Growing Right: Key Strategies for H-2A Compliance and Best Practices

(UNITED STATES) Agricultural employers are heading into the 2025 season with tighter rules, closer oversight, and higher stakes under the H-2A Program, as federal agencies double down on worker protections and wage requirements while pushing a fully online filing process. The U.S. Department of Labor has expanded audits and on-site checks, while the U.S. Department of Homeland Security continues to reinforce visa petition standards. Employers are expected to pay the highest lawful wage, follow strict housing rules, and keep detailed records—or face back wages, penalties, and even debarment.

In 2023, the Department of Labor received 21,018 H-2A applications covering 378,400 positions, showing rapid growth that industry groups say continued through 2024 and into 2025. That rise, combined with stepped-up enforcement, means more scrutiny for growers who rely on H-2A to fill seasonal jobs when qualified U.S. workers are not available.

Wage and Pay Requirements

The most pressing change for 2025 is the broader push by regulators to verify that employers deliver on the promises made in their job orders—especially around pay, housing, meals, and transportation.

• Employers must pay the highest applicable rate: the Adverse Effect Wage Rate (AEWR), the prevailing wage, an agreed collective bargaining rate, or the state or federal minimum wage—whichever is higher.
• AEWR varies by state and updates each year. For example, New York’s 2024 AEWR for field work is $17.80 per hour. Employers must watch for the release of 2025 rates, typically issued in late fall for the following year.
• Paying even slightly less than the required wage, or failing to pay for all hours worked, is one of the fastest ways to trigger enforcement action.

Housing, Meals, and Transportation

Housing is a major spending item and a frequent compliance problem.

• H-2A employers must provide free, approved housing to H-2A workers and any corresponding U.S. workers who cannot return home daily.
• Housing must meet federal and state safety and health standards, and the Wage and Hour Division is increasing site visits to confirm conditions match paperwork.
• Employers must provide either three daily meals at a capped cost or kitchen access so workers can cook.

Transportation rules are strict and include:

• Inbound travel paid if a worker completes half the contract.
• Outbound travel paid when a worker finishes the season.
• Daily local transport between housing and job sites.
• Subsistence during travel: currently $16.28 per day without receipts and up to $68 per day with receipts.

Core Program Obligations and Enforcement Risks

These rules sit within a broader list of obligations that now carry stronger enforcement teeth.

• The program’s Three-Fourths Guarantee requires employers to offer at least 75% of the total work hours listed in the contract period.
• Employers must provide necessary tools and equipment at no cost.
• Charging workers any recruitment or employment fees—directly or via agents—is prohibited.
• Corresponding employment: U.S. workers performing the same duties as H-2A workers must receive the same pay and benefits.
• Employers must accept all qualified U.S. workers who apply through the first half of the contract period and may only reject candidates for lawful, job-related reasons.
• If a worker abandons the job or is lawfully terminated, the employer must immediately notify the State Workforce Agency in writing.

Penalties for violations can include back wages, civil money penalties, injunctive relief, revocation of certifications, debarment, and referral for further enforcement.

Recordkeeping and Documentation

Paperwork matters as much as field compliance.

• Employers must keep thorough records—recruitment reports, job orders, payroll data, insurance policies, housing inspection documents—for at least three years after certification.
• Post-certification audits are increasing; missing documents can lead to costly outcomes even when on-the-ground practices are compliant.
• Analysis by VisaVerge.com indicates that companies that centralize files, assign a single compliance lead, and train field supervisors on recordkeeping see fewer audit issues.

Policy Changes and Enforcement in 2024–2025

• The Department of Labor’s Office of Foreign Labor Certification is conducting more frequent post-certification audits. Employers must show proof they followed every term listed in their labor certification.
• The Wage and Hour Division is carrying out more on-site investigations, checking payrolls, interviewing workers without managers present, and examining housing and transportation.
• The application process is now fully online through the Foreign Labor Application Gateway (FLAG). Employers must file job orders using the federal ETA Form 790 through the portal.

FLAG has improved speed and clarity for many growers but also demands high accuracy—missing attachments or incomplete details can delay certifications and compress recruitment timelines.

Worker Safety and Retaliation Concerns

Regulators are closely watching:

• Heat protections, access to shade and water.
• Safe transportation.
• Whether workers feel safe reporting problems without retaliation.

Some employers and worker groups are pursuing collective bargaining agreements for standardized wages and complaint processes. Others are pursuing long-term housing strategies, including community financing, to meet housing rules more sustainably.

Application Sequence and Official Resources

The basic sequence for H-2A remains:

1. Post the job order and application through FLAG using ETA Form 790. DOL forms are available on the DOL website at DOL forms page.
2. After DOL certifies the application, file the visa petition with USCIS using Form I-129 (see USCIS Form I-129).
3. Arrange travel, housing, and meals or kitchen access ahead of worker arrivals.
4. Train crew leaders on timekeeping and payroll so workers are paid correctly under AEWR or a higher applicable rate.
5. Keep records organized and retained for at least three years after certification.

Government resource hubs:
– DOL H-2A Program
– FLAG system
– DOL forms page
– USCIS Form I-129

Compliance Steps, Costs, and Common Pitfalls

Employers need to confirm they have a temporary or seasonal need and that qualified U.S. workers are not available. This entails advertising through the State Workforce Agency and conducting good-faith recruitment.

Key costs and compliance items:

• Wage budgets must reflect the highest applicable rate (AEWR can change annually).
• Housing must be free, safe, and inspected before arrivals.
• Meals or kitchens must be in place on day one; meal charges are capped per DOL guidance if the employer provides meals.
• Transportation must comply from the first week, including travel reimbursement and daily shuttles.
• The Three-Fourths Guarantee must be tracked and documented across the contract period.

Common pitfalls:

• Paying a few cents below AEWR or not paying for pre-shift/travel time that counts as work.
• Missing housing inspection deadlines or failing to fix safety issues before arrivals.
• Failing to hire a qualified U.S. worker who applied within the first half of the contract period.
• Charging recruitment fees or allowing agents to do so.
• Poor recordkeeping that cannot support the job order or payroll.
• Not reporting worker abandonment or lawful termination to the State Workforce Agency immediately.

Field examples include defective housing (e.g., missing smoke alarms, insufficient beds) and timekeeping system failures that result in shorted pay. Each issue is fixable with planning, but they have serious consequences if unaddressed.

Recruitment and Visa Petition Tips

• Document recruitment thoroughly: who applied, why applicants were accepted or rejected, and how many offers were made.
• Rejections must be based on lawful, job-related reasons that match the job order.
• When filing Form I-129 with USCIS, double-check start dates, worksites, and job duties to match the DOL certification. Mismatches can delay arrivals and risk missing the date of need.

What Employers Should Do Now

With audits rising and AEWR updates due later in the year, act early:

• Calendar application timing: file ETA Form 790 at least 45–75 days before the date of need. Build in extra time for document requests and FLAG edits.
• Plan for AEWR updates: set a reminder to verify your state’s 2025 rate as soon as published and update payroll systems immediately.
• Prepare for audits: assign a compliance lead, run self-audits on payroll and housing, and organize records.

Practical steps to lower risk:

• Hold kickoff meetings with field leaders before arrivals to cover wage rules, the Three-Fourths Guarantee, meal options, transportation schedules, and complaint procedures.
• Post wage notices in English and the workers’ primary language. Keep copies and explain pay structure and AEWR simply.
• Test housing systems (electric, plumbing, smoke/CO alarms) a week before arrivals and fix issues beforehand.
• Inspect employer-provided vehicles; keep insurance and maintenance logs.
• Review recruitment files and document lawful reasons for any rejections.
• Set up a fast reimbursement process for travel and subsistence using $16.28/day without receipts and up to $68/day with receipts.
• Audit timekeeping weekly and correct errors before pay runs.

Many employers bring in immigration counsel or compliance specialists for checkups, training, and audit support. Grower groups sometimes share housing solutions and best practices.

Communication, Tracking, and Practical Management

• Explain to workers the hourly rate, how AEWR works, when/how they get paid, travel reimbursements, what to do if sick or injured, and how to report problems safely.
• Track job duties and payroll so corresponding employment rules are met—U.S. workers doing the same job must receive the same pay and benefits.
• Use the Three-Fourths Guarantee as a planning tool. If weather or market shifts reduce hours early, add hours later or revise schedules. If harvest ends early, check hours before ending contracts and retain proof that the guarantee was met.

Timing is critical: file ETA Form 790 at least 45–75 days before the date of need. After certification, USCIS processing is faster when the petition matches the job order. Use the official Form I-129 page at USCIS Form I-129 and double-check details before submission.

Final Takeaways and Three Action Items

The H-2A Program remains central to U.S. agriculture. Regulators will continue refining rules and enforcement, so employers should expect ongoing updates to forms, electronic systems, and oversight.

Three immediate action items:

1. Budget for 2025 AEWR and check updated rates as soon as released.
2. Run a self-audit on housing, payroll, and recruitment files before filing your job order.
3. Train on-site leaders to spot and fix issues before they become violations.

Wage discipline is non-negotiable: track AEWR and pay the highest applicable rate every pay period.
Housing and transportation must be ready on day one and monitored throughout the season.
Documentation wins audits: keep recruitment logs, payroll records, housing proof, and travel reimbursement files neat, consistent, and easy to share.

The H-2A Program aims to balance seasonal labor needs, worker protections, and fair competition. With early planning, proper documentation, and prompt corrective action, employers can meet obligations, protect workers, and move harvests from field to market without disruption.