Before the U.S. Citizenship and Immigration Services (USCIS) can approve an employer's petition for foreign workers, the employer must file an application with the Department stating that:

  1. There are not sufficient able, willing, and qualified United States (U.S.) workers available to perform the temporary and seasonal agricultural employment for which an employer desires to import non-immigrant foreign workers;
  2. Employment of H-2A workers will not adversely affect the wages and working conditions of similarly employed U.S. workers. The statute and Departmental regulations provide for numerous worker protections and employer requirements with respect to wages and working conditions that do not apply to non-agricultural programs.

Employers may submit their H-2A application either electronically OR via mail directly to the Chicago National Processing Center (NPC). The employer must choose only one method of submission. Duplicate applications, where the employer or authorized representative files electronically and submits that same application via U.S. mail, will be rejected.

Electronic Filing
Employers may submit their H-2A application electronically via the Department's FLAG System. The online help provides step-by-step instructions for completing and submitting the H-2A application electronically. For more resources and information, please visit the FLAG System implementation webpage at

Mail Filing
Employers may mail the application package to the Chicago NPC at the following address:
U.S. Department of Labor
Office of Foreign Labor Certification
Chicago National Processing Center
11 West Quincy Court
Chicago, IL 60604-2105
Attention: H-2A Program Unit

29 CFR 501.9 - Surety bond.

(a)Every H-2ALC must obtain a surety bond demonstrating its ability to discharge financial obligations under the H-2A program. The original bond instrument issued by the surety must be submitted with the Application for Temporary Employment Certification. At a minimum, the bond instrument must identify the name, address, phone number, and contact person for the surety, and specify the amount of the bond (as required in paragraph (c) of this section), the date of issuance and expiration and any identifying designation used by the surety for the bond.

(b)The bond must be payable to the Administrator, Wage and Hour Division, United States Department of Labor, 200 Constitution Avenue, NW., Room S-3502, Washington, DC 20210. The bond must obligate the surety to pay any sums to the WHD Administrator for wages and benefits owed to an H-2A worker or to a worker engaged in corresponding employment, or to a U.S. worker improperly rejected or improperly laid off or displaced, based on a final decision finding a violation or violations of this part or 20 CFR part 655, subpart B relating to the labor certification the bond is intended to cover. The aggregate liability of the surety shall not exceed the face amount of the bond. The bond must be written to cover liability incurred during the term of the period listed in the Application for Temporary Employment Certification for labor certification made by an H-2ALC, and shall be amended to cover any extensions of the labor certification requested by an H-2ALC.

(c)The bond must be in the amount of $5,000 for a labor certification for which an H-2ALC will employ fewer than 25 workers; $10,000 for a labor certification for which an H-2ALC will employ 25 to 49 workers; $20,000 for a labor certification for which an H-2ALC will employ 50 to 74 workers; $50,000 for a labor certification for which an H-2ALC will employ 75 to 99 workers; and $75,000 for a labor certification for which an H-2ALC will employ 100 or more workers. The WHD Administrator may require that an H-2ALC obtain a bond with a higher face value amount after notice and opportunity for hearing when it is shown based on objective criteria that the amount of the bond is insufficient to meet potential liabilities.

(d)The bond must remain in force for a period of no less than 2 years from the date on which the labor certification expires. If the WHD has commenced any enforcement action under the regulations in this part against an H-2ALC employer or any successor in interest by that date, the bond shall remain in force until the conclusion of such action and any related appeal or related litigation. Surety bonds may not be canceled or terminated unless 45 days' notice is provided by the surety in writing to the WHD Administrator at the address set forth in paragraph (b) of this section.

(a) SWA posts in interstate clearance system. The SWA must promptly place the job order in interstate clearance to all States designated by the CO. At a minimum, the CO will instruct the SWA to transmit a copy of its active job order to all States listed in the job order as anticipated worksites covering the area of intended employment.

(b) Duration of posting. Each of the SWAs to which the job order was transmitted must keep the job order on its active file until 50 percent of the contract term has elapsed, and must refer each qualified U.S. worker who applies (or on whose behalf an application is made) for the job opportunity.

The employer must contact, by mail or other effective means, its former U.S. workers (except those who were dismissed for cause or who abandoned the worksite) employed by the employer in the occupation at the place of employment during the previous year and solicit their return to the job. This contact must occur during the period of time that the job order is being circulated by the SWA(s) for interstate clearance and documentation sufficient to prove contact must be maintained in the event of an audit.

SWAs may only refer for employment individuals who have been apprised of all the material terms and conditions of employment and have indicated, by accepting referral to the job opportunity, that he or she is qualified, able, willing, and available for employment.

(a) Requirements of a recruitment report. The employer must prepare, sign, and date a written recruitment report. The recruitment report must be submitted on a date specified by the CO in the Notice of Acceptance set forth in §655.141 and contain the following information:

  1. Identify the name of each recruitment source;
  2. State the name and contact information of each U.S. worker who applied or was referred to the job opportunity up to the date of the preparation of the recruitment report, and the disposition of each worker;
  3. Confirm that former U.S. employees were contacted and by what means; and
  4. If applicable, for each U.S. worker who applied for the position but was not hired, explain the lawful job-related reason(s) for not hiring the U.S. worker.

(b) Duty to update recruitment report. The employer must continue to maintain the recruitment report throughout the recruitment period including the 50 percent period. The updated report is not to be automatically submitted to the Department, but must be made available in the event of a post-certification audit or upon request by authorized representatives of the Secretary.

(a) Filing a complaint. Any employer who has reason to believe that a person or entity has willfully and knowingly withheld U.S. workers prior to the arrival at the worksite of H-2A workers in order to force the hiring of U.S. workers during the recruitment period, as set forth in §655.135(d), may submit a written complaint to the CO. The complaint must clearly identify the person or entity who the employer believes has withheld the U.S. workers, and must specify sufficient facts to support the allegation (e.g., dates, places, numbers and names of U.S. workers) which will permit an investigation to be conducted by the CO.

(b) Duty to investigate. Upon receipt, the CO must immediately investigate the complaint. The investigation must include interviews with the employer who has submitted the complaint, the person or entity named as responsible for withholding the U.S. workers, and the individual U.S. workers whose availability has purportedly been withheld.

(c) Duty to suspend the recruitment period. Where the CO determines, after conducting the interviews required by paragraph (b) of this section, that the employer's complaint is valid and justified, the CO will immediately suspend the application of the 50 percent rule of the recruitment period, as set forth in §655.135(d), to the employer. The CO's determination is the final decision of the Secretary.

Except as otherwise noted, the obligation to engage in positive recruitment described in §§655.150 through 655.154 shall terminate on the date H-2A workers depart for the employer's place of work. Unless the SWA is informed in writing of a different date, the date that is the third day preceding the employer's first date of need will be determined to be the date the H-2A workers departed for the employer's place of business.

Once the Employment and Training Administration (ETA) has certified H-2A jobs for you, be aware that:

  • The foreign H-2A workers can work:
    • Only for you
    • Only at the location(s) named
    • Only performing the named crop activity
    • Only at the stated rate(s) of pay
    • Only during the stated time period
  • That you must hire all U.S. job applicants referred to you who are ready, willing, and able to perform the job during the first 50% of the contract period.
  • That all U.S. workers doing the same jobs as H-2A workers (corresponding employment) are entitled to all the rights and protections of the contract. For instance, you must provide free transportation, from point of recruitment to the worksite and between housing site and fields, and free housing, to both H-2A and U.S. migrant workers.
  • That if you terminate a worker or a worker abandons employment, you must immediately contact the local job service so there is an opportunity to investigate the circumstances of the termination/abandonment or to refer qualified U.S. workers to fill job openings.
  • That workers who complete the season or are terminated without sufficient cause must be paid their return transportation and full 3/4 guarantee.

Once employment of U.S. workers in corresponding employment, or employment of H-2A workers commences, you must:

  • Provide the work contract or job order (form eta-790) to each worker (foreign or U.S. worker in corresponding employment) by the first workday
  • Keep all required payroll records
  • Provide required wage statement to worker on or before each payday
  • Pay all wages due on the disclosed payday
  • Pay the correct wage rate each payday? That rate is the highest of the AEWR, state or federal minimum wage, prevailing wage, or promised wage, including piece-rates
  • Guarantee payment for 3/4 of the work hours in the contract period
  • Make all legally required payroll deductions and not make deductions prohibited by law or not disclosed in worker contract
  • Provide housing to all workers under the contract (U.S. workers in corresponding employment and H-2A workers) who cannot reasonably return to their permanent home at night and ensure the housing remains in compliance with applicable safety and health standards
  • Provide housing described in #8 free of charge for rent or deposits to all workers
  • Pay the cost of transportation and subsistence, to your farm, from where each U.S. or foreign worker was recruited when the worker completes 50% of the contract
  • Provide daily transportation from the housing to the work site at no cost
  • At the end of the contract period, pay for the worker's return transportation and subsistence to "the place from which he came", usually his or her home
  • Ensure that vehicles used to transport U.S. or H-2A workers meet federal, state and local safety requirements
  • Provide three meals per day at cost or free centralized cooking facilities for the workers
  • Provide necessary tools, supplies and equipment at no cost to the worker
  • Provide worker’s compensation insurance (or its equivalent if workers are excluded from state workers compensation) at no cost to the worker
  • In case of contract impossibility ("act of god") that requires termination of employment prior to the end of the contract period, provide remaining contract benefits, including payment of guarantee obligations (up to time of the event which terminated the employment) and return transportation/subsistence
  • Avoid rejecting or terminating U.S. workers other than for lawful job-related reasons, and notify the local job service office of all rejections, terminations and resignations of U.S. and/or foreign workers
  • Provide U.S. workers employed in or applying for corresponding employment wages, benefits, and working conditions at least equal to those provided to foreign workers
  • Avoid discriminating against workers who testify or otherwise exercise their rights
  • Avoid causing workers to waive their rights
  • Permit USDOL investigations of your business
  • Avoid interfering with USDOL officials who investigate your business activities
  • Avoid providing false information to USDOL officials
  • Make records available to USDOL, the worker or the worker’s representative
  • Comply with all federal, state and local employment-related laws and regulations
  • Comply with the Fair Labor Standards Act
  • If you employ U.S. workers, comply with the Migrant and Seasonal Agricultural Worker Protection Act

Foreign agricultural workers temporarily admitted into the United States on H-2A visas are exempt from U.S. Social Security and Medicare taxes on compensation paid to them for services performed in connection with the H-2A visa. This is true whether they are resident aliens or nonresident aliens. In addition, compensation paid to H-2A agricultural workers for services performed in connection with the H-2A visa is not considered to be "wages" for purposes of federal income tax withholding, and thus is not subject to mandatory withholding of U.S. federal income tax unless Backup Withholding applies (See below).

Beginning in calendar year 2011, an employer must report compensation of $600 or more paid to an H-2A agricultural worker on Form W-2, Wage and Tax Statement, and NOT on Form 1099-MISC, Miscellaneous Income, as required in previous years. The employer will report the compensation in box 1 (Wages, tips and other compensation) of Form W-2. No amount should be reported in box 3 (Social Security wages) or box 5 (Medicare wages) of Form W-2. No amount should be reported on line 2 (wages subject to Social Security tax) or line 4 (wages subject to Medicare tax) on Form 943, Employer’s Annual Federal Tax Return for Agricultural Employees. On Form W-2: Do NOT check box 13 (“Statutory Employee”) as H-2A agricultural workers are not “Statutory Employees” as defined by the Internal Revenue Code.

An employer who has already reported compensation paid to H-2A agricultural workers on Form 1099-MISC for 2011 is NOT required to submit voided Forms 1099-MISC for this compensation and is NOT required to report this compensation on Form W-2 for 2011.

Employers are not required to withhold U.S. federal income tax from compensation paid to an H-2A agricultural worker (unless Backup Withholding applies; see below); however, it is quite possible that the H-2A agricultural worker will owe U.S. federal income tax when he or she files a U.S. individual income tax return for the year. Employers can withhold federal income tax only if both the H-2A agricultural worker and the employer agree to withhold. The H-2A agricultural worker must provide a completed Form W-4, Employee's Withholding Allowance Certificate, to the employer for U.S. federal income tax to be withheld from this compensation. There is no need for the H-2A agricultural worker to submit a Form W-4 if there is no agreement to withhold U.S. federal income tax from the compensation. If the employer withholds income tax, the employer will report the tax withheld in box 2 (Federal income tax withheld) on Form W-2 and on line 6 (Federal income tax withheld) on Form 943. Please see Publication 51 (Circular A), Agricultural Employer's Tax Guide, for the withholding tables and deposit requirements. In the case of voluntary withholding of federal income tax on an H-2A agricultural worker, the employer is required to do one of the following:

  • If paying an H-2A agricultural worker who is a nonresident alien, follow the special withholding rules for nonresident aliens published in Chapter 9 of Publication 15 (Circular E) Employer’s Tax Guide or in Notice 1392, Supplemental Form W-4 Instructions for Nonresident Aliens.
  • If paying an H-2A agricultural worker who is a resident alien, follow the same withholding rules which would apply to a U.S. citizen employee in the same situation (refer to Publication 15).

An H-2A agricultural worker who chooses not to participate in voluntary withholding of U.S. federal income tax, but who nevertheless anticipates owing U.S. federal income tax, may be required to make estimated payments to the Internal Revenue Service on Form 1040-ES (if a resident alien), or on Form 1040-ES (NR) (if a nonresident alien). Please refer to the instructions for those forms for more information on the requirement to make estimated tax payments. An H-2A agricultural worker who is not required to make federal estimated tax payments may wish to make such payments anyway in order to avoid a large balance of tax due when filing a U.S. federal individual income tax return.

Generally, an H-2A agricultural worker is eligible to obtain a Social Security Number (SSN) from the U.S. Social Security Administration (SSA). An H-2A agricultural worker who is unable to apply for a U.S. SSN may apply for an Individual Taxpayer Identification Number (ITIN) from the IRS on Form W-7. For IRS information reporting purposes, the H-2A agricultural worker should provide his or her SSN or ITIN to the agricultural employer. If the H-2A agricultural worker fails to furnish his or her SSN or ITIN to the employer, and the aggregate annual payments made to the H-2A agricultural worker are $600 or more, the employer must begin backup withholding on the payment(s) at the rate of 28% and continue withholding until the H-2A agricultural worker furnishes his or her SSN or ITIN. The employer will report the compensation subject to backup withholding and the tax withheld on Form 1099-MISC and Form 945, Annual Return of Withheld Federal Income Tax, instead of on Form W-2 and Form 943. See the Instructions for Form 1099-MISC and the Instructions for Form 945. An employer who fails to do backup withholding when required will be held liable for the amount of the backup withholding tax which it should have withheld from the H-2A agricultural workers’ compensation.

The usual 30% withholding requirement under section 1441 of the Internal Revenue Code with respect to U.S. source personal service income paid to a nonresident alien does not apply in the case of compensation paid to a nonresident alien H-2A agricultural worker. Similarly, the Form 1042-S reporting requirement on wages paid to a nonresident alien H-2A agricultural worker is waived because the payments are required to be reported on Form W-2 (or Form 1099-MISC in the event of backup withholding).

Generally, compensation paid to H-2A agricultural workers is not subject to U.S. self-employment tax. There are different rules for workers who are residents of the United States and for those who are nonresident aliens. If, in any individual case, the compensation paid to an H-2A agricultural worker who is a resident of the United States is construed to be non-employee compensation which constitutes self-employment income and is therefore subject to U.S. self-employment tax under U.S. law, such worker may still be exempt from U.S. self-employment tax under the terms of an applicable bilateral Social Security agreement to which the United States is a party (Totalization Agreement). If a Totalization Agreement determines that the H-2A agricultural worker is covered under the social security system of a foreign country, then such worker is not subject to U.S. self-employment tax. The worker must obtain a certificate of coverage from the foreign country to establish an exemption from U.S. self-employment tax. If a particular worker who is a nonresident alien receives self-employment income, the worker would be exempt from U.S. self-employment tax unless he or she is required to pay such tax under a Totalization Agreement. Please refer to International Agreements for more information.

Income tax treaties may affect the taxation of H-2A agricultural workers in the United States. If an H-2A agricultural worker is a resident of a country with which the United States has an income tax treaty in force, the worker may be eligible for an exemption from U.S. federal income tax on his or her compensation under the treaty article that deals with income from services (e.g., Dependent Personal Services or Income from Employment). Please see Publication 901, Tax Treaties, for a description of the applicable treaty rules.

Because an H-2A agricultural worker’s compensation is not subject to withholding, the worker would not need to submit a Form 8233, Exemption From Withholding on Compensation for Independent (and Certain Dependent) Personal Services of a Nonresident Alien Individual, to his or her employer prior to payment. Rather, an eligible worker would claim a treaty exemption on his or her income tax return after the end of the tax year.

If an H-2A agricultural worker spends sufficient time in the United States, he or she may become a U.S. resident under the substantial presence test, but may also be a resident of his or her home country under that country’s tax laws. U.S. income tax treaties contain tiebreaker rules that apply in situations where an individual would otherwise be treated as resident of both the United States and the other country. H-2A agricultural workers who are treated as residents of the other country under a tiebreaker rule will be treated as nonresident aliens in figuring their U.S. income tax liability if they file Form 8833, Treaty-Based Return Position Disclosure Under Section 6114 or 7701(b). Alternatively, they may elect, on a year-by-year basis, to be treated as U.S. residents. H-2A agricultural workers who are treated as residents of the United States under a tiebreaker rule will be treated as U.S. residents and will generally not be eligible to claim a reduction or exemption from U.S. income tax under a treaty. Please see Publication 519, U.S. Tax Guide for Aliens, for an explanation of the alien residency rules for tax purposes.

Even though the compensation paid to H-2A agricultural workers is not usually subject to withholding of U.S. federal income tax, such compensation may be subject to reporting after the end of the tax year on a U.S. federal individual income tax return, and may be subject to U.S. federal income tax according to the following rules.

Nonresident aliens do not owe any U.S. federal income tax, and are not required to file Form 1040NR, U.S. Nonresident Alien Income Tax Return, or Form 1040NR-EZ, U.S. Income Tax Return for Certain Nonresident Aliens With No Dependents, if the following conditions are met:

However, if an H-2A agricultural worker is a U.S. resident under the substantial presence test but chooses to be treated as a resident of a foreign country under a treaty tiebreaker rule, such individual must file Form 1040NR or Form 1040NR-EZ with Form 8833.

Nonresident aliens are required to file Form 1040NR or Form 1040NR-EZ, even though part or all of their income may be exempt under an income tax treaty if any of the following conditions apply:

  • The worker’s total annual compensation is equal to or exceeds the personal exemption amount, or
  • The worker has other U.S. trade or business income, or
  • The worker has another need to file an income tax return, such as to satisfy tax liability on other U.S. source income.

It is possible that these nonresident aliens could owe U.S. federal income tax.

Resident aliens are required to file Form 1040, U.S. Individual Income Tax Return, or Form 1040A, U.S. Individual Income Tax Return, or Form 1040-EZ, Income Tax Return for Single and Joint Filers With No Dependents, if their total annual worldwide income equals or exceeds the filing requirement amounts published annually in the Instructions for Form 1040. It is possible that these resident aliens could owe U.S. federal income tax.

In addition to any U.S. federal income taxes which might apply to the compensation of H-2A agricultural workers, it is possible that such wages might be subject to state and local income taxes imposed by states, cities, counties, townships, or other localities in the United States. Please check with the applicable state and local tax authorities.

For current information and posters, please visit

for current information and posters, please visit

NM Federation of Labor, AFL-CIO
2300 Buena Vista Drive, S.E. Suite 126
Albuquerque, NM 87106
(505) 262-2629

List of Customarily Unionized H-2B Occupations

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    Applications Developer?

    Develop, create, and modify general computer applications software or specialized utility programs. Analyze user needs and develop software solutions. Design software or customize software for client use with the aim of optimizing operational efficiency.

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    Assemble, install, alter, and repair pipelines or pipe systems that carry water, steam, air, or other liquids or gases. May install heating and cooling equipment and mechanical control systems.

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    Raise, place, and unite iron or steel girders, columns, and other structural members to form completed structures or structural frameworks. May erect metal storage tanks and assemble prefabricated metal buildings.

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    Perform preliminary work with the material and tools of the trade; residential and commercial rough wiring and finish work including the installation of various kinds of wires, cables, and conduits per the National Electrical Code; industrial lighting and service installation; motors controls and installation including emergency generators, relays, and timing devices.

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