GFB News Magazine
Avoiding H-2A pitfalls
by Jay Stone
News Reporter
Posted on November 29, 2025 1:19 PM
iStock photo
The H-2A visa program for temporary agricultural workers is a crucial tool for farmers, allowing row-crop, fruit and vegetable, and livestock operations access to labor required to produce and harvest their commodities.
It is also, as many have experienced, fraught with costly potential pitfalls.
During the 2025 Agricultural Labor Relations Forum, held Sept. 16 & 17 in Tifton, Ellen Hendley of másLabor walked attendees through some key ways to make sure they stay on the right side of the migrant worker visa process. másLabor is a consulting firm that helps employers access labor under H-2A and H-2B migrant worker programs.
“It’s really important to be watching what’s happening,” Hendley said, “to have documentation, to have contracts in place and to make sure everybody, on your team and working with you, knows the rules and regulations and that you’re keeping documentation to ensure you’re going down the right path.”
The stakes are extremely high. For example, Hendley said, if a worker files a complaint that he or she was charged a fee prohibited under H-2A rules, multiple government agencies, including U.S. Citizenship and Immigration Services (USCIS), can launch an investigation. If violations are found during the investigation, the agency may revoke the employer’s H-2A approvals and require all workers – not just the individual workers who paid or had fees collected - to return to their country of origin. Until the investigation is complete, the agency could block future H-2A contracts. The costs can quickly escalate into tens of thousands of dollars, in either direct fines or opportunity costs.
Avoid prohibited fees
Prohibited fees include recruitment fees charged to workers (i.e., fees to “get on the list”), or employers passing along to workers program participation costs (for example, agent or attorney fees) that are, under the regulations, the employer’s responsibility. Failure to properly reimburse workers for their travel costs could also qualify as a fee violation.
“If you’re found to have charged a prohibited fee, whether you knew it or not, if somebody working on your behalf did it, then you have potential [labor visa] denial from USCIS for that year and then a potential three years after,” Hendley said.
She pointed out that under new regulatory requirements, employers are obligated to promptly reimburse workers in full for any prohibited fees they paid out of pocket. If employers fail to comply, USCIS may block the employer’s use of the H-2A program and could even bar program usage for several years.
Another key issue for employers of migrant workers is uniformity between practices in place for foreign workers and domestic workers. For example, if there is a standard that a U.S. worker have experience performing specific tasks, the same standard must be required of foreign workers. Employers are also prohibited from giving preferential treatment to foreign workers, including on matters related to pay.
“If you have a requirement in your job order, let’s just say all workers have to have a particular CDL license or all workers have to have a pesticide certificate, whatever that is needs to happen equivalently on the U.S. [worker] side and the foreign worker side,” Hendley said.
Meeting H-2A Qualifications
To qualify as an H-2A employer, agricultural businesses must have a temporary or seasonal labor need, demonstrate there are not enough U.S. workers willing to fill their seasonal job positions, and show that employing foreign nationals will not affect working conditions or wages of similarly-employed U.S. workers. Only after satisfying the criteria can employers obtain a temporary labor certification from the U.S. Department of Labor (DOL), the first hurdle before moving to the USCIS stage of the process.
Hendley recommends that employers make sure they have documentation that each of these items was addressed, and not assume another party, such as a recruiter, is handling it on their behalf.
“Make sure everyone receives a copy of the work contract disclosure and that you have proof that you gave them a copy,” Hendley said. “You want to keep some kind of evidence.”
According to másLabor, requirements employers must meet include:
• Contractual prohibitions against recruitment agents seeking/receiving payments from prospective employees
• Providing a copy of the job order to H-2A workers before the worker applies for a visa
• Offering same benefits, wages & working conditions to U.S. workers offered to H-2 workers
• Offering wage that meets or exceeds the highest of a DOL-mandated Adverse Effect Wage Rate (AEWR), a state prevailing wage rate, the agreed-upon collective bargaining wage, or federal or state minimum wage
• A notice in the job offer of the frequency of pay and earnings statements
• A guarantee of employment equal to three fourths of the workdays for the total period of employment
• A notice of how transportation, meals and lodging for travel to and from the work location will be paid. The employer will either pay these expenses in advance, arrange travel directly, or reimburse the worker for their out-of-pocket costs.
• Housing at no cost to all non-local workers. These are workers who are not reasonably able to return to their residence on the same day. The employer is required to provide three meals per day or furnish free and convenient cooking and kitchen facilities so they can prepare their own. If the employer provides meals, the job offer must state the charge, if any, to the worker for the meals.
• Deductions from workers’ paycheck as required by law
Hendley said required documentation like job description and requirements, work location(s), pay notices and other items should be provided to the workers prior to their visa appointments.
“Whoever is working with you during that part of the process needs to have a copy of that job contract, and they need to make sure that they’re giving a copy of that contract to every worker prior to that visa appointment,” she said.
Keeping workers safe
Hendley reviewed practices aimed at protecting workers’ safety and security.
These include: establishing who is authorized as a recruiter; ensuring job requirements are met and necessary training is received; clearly communicating when and where workers are to go and what documentation to bring; making arrangements to minimize amount of cash workers have to carry; disclosing exact work locations; and ensuring workers have access to their personal documents like passports at all times.
The Ag Labor Relations Forum, for which Georgia Farm Bureau was a presenting sponsor, featured two days of presentations covering foreign labor certification, wage and hour inspections, the OSHA heat initiative, regulatory movement on farm labor topics, ag labor research, software platforms and more.
The presentations included updates from the U.S. Department of Labor’s Office of Foreign Labor Certification and Wage & Hour Division, UGA and North Carolina State University researchers, OSHA, the UGA Extension Behavioral Health Team, the OSHA Training Institute Education Center at Georgia Tech, and the Georgia State Patrol Motor Carrier Compliance Division.
Visit https://gfb.ag/25AgLaborForumresources for resources from all the forum’s presenters.
