Guide to H-2A Employer Requirements

The H-2A program allows American employers to  legally hire foreign temporary workers if such employers are unable to fill their agricultural labor needs with regional U.S. laborers.

In this handy guide, we will explore the H-2A employer requirements, so you know exactly how you can participate in the beneficial program. We also encourage you to look over the regulations outlined in the Department of Labor 20 CFR 655 Subpart B and 29 CFR 501

What is the H-2A Visa Program? 

The H-2A visa program was implemented by the Immigration and Nationality Act (INA), to meet the needs of American agricultural employers who cannot fill critical seasonal labor positions with U.S. workers. Under the program, U.S. employers can hire foreign workers to temporarily perform agricultural work.

But before these practices can be turned into a credit, they must be quantified. Producers will have to prove that the conservation practices implemented generate the benefit they agreed to generate, Myers said. “Then the participating program can quantify it into a credit.”

The Department’s OFLC located within the Employment and Training Administration, handles all receiving and processing of employer-filed H-2A visa applications. The department processes each H-2A application while considering whether there are enough qualified U.S. workers available to meet U.S. labor needs; the department also examines the potential impact of  hiring foreign workers on local U.S. worker wages and/or working conditions.

The Department’s Wage and Hour Division is tasked with overseeing the terms and conditions of all agricultural work contracts, while ensuring that worker protections are in place, which are outlined under the H-2A Program.

History of the H-2A Visa Program

In 1986, the U.S. Congress drafted the H-2A visa program. The purpose of the H-2A visa was to legally allow foreign workers to temporarily work for U.S. Farmers who were unable to hire American workers to fill their labor needs.

Sadly, during the 1990s, illegal workers dominated the agricultural industry and the H-2A program was hardly ever used. Today, the H-2A visa program supplies 10 percent of the nation’s farm labor. Many believe that the expansion of the H-2A visa program contributed  to the decline of illegal immigration from Mexico.

H-2A Employer Requirements

Any U.S. employer or group of agricultural producers who need temporary or seasonal agricultural workers can use the H-2A program to hire foreign workers. Each employer  must apply with the OFLC for an H-2A labor certificate.

The H-2A employer requirements are as follows:

  • Own and operate a business located in the U.S.
  • Possess a valid Federal Employer Identification Number (FEIN).
  • Have the ability to hire, pay, supervise, and fire workers as needed.
  • Labor must be agricultural in nature or provide agricultural services such as planting, cultivating, harvesting or production of crops.
  • Full time labor (at least 35 hours or more per week).
  • Seasonal or temporary work that is tied to a particular season, event, or pattern such as a crop growing cycle; and
  • Work generally lasts only 10 months or less.

H-2A Visa Application Paths

There are four paths available to potential  agricultural employers seeking to employ H-2A workers.

Standard Path

The processing time to hire H-2A workers under a standard path takes approximately  75 days. Requirements for employers are as follows:

  • Fill out and submit a domestic job order with the State Workforce Agency.
  • Apply with the Department of Labor’s Chicago National Processing Center for a temporary labor certification.
  • Await the final determination from the Department of Labor’s Chicago National Processing Center.
  • Submit a completed H-2A visa petition to the U.S. Citizenship and Immigration Services.
  • Workers must apply for an H-2A visa with the Department of State and then undergo consulate interviews.
  • Upon approval, workers can travel to the jobsite to start work on a specific date and work until a specified end date.

Emergency Path  

Employers can opt for an emergency pathway to obtain H-2A workers if there is a desperate need for laborers in less than 75 days. 

The difference between a standard and an emergency path is that under an emergency path, employers simultaneously submit the job order to the State Workforce Agency and the temporary labor certification to the Department of Labor’s Chicago National Processing Center. Employers will then follow the rest of the standard filing steps. Submitting both forms simultaneously  will save employers valuable time.

Immediate Path

The immediate path applies if an employer needs workers in 44 days or less. Under this path, employers must email (the Department of Labor’s Chicago National Processing Center) to verify that there is enough time to complete the process. In the email’s subject line, employers should type: “H-2A Program Question: Immediate Need for H-2A Workers.” Justification for the emergency need must also be presented.

Extension Path

You have options when it comes to extending your current H-2A visa contract. If you need a short-term extension of only two weeks or less, then you can submit a Petition for Nonimmigrant Worker to the US Citizenship and Immigration Services. 

If you need to extend your worker’s visa for a period longer than two weeks, then you should  send a Petition for Nonimmigrant Worker to the U.S. Citizenship and Immigration Services, along with a notice to the US Department of Labor’s Chicago National Processing Center to further explain why you are requesting an extension.

H-2A Employer Process

Obtaining a temporary labor certification from the OFLC under the H‐2A program is straightforward. The steps of obtaining an H-2A employer petition are as follows:

  • 1. SWA Job Order

Fill out and submit an agricultural  job order with the State Workforce Agency (SWA) within the state where you wish the work performed. The job order should contain:

  • Job duties.
  • Experience requirements.
  • Number of workers needed.
  • Period of employment.
  • Wages.
  • Benefits. and
  • Working conditions.

Furthermore, you will complete the following:

  • ETA Form 790 Agricultural and Food Processing Clearance Order .
  • A written explanation identifying that the job order will be used in connection with a future H‐2A application, and a request for the SWA to schedule a housing inspection.
  • You will need to take this step at least 75 to 60 days before you need the job to start.

You will need to submit more than one state agricultural job order with all local SWAs if the job is to be performed in more than one state. The SWA will inspect the job order and advise you only if there are needed corrections. If everything looks good, then the agency  will initiate the recruitment of workers. The review usually takes seven days. If there are any problems or corrections needed, then changes must be submitted generally within five days.  The SWA will then issue a final decision within three days. 

Upon acceptance, the SWA will start taking applications from U.S. workers. You must cooperate with SWA to see if you can hire American workers to fill the job openings in place of foreign workers.

  • 2. Filing With the Chicago NPC

The Chicago National Processing Center (CNPC) receives and processes all employer-filed H-2A paperwork. The CNPC is your  final point-of-contact for the last leg of the labor certification process. It’s important to note that you will not be able to file an I‐129 visa petition for H‐2A workers with USCIS until the CNPC grants a temporary labor certification. The CNPC  will review your application and let you know if there are any problems or questions. You will need to take care of this step at least 45 days before the start date of the job you are trying to fill.

File the following documents with the CNPC

The application package must be received no later than 45 days before the job’s start date, and sent to the following  address:

U.S. Department of Labor Office of Foreign Labor Certification

Chicago National Processing Center

Attention H-2A Program 

11 West Quincy Court

Chicago, Il, 60604-2105

Emergency Filing Request Requirements

Employers can also submit their application electronically. 

In some situations, an employer can file an emergency filing request in less than 45 days if they (1) are a first time applicant, (2) have experienced an immediate and unforeseen need for laborers, and (3) SWA failed to respond in a timely manner.

After  Filing: What Happens?

The CNPC will review an employer’s H-2A application and paperwork, and notify employers  within 7 days. If you filed via email, then CNPC will notify you via the email used at the time of filing. If you did not use an email, then a final determination will be sent to you via a next day delivery service.

What Happens When a Deficiency Occurs?

If you fail to complete the entire application, or fail to disclose proper wage information, benefits, or answer all questions about working conditions, then you will receive a Notice of Deficiency (NOD). The NOD states the reasons your application was unacceptable and the steps needed to correct each spotted issue. And generally, employers have five days to respond once a NOD is received.  If an employer submits an NOD response, but the certifying officer deems the response inadequate and issues a denial, then the employer can submit  an appeal to the Department’s Administrative Law Judge (ALJ). Appeals  must be filed within five business days after receiving the deficiency notice. 

If you fail to send your response requesting a review within 12 days to the CNPC, then CNPC  will consider your application abandoned and deny you the labor certification. You have only five business days to request a hearing.

  • 3. Advertising for U.S. Workers

Once you receive your Notice of Acceptance,it is time to advertise and actively try to recruit U.S. workers to fill your job needs. Outlined on the Notice of Acceptance are detailed information on where and how to advertise for workers. You will need to show details such as  when and where you advertised for U.S. workers, and what the advertisement stated. You will also need to prepare a recruitment report outlining your process to find eligible U.S. workers. Please remember, this is a critical step in the process and should not be taken lightly. The CNPC will examine your efforts to decide whether to issue you a temporary labor certification.  

You must actively advertise and recruit from the time you receive your Notice of Acceptance until the date that your H-2A workers depart for your jobsite (or the third day before your job is set to start).


Process of recruitment

  • Place at least two newspaper advertisements on separate dates. You must place one on a Sunday in a newspaper that features general circulation in the local area where the job is going to be performed. If there is no Sunday edition of the newspaper, then you will need to advertise in the daily edition of the paper with the widest audience.
  • Employers are prohibited from hiring H-2A workers if the employer laid off workers within 60 days of his or her proposed need dates, unless such employer reaches out to the fired workers. If the laid off workers then reject the job position for which H-2A workers are needed, the employer can continue with the recruitment process.
  • Often there are additional recruitment requirements with specific instruction in your Notice of Acceptance. If this is the case, then you will need to follow those instructions.

Advertisements seeking U.S. workers must contain:

  • Employer’s name
  • Location of work
  • Description outlining the job duties and what crops are being grown
  • Start/end work dates
  • Wages – hourly or piece rate
  • Whether or not the job is temporary
  • Number of job openings
  • Guarantee work for at least 3/fourth of the workdays listed
  • Tools, supplies, and necessary equipment are provided by the employer at no cost to the employee.
  • Transportation to the job site is provided or a substance or reimbursement is offered once the workers have worked for at least 50 percent of the work contract.

Job Interview Requirements

If you require interviews, then you must conduct the interview via phone or provide an alternative location where the worker is interviewed at no cost to the worker.

Preparing the Recruitment Report

While undergoing the recruitment process, the SWA may refer U.S. workers to you for consideration and send self-referrals. You will need to prepare a recruitment report and provide specific dates to submit to the CNPC.

A recruitment report will contain the following:

  • Name and contact information of all U.S. workers who were either referred or applied for the position.
  • The reason you did not hire the U.S. worker.
  • Information on how the U.S. applicant was contacted and the decision made.

You will need to continue your recruitment efforts and regularly update your report through 50 percent of the work contract.

The final recruitment report is for your own records. You do not need to submit it to the CNPC unless you are audited, or the department requests the report.

  • 4. Additional Documentation and Final Decision

The CNPC will weigh all information to determine whether there is an insufficient number of U.S. workers to meet your employment needs. CNPC must also determine that your employment of  H-2A workers will not adversely impact the working environment or wages of U.S. workers.

Final documents to be submitted include:

  • Complete recruitment report.
  • SWA Housing Certificate which shows that the workers housing complies with all requirements. .
  • Workers’ Compensation Coverage showing that your worker’s compensation insurance is valid and current. If your coverage is set to expire during the period of employment, then you must submit a written statement that says you will renew and maintain workers’ compensation coverage during the employment season/period.

What Happens if You Receive a Denial?

If, after review, the CNPC decides that your H-2A application does not meet the required criteria, a denial will be issued. The Final Determination letter will outline the reasons for your denial, and give you seven days to request a hearing. If you are denied, you must still retain all the paperwork for at least three years from the date of the denial for your own records.

Receiving a Determination

If you have successfully followed all steps and provided all the necessary documentation, then you will obtain a temporary labor certification. A final determination letter (ETA Form 9142 and Appendix A.2) and an invoice requesting payment for all fees such as the processing fee ($100) and a fee for each number of workers certified ($10 per worker) will all be included in your invoice. Failure to pay necessary fees within 30 days could cause sanctions.

Types of Determination Letters

The CNPC may issue one of the following:

  • Full Certification: A labor certification for all the H-2A workers.
  • Partial Certification: This letter is given if the number of your requested workers has been reduced or the time for the job is shortened. . You will want to take the time to examine your final determination letter to see why the workers or time span were reduced giving you only partial certification. You can also appeal the decision within seven days of receiving the determination letter.
  • 5. The Final Step

After being granted the labor certification, you can gather your certified ETA Form 9142 and Appendix A.2 to the USCIS. You must submit Form I-129 Petition for Nonimmigrant Worker to the USCIS.

FAQ About H-2A Visa

Below are a few common questions about the H-2A Visa: 

Who Qualifies for an H-2A Visa?

Workers seeking to qualify for an H-2A visa do not need to meet any specific criteria. The visa holder should be at least 18 years or older. However, the minimum age requirement does depend on the type of job and any state or local labor laws where the job is going to be performed. In most cases, the U.S. employer, also known as the H-2A petitioner, must meet all H-2A visa requirements, such as:
  • The job offered must either be temporary or seasonal.
  • There must be no U.S. workers available, willing, able, or qualified to perform the job.
  • Employing an H-2A worker will not adversely impact U.S. workers such as wages or working conditions.

How Much Does It Cost an Employer to Sponsor an H-2A Visa?

  • $460 USCIS processing fee as of January 2021.
  • $100 application fee
  • $10 per certified worker fee
  • $400 to $650 transportation to work site per worker from country of origin
  • $9,000 to $13,000 per worker for living expenses
Can Family Members Accompany H-2A Workers to the United States? 

An H-2A visa holder can bring their spouse and any unmarried children under 21 years old.  An H-2A worker can also opt to have their family join them later using an H-4 status. However, it should be noted that H-4 visas are not automatically granted. The H-2A workers must apply for each family member and supply supporting documents such as marriage certificate and birth certificates. 

How Long Does It Take to Process an H-2A Visa?

It usually takes two to four months to fully process an H-2A visa. In some cases, it might take longer.

What is the Difference Between an H-2A Visa and an H-2B Visa?

The H-2A visa is issued for seasonal or temporary agricultural workers. 

An H-2B visa is issued for non-agricultural skilled or unskilled workers, if there is a shortage of U.S. workers.

Can an H-2A Visa Lead to U.S. Citizenship?

No, an H-2A visa is for seasonal or temporary agricultural workers. It is considered a nonimmigrant visa with no pathway towards citizenship.

How Long Can Someone Stay on an H-2A Visa?

A person can stay for three years on an H-2A visa. However, if the person has held an H-2A visa for three years, then such person must leave the United States and stay outside the country for at least three months before trying to reenter the U.S. with an H-2A visa. The visa must be extended in one-year increment for work.

Do H-2A Workers Pay U.S. Federal Income Tax?

Yes, they pay U.S. federal income tax. However, they do not pay U.S. social security or Medicare taxes.

Is There a Cap for H-2A Workers?

No, there is no cap for H-2A workers, unlike H-2B workers which have an annual cap of 66,000 workers.

Who Qualifies for H-2A Workers?

To qualify to employ H-2A workers, you must have an agricultural job that is temporary or seasonal. You must also show that there are not enough U.S. workers to fill your need in your geographic location.

Is There a Maximum Age for an H-2A Worker?

No, there is no maximum age for an H-2A worker, however, there is a minimum age of 18 years.

Why do Agricultural Employers Use the H-2A Visa Program?

Typically, employers who use the H-2A visa program to hire workers are in the crop industry. Crops are seasonal and during the planting and harvesting seasons, many farmers require assistance. In contrast, dairy and livestock employers rarely have seasonal positions and, instead, hire full time workers.

Why Do Workers Apply for H-2A Visas?

Workers apply for H-2A visas for a variety of reasons.  For example, some unskilled workers may face job shortages in their home country, so applying for an H-2A visa represents  lucrative employment opportunities. Also, the H-2A visa has very few restrictions, which increases the chances of a visa approval. 

What Countries Can Participate in the H-2A Visa Program?

Typically, many think that the H-2A program is for Mexican workers only. However, the H-2A visa program is open to citizens in over eighty countries. In January 2021, the Department of Homeland Security (DHS) released the following list of countries whose citizens are eligible for an H-2A visa. 

The DHS removed the State of Samoa and Tonga due to their inability to meet the necessary regulations.

  • Andorra
  • Argentina
  • Australia
  • Austria
  • Barbados
  • Belgium
  • Brazil
  • Brunei
  • Bulgaria
  • Canada
  • Chile
  • Colombia
  • Costa Rica
  • Croatia
  • Czech Republic
  • Denmark
  • Dominican Republic
  • Ecuador
  • El Salvador
  • Estonia
  • Fiji
  • Finland
  • France
  • Germany
  • Greece
  • Grenada
  • Guatemala
  • Honduras
  • Hungary
  • Iceland
  • Ireland
  • Israel
  • Italy
  • Jamaica
  • Japan
  • Kiribati
  • Latvia
  • Liechtenstein
  • Lithuania
  • Luxembourg
  • Madagascar
  • Malta
  • Mexico
  • Moldova
  • Monaco
  • Mongolia
  • Montenegro
  • Mozambique
  • Nauru
  • New Zealand
  • Nicaragua
  • North Macedonia Switzerland
  • Norway
  • Panama
  • Papua New Guinea Timor-Leste
  • Paraguay
  • Peru
  • Philippines
  • Poland
  • Portugal
  •  Romania
  • San Marino
  • Serbia
  • Singapore
  • Slovakia
  • Slovenia
  • Solomon Islands
  • South Africa
  • South Korea
  • St. Vincent and the Grenadines
  • Sweden
  • Taiwan
  • Thailand
  • The Netherlands Spain
  • Turkey
  • Tuvalu
  • Ukraine
  • United Kingdom
  • Uruguay Vanuatu
The H-2A employer requirement is undoubtedly complicated and tedious. Often times, busy farmers and agricultural business owners simply do not have the time needed to dedicate to the H-2A process. Luckily, you can contact AW Labor Solutions for assistance with the H-2A program. At AW Labor Solutions, we work with a wide range of agricultural businesses from small farms to large producers to help meet their labor needs.  Our skilled team can help businesses navigate through the complicated H-2A program. You will work with a resource manager who will keep you informed every step of the way and help with all aspects of the H-2A process. Contact us today to learn more!


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10 Facts About the H-2A

  1. The H-2A visa is an agricultural program designed to help farmers and other agribusiness owners meet their seasonal labor needs. (source)
  2. Employers are required to provide housing at no cost to the H-2A worker. (source)
  3. Daily free transportation must be provided for the H-2A worker between their living quarters and the worksite. (source)
  4. All foreign agricultural workers are exempt from the U.S. Social Security and Medicare taxes. (source)
  5. Three government agencies oversee and administer the H-2A visa program: Department of Labor, the Department of State, and the Department of Homeland Security. (source)
  6. Unlike the H-2B visa, the H-2A visa has no cap limitations. (source)
  7. Employers are required to pay the federal or state minimum wage rate, the Adverse Effect Wage Rate (AEWR) or the prevailing wage rate, whichever is highest. (source)
  8. Georgia and Florida consistently rank each year as the leading states for employing H-2A visa holders and the following states also made the top five list, North Carolina, California, and Washington. (source)
  9. The maximum length of stay for an H-2A worker is three years. (source)
  10. Wages earned by an H-2A visa holder are subject to federal income tax, but the employer is not required to withhold federal tax from the worker’s paycheck. (source)

At AW Labor Solutions we provide you with a legal seasonal workforce for all of your business needs.

We want to help your business grow because your success is also our success.