Is my seasonal labor need H-2A or H-2B?

The H-2A (agricultural) and H-2B (non-agricultural) temporary worker programs are administered under different statutes, different regulations, and dramatically different employer obligations. The threshold question is whether the work itself is agricultural within the meaning of 8 U.S.C. § 1184(c) and § 1188 and the Fair Labor Standards Act's § 3(f) definition.

What counts as agricultural

"Agriculture" for H-2A purposes includes cultivating the soil, growing and harvesting crops, raising livestock, dairying, and any practices performed by a farmer on a farm as incident to such operations. Specific examples:

• Planting, weeding, harvesting fruit, vegetables, or grain
• Tending and milking dairy cattle
• Sorting, washing, and packing harvested crops on the farm
• Sheep, goat, and cattle herding (with special rules)
• Reforestation and Christmas-tree harvesting

What does not count: meat processing (USDA inspects but the work itself is not agricultural), cannery and processing plants off-farm, landscaping, golf-course maintenance, and most aquaculture beyond a working farm.

What counts as non-agricultural seasonal

H-2B requires the employer's need to be temporary — one-time, seasonal, peakload, or intermittent. The classic H-2B industries:

• Landscaping and lawn care (April–November in temperate climates)
• Hospitality and tourism (resorts, ski areas, beach communities)
• Seafood processing
• Construction (for one-time projects)
• Carnival and amusement-park work
• Equestrian and stable work

Why the choice is mandatory

DOL and USCIS look at the actual work performed. If H-2A workers are used for non-agricultural tasks (cleaning the owner's house, repairing the office building), DOL can debar the employer from the program. If H-2B is filed for work that is actually agricultural, USCIS denies the petition.

The compliance differences that matter

| | H-2A | H-2B | |---|---|---| | Cap | None | 66,000/year (plus supplemental) | | Housing | Employer must provide (free) | Optional | | Transportation | Inbound, outbound, daily | None required | | Wage | Adverse Effect Wage Rate (AEWR), highest of 4 sources | Prevailing wage | | 3/4 guarantee | Yes — must guarantee 75% of contract hours | No | | Workers' comp | Required even where state law excludes ag | Standard state requirement | | Recruitment | DOL-run job order, regional recruitment | Employer-run with DOL oversight |

The 2025 H-2 reforms

The 2025 H-2 Modernization Final Rule strengthened worker protections in both programs: whistleblower retaliation protections, mandatory disclosure of recruitment fees, portability for workers to switch H-2 employers without loss of status, and expanded grace periods to find new employment after termination.

How we handle this

We start with a worksite walkthrough or detailed job description and classify the work against the agricultural definition. Where the answer is mixed (e.g., a vineyard with both farming and wine-tasting hospitality), we structure separate petitions for the separate operations. We document the temporary-need basis up front — DOL audits this aggressively in 2026, and a poorly documented temporary need is the most common reason for denial.