H-2A and H-2B Compliance: A Practical Guide for Employers
Consultations are free
H-2A is for temporary or seasonal agricultural work. H-2B is for temporary non-agricultural work based on a seasonal, peakload, intermittent, or one-time need. Both programs call for careful planning, fair recruitment, and follow-through on the terms you offer workers. The steps below explain what to pay attention to before hiring, during the season, and when employment ends.
Program overviews: DOL H-2A guidance and DOL H-2B guidance.
Start with the work you actually need done. Check that the duties, locations, dates, hours, and benefits in your job order match your plans. If those plans change, review the program rules before moving workers to a different site or assigning different duties. Confirm that each worker is authorized to start work.
Complete the required recruitment of U.S. workers and keep records of applications, offers, and any lawful, job-related reasons for turning applicants down. The deadlines differ: under the general H-2A rule, you must hire qualified, eligible U.S. applicants through the halfway point of the contract. Under the general H-2B rule, you must accept qualifying U.S. referrals and applications until 21 days before the start date.
Give workers the required job terms on time and in a language they understand. Explain the pay, deductions, duties, and travel arrangements clearly so workers know what to expect before they arrive.
Recruitment: H-2A guidance and H-2B recruitment guidance. Disclosure: H-2A disclosure guidance and H-2B employment law guide.
Check the required wage for the job and location before you set up payroll. For H-2A, review the current Adverse Effect Wage Rate (AEWR) and other applicable wage sources. For H-2B, use your prevailing wage determination and the approved offered wage. Check the rate each season instead of assuming last year’s rate still applies.
Pay workers for all time that must be paid under the law. Review every deduction before taking it from a paycheck. A charge can still be unlawful even if it appears in the job order or the worker agrees to it.
Check overtime requirements, too. Federal overtime generally applies after 40 hours in a workweek for covered, nonexempt employees. Agricultural work may be exempt under federal law, but state rules can require overtime. A worker’s visa category alone doesn’t settle the question.
Both H-2A and H-2B employers must provide the required written earnings statement on or before payday. Keep records of hours worked, hours offered where required, pay rates, earnings, and deductions. Follow the program’s pay schedule and any applicable law that gives workers greater protection.
Payroll: H-2A AEWR resources, H-2A wages, H-2B wages, and federal overtime guidance.
For H-2A: Provide required housing free of charge to workers who cannot reasonably return home each day. Make sure it meets the applicable health and safety standards, and provide required free transportation between the housing and worksite. You must also provide three meals a day or free, convenient cooking facilities. If you provide meals, check the allowed charges and disclosure rules.
For H-2B: The program generally does not require free housing or meals. If you offer them, explain the arrangements and any lawful charges in the job order, then deliver what you promised. Check wage, deduction, and safety rules, along with any special industry procedures or state and local requirements.
For both H-2A and H-2B programs: Include required travel costs and meals and lodging during travel in your budget. The worker is only responsible for their own passport fees, so if a worker pays out of pocket for their visa-related fees, border crossing, and/or transportation from the consulate to the employer, that worker must be reimbursed for those out-of-pocket fees in their 1st week of employment. Check with the DoL travel & fee guidance for any mitigating circumstances.
Your responsibility for return travel depends on how employment ends and whether the worker moves to another qualifying job in the U.S..
Arrival obligations: H-2A overview, H-2A compliance review, H-2A housing requirements, H-2A meal guidance, H-2B employer obligations, and H-2B travel and fee guidance.
Keep separate records of hours worked and hours offered. Review the totals throughout the season. Bad weather, less work than expected, or a delayed start can leave you short of the required guarantee.
Both the H-2A and H-2B programs require the employer to guarantee ¾ of the hours in the period of the job contract. Although the employer is required to record the daily hours offered during each pay period, for compliance, the hours are measured in 6-week increments if the job order is less than 120 days in length, and in 12 week increments if the period of the contract is longer than 120 days in length.
A note about H-2B enforcement: The Department of Labor (DOL) describes funding restrictions on its enforcement of the three-fourths guarantee and the definition of corresponding employment. Its guidance says the rules remain in effect. Check the restriction that applies to your employment period; limits on enforcement do not remove the obligation.
Some protections also cover U.S. workers in corresponding employment. The definition differs between programs, so check which workers are covered. If work stops unexpectedly or a worker leaves early, review the pay, travel, and reporting duties that still apply.
Hours and coverage: H-2A three quarter guarantee and H-2B three quarter guarantee.
Workers should never pay prohibited recruitment fees or the cost of required job tools and equipment. Check the rules for personal protective equipment (PPE), uniforms, transportation, and lodging before charging workers or making deductions. H-2A requires free housing for eligible workers; H-2B housing charges need a separate review under its disclosure and wage rules.
Review your agreements with recruiters and agents, and make the fee restrictions clear. Give workers a way to report improper charges. You still need to oversee recruitment when an outside company handles it.
Make it easy for workers to raise concerns about pay, housing, or conditions on the job. Train supervisors to respond promptly. Workers must be able to exercise their rights and cooperate with an investigation without retaliation. Keep a record of each concern and what you did to address it.
Worker protections: H-2A overview, H-2B prohibited fees, and H-2B retaliation guidance.
Keep your application and petition materials, approved job order, recruitment records, payroll, reimbursements, and important worker communications together. Both programs generally require you to retain specified records for three years, but the documents covered and the date the clock starts differ. Other laws may require you to keep records longer.
If employment ends early, check DOL and U.S. Citizenship and Immigration Services (USCIS) reporting requirements right away. Confirm what must be reported, which agency needs the notice, and when it is due. Keep proof that you submitted it.
Before you close out the season, check final wages, work guarantees, and required travel payments. Note any recurring problems so you can address them before your next round of hiring.
Recordkeeping: H-2A records and H-2B records.
- Choose the right program and document why you need temporary workers.
- Decide who will handle recruitment, payroll, travel, worker questions, and required housing.
- Confirm job terms, wage rates, and work authorization before workers start.
- Check your recruiters’ practices and make fee restrictions clear.
- Review hours, deductions, reimbursements, and worker concerns throughout the season.
- Handle departures promptly and keep complete records.
Make sure to plan early for this complex visa application process. Many employers hire a temporary foreign worker agency to manage the entire petition and hiring process. Regular check-ins with your agent make it easier to catch problems while there is still time to address them.
Use the official resources below to check the requirements for your job, location, filing date, and employment period. Rules can change, and court orders, funding restrictions, industry procedures, or supplemental visa rules may affect your situation.