Seso | Resources

H-2A FAQs Compliance FAQs Covid-19 FAQs External Resources

H-2A FAQs

H-2A Visa Overview

What is an H-2A Visa?

The H-2A visa enables agricultural employers to bring foreign workers to the U.S. to perform agricultural labor or services that are temporary or seasonal in nature. The H-2A visa program has exploded in popularity over the last 15 years - in 2019 there were over five times as many H-2A job certifications as there were in 2015, an increase of over 200,000 workers per year.

What is meant by “temporary or seasonal in nature”?

“Temporary or seasonal in nature” means employment performed at certain seasons of the year, usually in relation to the production and/or harvesting of a crop. Visas are granted for up to ten months and can be extended in certain circumstances. SESO helps you establish the facts necessary to support the argument that the need is seasonal and temporary.

Why is the H-2A program growing so much?

H-2A workers rarely abscond and growers increasingly have recognized the value of a guaranteed workforce during the most critical time of year

Growers appreciate the productivity of H-2A workers, who tend to be highly motivated. The money H-2A workers earn in the United States goes much further in their home country, and the workers are almost always highly motivated to perform well and participate in the program for multiple years.

Visa Application Overview

What steps are involved in securing a H-2A Visa?

The H-2A Visa application process involves several steps and government agencies, including your local State Workforce Agency, the Department of Labor (DOL) Chicago National Processing Center, and the US Citizenship and Immigration Services (USCIS).

SESO collects all the information we need to file your visa via an intuitive online flow, and then takes care of the rest. You can always check the status of your application in our app, and can chat or get on the phone with one of our H-2A experts whenever you have questions.

When do I need to file for the visa? How long does the application process take?

In general the entire process takes 60-75 days. You must begin the application no earlier than 75 days (and no later than 60 days) before the desired worker start date. You can see all steps involved on the Seso H-2A Timeline, or you can get in touch to begin your application today!

Can I extend existing H-2A workers’ contracts?

Yes - farmers have two options for extending workers on a current H-2A visa contract: a short term extension of less than two weeks, and a long term extension of more than two weeks. SESO can help assess whether you qualify for an extension and file for you.

How much does the visa application cost?

Application costs depend on the number of workers but at a minimum the application (including consulate fees for workers) will cost at least $700 + ~$200/worker.

SESO uses software automation to streamline some aspects of the visa and is usually at least 20% less expensive than an immigration attorney.

Hiring and Managing H-2A Workers

What is the wage rate for H-2A and what other expenses are involved?

Below is a list of H-2A related expenses to expect. SESO helps you determine the best way to feed, transport, and house your workers given your operation.

Wages: The hourly rate must be at least as high as the Adverse Effect Wage Rate (AEWR), federal or state minimum wage, or the applicable prevailing hourly wage rate, whichever is highest. The AEWR is established every year by the Department of Labor. The latest rates can be found here.
Three Fourths Guarantee: The employer must guarantee to offer each worker employment for at least three-fourths of the workdays in the work period and any extensions. Employers are protected against acts of God under the three-fourths guarantee.
Meal Costs: You must offer H-2A workers either free and convenient cooking and kitchen facilities or three meals a day, with a maximum allowable charge of $12.46 per day. (Most farms and contractors provide kitchen facilities).
Travel Costs from Country of Origin: H-2A workers qualify for meal reimbursements for the duration of their travel from their country of origin to the worksite and as well as the duration of their trip back home (up to $55.00 a day). Employers also must cover the transportation costs for these trips. SESO helps facilitate all reimbursements and guides you through this process.
Daily Transportation Costs: The employer must provide free transportation between employer's housing and the worksite. SESO can help coordinate this.
Housing: The employer must provide free housing to all H-2A workers, and the housing must be within a reasonable commuting distance (typically a 75-mile radius from the place of employment). SESO helps you find housing for your workers and manages the timeline of necessary inspections and permits to ensure you are compliant with DOL regulations.
Worker's Compensation Insurance: The employer must provide worker's compensation insurance where it is required by law. SESO helps determine the insurance needed and can also help procure the insurance.
Tools and Supplies: The employer must furnish at no cost to the worker all tools and supplies necessary to carry out the work

What happens when a H-2A worker absconds?

The H-2A employer has a duty to notify DOL and DHS. Once the DOL and DHS have been notified, the H-2A employee's visa is cancelled and he/she may be forever barred from the H-2A program. The employer can notify SESO via our app if an employee has left or been terminated, and receive help and guidance notifying the appropriate government agencies.

Compliance FAQs

How often do audits occur?

Over the last several years, there has been a significant increase in DOL audits of H-2A program participants. Audits are usually random, although they can be prompted by worker complaints. In general, you can expect an audit and/or investigation at least once every four to five years. Audits typically focus on the previous season’s H-2A activity.

How do I prepare for an audit?

Ongoing staff training and proper record keeping practices offer your best defense to a government investigation. The Seso compliance feature makes it easier to organize and track documentation which can help ensure compliance.*

How will I know the result of an audit?

There is no consistent answer to this question. The DOL handles each situation differently. In some cases, employers may never hear back from the DOL regarding the results of an audit. In other cases, the DOL will contact the employer between a few weeks or months after the audit.

What benefits do I need to provide to corresponding U.S. workers?

All U.S. workers in corresponding employment with H-2A workers must be paid the required H-2A wage rate (hourly or piece rate)
Additionally, all U.S. workers must be offered the same benefits and working conditions as U.S. workers:
transportation reimbursement
free housing (if coming from outside the local commuting distance)
free transit to/from employer provided housing and worksite
Corresponding employees must also be provided with a copy of the H-2A job contract and must be offered 3/4 of the total work hours on the contract.

What happens if an H-2A Worker is terminated?

No later than two working days after an employee is terminated or abandoned:

You must contact the CNPC. You can do this directly via e-mail by messaging TLC.Chicago@dol.gov with the words “H-2A Abandonment/Termination Notice” contained in the subject line of the e-mail. Include the following in the email:

The reason(s) for notification or late notification, if applicable;
The date of abandonment or termination;
The number of H-2A worker(s) and/or other worker(s) in corresponding employment who abandoned or was/were terminated for cause, and the name of each such H-2A worker and/or worker in corresponding employment, each employee's last known address (other than employer-provided housing);
The Application/Certification number(s); and
The employer's name; address, telephone number, and Federal Employer Identification Number (FEIN)

What are the Record Keeping Requirements for H-2A?

Seso's Compliance Module helps you track and organize record keeping requirements. Below is a list of items to keep on file:

Payroll Records:

Employee name and permanent address
Employer’s name, address and FEIN
Employer’s Federal Tax Identification Number
Total earnings for the pay period
Hourly rate and/or piece rate of pay
The nature and amount of work performed
Hours offered and hours actually worked each day - this is required on workers' paystubs.
Reasons for hours offered but not worked - this is required on workers' paystubs.
An itemization of all deductions
If piece rates are used, the units produced daily
Start and end dates of the pay period****

Copies of housing inspection from the state or federal inspection, and water certificates

Letters to former U.S. workers eligible for re-hire

Initial and supplemental recruitment reports with back up logs that show the names, addresses, and actions taken with respect to each U.S. applicant

Signed notifications to visa holding workers regarding departure

Verification of workers’ compensation insurance coverage and renewals

Emails to the DOL and Immigration regarding terminations, quits, and abandonments

Prohibition to third parties (your international recruiter) against the charging of prohibited fees and signed worker acknowledgments that no unauthorized fees have been paid

‍

Covid-19 FAQs

Will DOL's OFLC permit requests for extensions to deadlines or make other reasonable accommodations for employers and/or their authorized attorneys or agents impacted by the COVID-19 pandemic?

Yes. OFLC recognizes that the COVID-19 pandemic may have a significant impact on businesses and understands that some employers and/or their authorized attorneys or agents may not be able to timely respond to requests for information and other correspondence regarding the processing of applications for prevailing wage determinations and labor certification (e.g., Requests for Information, Notices of Deficiency, Notices of Audit Examination). Accordingly, OFLC will grant extensions of time and deadlines for employers and/or their authorized attorneys or agents affected by the COVID-19 pandemic, including for delays caused by the COVID-19 pandemic and those that occurred as a result of businesses preparing to adjust their normal operations due to the COVID-19 pandemic.

Does workers’ compensation cover COVID-19?

Probably not. Workers’ compensation covers an injury that “arises out of and in the course of employment” – i.e., the employee’s exposure is specifically “occupational” and tied to the specific conditions of their work. An EMT or emergency-room nurse who contracts COVID-19 may have a workers’ compensation claim; most ag workers would not. But, it is a case-by-case analysis.

What about H-2A housing and quarantine?

Employers of H-2A workers must provide free housing under the DOL regulations. If one or more employees develops COVID-19 symptoms, it is essential to remove them from that housing and undergo cleaning protocols immediately. The DOL H-2A regulations allow employers to substitute other housing (“rental or public accommodation housing”) if the certified housing becomes “unavailable for reasons outside the employer’s control.”20 CFR § 655.122(d)(6). Under that provision, the housing could be inspected by the SWA after the workers begin using it. As for when quarantine is appropriate for individuals showing symptoms or those who have come into contact with symptomatic individuals, employers should follow local public health guidelines, CDC guidance for employers (https://bit.ly/2Uv7NrT), and OSHA workplace safety standards (https://www.osha.gov/Publications/OSHA3990.pdf).

Do workers need to be tested?

Travel by air: Since January 26th and until further notice, international travelers, including H-2A holders, must provide proof of a negative test to airlines prior to departure towards the USA.Travel by land: There is no enforcement or requirement for presenting proof of a negative test if traveling by land. However, the government does strongly suggest workers get tested prior to entry.

Where can workers be tested?

Travel by air: All airports in Mexico now offer COVID testing on site, pricing varies according to each airport. To get tested, workers would need to arrive 1 to 1.5 hours prior to their usual arrival time at the airport.Travel by land: It is recommended that workers can get tested 1-3 days prior to their consular process. At consular cities, SESO can either recommend laboratories or make group arrangements for COVID testing.

Does SESO provide testing?

Yes, SESO works with laboratories in border cities to organize COVID testing in controlled areas. Upon request, we also recommend strategies to prioritize worker health, along with timing, steps, and contingency plans in case of positive tests.