General Legal Guidelines for H-2A Employers

H-2A must follow a number regulations designed to protect workers’ rights and ensure compliance with U.S. immigration laws. This publication provides a basic overview of these rules.

Protecting Workers’ Rights

Employer Must Provide Work Contracts

Employers of H-2A workers must provide a copy of the work contract to every employee.[1]

The employer must provide the work contract at the time the workers apply for an H-2A visa. For all other employees, they must provide a copy of the contract on the first day of work. The contract must be in a language understood by the worker. If there is no available work contract, employers may instead provide a copy of the job order submitted to and approved by the Department of Labor (DOL).

The work contract must include:

• The beginning date, end date, and the location(s) of work
• Significant conditions of employment, such as information about employer-provided housing and meals, expenses the worker will incur travelling to and from their home country that the employer will reimburse if they do not provide transportation, and days that workers are not required to work (such as the Sabbath and Federal Holidays)
• The amount of hours and days per week workers are expected to complete
• Jobs that will be performed, including types of crop(s) to be worked
• Hourly wage and rates of pay for each crop or job (if applicable)
• Any necessary tools, supplies, and equipment that must be provided at no cost to the worker[2]
• Affirmation that workers’ compensation insurance will be provided at no charge[3]
• Explanation and specifications of any deductions that will be made to the workers’ paychecks not otherwise required by law (any deduction taken that is not explained in the contract is illegal)

Employers May Not Hold Immigration Documents

According to the William Wilberforce Trafficking Victims Protection Reauthorization Act, employers may not hold or confiscate passports, visas, or any immigration documents from workers. [4]

Employers May Not Engage in Unfair Treatment

Employer of H-2A workers may not engage in unfair treatment.[5] Employers may not, “intimidate, restrain, coerce, blacklist, discharge, or in any manner discriminate against any person who has” engaged in any of the following actions:

• Filed, instituted, or caused a complaint or proceeding
• Testified or is about to testify in any such proceedings mentioned above
• Consulted an attorney or legal assistance program
• Exercised or asserted any right or protection on behalf of themselves or others

Employers Must Post Workers’ Rights

Employers of H-2A workers must display a poster outlining workers’ rights in a noticeable or prominent location.[6] The poster must be written in all languages understood by a significant portion of workers, along with English. The poster must include the rights and protections of workers set out in 8 U.S.C § 1188. An example of an acceptable poster may be found on the DOL website.

Extending H-2A Visa Contracts

An H-2A worker’s period of stay in the United States is limited to the period outlined in the approved petition filed with the U.S Citizenship and Immigration Services (USCIS), plus:[7]

• Up to one week before the beginning of the work contract for travel to the worksite
• Up to ten days after the expiration of the petition for departure or potential extension of a worker’s period of stay based on an upcoming offer of employment from another employer or extension of contract with the original employer

A worker who has held H-2A status for a total of three years may not be granted H-2A status again until they have remained outside the United States for an uninterrupted period of six months. The number of years in which a worker has remained in the U.S may be affected by “interruptive stays.” Information on calculating a worker’s lawful period of stay can be found on the USCIS website.

Extending workers’ contracts generally requires a new temporary labor certification from the DOL, but in some cases, the employer may be able to obtain a short-term extension, which is limited to a period of two weeks or less. Employers seeking a short-term extension must submit a completed Form I-129 (Petition for a Non-Immigrant Worker) to the USCIS. This serves as a request for a worker’s extension of H-2A status.

Employers seeking extensions of more than two weeks may apply. These requests, however, must be related to weather conditions or other factors beyond the control of the employer (which may include unforeseen changes in market conditions). The employer must support the request, in writing, with documentation showing that the extension is needed and that the need could not have been reasonably foreseen by the employer. The DOL will not grant an extension where the total work contract period would be 12 months or more, except in extraordinary circumstances.

E-Verify

E-Verify is a federal program and web-based system that allows employers to verify whether individual workers are eligible to work in the United States. It is usually a voluntary program, but some employers may be required to use the service if:

• They are bound by federal contracts and subcontracts containing the Federal Acquisition Regulation E-Verify clause
• They are located in states that have legislation requiring the use of E-Verify and those required to use E-Verify by a federal ruling

Visit https://www.e-verify.gov/  for more information about E-Verify.

Obligations to Notify the Department of Homeland Security (DHS)

Employers of H-2A workers are required to notify the Department of Homeland security within two days if one of the following events occurs:   

• A worker fails to report to work for 5 consecutive work days without the consent of the employer[8]
  • In this case, employers are relieved from the obligation to finance the worker’s return transportation costs and the wages owed by the three-fourths guarantee
• The labor or services the employer hired H-2A workers to complete end more than 30 days earlier than the end date stated on the H-2A petition[9]
  • If the required work has not been completed early, employers may not terminate the H-2A work contract for any reasons other than “fire, weather, or other Act of God.” The Contracting Officer assigned to the case will determine whether the event that prompted the employer to end the work contract meets these requirements[10].

Employers required to contact the DHS may do so through any of the following means:

• By e-mail to H2A.abandonment&termination.chicago@dol.gov
• Written and faxed to (312) 353-6666
• Written and sent by U.S Mail to:
  • U.S Department of Labor, Employment and Training Administration, Office of Foreign Labor Certification, Chicago National Processing Center,
  • 536 South Clark St., 9^th Floor, Chicago, Illinois 60605-1509