need. This approach can save time and resources, but it’s important to weigh the potential impact on the three-quarter guarantee and the overall contract structure.

What’s Not Changing

1. The Three-Quarter Guarantee:
Despite the new flexibility, employers must still comply with the three-quarter guarantee. The guarantee is based on the actual hours worked by each worker, meaning that workers who arrive later in the season will only be guaranteed hours for the period they are employed, not for the full contract length.

2. Domestic Recruitment Obligations:
Even with staggered start dates, employers are still required to meet the domestic recruitment obligations for all H-2A workers, including those arriving later in the season. It’s important to continue following the rules for recruitment reports and final reports as usual.

When Staggering Arrivals Makes Sense – And When It Doesn’t

While the flexibility of staggered entry dates offers numerous benefits, it's important to evaluate whether this strategy fits your specific labor needs. Staggering doesn’t work for every situation, so employers must assess whether this approach is suitable for their operations.

When Staggering Makes Sense:

• Slow Build-Up to Peak Labor Needs:
  If your season has a gradual increase in labor demand, staggering can be a great fit. For example, apple orchards, where workers are needed for light tasks like pruning early in the season, but labor needs spike during harvest, can benefit from bringing workers in at different times. Staggering allows employers to bring in the right number of workers at the right time, reducing unnecessary labor costs during slower periods while ensuring a full workforce when the peak demand hits.

• Predictable and Seasonal Workloads:
  For crops or industries that experience a defined peak (such as certain berry crops or nurseries), staggering entry dates can align the labor force more closely with actual workload demands. If you know that you’ll need more workers halfway through the season, you can wait until then to bring in the additional workers without overburdening your operation early on.

When Staggering Does Not Make Sense:

• Short, High-Intensity Seasons:
  For crops that have a rapid, high-intensity harvest period with minimal need for labor afterward (like some leafy greens or certain vegetable crops), staggering workers doesn’t make as much sense. These types of contracts often require all workers at once for a burst of activity followed by a quick exit once the harvest is completed. In these cases, staggering could lead to inefficiencies and the risk of having workers who are underutilized.

• Flat Labor Demand Across the Season:
  If your operation requires a consistent labor force throughout the season, such as with livestock work or ongoing farm maintenance, staggering doesn’t offer many benefits. Consolidating contracts and bringing in workers at once will likely be more efficient and cost-effective for these types of steady, all-season needs.

Strategic Considerations:
Employers should carefully assess their labor curves and decide whether staggering aligns with their production cycles. For some, a slow ramp-up in labor needs combined with a strong peak is the ideal use case for staggering. However, if your season has a sharp, one-time peak followed by a rapid decline, staggering might complicate things more than it helps. Staggering should be viewed as a tool for flexibility, not a one-size-fits-all solution.

Key Strategic Considerations for Employers

• Track Worker Arrivals Carefully: Make sure to track each worker’s arrival date and the hours worked. The three-quarter guarantee is unique to each worker based on their actual work period.

• Understand the Impact on the Three-Quarter Guarantee: Workers arriving later in the contract will only be guaranteed a percentage of the total hours based on when they start working. Be sure to monitor this to avoid violations.

• Evaluate the Costs and Benefits of Staggering: While staggering workers can help align labor with production cycles, it may also create complications when trying to balance the three-quarter guarantee and recruitment obligations. Strategic planning is key.

Conclusion

This DOL policy change is a win for employers who need more flexibility in managing their seasonal workforce. By allowing staggered worker arrivals, employers can respond more effectively to crop conditions and labor needs. However, it’s crucial to continue adhering to all other H-2A regulations, including the three-quarter guarantee and domestic recruitment requirements. With the right strategy and tracking in place, this new flexibility can significantly improve operational efficiency and reduce the administrative burden on employers.

If you have any questions or need assistance navigating this change, our team at Seso is here to help. Reach out today to learn more about how we can support your H-2A workforce needs.