Which Farm Jobs Qualify for an H-2A Visa?

A farm job qualifies for an H-2A visa when two things are true: the work is agricultural labor as federal law defines it, and the employer’s need for the worker is seasonal or temporary. Most H-2A eligibility problems come from the second test, not the first. A dairy needs milkers every day of the year, so the work is plainly agricultural but the need is not temporary, and the dairy cannot use the H-2A for those jobs. There is no annual cap on H-2A workers, which makes the program attractive to growers who qualify. Our H-2A agricultural worker visa page describes how we prepare these filings; this article explains where the eligibility lines fall.

What counts as agricultural labor for H-2A

The H-2A rules define agricultural labor by borrowing two existing federal definitions: agricultural labor under section 3121(g) of the Internal Revenue Code and agriculture under section 3(f) of the Fair Labor Standards Act. Taken together, they cover:

• Cultivating soil and planting, growing, and harvesting crops, including fruits, vegetables, grains, tobacco, and horticultural products
• Raising livestock, poultry, bees, and fur-bearing animals
• Work in nurseries and greenhouses that grow plants
• Handling, packing, grading, and storing crops in their unmanufactured state, when the work is done by the farmer or as an incident to the farming operation

The FLSA definition includes practices performed “on a farm” as an incident to farming, which is where most borderline questions arise. DOL also runs special procedures for a few occupations with unusual work patterns, such as range sheep and goat herding, which allow arrangements the general rules would not.

Borderline work: packing, processing, and landscaping

Some jobs look agricultural but fall into the H-2B program instead. The distinction usually turns on where the work happens and whether it changes the product.

Packing your own harvest in a shed on the farm is agricultural. Packing produce from many unrelated growers at a commercial packinghouse may not be. Freezing or canning that turns a crop into a manufactured product is processing, not agriculture. Seafood processing is non-agricultural. Growing trees and shrubs in a nursery is agricultural; installing them in a customer’s yard is landscaping, which is classic H-2B work. Reforestation and tree planting on forest land have historically been handled as H-2B work as well.

If your operation spans both sides of that line, the answer may be two programs with separate workers, not one. Our article on choosing between H-2A and H-2B works through those mixed cases, and our H-2B seasonal worker visa page covers the non-agricultural side.

The seasonal or temporary need test

The second test is about the employer’s need, not the job duties. DOL treats work as seasonal when it is tied to a certain time of year by an event or pattern, such as a growing season or a harvest. It treats work as temporary when the employer’s need is not expected to last more than a year, outside narrow exceptions.

That is why year-round operations struggle. Dairies, hog and poultry houses, and egg operations need the same labor every week. The fact that they cannot find enough workers does not make the need temporary. The same goes for a grower who files several back-to-back applications that, added together, cover almost the entire year. DOL looks at the pattern, not just the dates on one application.

For a seasonal grower, the evidence is usually simple: payroll records showing that headcount rises for planting and harvest and falls away between seasons, and a date of need and end date that line up with that history.

Who can file as the employer

Three kinds of employers can use the H-2A program. An individual grower or ranch can file for its own operation. An association of agricultural producers can file as the sole employer, as a joint employer with its members, or as an agent for its members. And an H-2A labor contractor, which recruits and supplies crews to growers, can file in its own name, but it must meet additional requirements, including a surety bond and the farm labor contractor registration that federal law requires. Labor contractors also need copies of their agreements with each grower where the crews will work.

The worker’s side of eligibility

The workers must be able to do the job, and the job order cannot demand experience or skills beyond what non-H-2A farm employers in the area normally require. DOL will push back on requirements that seem designed to screen out U.S. applicants. H-2A workers must also intend to return home when the season ends; the H-2A is not a dual intent visa, and consular officers apply the usual presumption of immigrant intent at the interview.

Before you file

Pin down the date of need, the length of the season, the job duties, where the workers will live, and what the wage budget looks like under the H-2A rules. Each of those has to be settled before the job order is drafted. Our guide to the H-2A process and timeline shows how far ahead each piece has to be ready.

If you are deciding whether your operation can use the H-2A program, a consultation with Capitol Law Partners can map the right path for your situation. Schedule a consultation.

This article is for informational purposes only and does not constitute legal advice. No attorney-client relationship is formed by this communication.

Attorney Cagatay Ersoy. Practical strategy for founders, investors, and growing companies.

Need help with this topic? See our H-2A temporary agricultural worker page or schedule a consultation.