H-2A Employers and Agents

The federal H-2A temporary agricultural worker program establishes a means for agricultural employers who anticipate a shortage of domestic workers to bring non-immigrant foreign workers to the U.S. to perform agricultural labor or services of a temporary or seasonal nature. Employment is of a seasonal nature where it is tied to a certain time of year by an event or pattern, such as a short annual growing cycle or a specific aspect of a longer cycle, and requires labor levels in excess of those necessary for ongoing, year-round operations. Employment is of a temporary nature where the employer's need to fill the position with a temporary worker will, except in extraordinary circumstances, last no longer than 10 months.

The current subsistence rate minimum is $16.28 per day, and the current subsistence rate maximum is $68.00 per day. Please also note H-2A applications are filed through the online FLAG system, discussed below.

Current H-2A Adverse Effect Wage Rates

In order to participate in the H-2A program, the employer must use the online Foreign Labor Application Gateway FLAG system to prepare the federal ETA Form 790 Agricultural and Food Processing Clearance Order. The New York State Department of Labor's Foreign Labor Certification Unit (FLCU) pre-approves the job order. The employer must submit the completed ETA 790 to the FLAG system no more than 75 days and no fewer than 60 days prior to the employer's date of need.

After the job order is received and entered into the New York State Job Bank by FLCU staff, the employer will receive confirmation the job order is approved. He or she may then submit the ETA Form 9142A to the USDOL's Chicago National Processing Center via FLAG. The job order must be identified as one that will be used in connection with a future Application for Temporary Employment Certification (ETA Form 9142A). The job order must meet the terms and conditions of 20 CFR 653.501 and 20 CFR 655.135.

For more information about the H-2A program, read our introductory document.

We would also like to remind stakeholders that H-2A job orders where work is performed in NYS, must comply with all NYS Labor Laws, including Paid Sick Leave (PSL) and the Farm Laborers Fair Labor Practices Act (FLFLPA).

Lastly, per the Farm Laborers Wage Board, the overtime threshold for farm laborers dropped from 56 to 52 hours/week, effective 1/1/2026. The next drop in the overtime threshold will be on 1/1/28, to 48 hours in the work week.

As always, please do not hesitate to contact the NYS SWA to discuss the H-2A process. We can be reached directly at [email protected].

The agents/attorneys listed are those that New York’s H-2A employers currently hire to complete H-2A related paperwork, recruit workers from foreign countries, and provide general assistance in the H-2A process. New York’s FLCU is not allowed to endorse any one representative over others. This list of agents may be provided to employers who would like to consider utilizing the services of these individuals.

Recruitments

Participation in the H-2A Guest Worker Visa program carries with it a number of requirements for employers including documentation of his or her efforts in recruiting domestic workers for the H-2A job order. Several H-2A employers have contacted the New York State Department of Labor asking if there is a template for the recruitment report. Since the U.S. Department of Labor does not currently provide such a template, the New York State Department of Labor has created a tool, Form AL 156,  to assist employers in complying with this federal requirement.  The tool was created as a service to agricultural employers, but employers are not required to use it. For a more detailed explanation about the tool, please view this description of the H-2A Referral Tool.

Terminations

This form, Form AL 156.4 offers guidance to help H-2A employers comply with federal and New York State requirements related to terminating employment of workers under an H-2A contract.

In order to assist employers in achieving compliance with New York’s Wage Theft Prevention Act (WTPA), a number of forms and other resources are provided for your use.

Pay Notice and Work Agreement for H-2A employers

Federal form ETA 790 when properly completed, partially satisfies the requirements of New York's Wage Theft Prevention Act (WTPA). The U.S. Department of Labor has developed an instruction document to assist with completing the ETA 790. While the ETA 790 is required for Foreign Labor Certification, it can also be used for participation in the Agricultural Recruitment System and is a useful tool for all agricultural employers in complying with the WTPA.

Employers may use the Pay Notice and Work Agreement LS309 as a supplement to the ETA 790 job order to meet the WTPA requirements.

Wage statements for H-2A employers

New York State Department of Labor Form FL 446 is a blank wage statement containing the fields that employers of H-2A workers must provide to document each pay period to comply with the WTPA.

H-2A Housing Inspection Process

Under the Farm Laborer Fair Labor Practices Act (FLFLPA), all migrant farmworker housing is required to obtain an annual permit from the Department of Health and comply with Part 15 regulations. Prior to 2020, only housing that was offered to five or more individuals was required to obtain a Migrant Farmworker Housing permit from the Department of Health (DOH). Since 2020, all employers providing migrant farmworker housing with an occupancy of 1 or more, must obtain a permit from the health department.

Because of the FLFLPA, the Department of Labor (DOL) is no longer conducting H-2A preoperational housing inspections and DOH inspections showing compliance with Part 15 are accepted to satisfy the necessary housing inspection required for federal H-2A program.

We recommend prospective H-2A employers contact their local health department as soon as possible to start the permitting and inspection process. Local health departments are in the best position to properly guide you through the process and timeframes for inspections and permits. Employers are required to contact the DOH to begin the process.

An approved housing inspection report must be received by the Chicago National Processing Center at least 32 days prior to your date of need. Therefore, it is your responsibility to ensure you have the necessary inspection completed in a timely manner.

Please note, depending on the dates of need, if you submit more than one H-2A job order annually, you may be required to submit an additional (updated) housing inspection during the processing period for a subsequent application. Our office will advise you of housing inspection requirements when we issue the Acceptance Notice from our office. 

Housing Note: 

Please note an employer is not permitted to change or add on housing after an H-2A job order is certified (except in circumstances where the original housing becomes unavailable due to circumstances outside the employer's control). As such, any and all housing an employer intends to use during an H-2A contract must be listed and inspected when the H-2A application is submitted. If housing on a certified H-2A job order becomes unavailable during the contract, please contact us right away for guidance. You may also send questions or correspondence to our H2A mailbox.

OFLC Announcements, Resources, and Links

• Link to Office of Foreign Labor Certification Announcements
• Link to USDOL H-2A Information Page
• Link to Foreign Labor Application Gateway
• More Announcements

Foreign Labor Certification Unit Supervisor: Melissa Buckley
Office phone: 716-851-2609
Mobile phone: 716-803-0402
E-Mail: [email protected]

Foreign Labor Certification Unit Program Emails: 
H-2A: [email protected]
H-2B: [email protected]

USDOL Contact Information
Find details at Foreign Labor Certification or contact the USDOL's Chicago National Processing Center at (312) 886-8000.