CEO & Founding Attorney of Farmer Law PC, Kyle Farmer, walks us through the common struggles of the H-2A business immigration visa program and how to overcome them. Kyle provides some suggestions on how to make DOL visits run smoothly and ways to provide housing to employees that are cost effective to your business.
We know, the immigration system is messy! It’s complicated and confusing, especially for those looking to gain a visa or hire foreign workers. Farmer Law PC’s Immigration Guy, Kyle Farmer, knows all of the tricks of the trade. The firm specializes in innovative immigration solutions, some of which you’ll get to hear about on this podcast. Tune in for commentary on immigration-related news and industry insights, and The Immigration Guy’s thoughts on much more!
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**The information provided on this podcast does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available are for general informational purposes only. Listeners of this podcast should contact their attorney to obtain advice with respect to any particular legal matter. No reader, user, or browser of this site should act or refrain from acting on the basis of information on this site without first seeking legal advice from counsel in the relevant jurisdiction. Only your individual attorney can provide assurances that the information contained herein – and your interpretation of it – is applicable or appropriate to your particular situation. Use of, and access to, this podcast or any of the links or resources contained within the description do not create an attorney-client relationship between the listener and Kyle Farmer. **
Produced & Edited By: Drew Tattam
Hey y'all, this is the Immigration Guy with Kyle Farmer.
Welcome back to the Immigration Guy. Happy Wednesday. Uh, it's Wednesday, which means we are only two days away from getting. Play golf and shoot a lot of guns cuz that's what I do every weekend. That and hang out with my kids. But equally excited about both of those things. So, I wanna talk a little bit today about the H-2A visa and some of the associated requirements.
We're gonna start off with housing. Housing becomes one of the huge constraints for employers. For several reasons. One of the reasons is that housing in rural areas can be tough to find. If you are an H-2A employer, a lot of times it's better to just set up housing yourself in the form of a manufactured home on a small plot of land.
If you're a farmer and you have available land, this is something that is generally relatively inexpensive, at least compared to renting housing or anything like that. So, a lot of people, but that still becomes burdensome and, and difficult. So, there's a few things that you need to do with, with housing.
You can't submit your H-2A application without having housing in the first place. Uh, which is kind of a pain, especially if you're renting housing, cuz that means that you're renting housing for two to three months that you don't actually need the housing cuz your workers won't get there for two to three months.
But that's just kind of a, a, a cost of doing business with the H-2A program. That is one of the aspects though, that oftentimes is nice about owning your. Manufactured home is one you can set up your manufactured home to make it consistent with the actual inspection requirements. The way that housing works under the H-2A program is you can provide several types of housing and states treat them differently.
But normally what people want to do is the, they don't like to put people in motels cuz motels are extremely expensive. There's a meal component. To hotels that I can get into in a few minutes. But, uh, so normally people want to have some sort of fixed housing, whether that's an apartment manufacturer, trailer, ho, home, uh, just another rental house or a a house.
They own a house on their farm, whatever it may be. But you do have to have it. Set up prior to filing the application. Whenever you file the application, the first thing filed on your behalf is what's called the ETA 790, and this is filed with the State Workforce Agency. Uh, the state workforce agency will then conduct a housing inspection to make sure that your house meets the appropriate regulations.
Normally they go under OSHA standards for housing. So, if you're needing a, a housing checklist to make sure your housing's up to par, you can always email us for it. You can just email me at firstname.lastname@example.org and I can get you the, the actual housing checklist for OSHA. The nice thing about using the OSHA standards is if it meets the OSHA standards, it automatically will meet the MSPA standards.
It's just that the MS P standards are only for much older housing. There, there's a few things that people need to be aware of whenever they're setting up. One, they need to make sure that the housing's big enough to accommodate all the people that they need. And this is based predominantly off of the, uh, size of the house, uh, the layout of the house.
It has to have enough bedding, uh, in, in the house, has to have enough kitchen facilities, toilet paper and towels and all that kind of fun stuff. The other thing is the proximity to the work. These applications are generally done in pretty rural America, and so the, depending on the state in which you live, what is important to determine is how far is the housing from the work site.
There are some states where the state workforce agency would say that an hour away is too far away, and that's not considered a reasonable commuting distance, although most states give you more like 75 miles or so for your, your housing to be away. The work site and then, so what's gonna happen is you file the ETA 790.
The state workforce agency will reach out to the employer. The state workforce agency does not reach out to an attorney or agent that files an application to conduct the housing. They reach out directly to the employer. This is one of the only spots in the application process where your attorney or agent can't really help you.
So, the state workforce agency will schedule a housing inspection with you, uh, to, to then go and conduct the housing inspection to make sure it's consistent with the regulations. And they will have an inspector show up if there's any deficiencies. They don't just fail you and that they're, they don't say, okay, well, your applications burn.
You don't, you don't get to have people. Now, uh, what they do is they send you a list of deficiencies for you to remedy. You remedy the deficiencies. Most states allow you to remedy the deficiencies and then just send in picture evidence that you've remedied it to then satisfy the housing requirement.
You know, housing. difficult, but generally see people much happier with housing where they have fixed housing that they just have year after year. So, whether they're buying a house, uh, or putting a manufactured home on their farm, or building a house or building some sort of living facilities for the workers that actually meet the OSHA standards is, is what's most important there and also what seems to work the best. So, one of the other reasons that you would want to have housing that has a kitchen as opposed to housing that doesn't. So, I'm talking about, you know, an apartment or whatever that has an actual kitchen is because the H-2A regulations require that employers provide housing at no cost to the workers, but they also require that the employer provide either clean and convenient kitchen facilities at no cost to the worker or meals.
At no cost to the worker. Where the cost really increases is whenever an employer has workers in a motel, not only is it more expensive to actually have a motel, I mean, where you're, you know, paying, you know, you could be paying $40 a night per person. Uh, whereas housing is much less than that. You also have to provide meals, and the meals really, really add up.
Providing three meals a day as opposed to just a kitchen increases the cost of housing. Significantly. So, where you can, you want to avoid motels, the only benefit to motels is that they are faster to get, uh, and most state work force agencies don't have to go inspect 'em because they're public accommodations.
So, most state workforce agencies don't have to do that. One thing that employers oftentimes want to is they want to file an application with motels and then move their workers to housing. And they wanna do this because they don't want to pay for their meals anymore. And so, they wanna provide 'em the, the kitchen, but they didn't have time to find housing with the kitchen, and so they just wanna move 'em.
But the problem is, is that whenever you start people off in a motel and your job order, uh, that I will provide three meals a day and deduct the cost of the meals from the workers or, or not. Either way, your job order specifically says that you're gonna provide the meals, so whether your workers are in the motel or in housing that you shouldn't have moved 'em to anyways, because you have to get that approved by the Department of Labor.
You, uh, still having to provide meals and it's three meals a day, regardless of if the workers are. The meal thing really gets expensive, and it gets, uh, it, it makes it to where it's just, it's just not cost effective. Uh, so where you can, you want to find physical housing, uh, with a kitchen for your workers within reasonable commuting distance, and then hopefully you can rely on that same housing year after year.
Because once you have it set up in the first place, it becomes much, much easier. The other thing that employers are required to. for their workers is transportation. There's a few things to know here. You have to provide the cost of inbound and outbound transportation, and that's from their home city, not from the consulate.
Everyone wants to do it from the consulate cuz that's the easy thing. But the actual regulations require that you provide inbound and outbound transportation to the workers' home city, not just the consulate. So, we're talking about their, the cost of their bus. The cost of their meals, the cost of their hotel, all that from their home city to the consulate, from the consulate to the place of employment.
And so, you want to provide that on the worker's first paycheck. And I know that most employers don't want to do that because the H-2A regulations specifically say that you don't have to. Pay for those things until the worker completes 50% of the work contract. But the regulations also say in that same section that that's subject to the Fair Labor Standards Act.
While one issue that you oftentimes run into, particularly if you're bringing workers from South Africa or somewhere where the cost of transportation is really expensive, is you are inadvertently in violation of the Fair Labor Standards Act if you don't reimburse that travel expense on the first paycheck.
Because once you deduct the cost of the what, it costs the workers to get there. They would be paid under minimum wage. I know you're not actually actively deducting it from their check because it's costs that they incurred on getting over to work for you. Uh, but that is how the Department of Labor looks at it, and so, you can be in violation of FLSA if you don't provide for reimbursement of those expenses on the first paycheck. Plus, abscondment isn't so much of an issue that I've seen where this actually becomes too big of a deal for employers. I mean, we just don't see a lot of absconders. We see some, but not, not a ton.
Uh, so that's usually not too big of an issue. And the same thing with outbound transportation. You want to pay for everything from where they are, uh, to where they're going. So that's their plane ticket or bus ticket. Uh, if they're going to Mexico, and let's say you buy them a bus ticket and they choose not to use the bus ticket, that's not your responsibility.
You don't have to go and then pay for the airline ticket that they chose to use instead, but you per, you paid for their outbound transportation, but you do still have to provide for their meals, uh, and their hotel expenses that they incur on the way out. The other thing is, is that employers are required to provide transportation to and from the work site while the workers are in the United.
At no cost to the worker. So, where you see this is worker is staying in housing housing's 10 miles away and the worker needs to come and actually get to the work site. Employer needs to provide a vehicle and fuel to make that happen. The worker can get their driver's license. In the United States, it's usually not that.
Difficult, it's kind of just a normal process of getting your driver's license, uh, and then they can drive themselves to work. So, one question that comes up oftentimes is, do I need to pay my worker's drive time? And that depends. If your worker is transporting other workers from the housing to the work site, you need to pay that worker's drive time.
So, the way that you do that is you just let 'em clock in when they're leaving the house and then they clock out whenever they get back to the housing. So that's another thing that comes up all the time. That's something the Department of Labor looks at regularly within audits. I always recommend that people get their transportation inspected annually.
The Department of Labor has a specific form on which we can do that. It's not that big of a deal, but it definitely demonstrates compliance with the H-2A regulations. Cuz one of the things you really don't want to happen is you put your workers in an unsafe vehicle. One thing that the Department of Labor does whenever they're conducting an audit is they will go to the housing, and they'll talk to the workers.
Then they'll ask the workers, where is the vehicle that you transport that, that you drive, or that transports you every day? And then they'll go, and they'll look at the tread on the tires. They'll make sure the brake lights work. They'll make sure that the blinkers work, they'll make sure that it's inspected.
They'll make sure that it's insured. And so, you wanna make sure that, uh, your transportation is all consistent with this as well. So, you can, there's a form on the Department of Labor's website, or we can always send it to you if you just reach out to us. I'm happy to send you any of those, those forms that we've talked about.
But those are the main things with, with housing, with meals, and with transportation. Okay, so this is a question that I get all the time. Actually. If workers destroy something in the house due to a fight, uh, or negligence or anything else, can we deduct the replacement cost from the workers? If this, if it states in our rules of residency agreement, we have to amend that even though it's not in the work order.
So basically, the situation here would be employer has their job. and they have a separate contract with the workers that says that we can deduct replacement costs of damaged property in our housing. In this situation, you would not be able to deduct the cost of the damage to the housing to the workers.
The reason is because the, whenever you're thinking about deductions from H-2A workers’ paychecks, you need to think about it in this order. Is the deduction stated in my work? If no, then no. Don't deduct it. If yes, then maybe there's, there's two types of deductions under the H-2A rules. There's what's called a lawful deduction.
and a reasonable deduction. A lawful deduction is one that is disclosed in the work contract, but you can have a lawful deduction that's unreasonable, uh, in which case you couldn't deduct it. So let me give an example. If I say in my work contract, I am going to deduct the cost of any damage that's done to our housing because you're getting drunk and fighting. Uh, your, your language and your job order probably wouldn't read exactly like that, but it would be close to it. And then your guys get drunk. They get in a fight, one of 'em goes through the front door and you gotta replace the front door or goes through a wall and you gotta replace the wall.
And let's say the front door costs 1200, but the worker really pissed you off because they got drunk and were fighting the housing. And then the housing owner called you at three in the morning to tell you about it. And so, you're really mad about it. And so instead of deducting 1200 bucks, you deducted 1500 bucks for your trouble.
Well, that would be a. Lawful deduction in that you were, it was properly disclosed on your work contract, but it would not be a reasonable deduction because it exceeded the actual replacement cost of the, the damage. So, whenever you're making a deduction, it needs to be both lawful and reasonable.
Reasonable meaning it reflects the actual cost incurred to you by the damage. So, in, in the circumstances that was outlined here, they don't have it disclosed in their job order, so automatically, no. Even if they did have it disclosed in their job order, they also need to make sure that the deduction is actually consistent with what the replacement costs were to the the property.
Okay, so here's another question that we've, that we've got from one of our awesome listeners. We have one housing site without kitchen facilities, which we implemented due to. I don't think that this means that they took away the kitchen facilities. I think they means they got an extra house that they didn't have beforehand that has kitchen facilities.
The crew told us they only want two meals a day. They have 'em sign a signup sheet daily, uh, for the next day to document this. So basically saying, yeah, I only want those two meals and we're only deducting one-third of the daily allowance for the meal to reflect this. Is this an audit risk? Yes, it is. So, the the reason is because the regulations say that you have to provide.
your crew, three meals a day, you have to provide your workers three meals a day. So even if your workers only want two meals a day, that doesn't relieve you of your responsibility of providing three meals a day. And I think that the Department of Labor's rationale behind this would be that this, if this were allowed, the employer would be incentivized by having the workers.
Claim that they only want two meals a day as opposed to three meals a day. I think it's a, it's a rational argument from the Department of Labor side. But yeah, so it, it would be an audit risk because the regulations are very clear that you have to provide clean and convenient kitchen facilities or three meals a day.
And, and I, I understand the, the deduction part, being only a third of the daily allowance for each meal. Uh, I think that that could potentially help you in an audit, uh, because the way that the Department of Labor looks at it is they would then say, okay, well you didn't provide one meal that you were supposed to.
So, one meal costs, let's say $5 per person per day. Multiply that over. The time, and then you could say, yeah, but we only deducted a third of it, which means we could have deducted all of it. And so, they weren't actually financially harmed because we didn't take the full deduction. So, it's a, it's more of a civil money penalty risk, I would say, than a back wage issue. Uh, but still probably a back wage issue too. And just because whenever you get into these kinds of things with the Department of Labor, they rarely, rarely want to concede all of back wages. Um, the other thing is, is that you're deduction. I know that you're only deducting at.
Third of the daily allowance, but your job order might say you're deducting the total daily allowance, and that would be another separate violation. The reason is, is because the, when the Department of Labor looks at job orders, they look at 'em from the perspective of both the employees as of well as perspective U.S. Applicants, and so if the U.S. Applicant.
would be persuaded not to apply for the job because you're taking a deduction for the meals. Then, uh, the Department of Labor could say, oh, well you had an inaccurate job order, which could have adversely affected U.S. Workforce, so we're gonna find you for that. And they would. So, you want to do everything exactly consistent with your job order.
Uh, but I want to know that I want to know if the deduction part of only deducting a third of the daily allowance for the meals is actually a violate. Unless I read your job order, but I would suspect that it was cuz I've never seen that in a job order written that way. Remember to submit your questions to media at Farmer Law PC and we'll have 'em answered here on the Immigration Guy.
for our last segment today. We have immigration trivia with Susan. Uh, Susan is an expert H-2A paralegal. She has over 23 years of immigration experience. She is, uh, far more knowledgeable than I am as it relates to most things immigration-related. So, she created some, uh, some questions here to try to stump the Immigration Guy, which is.
Yes, I did. All right. Here we go. Time to get embarrassed. Question number one. Oh God. How many agencies are under the umbrella of the Department of Homeland Security? Oh God. Okay. Uh, we've got under the Department of Homeland Security. Yes, sir. Oh gosh. Okay. We've got, I'm gonna try to count all of 'em. Bonus points if you can name them.
Really. Do you have the names of all of 'em? I do. Okay. So, the FBI's under there, aren't they? They're not, not under the depart. Well, I, I'm thinking immigration only. Oh, I was thinking under department justice. You're thinking only immigration, right? Oh, okay. Uh, four Teen thousand 300. Uh, less. Less than four?
Yes. Or less than 14,000. Okay. Both less than. All right. Who, Well, that's my next question. Oh my God. Should I take pity and give you some hints? Yeah, absolutely. Ice. Okay. What does ICE stand for? Ice is one of them. Yes, immigration, customs Enforcement, Immigration and Customs Enforcement. Yes. Thank you. Thank you.
That is well done. One point. Thanks, Susan. It's a lot nicer than my teachers. Well, give me a minute. I've just started. Okay, good. Okay, so we've got ICE. Mm-hmm. Um, there's three. Three. There's three of 'em. Three main three agencies, three main agencies. Who do we work with a lot? The embassy in the USCIS would be the only other two that I was, yes.
Thinking of the USCIS. CBP? Oh, those, those guys. People are, yes. CBP, also known as people, that never. Ever make mistakes? Ever, ever, ever. CBP is known for their accuracy, which is I, you're gonna ask me what this one stands for? I am Customs and Border Protection.
Ooh, what was the former name of the branch? Now known as the USCIS before USCIS. It used to be called just Department of Homeland Security. Nope, it was called ICE. Nope. INS? Yes. Oh, nailed it. Nailed. But what is and naturalization services. It is Woo. Are we gonna clap every time? Absolutely, we are.
Every time you make me sound something out and I get it. Just so people are aware, she's not passing me notes. Nope. Okay. What was the um, or what prompted the creation of the Department of Homeland Security 911. So, when was that? No. I'm kidding. I was kidding. Oh, sorry. Clap. Click clap. Who knows that answer?
That's just everybody should hopefully, oh no one. Drew didn't know that. You did not. You learned it from reading her. Little Drew's over there silently lying on our podcast. Under what president was the DHS created and when did it go into effect? Bush. Yes. When Into effect, created in 2002. Yes. Went into effect beginning of 2003?
Correct. Who did they do that one? Drew? I just thought there's no chance in hell the government got anything done between September 11th and January 1st. It took him a little bit. Yeah. Yeah. You're not moving anything that. I actually remember when the, when the INS changed to the USCIS. Oh really?
Yeah. And we had to change all of our letterhead and all of that. All the fun stuff. Yeah. Hopefully they didn't choose their mailing address. Uh, let's see. What law created the concept of unlawful presence and when was it passed? I'm gonna guess that it, can I go with year first? Sure. 1989. No, 19 seven. A little bit later.
Oh, later, 1990. Later, 1996. Yes. Okay. I didn't know anything past in 1996, it did, um, this very terrible law, which we will strike from our minds only. It caused; it created all kinds of things like unlawful presence. I have no idea what the law is. What was it? It was called, well, we always called it, uh, my former employment IIRIR, or the Illegal Immigration Reform and Immigrant Responsibility Act.
Way to go, Bill Clinton. So, when did Unlawful presence actually start counting that it was created, the concept of it was created in that law, but when did it go into effect? It didn't go into effect right away. When did effect in 1998. Seven. That was my next guess. Yeah. 1997. I figured you were about to say.
I should just got not got weird with it. I don't know why I got weird with it. I should just gone '97 like I did on the other one. Terrible. April 1st, 1997. April 1st. April 1st. Oh, congratulations. The second half of the government's fiscal year. That April full day. Yeah. Only they weren't kidding. April Fools.
You actually do have a lot of unlawful presence now, but yeah. So, April Fools, but not on that. Yeah. Yeah. There are many different types of U.S. Visas. Do you know about how many U.S. Visas there are? Let's count 'em. H-2A, H-2B. TN, green cards. All right, I'm, we're done. Got a loss after that? Uh, no. So, okay. I bet, man.
Okay, let's just look at that USCIS page together right there in our minds. And I'm gonna go with 70. So, when I googled this, because I was thinking that there were probably around the amount of letters in the alphabet, right? Yeah. Because there are, except for, but you have like eight but more. Yeah, but a few more.
Well, there are actually 185, a hundred according to Google, 85 according to Google. Oh, but to the us? Yeah, just to the US. So, there are two main categories of visa though. What are they? Immigrant and non-immigrant. Yay. That was an immediate response too, what type of visa would one get for the fiancé of a U.S. Citizen?
K-1. Yes. What if the fiancé has kids? K-1 with kids, also known as a K-1 Wk. Or a K-2, right? WIC wk. I like that one better. But what is the rule on that? Like, can, can they bring their 44-year-old child? No. They have to be under the age of 35, or which is technically true. True. Or under the age of 21.
Yeah. Uh, but under the age of 35 is still true. Yes, it is still true, but not anywhere under there. All right. Hit me with one more. Okay, one more. I'm gonna bring it back around to your specialty. Thank God. Okay. How many countries are eligible to participate in the H-2… With that… One H-2B program? One you go for?
Wait, which one? Okay. We'll start with H-2A. Yeah. Cuz they're different. Yes, they are mildly. And I'm gonna have to guess because I've never actually counted 'em. I've just pulled up the page. Whenever people say is, Guatemala, Guatemala. On the eligible country list, I just Googled H-2A eligible country list and then I'll, I'll look at it.
Uh, but let's look at it. Let's count those suckers in our head and let's say they have three rows of 15 each, 45 plus another. 6 51. Um, I counted 85. 85. A lot of countries. Oh, are you? I see what you're doing. I went on there and counted. You're you're counting all of them separately? Yes. Oh, that's a good idea.
That's a good idea. I felt like that would be the best. Yeah, and most accurate way to count. That's, that's a way smarter way to count. No one knows that. That's how many of 'em I Do you have the list of 'em on there? No. But I have a link. Oh God. Yeah, I have a link too. What? All right, give me one more. Do you have an H-2A or H-2B one? That's not just crazy.
Um, pretty much. They're all crazy. Okay, let's go with crazy still then. That's real fun. In what year was the H-2A program established? 1976. No, 1956. No. Closer or farther, farther. Like soon read more recent. 19 87, 87. It is. Ooh. Nice. That's what I'm talking about. Thank you, Mr. Reagan. How do you feel about these questions?
I feel like I probably would've handled 'em a lot better if I was drinking beforehand. Well. Thank y'all for joining the Immigration Guy, and I hope that you have an awesome week. Thank y'all for listening to the Immigration Guy Podcast. We really appreciate it. You can find us on our website. Go to www.farmerlawpc.com.
You can find me on LinkedIn and Twitter. Just search at Kyle Farmer Law FLPC. You can find our law firm on Twitter, Instagram, YouTube. All you have to do is. Farmer Law PC, go ahead and subscribe to download all the episodes of our podcast. You can download 'em and listen to 'em whenever and wherever you want.
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