The federal H-2A foreign guest-worker program allows employers who are short of workers to bring people into the United States to do seasonal agricultural work.
The program’s many requirements include the following:
Employers must demonstrate that there are insufficient U.S. workers to do the work by attempting to recruit U.S. workers. Employers must hire any qualified and eligible U.S. worker who applies for the job until 50 percent of the work contract has elapsed. Employers must offer U.S. workers the same terms and working conditions as the foreign workers.
The hourly pay rate must be at least as high as the applicable Adverse Effect Wage Rate, state or federal minimum wage, or prevailing wage rate, the agreed-upon collective bargaining rate, whichever is higher. Workers paid by piece rate must earn at least as much as the hourly rate.
The employer must provide free housing to all foreign workers and other workers who can’t reasonably return to their homes the same day. Housing must meet Occupational Safety and Health Administration standards.
The employer must either provide three meals a day for workers, at no more than a specified cost, or provide a kitchen where workers can make their own meals.
The employer must pay transportation and subsistence from the worker’s home to the workplace for either foreign or U.S. workers. If the worker paid for these expenses, the costs must be reimbursed after the worker has completed at least half the contract period.
The employer must provide free transportation between the housing and workplace. On completion of the contract, the employer must pay transportation and subsistence back home.
• Other requirements
The employer must provide tools, supplies, and equipment at no charge.
Employers must not hold or confiscate workers’ passports or other immigration documents and must not receive payment of any kind from workers for anything relating to obtaining the H-2A labor certification.
The employer must provide workers’ compensation insurance at no charge.** The Washington Farm Labor Association disputes this. Director Dan Fazio says H-2A regulations state that employers should follow state laws regarding workers’ compensation and Washington requires that workers pay 25 percent of the premium, but some H-2A employers who have been audited by the Wage and Hour Division were told they needed to pay the entire amount.SOURCE: U.S. Department of Labor, Wage and Hour Division Fact Sheet