H-2A Best Practices for Businesses

Managing an H-2A workforce requires strict compliance with U.S. Department of Labor (DOL) and U.S. Citizenship and Immigration Services (USCIS) regulations. The following best practices highlight the most important rules and South Dakota-specific steps employers must follow to stay compliant and avoid costly penalties.
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Housing & Facilities

Free and Compliant Housing

Employers must provide free, certified housing for all H-2A workers and any domestic workers in corresponding employment who cannot reasonably return home the same day.

• Housing must be provided at no cost.
• Housing must pass safety and health inspections. Depending on the age of the housing unit, the South Dakota Department of Labor and Regulation (DLR) will follow the regulations of Occupational Safety and Health Administration (OSHA), Employment and Training Administration (ETA), or Mobile Housing Standards.
• Never move workers into a unit that has not been inspected and approved by DLR.
• If an emergency prevents the use of approved housing, email the state’s Foreign Labor Certification Office at FLC@state.sd.us to request a temporary housing change. The only approved post-certification alternative is a public hotel or motel. Include your reservation confirmation and the lodging license issued by the South Dakota Department of Health.
• Throughout the contract period, employers must ensure all housing remains compliant with safety and health standards.

Centralized Kitchens or Meals

Employers must either

• Provide free and convenient cooking facilities equipped with necessary appliances, or
• Furnish three meals per day at a DOL-approved rate.

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Payroll & Wages

Three-Fourth Wage Guarantee

You must offer employment for at least 75% of the total hours listed in the job order.

Highest Applicable Wage

H-2A workers must be paid whichever wage is highest among:

• The Adverse Effect Wage Rate (AEWR)
• The prevailing wage
• A collective bargaining wage
• State or federal minimum wage

Recordkeeping

All payroll, deduction, and recruitment documentation must be kept for at least three years.
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Transportation

Inbound Transportation

Provide or pay for transportation and daily subsistence from the worker’s recruitment location to the job site. If workers pay these costs themselves, employers must reimburse them no later than the 50% point of the contract period.

Outbound Transportation

At the end of the contract, employers must pay for return transportation and subsistence.

Daily Worksite Transportation

Daily, no cost transportation from employer provided housing to the worksite is required.

• All vehicles must meet federal, state, and local safety requirements and carry proper insurance.
• Drivers must hold a valid driver's license recognized by the state of operation.

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Recruitment & Domestic Hiring

Priority Hiring of U.S. Workers

Employers must hire any qualified and willing U.S. worker who applies before 50% of the contract period has elapsed.

Required Advertising

Submit your ETA 790 job order through the Foreign Labor Application Gateway (FLAG). You must complete all recruitment activities as directed by the DOL and DLR.
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Compliance & Operations

No Hidden Fees

Workers cannot be charged for recruitment or job placement. Employers must fully absorb these costs.

Mandatory Workplace Postings

Display required worker rights posters in locations easily accessible to workers. Posters must be translated into the workers’ native languages.
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Key Resources

U.S. DOL H-2A Compliance Review
DOL FLAG Portal

QUICK LINKS

South Dakota Department of Labor and Regulation

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