The U.S. Department of Labor (DOL) has updated its guidance for H-2A visa applications in light of current legal challenges to the Farmworker Protection Rule (FPR), while the U.S. Department of Homeland Security (DHS) has adopted a new final rule that gives H-2A workers more flexibility and places greater burdens on H-2A employers.
As we previously reported, the FPR is still enforceable in Arizona, California, Oregon, and Washington, but isn’t in many other states, including Idaho and Montana. For a reminder of the key requirements of the rule, check out our original reporting. In light of this inconsistency across states, the DOL provided updated guidance for those submitting applications for H-2A visas, which essentially says the DOL will use the old application rules and materials, even for employers in states where the FPR’s other provisions are enforceable. We won’t be reporting more on the DOL’s application guidance, so be sure to keep an eye on the Department of Labor’s Foreign Labor Certification website for the latest guidance.
Separately, DHS adopted a final rule impacting H-2A workers and employers that went into effect January 17, 2025. Here are the key parts of the new rule:
Easier approval for more countries: H-2A visas can now be granted for more countries than just those approved by the Secretaries of Homeland Security and State.
Fees, costs, and penalties: Employers cannot charge workers any fees for job placement, breach of contract, costs that must be covered by the employer, or penalties. However, this does not prohibit an employer from recovering costs that are the responsibility of and primarily for the benefit of the worker, such as fees to get a government-required passport that the worker will be able to use in the future, nor does it prevent permissible arrangements where costs are advanced and paid off over time.
Flexibility for travel and seeking subsequent employment: H-2A recipients can now be admitted up to 10 days prior to the approved date in the contract to travel to the worksite and can remain for up to 30 days after the contract ends to depart or seek another employment opportunity.
Change of employers: If an individual working via an H-2A visa wants to change employers, the prospective employer must file the proper paperwork first, including a petition for classification and extension. Once the filing has been made, the individual can start working for the new employer immediately and can work through the approval period unless the petition is denied, in which case their employment authorization ends immediately.
Three-year continuous work limit: Workers who have held an H-2A visa for a total of three years have to remain outside of the U.S. for at least 60 days before being granted another visa.
Employer consent to review and investigation: By engaging in the H-2A process, including by simply filing an H-2A petition, employers agree to allow government access to all sites where labor is or will be performed or where housing will be provided. This includes on-site inspections, review of records, and interviews of employees, whether the employer is present or not.
Notification to DHS: Employers must now notify DHS if: (1) the worker doesn’t report for work within 5 days of their start date; (2) the worker doesn’t report for work for 5 consecutive days without approval by the employer or is terminated prior to the end of the contract period; or (3) the work is completed more than 30 days earlier than the contracted date. Evidence of this notice must be retained for one year. The rules also adopt an automatic monetary penalty of $10 for each notification that hasn’t been done properly if the employer can’t show good cause for not complying.
Tips: H-2A compliance is generally outside the scope of Vigilant Law Group’s services, but we wanted to provide some basic information to Vigilant members using H-2A workers on the continued evolution of the FPR and the significant new DHS rule. If you haven’t already connected with the consultant or organization that helps you comply with H-2A requirements about this rule and your applications, we recommend doing so as soon as possible to discuss the many changes you may need to make to your processes.
