Growing Right: Employer Strategies for H-2A Compliance, Obligations and Best Practices

As the agricultural industry continues to rely heavily on foreign seasonal labor, compliance with the H-2A visa program has never been more essential — or more complex. The U.S. Department of Labor (DOL) and Department of Homeland Security (DHS) have issued several updates over the past year reshaping how employers recruit, hire and manage temporary agricultural workers.

This article highlights key employer obligations, common pitfalls and best practices for maintaining full compliance with the H-2A program — along with a summary of the latest regulatory changes employers need to know for the 2026 growing season.

The Importance of H-2A Compliance

The H-2A program continues to play a vital role in stabilizing U.S. agricultural labor. In 2022, more than 1.18 million hired farmworkers were employed across the country, with 311,000+ positions filled through H-2A visas. Meanwhile, approximately 41 percent of all U.S. farmworkers were estimated to lack work authorization.

Employers who hire unauthorized workers risk significant exposure — ICE enforcement actions, civil penalties and workforce disruptions. By contrast, proper use of the H-2A program offers a structured, compliant means to secure seasonal labor while safeguarding operations.

Core Employer Obligations under H-2A

Employers must comply with extensive wage, housing, recruitment and recordkeeping requirements. Key obligations include:

• Free Housing: Employers must provide housing at no cost to H-2A workers and to corresponding domestic workers unable to return home daily.

• Meals: Either provide three daily meals or kitchen facilities meeting health and safety standards. Stipends or hotel breakfasts are not sufficient substitutes.

• Transportation: Cover inbound and outbound travel costs, subsistence expenses (currently $16.28/day, or up to $68/day with receipts), and daily transport between housing and the worksite.

• Three-Fourth Guarantee: Offer at least 75% of the total work hours specified in the contract.

• Wages: Pay the highest applicable rate — Adverse Effect Wage Rate (AEWR), prevailing wage, agreed-upon collective bargaining rate or state/federal minimum wage.

• Tools and Equipment: Provide all tools, supplies and protective gear at no cost.

• No Worker Payments: Neither employers nor their agents may charge workers for recruitment or employment.

• Recordkeeping: Retain recruitment reports, job orders, payroll and insurance records for three years after certification.

• Corresponding Employment: U.S. workers performing any of the duties listed in the H-2A job order must receive identical pay and benefits.

Failure to comply with these provisions can trigger significant penalties, including back-wage liability and debarment from the H-2A program.

Payroll, Recordkeeping and Reporting

Employers must issue weekly earnings statements that include:

• Worker and employer information (name, address, FEIN)

• Hours offered and worked daily

• Pay rate, gross earnings, deductions and bonuses

• Pay period dates

While the Fair Labor Standards Act (FLSA) generally exempts agricultural workers from overtime, state laws may impose additional requirements. Employers must also promptly report worker separations within two business days to both DOL and the U.S. Citizenship and Immigrations Services (USCIS).

Housing and Safety Compliance

Where local housing standards exist, they apply in full. If silent, state or federal OSHA standards govern. Employers must ensure accommodations remain compliant throughout the season — covering essentials such as lighting, sanitation, trash disposal and fire safety.

Wage Requirements and the New AEWR Calculation

The Adverse Effect Wage Rate (AEWR) continues to be a central compliance requirement. Recently, the DOL transitioned AEWR calculations from the U.S. Department of Agriculture’s (USDA) Farm Labor Survey to the Bureau of Labor Statistics Occupational Employment and Wage Statistics (OEWS) data.

Under this framework, employers must pay the higher of:

• The applicable AEWR (now stratified by skill level I or II);

• The certified job order rate;

• Any other applicable prevailing or collectively bargained wage; or

• Federal or state minimum wage.

If rates increase during the contract, the higher rate applies from the date published in the Federal Register.

The “Adverse Compensation Adjustment” (ACA)

For employers providing free housing, the DOL now permits a downward wage adjustment — the H-2A Adverse Compensation Adjustment — provided wages do not fall below the state minimum wage. In New York State, this deduction equals $2.40/hour. This adjustment does not apply to domestic workers even if free housing is provided.

The “Big Five” SOC Codes

The DOL has consolidated the main H-2A occupations into five core Standard Occupational Classification (SOC) codes:

1. Farmworkers and Laborers, Crop, Nursery and Greenhouse (45-2092)
   
   
2. Farmworkers, Farm, Ranch and Aquacultural Animals (45-2093)
   
   
3. Agricultural Equipment Operators (45-2091)
   
   
4. Packers and Packagers, Hand (53-7064)
   
   
5. Graders and Sorters, Agricultural Products (45-2041)
   
   

Each follows a unified AEWR schedule, simplifying prior confusion from the “Big Six” framework. However, positions outside these codes — such as heavy-truck drivers or mechanics — remain subject to separate, often higher wage rates.

Key 2025 H-2A Updates

1. Withdrawal of the Farmworker Protection Rule
   
   In June 2025, DOL suspended enforcement of the 2024 Farmworker Protection Rule and, as of July 2025, proposed its full rescission. Employers should revert to the prior regulatory framework.
   
   
2. Staggered Arrivals Restored
   
   As of August 2025, employers may once again use staggered start dates for H-2A workers without filing multiple job orders — provided all anticipated crossing dates are disclosed in Field A.8.a of Form ETA-790.
   
   
3. Certification Fee Suspension
   
   Beginning September 2, 2025, DOL temporarily suspended H-2A certification fees while transitioning to an electronic payment system.
   
   
4. DHS H-2 Modernization Rule
   
   Effective January 17, 2025, this DHS final rule added:
   
   
   • Fee prohibitions
     
     
   • Grace periods (10 days before, 30 days after employment)
     
     
   • Portability and processing flexibilities
     
     
   • A 60-day “reset” period for the three-year stay limit
     
     
   • A quasi “dual intent” treatment for H-2A workers facilitating the transition to permanent resident status
     
     
5. Consular Interview Waiver
   
   As of October 1, 2025, returning H-2A workers renewing their visas within 12 months may qualify for an interview waiver if certain conditions are met.
   
   
6. USCIS Electronic Filing for Unnamed Workers
   
   On October 2, 2025, USCIS launched Form I-129H2A, allowing electronic filing for unnamed beneficiaries upon issuance of the Notice of Acceptance by DOL. Currently, filings with Form G-28 are not accepted.
   
   

The Anatomy of a DOL Wage and Hour Investigation

H-2A investigations and audits can arise randomly or from worker complaints. Typical stages include:

1. Notice of Investigation (WH-56) – specifying timeframes and documents.
   
   
2. Desk Audit – submission of records (3-year retention requirement).
   
   
3. On-site Review – investigator interviews and inspections.
   
   
4. Findings and Resolution – potential outcomes include restitution, penalties or debarment.
   
   

Common Violations

• Missing or inaccurate payroll records

• Failure to meet the three-fourths guarantee

• Unapproved deductions

• Late travel reimbursements

• Work performed at unlisted locations

• Corresponding worker violations

Best Practices for Employers

• Maintain organized electronic and paper records for at least three years.

• Conduct pre-season internal audits of payroll, housing and transportation.

• Verify AEWR updates promptly and adjust pay rates accordingly.

• Document all reimbursements and worker communications.

• Ensure any third-party labor contractor is fully compliant.

• Designate a Wage and Hour Response Team (HR + legal counsel).
  
  

Conclusion

Compliance in the H-2A program demands more than procedural box-checking — it requires proactive management, documentation and awareness of constant regulatory change. With DOL and DHS updates reshaping the landscape in 2025, employers who implement strong internal controls and regular audits will be best positioned to avoid costly penalties and protect their workforce.

For guidance on navigating the H-2A process or responding to a DOL audit, or to ensure compliance with the new regulations, please contact attorney L.J. D’Arrigo, leader of our Immigration Practice Group, at (518) 701-2770 or ldarrigo@harrisbeachmurtha.com; or the Harris Beach Murtha attorney with whom you most frequently work.

This alert does not purport to be a substitute for advice of counsel on specific matters.

Harris Beach Murtha’s lawyers and consultants practice from offices throughout Connecticut in Bantam, Hartford, New Haven and Stamford; New York state in Albany, Binghamton, Buffalo, Ithaca, New York City, Niagara Falls, Rochester, Saratoga Springs, Syracuse, Long Island and White Plains, as well as in Boston, Massachusetts, and Newark, New Jersey.

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