Obtaining labor for agricultural operations is an ongoing challenge. Programs such as H-2A and H-2B for obtaining workers can be difficult to navigate, and employers should understand the differences between the two programs.

In a presentation by AmericanHort, Megan Wright, másLabor’s director of industry relations, discussed the differences between the two programs.

The Immigration and Nationality Act (INA) created the H-2 visa classification for temporary workers in 1952. In 1986, the program was split to become the Immigration Reform and Control Act (IRCA).

The H-2A program was designed for temporary or seasonal ag labor needs; the H-2B program was designed for temporary non-agriculture needs. Agriculture is broadly defined in two terms: primary agriculture, which includes field preparation, planting, cultivating and harvesting, and secondary agriculture, which includes activities performed by a farmer or on a farm related to the farming operation (packing, processing, transportation). Non-agriculture, for the purpose of H-2B eligibility, is everything except agriculture, with landscape work as the largest program.

“The H-2A program is uncapped, meaning there are an infinite number of H-2A visas available each year,” said Wright. “It is truly based on your operation – how many workers do you need? The H-2B program is a capped visa program, which means there are a finite number of visas available each government fiscal year.”

For H-2A, temporary means anything under a year (10 months or fewer). There are several definitions of seasonal work depending on whether work is tied to a certain time of the year, tied to an event or pattern (growing season) or whether the operation requires labor above that needed for ongoing operations.

The H-2B program defines two primary temporary needs: seasonal and peak load. Seasonal refers to labor needs during certain times of the year, while peak load assumes a year-round operation with a need to supplement the year-round workers during peak months.

For the H-2B program, employers must demonstrate that the temporary need is bona fide for the numbers of workers requested. Employers will not be approved if they overstate or exaggerate their labor need. Employers must demonstrate that employment of H-2B workers will not adversely affect similarly employed U.S. workers in terms of job opportunities, wages and working conditions.

While the two programs are distinct, Wright explained the similarities. “We need to show there are insufficient qualified U.S. workers to fill positions,” she said. “There is a dictated wage rate that the program requires. It’s usually a minimum wage established by the U.S. Department of Labor in order to protect the wages of similarly-employed U.S. workers. In H-2A and H-2B you are responsible for inbound and outbound travel.”

In addition, employers must comply with strict payroll recordkeeping and other pertinent paperwork.

Employers using either of the programs for the first time should be familiar with several critical differences between the programs. “Overall, the H-2A program is more challenging from a compliance perspective,” said Wright. “Enforcement is also more prevalent in the H-2A program. Because the H-2A program is not subject to a visa cap, employers can choose their desired start date and the filing process is much shorter.” The H-2A filing process can actually be reduced to 45 days.

H-2A employers must provide free housing that meets minimum standards to all non-local workers which must be state inspected.

Despite the differences, there’s potential for crossover between the two programs. “What we’ve seen, specifically in the green industry, is that it’s legally permissible to participate in both programs simultaneously,” said Wright. “Maybe you’ve had a landscaping operation and now you’re exploring opening or expanding your nursery greenhouse growing operation. You can bolster your current staff and potentially have workers in place on the growing side.” However, there can be no overlapping job duties among the two visa classifications.

Crossover is most often seen in landscape installation job duties. For example, if a landscaping operation starts a growing operation, they could theoretically use H-2A workers to install a product if the product was grown to maturity on that operation.

“In order to qualify as agriculture, you need to be growing a minimum of 51% of the products being handled by workers,” said Wright. “That means grown to maturity, not buying in fully mature products.” If H-2A workers are being used, it must be a secondary job duty – they can’t be involved in just installation.

In the case of a business growing products to maturity, an H-2A worker can dig a shrub or tree and load it, then install it onsite – as long as it’s within the same area of intended employment.

“The installation must be subordinate to the growing operation,” said Wright. “There should be no overlapping job duties. In theory, if you are lucky enough to have both programs at the same time, installation duties could not also be present on the H-2B job order.”

If a growing operation is not yet established, an employer who intends to erect greenhouses, install irrigation and undertake other preparations to establish a business may also qualify for H-2A. Wright said the burden of proof to show past historical and growing patterns isn’t quite as intense on the H-2A side.

“You could, in theory, have H-2A workers the first year,” said Wright. “You could even do a one-time need on the H-2A side – maybe you need to build a hoop house or a greenhouse.” Wright emphasized paying close attention to job duties to determine whether there’s potential to fall into a different wage category.

Wright discussed current labor trends with H-2B filing. “First time users have an enhanced level of DOL scrutiny,” she said. “We need to make sure we are providing ample examples when it comes to burden of proof. When you are going through the filing process, you have to create a temporary need statement, which is ‘why am I bringing in this number of workers for this particular time?’”

For H-2B, employers should be ready to provide concrete evidence and a real need for labor to the DOL through historical tax documents, number of contracts and production levels.

Regarding other H-2B labor trends, Wright said there’s a glimmer of hope regarding cap relief, possibly for this past fiscal year, with the DOL allocating the maximum number of cap relief visas in the first half of the government year. This allowed employers to know what was going to happen and provide strategies for filing and know in advance when the cap would be hit.

“The return of the H-2B returning worker exemption is being included in the Fiscal Year ‘24 funding bill,” said Wright. “This means any H-2B worker who is considered a returning worker (anyone who has held an H-2B visa within the past three fiscal years) would not be counted toward the cap.”

Wright said anyone who has participated in the program is aware of the Biden Administration’s new program rule. “We had not seen any widespread reform since the Obama rule in 2010,” she said. “But we are now officially after that 90-day transition period operating under the Biden Administration new rule.”

by Sally Colby