Digger magazine

Written to make you a nursery industry expert.

  • FWS-2025-NEW-September_728x90.png
  • NurseryGuide2024-728x90-1.png
  • Digger-Employment_banner-2020-728x90px.jpg
  • FWS-2025-NEW-September_728x90.png
  • Media-Kit-DM-com-banner-2025-728x90-1.png
  • Home
  • Articles
    • Nursery News
    • Features
    • Plants
    • Growing Knowledge
    • Operations
    • Nursery Country
  • Issues
  • Events
  • Farwest
  • Columns
    • Director’s Desk
    • Mike Darcy
    • President’s Message
  • Employment Classifieds
  • Advertise
  • Subscribe to Digger
You are here: Home / Columns / H-2A for nurseries

H-2A for nurseries

By Steve Shropshire — Posted March 27, 2018

Steve Shropshire

Steve Shropshire
Steve Shropshire serves as
legal counsel to the OAN and is a member of the Jordan Ramis PC Dirt Law® team, representing the nursery industry and other agri-businesses as outside general counsel and on water rights, real estate, and land use matters.
He can be reached at 503-598-5583 or [email protected].

The guest worker program offers a labor option, but has its challenges

Oregon nurseries are facing pressing labor shortages. Several have turned to mechanization, but the industry still needs human hands. In recent years, those hands have not been adequately available.

Many nurseries are considering the H-2A temporary agricultural worker visa program as a potential solution. H-2A is a federal guest worker program allowing agricultural businesses to hire foreign workers.

The H-2A program traces its origins to the 1953 Immigration and Nationality Act. The program allows United States agricultural employers to bring foreign nationals to the country to fill seasonal and temporary agricultural jobs that the employers are not able to fill with U.S. workers. The duration of an H-2A visa is limited to one year, with the possibility of extending it to a maximum of three years.

The program is administered through the U.S. Department of Labor and the Department of Homeland Security’s U.S. Citizenship and Immigration Services (USCIS). In addition, the Oregon Bureau of Labor and Industries and the Oregon Occupational Safety and Health Division participate in oversight of the program at the state level.

H-2A is very complex and full of potential traps for the unwary. This is true both of the application process and of program compliance once guest workers are hired.

Qualifying for the program

The H-2A program has several threshold requirements:

• First, there must be a shortage of sufficient workers who are able, willing and qualified, and who are available at the time and place needed to perform the labor services.

• Second, the needed labor must be agricultural in nature. Agricultural labor or services include activities such as planting, raising, cultivating, and harvesting of any agricultural or horticultural commodity.

• Third, the work must be full-time, which means at least 35 hours per week.

• Fourth, the need for the work must be seasonal or temporary in nature.

• Lastly, employment of foreign workers may not adversely affect the wages and working conditions of U.S. workers performing similar work.

Employers wishing to use H-2A must go through a rigorous application process. This process is time-consuming and unpredictable. Under the best-case scenario, employers need to start the process no fewer than 60 days before workers are needed.

To begin, employers must obtain state and federal certifications demonstrating that the work qualifies for the H-2A program and that U.S. workers are not available. Next, employers must file an I-129 petition with USCIS. If the petition is approved, foreign workers from eligible countries must apply for an H-2A visa.

Visa stamp

Agricultural businesses have successfully used H-2A, but success under the program requires customized advice and training.

 

Once you have the workers

The H-2A program imposes many compliance requirements on employers. Some of the most important are discussed here.

Wages. In Oregon, the hourly rate paid to H-2A workers must be equal to, or better than, the Adverse Effect Wage Rate (AEWR). For 2018, the U.S. Department of Labor set the AEWR in Oregon and in Washington at $14.12 per hour.

Housing. Employers must provide housing at no cost to H-2A workers and to domestic workers in corresponding employment who are not reasonably able to return to their residence within the same day.

Meals. Employers must either provide employees with three meals per day or furnish free and convenient cooking and kitchen facilities where workers can prepare their own meals.

Transportation. Employers must reimburse workers for reasonable transportation and subsistence costs incurred to travel to and from the work location from their country or place of origin. In addition, employers must provide free daily transportation between the workers’ living quarters and the employer’s worksite.

No discrimination against U.S. workers. Employers must treat domestic workers in corresponding employment positions no worse than the foreign workers. This includes the hiring process, wages, hours, transportation, and housing.

The challenges for Oregon growers

Oregon agricultural businesses face a number of H-2A-related challenges. Housing availability is foremost. Oregon’s land use laws restrict residential construction on property zoned for exclusive farm use (EFU), making it difficult to provide on-site housing for H-2A workers.

The high, mandated base wage is also an issue. Oregon has the second highest AEWR wage rate in the nation, making it difficult to compete with out-of-state nurseries.

Compliance with H-2A implementation requirements is also a challenge. The program imposes many requirements related to recruiting, payroll, housing, and reporting. The federal penalties for non-compliance range from approximately $1,700 to $17,000 per violation.

Finally, it is important to understand that nurseries are considered co-employers under state and federal law when working with labor contractors. This means that a nursery is liable for full compliance with all aspects of the H-2A program by labor contractors.

Agricultural businesses have successfully used H-2A, but success under the program requires customized advice and training. Nurseries that adequately prepare may find the program to be a viable solution to their labor shortage problem.

Steve Shropshire serves as legal counsel to the Oregon Association of Nurseries and is a member of the Jordan Ramis PC Dirt Law® team, representing the nursery industry and other agri-businesses as outside general counsel and on water rights, real estate and land use matters. He can be reached at 503-598-5583 or [email protected].

Download a PDF of this article

Share this:

  • Click to email a link to a friend (Opens in new window) Email
  • Click to print (Opens in new window) Print
  • Click to share on Facebook (Opens in new window) Facebook
  • Click to share on LinkedIn (Opens in new window) LinkedIn
  • Click to share on X (Opens in new window) X
  • More
  • Click to share on Reddit (Opens in new window) Reddit
  • Click to share on Tumblr (Opens in new window) Tumblr
  • Click to share on Pinterest (Opens in new window) Pinterest
  • Click to share on Pocket (Opens in new window) Pocket

Filed Under: Columns, Nursery Operations Tagged With: Business, Digger, Digger magazine, H-2a, Immigration, Labor, Legal Access, Wholesale Nurseries

About Steve Shropshire

Steve Shropshire uses his experience and knowledge to help his clients understand and navigate the complex legal environment that governs water rights and water law, natural resources, environmental, real estate and land use matters.

NURSERY NEWS

In Memoriam: Melvin John Steffenson

New USDA Census of Hort arriving in mailboxes this month

Oregon Association of Nurseries honors the industry’s best at 2024 Convention

Eason Horticultural Resources is now employee-owned

Oregon’s nursery licensing program aims to keep the entire industry healthy

Building trust is key to establishing clientele base for new nurseries

Five owners share their experiences on what it takes to start a nursery businesses

Bailey hires new CFO and chief HR officer

More Nursery News

From the pages of Digger

May 2025: Sustainability Issue

April 2025: The Tree Issue

March 2025: The Perennial Issue

February 2025: The Greenhouse Issue

January 2025: The Retail Issue

More issues of Digger

Pests and Diseases

Prioritizing nursery pest challenges

New tools in the battle against thrips

Aiming for precision in pest control

Oregon’s nursery licensing program aims to keep the entire industry healthy

$250,000 shifted to P. austrocedri research

More articles

FARWEST SHOW UPDATES

Sense of excitement prevailed at Farwest as nursery industry ‘Meets the Future’ 

Farwest Show attendees select favorites for the Retailers’ Choice Awards

Starway to Heaven™ Japanese Snowbell wins People’s Choice balloting at Farwest Show New Varieties Showcase

Hopper Bros. wins Best in Show booth award at 2024 Farwest Show   

Starway to Heaven™ Japanese Snowbell wins Judges’ Best in Show at Farwest Show New Varieties Showcase

More Updates from Farwest

The Value of Membership

Meet the leader: Sam Pohlschneider

OAN honors the industry’s best

Oregon Association of Nurseries honors the industry’s best at 2024 Convention

More member stories

​

Updates to exisiting subscriptions can be sent to [email protected]

News

  • Nursery News
  • Growing Knowledge
  • Nursery Operations

Features

  • Plant Features
  • OAN Members
  • Oregon Nursery Country

Columns

  • Director’s Desk
  • Mike Darcy
  • President’s Message
  • Digital Growth

Resources

  • OAN Home Page
  • Job Listings
  • Subscribe to Digger
  • Advertise in Digger
  • Online Plant Search

© 2025 Oregon Association of Nurseries

 

Loading Comments...