Key Rule

• Recruitment of U.S. Workers: Employers seeking Department of Labor certification to hire H-2A workers must demonstrate that there aren't enough qualified U.S. workers available for the job without negatively impacting their wages or working conditions. This involves specifying the number of H-2A workers needed, reaching out to past U.S. employees, and coordinating recruitment efforts with the State Workforce Agency. Employers are required to actively recruit U.S. workers and must offer employment to qualified applicants for at least half of the contract period. Additionally, they must ensure that the terms and conditions offered to U.S. workers are at least as favorable as those provided to H-2A workers.

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• Termination of Workers: Employers can't hire H-2A workers if they recently laid off American workers, unless those Americans were offered and refused the same job. They can only lay off American workers in certain situations after laying off H-2A workers first. Employers must have a valid reason to turn down eligible American workers. If a worker quits or is fired, employers must tell the Department of Labor (DOL) within two days, or for H-2A workers, the Department of Homeland Security.

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• Rates of Pay: The employerhas to pay workers at least one of these rates: the AEWR, the local prevailing wage, the agreed-upon union rate, or the federal/state minimum wage. They can pay by the hour or by the piece, but piece rates have to match or exceed the local standard and average out to at least the highest hourly rate.

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• Written Disclosure: Before an H-2A worker gets a visa or starts working, the employer must give them a copy of their job contract in a language they understand. If there's no separate contract, they must provide the worker with a copy of the approved job order from the Department of Labor. The contract outlines the terms and conditions of employment. The work contract must include:

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1. the beginning and ending dates of the contract period as well as the location(s) of work;

2. any and all significant conditions of employment, including payment for transportation expenses incurred, housing and meals to be provided (and related charges), specific days workers are not required to work (i.e., Sabbath, Federal holidays);

3. the hours per day and the days per week each worker will be expected to work;

4. the crop(s) to be worked and/or each job to be performed;

5. the applicable rate(s) for each crop/job;

6. that any required tools, supplies, and equipment will be provided at no charge;

7. that workers’ compensation insurance will be provided at no charge; and

1. any deductions not otherwise required by law. All deductions must be reasonable. Any deduction not specified is not permissible.

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• Guarantees to All Workers: H-2A employers have to promise each worker a job for at least 75% of the days in their contract, known as the "three-fourths guarantee." For instance, if a contract is for 10 weeks with a 6-day, 8-hour workweek, the worker must be guaranteed at least 360 hours of work (10 weeks x 48 hours/week = 480 hours x 75% = 360). If the employer doesn't offer enough work days to meet this guarantee, they have to pay the workers the wages they would've earned if they had worked the guaranteed number of days. These wages are calculated based on the rate stated in the work contract.

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• Housing: Employers have to give free housing to H-2A workers and. If the Employer arranges rental housing, they pay all costs directly. Also, they must either provide three meals a day at a set cost or give workers kitchen access for making meals. The housing must meet safety rules.H-2A Housing Standards

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• Transportation: Employers must provide daily transportation between the workers’ living quarters and the employer’s worksite at no cost to covered workers living in employer-provided housing. Employer-provided transportation must meet all applicable safety standards, be properly insured, and be operated by licensed drivers.

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• Inbound & Outbound Expenses: Once workers have completed half of their contract period, the employer must reimburse them for reasonable inbound transportation and subsistence costs, if not provided before. Additionally, when the work contract ends, the employer must either arrange or pay for the worker's return transportation and daily living expenses.

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• Records Required: Employers need to track how many hours they offer workers each day and how many hours workers actually work. Workers must receive a statement with this information, including hourly or piece rates, units produced if using piece rates, total earnings for the pay period, and any deductions, on each payday, which happens at least twice a month.

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• Additional Assurances and Obligations: Employers must comply with all applicable laws and regulations, including the prohibition against holding or confiscating workers’ passports or other immigration documents. In addition, employers must not seek or receive payment of any kind from workers for anything related to obtaining the H-2A labor certification, including the employer’s attorney or agent fees, the application fees, or the recruitment costs. Employers must also assure that there is no strike or lockout in the course of a labor dispute at the worksite for the H-2A certification which the employer is seeking. In addition, employers cannot discriminate against – or discharge without just cause – any person who has filed a complaint, consulted with an attorney or an employee of a legal assistance program, testified, or in any manner, exercised or asserted on behalf of himself/herself or others any right or protection afforded by sec. 218 of the INA or the H-2A regulations.