Becoming an H-2A Labor Contractor: A Guide for Montana Agricultural Service Providers

The call comes in March. A grower forty miles away needs a crew for three weeks, and he needs them the week after next. You have run this business for years on exactly that rhythm: you do not book forward, you finish the job in front of you, and you take the next caller. It has worked because it is flexible.

Now you want H-2A workers, and the U.S. Department of Labor is asking you a question you cannot answer.

Not “are your vehicles insured.” Not “can you afford a bond.” The question is this: name every farm where these workers will be, the dates they will be at each one, and what they will be growing or doing there – and attach a contract with each of those farms, signed by both sides, before you file.

That requirement is in 20 CFR 655.132. It is the first thing an H-2A labor contractor confronts, and for a certain kind of contractor it is the last thing, because it cannot be satisfied by a business that does not know in July where it will be in September. Contractors ask us about this every spring, usually after they have already decided that H-2A is the answer and are looking for help with the paperwork.

This article is about that requirement – what it says, why it exists, what can and cannot be changed after you file, and how to tell in about five minutes whether the H-2A program is built for the business you actually run.

Direct H-2A Employer or Labor Contractor: Which One Are You?

The H-2A program lets U.S. employers hire foreign workers for temporary or seasonal agricultural work when domestic workers are not available. The rules split based on whose land the work happens on.

Direct H-2A employer. You need workers for your own farm or ranch – fencing your own spread, planting your own wheat. You file as a standard H-2A employer. Your worksite is your address. You are what the regulations call a fixed-site employer, and the rest of this article is mostly not your problem.

H-2A labor contractor (H-2ALC). You supply workers to someone else. You lend a crew to a neighbor for haying, you run combines for three different operations, you do tillage and seeding for whoever calls. Under DOL’s Fact Sheet #26, an H-2ALC is an employer under the H-2A program who is not a fixed-site employer or an agricultural association, and who recruits, solicits, hires, employs, furnishes, houses, or transports H-2A workers.

There is no election here. You do not choose to be an H-2ALC for business reasons. If you furnish workers to third parties, you are one, and 655.132 applies to you.

Two adjacent points worth knowing. First, separate from H-2A, anyone who meets the definition of a Farm Labor Contractor under the Migrant and Seasonal Agricultural Worker Protection Act must hold an FLC Certificate of Registration before doing any farm labor contracting – that is a Wage and Hour Division registration, obtained on Form WH-530, and it is a different filing from the H-2A application. Second, the H-2ALC framework is the vehicle that makes multi-state custom combining work under H-2A: an operation following the wheat harvest from Texas to the Dakotas is an H-2ALC by definition, and DOL’s special procedures at 20 CFR 655.300 through 655.304 let it file one certification covering the full itinerary and use mobile housing. Our article on Canadian custom combine crews and the H-2A program walks through that route in detail.

What an H-2ALC Must File – and When

Section 655.132 requires the H-2ALC to include the following in or with its Application for Temporary Employment Certification, at the time of filing. That timing phrase is doing most of the work in this article.

(a) The worksite list. The name and location of each fixed-site agricultural business to which you expect to provide H-2A workers; the expected beginning and ending dates you will be providing workers to each fixed site; and a description of the crops and activities the workers are expected to perform at each one. In practice this is Form ETA-790A, Addendum B.

(b) Your MSPA FLC Certificate of Registration, if MSPA requires you to have one, identifying the specific contracting activities you are authorized to perform.

(c) An original surety bond. Covered in detail below, because the arithmetic is not what most people expect.

(d) Copies of the fully-executed work contracts with each fixed-site business you named under (a).

(e) Housing and transportation proofs where the fixed-site business – not you – is providing the housing or the rides.

Item (d) is where good-faith applications die. In FAQ Round 6, DOL was asked what “fully-executed” means and answered plainly: signed by both parties. The agency then listed what is not good enough – “letters of intent to secure a work contract or other incomplete or informal agreements,” and fully-executed contracts whose terms contradict the application. File any of those and the Certifying Officer issues a Notice of Deficiency.

Read (a) and (d) together and the real requirement emerges. You are not being asked to predict your season. You are being asked to have already sold it – to have gone to each grower months ahead, negotiated terms, and gotten a signature. The worksite list is not a forecast. It is a set of contracts you already hold.

The Bond, Calculated Correctly

The bond is the requirement most often stated wrong, including in the previous version of this page. Here is what 655.132(c)(2) actually says.

The base amounts depend on how many workers the certification covers:

Those are base amounts, not the amounts you will post. The regulation then says the bond is calculated by multiplying the base amount by the average AEWR in effect at the time of bond submission and dividing by $9.25. The bond therefore moves every time the average AEWR moves.

DOL publishes the average AEWR used for this computation on its FLAG adverse effect wage rate page. As of this writing (September 2026) it is $15.96 per hour (effective August 3, 2026), which makes the multiplier roughly 1.73. So a contractor filing for 20 workers is not posting $5,000 – he is posting something on the order of $8,600. A contractor filing for 60 workers is not posting $20,000; he is posting closer to $34,500. Expect the average AEWR to change when DOL publishes new AEWRs under the new method a federal court ordered it to produce in August 2026.

Two further points. If the certification covers 150 or more workers, the bond climbs again: for each additional group of 50 workers beyond 100, the amount increases by two weeks of wages for 50 workers, computed as 80 hours x 50 workers x the average AEWR. And the WHD Administrator can require a higher bond than the formula produces if objective criteria show the formula amount will not cover the potential liability.

Do not treat the figures above as quotes. The average AEWR is republished as it adjusts, and the bond you post is the one calculated at the time of submission. Check FLAG on the day.

For the AEWR itself (the two skill levels, the housing adjustment and the court-ordered rewrite), see our page on H-2A wage rates and the back-pay window.

Why the bond exists at all is worth stating, because it explains the shape of everything else in 655.132. DOL’s stated rationale is “the relatively complex and transient nature of H-2ALC business operations and concerns about undercapitalization.” A fixed-site farmer who stiffs his crew still owns the farm; there is something to collect against. A contractor who folds mid-season may own a pickup and a set of tools. The bond is what stands in for the land. Under the current rule it stays in force for three years after the certification expires – longer if an enforcement proceeding is running – and it is payable to the WHD Administrator, not to you. See DOL’s Fact Sheet #26H for the mechanics.

H-2A Is a Calendar Program

Here is the thesis of this article, and the thing the H-2A regulations will not tell you directly: DOL does not forbid you from changing your plans. It prices the change, and it assigns the price to you.

Once you understand that, the whole structure reads differently. Look at what the regulations permit at each stage:

The fourth row is the one that matters most, and it is easy to miss because it is an absence rather than a rule. Section 655.145 is titled Pre-determination amendments. It is DOL’s list of what an employer may change after filing. Worker count is on the list. Period of employment, narrowly, is on the list. Place of employment is not on the list. In a regulation whose entire job is to enumerate permitted amendments, the omission is the holding.

So consider the contractor from the opening. He files in July naming three farms. In August a fourth grower calls with better work. He cannot add that grower to his certification. He can decline the work, or he can file a new application and start the clock over – and by the time it certifies, the season is gone. Meanwhile, if one of his three named growers cancels, 655.122(i) does not care: those workers were guaranteed three-quarters of the contract hours, and the guarantee is the contractor’s obligation, not the grower’s.

That is not obstruction. That is the program working exactly as designed. The contractor who wants to stay flexible is not being blocked – he is being charged, and the bond is there to make sure he can pay.

Why This Is Not a Conspiracy Against Small Contractors

It is natural, standing where that contractor stands, to conclude the rules were written by somebody else’s lobbyist. The intuition is understandable, and it does not survive contact with the regulation next door.

An agricultural association filing a master application under 20 CFR 655.131 must identify each employer-member by name and address, the total number of workers needed, the period of employment, the first date of need, and the crops and agricultural work to be performed. The biggest, best-organized, best-counseled players in the program face the same place-and-date disclosure a one-truck contractor faces. If the listing requirement were a moat built to protect incumbents, the incumbents would not be standing in it.

The listing requirement is not a carve-out. It falls out of the labor-market test itself. Under INA § 218 / 8 U.S.C. 1188, DOL certifies that there are not enough U.S. workers available for the job opportunity and that hiring foreign workers will not adversely affect similarly employed U.S. workers. Both determinations are geographic. There is no way to test whether U.S. workers are available for a job that has no location, and no way to assess wage effects on a labor market you have not named. Take away the worksite list and there is nothing left to certify.

What is genuinely asymmetric is narrower and worth naming honestly: the bond and the executed-contract requirements fall on H-2ALCs alone. Agricultural associations are expressly not H-2ALCs, so 655.132 does not touch them at all. A contractor and an association doing economically similar work face materially different costs.

The better explanation is duller than capture and fits the evidence better. Rules get built around a paradigm case, get tightened in response to abuse at the margins, and land hardest on whoever is small and atypical – without anyone having captured anything. The paradigm H-2A user is a fixed-site operation with a calendar: it knows in January what it will plant, where, and when it will need pickers. Every deadline in the program assumes that operation. The contractor who dispatches to whoever calls is not the case the rule was drawn around, and he pays for the mismatch – not because he was targeted, but because he was not pictured.

The history supports the dull reading. The lineage runs from the Bracero Program through the Farm Labor Contractor Registration Act of 1963 to MSPA in 1983, and the abuses that drove it – phantom deductions, wage theft, unsafe transport – were disproportionately committed by intermediaries. But Congress did not stop there. The Congressional Research Service records that after the 1974 FLCRA amendments, congressional concern “moved away from contractors and toward those who used migrant workers – essentially, the growers and their agents.” Congress went after the shield the contractor structure provided, not on its behalf. And the modern bond regime traces to the worker-protective 2010 rule, not to the grower-friendly 2008 rule it replaced.

Which Category Are You In?

Most of the analysis above collapses into three questions. They are worth answering honestly before you spend money.

Three questions decide whether the H-2A program fits your operation.

1. Do you work only on land you own or operate? If yes, you are a direct H-2A employer. Easier rules, your own address on the form, no bond, no executed-contract exhibit. Stop here.

2. If no – can you name the specific farms, the dates, and the crops roughly 75 days before your first day of need? If you cannot, the program is not built for your business. That is an honest answer, not a failure of nerve or of lawyering. No filing strategy fixes it, because the requirement is the form itself.

3. If you can name them – can you get each of those farms to sign a work contract before you file? A handshake is not a contract. A letter of intent is expressly not enough. If the answer is no, you are back at the same outcome as question 2. If the answer is yes, you are an H-2ALC, and here is the price: the bond, the three-fourths guarantee that survives a grower’s cancellation, and a worksite list you cannot change after you file.

None of that is a determination of eligibility. It is the triage we run before taking the engagement, because a contractor who fails question 2 should not be paying anyone – us included – to file an application that cannot be granted.

What To Do With This

If you are a service provider thinking about H-2A, the most useful thing you can do this week has nothing to do with immigration law. It is to find out whether your growers will sign in advance.

That single fact decides the case. Contractors routinely discover that growers they have worked with for a decade – happily, on a handshake, every season – will not put a signature on a document in July for work in September. Not from bad faith. They do not know either. And once you learn that about your book of business, you know something more valuable than any answer a lawyer can give you: you know whether H-2A is a paperwork problem you can hire out, or a business-model problem no filing can solve.

If your growers will sign, the rest is mechanical, and it is work we do: the worksite list and Addendum B, the FLC registration, the bond at the correct current amount, the executed contracts assembled so the Certifying Officer does not have to ask twice, and the recruitment record behind all of it.

If your growers will not sign, the honest advice is that the H-2A program is not going to bend, and the conversation worth having is a different one – about whether some part of your operation can be restructured into a fixed-site posture, or whether a different classification fits the work.

Either way, that conversation is the strategy consultation, and it is where this starts.

At Immigration Law of Montana, P.C., we do this work for agricultural employers across Montana, North Dakota, Wyoming, Idaho, Utah, and Colorado. I have practiced immigration law since 1996 and founded the firm in 2001.

Schedule a Strategy Consultation