H-2A Visa Compliance & Investigation Defense

We Represent Labor Contractors and Other Companies in All H-2A Visa Compliance and Enforcement Matters

Attorney Nick Oberheiden
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The federal H-2A visa program allows companies to hire foreign workers to perform agricultural labor when they are unable to hire domestic workers to meet their needs. However, strict rules apply, and companies that fail to comply with these rules can face steep penalties. As a result, labor contractors and other companies in the agricultural industry need to prioritize compliance; and, when facing federal investigations, they need to execute a strategic defense.

Our lawyers represent labor contractors and agricultural employers in all H-2A compliance and enforcement matters. Whether you have questions about temporary labor certification, the protections afforded to foreign temporary workers, the H-2A prevailing wage requirements (or other work contract terms), or the risks of facing federal scrutiny, we can help. We assist companies across the United States, and we have extensive experience dealing with the relevant federal agencies on behalf of our clients.

H-2A Program Compliance (Including Foreign Labor Certification)

We assist labor contractors and agricultural employers with all aspects of H-2A (H2A) visa compliance. When companies bring foreign nationals into the United States for temporary work in the agricultural industry, they must generally do so under the H-2A visa program.

One of the key aspects of H-2A program compliance is meeting the requirements for obtaining (and maintaining) an H-2A Temporary Labor Certification (TLC). This is also commonly referred to as a “temporary employment certification.” Companies seeking to fill temporary agricultural jobs of a temporary or seasonal nature by hiring foreign workers must comply with the TLC requirements at all times. Some examples of these requirements include:

Employers must hire available domestic workers who are “able, willing, and qualified to perform the job” and who are referred for employment or apply directly during the first half of the work contract period.
Employers must ensure that prospective workers are in the United States legally and have a valid visa and all other immigration documents to lawfully work in the United States during the work contract period.
Wages paid to foreign workers must not, “adversely affect the wages and working conditions of workers similarly employed in the U.S.”
Foreign workers must be guaranteed employment for at least three quarters of the work period specified in the relevant contract, based on the “normal workweek” specified in the contract.
Employers must provide housing to foreign H-2A workers who cannot reasonably return to their permanent home (i.e., in their home country) at the end of the work day. They must provide this housing free of charge.
Foreign workers’ housing facilities must be inspected and certified prior to occupancy and properly disclosed in job orders.
At a minimum, employers must pay the highest of: (i) the adverse effect wage rate (AEWR), (ii) state or federal minimum wage, (iii) the prevailing wage (including piece rates), or (iv) the agreed collective bargaining wage.
Employers must also “provide or pay” the cost of transportation and daily subsistence (either via prepared meals or access to kitchen facilities) for H-2A workers. When reimbursing workers for these costs, employers must provide reimbursement no later than halfway through the relevant contract period.
Workers must receive payment for each pay period on time, and employers must withhold federal income tax if they agree to do so in the relevant work contract.
Employers must generally comply with the federal Fair Labor Standards Act (FLSA), including specifically its provisions regarding overtime (subject to the special wage provisions that apply to foreign employees hired for seasonal agricultural work).

Again, these are just examples. Companies must also meet numerous other requirements when hiring foreign workers under the H-2A program. Additionally, just like hiring other workers, hiring H-2A workers presents various other compliance obligations (and liability risks). Our lawyers assist companies with all aspects of federal compliance, and we are available to represent companies in labor disputes and enforcement matters involving other employment and immigration-related issues as well.

H-2A Investigations Under the Immigration and Nationality Act and Other Federal Laws

Labor contractors and agricultural employers can face scrutiny from various federal agencies related to their hiring of H-2A workers. Along with providing H-2A compliance representation, our lawyers also provide defense representation for investigations and enforcement proceedings such as:

U.S. Department of Labor (DOL) Temporary Agricultural Employment Investigations

The U.S. Department of Labor (DOL) enforces various aspects of H-2A program compliance. Once an employer agrees to comply with the terms of the H-2A program and obtains a Temporary Labor Certification, the employer must maintain strict compliance going forward. DOL investigations can target alleged violations ranging from failing to provide adequate pay from a worker’s start date to discharging workers without just cause (including in retaliation for consulting with an attorney at a legal assistance program or testifying against the company in a federal investigation).

U.S. Department of Homeland Security (DHS) Immigration Investigations

The U.S. Department of Homeland Security (DHS) investigates federal immigration law violations, including violations of the Immigration and Nationality Act. Hiring undocumented workers (knowingly or unknowingly), failure to submit an extension request when required, maintaining employment beyond the maximum period of stay, failure to comply when domestic workers are to be guaranteed employment opportunities, and other similar types of issues can lead to high-risk scrutiny from DHS.

Internal Revenue Service (IRS) Federal Income Tax Investigations

The Internal Revenue Service (IRS) investigates federal tax law violations involving employment under the H-2A program. This includes violations such as failure to withhold Social Security and Medicare taxes when required, failure to maintain W-4 forms (Employee’s Withholding Allowance Certificate), and inaccurately reporting wages paid to foreign workers. Companies facing IRS investigations related to their employment of foreign temporary agricultural workers will frequently face scrutiny related to other aspects of federal tax compliance as well.

U.S. Department of Justice (DOJ) Criminal Investigations

The U.S. Department of Justice (DOJ) began actively pursuing criminal investigations targeting H-2A violations in 2025. When conducting criminal investigations, the DOJ frequently works alongside the DOL, DHS, IRS, and state workforce agencies (among other federal and state authorities). In criminal enforcement cases, labor contractors and agricultural employers can face substantial fines, while executives and other individuals can face both fines and prison time.

FAQs: H-2A (H2A) Visa Compliance and Defense

What Are the Requirements for Hiring H-2A Temporary Agricultural Workers?

Federal law establishes several strict requirements for hiring H-2A temporary agricultural workers. These include, but are not limited to, requirements related to obtaining and maintaining a Temporary Labor Certification (TLC).

Due to the complexities of H-2A compliance—and the substantial risks associated with noncompliance—companies seeking to hire foreign temporary agricultural workers should engage experienced compliance counsel early in the process.

When is Agricultural Work Considered of a “Temporary or Seasonal Nature”?

The H-2A visa program allows companies to hire foreign agricultural workers for work that is of a “temporary or seasonal nature.” This generally means work that is tied to a specific time of year by an event or pattern.

Examples include a short annual growing cycle or a specific aspect of a longer agricultural cycle that requires labor levels far above those necessary for ongoing operations.

How Do Companies Get Into Trouble When Hiring H-2A Workers?

Companies can get into trouble when hiring H-2A workers in a variety of ways. Common issues include hiring workers who do not qualify under the H-2A program, failing to comply with foreign labor certification requirements, and continuing to employ temporary workers beyond the maximum authorized period of stay.

These issues, among others, can expose agricultural employers and labor contractors to substantial civil penalties and, in some cases, criminal liability.

What Do I Need to Do If My Company is Facing an H-2A Investigation?

If your company is facing an H-2A investigation, it is critical to engage experienced defense counsel immediately. Federal H-2A investigations present significant legal and financial risks, and a strategic response is essential to avoiding unnecessary consequences.

Experienced counsel can represent labor contractors, agricultural employers, and other clients in investigations involving the DOL, DHS, DOJ, IRS, and other federal agencies, including on an emergency basis when necessary.

What Are the Penalties for H-2A Visa Noncompliance for Agricultural Employers?

The penalties for H-2A visa noncompliance depend on the nature of the violation and the specific circumstances involved. In many cases, penalties include civil fines and loss of eligibility to participate in the H-2A program.

When warranted, the U.S. Department of Justice may also pursue criminal charges for violations of immigration laws, labor laws, tax laws, or other federal statutes.

Schedule a Call with an H-2A Compliance & Investigation Defense Lawyer at Oberheiden P.C.

If you have questions about foreign labor certification or any other aspect of H-2A visa compliance, we invite you to get in touch. If your company is facing federal scrutiny related to its hiring of foreign agricultural workers, we encourage you to contact us promptly in this scenario as well. To speak with one of our senior lawyers in confidence as soon as possible, call 888-680-1745 or tell us how we can help online now.