H-2A and H-2B Seasonal Worker Visas

The United States agriculture, landscaping, seafood processing, and hospitality industries rely on hundreds of thousands of foreign workers each year to fill positions that employers can't fill with U.S. workers. The H-2A visa (temporary agricultural workers) and H-2B visa (temporary non-agricultural workers) are the primary channels for this legal seasonal labor — both administered through a two-agency process: the Department of Labor (DOL) issues a labor certification confirming U.S. workers aren't available, then the Department of Homeland Security (DHS/USCIS) approves the visa petition. DOL's regulations for both programs live at 20 CFR Part 655. The H-2A program has no cap — any employer who qualifies can bring as many certified workers as needed. The H-2B program has a 66,000 annual cap (33,000 per half of the fiscal year), which is routinely exhausted within days of opening, making it a bottleneck for seasonal businesses. Both programs require employers to pay at least the prevailing wage or program-specific minimum, provide safe working conditions, and make good-faith efforts to recruit U.S. workers first.

Current Rule (2026)

What This Rule Does

20 CFR Part 655 governs the Department of Labor's labor certification process — the determination that U.S. workers are not available to fill the jobs before an employer may recruit foreign workers. For both H-2A and H-2B, labor certification requires the employer to demonstrate: (1) there are not sufficient U.S. workers who are able, willing, qualified, and available to do the work; and (2) employment of the foreign workers will not adversely affect the wages and working conditions of similarly employed U.S. workers. Certification is a precondition — without it, USCIS will not approve the visa petition.

H-2A (Subpart B) vs. H-2B (Subpart A): The two programs share the same conceptual framework but differ in key requirements. H-2A applies only to agricultural work (planting, cultivating, harvesting crops; animal husbandry; farm labor contracting). H-2B applies to any non-agricultural temporary, seasonal, peak-load, or one-time-occurrence work — most commonly landscaping, hospitality, amusement parks, seafood processing, and forestry. H-2A is more heavily regulated, with stronger worker protections and wage guarantees; H-2B has fewer mandatory benefits but the same labor market test.

Key Provisions — H-2A (Agricultural Workers)

• § 655.100 — Purpose: temporary agricultural labor certification issued by DOL authorizes employers to hire H-2A workers only after demonstrating the unavailability of U.S. workers; applies to all agricultural work as defined in § 655.103

• § 655.120 — Offered wage rate: H-2A employers must pay at least the Adverse Effect Wage Rate (AEWR) — the higher of the federal or state minimum wage, the prevailing wage for the occupation, or the AEWR (published annually by DOL per state). The AEWR is the critical floor; in 2026 it ranges from approximately $14/hr in some southeastern states to $20+/hr in western states. The same wage must be paid to U.S. workers performing the same tasks as H-2A workers

• § 655.121-122 — Job order filing: employer must file a job order with the State Workforce Agency (SWA) at least 60 days before the work start date; the job offer must include specified terms (duties, wages, housing, transportation, tools provided, piece rates if applicable) and must not prefer H-2A workers over U.S. workers

• § 655.130 — Application filing: employer submits Application for Temporary Employment Certification (ETA Form 9142A) to DOL's National Processing Center at least 75 days before the first date of need; applications submitted late receive no accommodation

• § 655.135 — Employer assurances (core H-2A obligations):

  • Free housing: employer must provide free housing (or a housing allowance) to all H-2A workers who cannot reasonably return to their permanent residence at the end of each work day; housing must meet federal and state health and safety standards
  • 3/4 guarantee: employer must guarantee work for at least 3/4 of the work days in the contract period; if not enough work is available, employer must pay for the hours anyway
  • Free transportation: employer must provide or pay for transportation from the place of recruitment or last place of work to the worksite, and return transportation at the end of the contract
  • Workers' compensation: employer must provide workers' compensation coverage at no cost to the worker
  • Tools and equipment: employer must provide at no charge all tools, equipment, and supplies necessary to perform the job

• § 655.150-153 — Recruitment of U.S. workers: after the job order is accepted, DOL circulates it to other states through the interstate clearance system; employer must contact former U.S. employees and accept all qualified U.S. applicants up to 50% of the contract period; if U.S. workers apply and are rejected, employer must document legitimate reasons for rejection

• § 655.160-170 — Certification determination: DOL issues a final determination (granted or denied) no later than 7 days before the work start date; employer may seek emergency processing when unexpected circumstances arise (§ 655.134)

Key Provisions — H-2B (Non-Agricultural Workers)

• § 655.1 — Scope: H-2B covers temporary non-agricultural employment in service industries, construction, manufacturing, and other sectors; work must be temporary — defined as seasonal (tied to a season of the year lasting less than 12 months), peak-load (employer's permanent staff is unable to meet a temporary surge), intermittent, or a one-time-occurrence

• § 655.10 — Prevailing wage determination: DOL determines the prevailing wage for the occupational classification and area of intended employment; employer must pay at least this wage to both H-2B workers and U.S. workers performing the same work

• § 655.11 — Registration: H-2B employers must register in the FLAG (Foreign Labor Application Gateway) system; registered employers may file job orders through the electronic system

• Application timeline: H-2B applications must be filed at least 75 days before the first date of need; DOL issues a determination at least 30 days before need. The 66,000 cap means early filing is essential — DOL uses a lottery when applications received within the first few days exceed the cap

• Temporary work requirement: Unlike H-2A, H-2B requires the employer to demonstrate that the need itself is temporary — an employer who needs workers every year for a recurring season can qualify (seasonal), but must establish that the work is tied to a season rather than a year-round business need

How It Affects You

If you're a farm or agricultural operation that needs seasonal workers: H-2A is the primary legal pathway for seasonal agricultural labor. The program requires significant advance planning — start the recruitment and paperwork process at least 90-100 days before you need workers. The AEWR and housing requirements add to labor costs, but the program provides legal certainty. The H-2A cap-free structure means any employer who completes the process can bring the workers they need, unlike H-2B. Agricultural associations can file joint applications, reducing paperwork for smaller operations.

If you run a landscaping, hospitality, or seasonal non-agricultural business: H-2B is your program, but the 66,000 annual cap is a real constraint. Cap allocations typically run out within days of the lottery opening (typically March for summer season, September for winter season). Congress periodically authorizes supplemental H-2B visas — usually announced by USCIS with little advance notice — and businesses that have participated previously may qualify for returning worker exemptions that don't count against the cap. Start the application process immediately after the prior season ends to maximize your position for the next year.

If you're a U.S. worker applying for agricultural or seasonal jobs: H-2A and H-2B employers must accept all qualified U.S. applicants and pay U.S. workers at least the same wage as H-2 workers. If you're displaced by an H-2 worker or believe an employer is misrepresenting the work or failing to pay the required wage, contact DOL's Wage and Hour Division. The State Workforce Agency (SWA) in your state posts H-2A job listings — they're required to do so and are a legitimate source of agricultural job listings.

If you're a foreign national seeking H-2 work: You must be a national of a country on DHS's H-2 eligible country list (updated annually). Your employer must petition for you specifically; you cannot self-petition for H-2 status. H-2A and H-2B workers can bring spouses and children under H-4 dependent status, but H-4 dependents have no work authorization.

Statutory Authority

This rule implements:

• 8 U.S.C. § 1101(a)(15)(H) — INA § 101(a)(15)(H): H nonimmigrant definitions — H-2A ("performing agricultural labor or services... of a temporary or seasonal nature"), H-2B ("performing... temporary service or labor")
• 8 U.S.C. § 1184(c) — INA § 214(c): employer petition requirement; DOL labor certification prerequisite for H-2A and H-2B approval

Recent Rulemakings

• 2022 H-2A rule: DOL updated wage calculation methods, strengthened anti-retaliation protections for H-2A workers who file complaints, clarified employer obligations regarding housing inspection, and tightened requirements for H-2A labor contractors (farm labor contractors who supply workers to multiple farms)
• 2023 H-2B supplemental visa rule: Following Congressional authorization of supplemental H-2B visas beyond the 66,000 cap, DHS and DOL issued rules for allocating the additional visas, prioritizing returning workers, employers from specific industries, and employers in northern border states (to address labor shortages in seasonal resort and hospitality industries)
• AEWR updates (annual): DOL publishes updated Adverse Effect Wage Rates annually in January, based on USDA farm labor wage surveys; rates have increased substantially since 2020, reflecting overall farm wage trends

Recent Developments

• H-2B cap and supplemental allocations (2025): The statutory H-2B cap (66,000 per fiscal year) remains in place, but Congress has continued authorizing supplemental visa allocations in government funding bills. In FY2025, DHS again made supplemental H-2B visas available — prioritizing returning workers and certain industries. Demand for supplemental H-2B visas consistently outpaces supply, with applications opening and filling within hours.
• Enhanced vetting and country eligibility (2025): The Trump administration intensified security screening for H-2 applicants, with longer processing times and additional scrutiny for nationals of certain countries. DHS annually updates the list of H-2B eligible countries; countries with high visa overstay rates or security concerns can be removed. These changes affected processing times for some seasonal employers.
• H-2A wage rate increases: DOL's Adverse Effect Wage Rates (AEWRs) for H-2A agricultural workers have increased substantially since 2020, reflecting tightening farm labor markets. In 2025, AEWRs in many states exceeded $18-19/hour — significantly above state minimum wages — increasing costs for agricultural employers and intensifying debates about whether the program's wage requirements are calibrated appropriately.
• DOL enforcement actions: The Biden DOL's 2022 rule strengthening anti-retaliation protections for H-2A workers continued to shape enforcement priorities. Several large agricultural employers faced DOL enforcement actions for housing violations, wage underpayment, and retaliation against workers who filed complaints.
• Congressional reform proposals: Persistent Congressional interest in H-2A reform focuses on three issues: extending H-2A to year-round agricultural workers (currently limited to temporary/seasonal needs), allowing H-2A workers in livestock and dairy operations that don't meet the "seasonal" requirement, and streamlining processing timelines. No comprehensive H-2 reform has been enacted as of 2026.

Implementing Regulations — WHD Enforcement

While DOL's Employment and Training Administration (ETA/OFLC) handles labor certification under 20 CFR Part 655, a separate set of regulations governs enforcement after workers arrive. The Wage and Hour Division (WHD) enforces employer compliance with the contractual obligations made at certification time — and has independent authority to investigate, assess penalties, and debar non-compliant employers from the programs.

H-2A Enforcement — 29 CFR Part 501 implements WHD's enforcement authority under 8 U.S.C. § 1188. Key provisions:

• § 501.15 — WHD enforcement: WHD investigators may conduct inspections, interview workers, and review records without advance notice; field investigations are the primary mechanism for detecting wage underpayment, housing violations, and retaliation
• § 501.16 — Sanctions and remedies: WHD may require payment of back wages and other required compensation; may seek injunctive relief; may assess civil money penalties; remedies run against employers, agents, and recruiters who participate in violations
• § 501.19 — Civil money penalty assessment: WHD may assess a civil money penalty for each violation of the work contract, § 655 labor certification requirements, or § 501 itself; penalties are assessed per worker per violation, not per incident — a single housing violation affecting 30 workers can produce 30 separate penalty counts
• § 501.20 — Debarment: WHD (or OFLC) may debar an employer, agent, or attorney from participating in the H-2A program for up to 3 years for violations; debarment means no future labor certifications will issue during that period
• § 501.21 — Failure to cooperate: employers must not refuse access or obstruct WHD investigators; refusal to cooperate is itself an independent violation subject to separate penalties

H-2B Enforcement — 29 CFR Part 503 mirrors Part 501 for non-agricultural employers under 8 U.S.C. § 1184(c). Key provisions:

• § 503.16 — H-2B employer assurances: employers must comply with all terms of the temporary labor certification and the job offer, including wage rates, overtime rules, working conditions, and transportation obligations; these obligations extend to "corresponding employment" — U.S. workers performing substantially the same work as H-2B workers must receive at least the same wages and benefits
• § 503.17 — Document retention: employers must retain all records related to the employment of H-2B workers and corresponding U.S. workers for 3 years from the last date of H-2B employment; records must be available for WHD inspection
• § 503.19 — Violations: a violation exists when an employer misrepresents a material fact on a certification application, fails to meet job offer terms, displaces or adversely affects a U.S. worker, or fails to cooperate with investigations
• § 503.23 — Civil money penalties: assessed per worker per violation for failures to pay required wages, provide required benefits, or comply with certification terms; each affected worker counts as a separate violation
• § 503.24 — Debarment: debarment may extend to employer, any agent or attorney involved in the violation, and successor entities; OFLC will not issue future certifications during the debarment period

WHD and OFLC coordinate enforcement: OFLC handles certification-related disqualifications (denying or revoking labor certifications), while WHD handles back-wage recovery and civil penalties. In cases where an employer is both defrauding DOL's certification process and underpaying workers, both agencies may act concurrently under § 501.17 / § 503.21. Workers who believe their employer has violated H-2A or H-2B obligations should contact the nearest WHD district office — complaints trigger WHD's investigative process, and workers are protected against retaliation for filing.

Pending Action

H-2A reform legislation remains a perennial Congressional priority that has consistently stalled. The Agricultural Workforce Modernization Act — which would extend H-2A to year-round dairy and livestock workers, create a new portability pathway for H-2A workers, and streamline DOL certification — has been introduced in multiple Congresses. Watch the Senate Judiciary and House Judiciary Committees for markup activity; H-2 reform is often bundled with broader immigration reform bills that face more difficult passage dynamics. For H-2B, the supplemental visa allocation authority in each government funding bill creates an annual uncertainty; employers should plan applications for both the initial cap allocation (October 1 for FY start, January 1 for second half-year) and monitor Congressional appropriations language for supplemental allocations.