The labor shortage is impacting the agricultural aviation industry, agriculture overall, and virtually every other sector of the economy. One source of labor currently being utilized in agriculture is migrant workers, who, under certain circumstances may be available to the ag aviation industry as well to temporary agricultural jobs. The process of bringing in migrant labor to assist with ag aviation work is complex and time-consuming, so it is important to fully understand the process and begin early to ensure migrant workers are available when needed. Eligibility is based on the U.S. Department of Labor Wage and Hour Division’s 3(f) definition of agriculture and where the operation is located and works from.
Key Points
- Operators interested in securing foreign labor should start the process at least one year in advance because of the numerous government agencies involved
- Start with an agency whose business is helping agricultural employers bring in migrant agricultural workers, preferably one familiar with ag aviation operations such as USA Farm Labor, Inc.
- Migrant workers are brought in under the H-2A temporary agricultural visa program offered through the U.S. Citizenship and Immigration Services (USCIS).
- To qualify for H-2A classification the job must be temporary or seasonal nature.
- Must demonstrate that there are not enough U.S. workers who are able, willing, qualified and available to carry out the work.
- Must show that employing migrant workers for these jobs will not adversely affect the wages or working conditions of similarly employed U.S. workers.
- A key provision of the H-2A program is that the migrant workers must be working on a single farm; if an ag aviation operation works off a public airport, then you cannot use the H-2A program to hire migrant workers.
- For operations that work off of several airstrips during the season, need to apply for a Certificate of Registration as a farm labor contractor with the U.S. Department of Labor (USDOL) Wage and Hour Division. All of the additional sites must still be on farms. A farm labor contractor certificate does not allow for migrants to work at a public airport.
- Department of Homeland Security and the Office of the Secretary of State determines participating countries and length of stay.
- Employers are generally required to pay the Adverse Effect Wage Rate (AEWR).
- Migrant workers cannot be hired by an ag aviation operation on a temporary basis from a farmer who is participating in the H-2A visa program.
- NAAA provided a detailed review of the rules and processes in the Summer 2023 edition of Agricultural Aviation.
- In 2024, seventeen states and two organizations filed suit against the Department of Labor over the final H-2A rule titled Improving Protections for Workers in Temporary Agricultural Employment in the United States (Final Rule). The Final Rule was delayed in 17 states due to a preliminary injunction in the case Kansas, et al. vs. U.S. Department of Labor.. The Court ruled that the Final Rule violates the National Labor Relations Act as it attempts to unconstitutionally create law, infringing upon Congressional authority. The court did not grant a nationwide injunction.
- In 2024, Judge Ozerden of the U.S. District Court for the Southern District of Mississippi halted he enforcement of certain provisions of the Department of Labor’s (DOL) H-2A Worker Protection Rule. The court ruled that the DOL lacks authority under § 1188(c)(3) to regulate labor relations for H-2A employees, marking a significant legal win for agricultural employers. The ruling provides relief to farmers nationwide and underscores the need for the DOL to revise the rule in line with the court’s findings.
- At the 2024 Ag Aviation Expo, Manuel Fick, founder and CEO of Waynesville, North Carolina-based USA Farm Labor talked about how his company facilitates the hiring of foreign workers for agriculture in aerial application via the U.S. Department of Labor’s H-2A program. USA Farm Labor has obtained H-2A certification for ten aerial application companies, placing 61 workers across the U.S., including pilots and ground crew. USA Farm Labor also helps aerial applicators understand the distinctions between hiring foreign pilots and ground crew for fixed site operations – foreign workers working exclusively on land that an applicator rents or controls – and farm labor contractor operations – workers operating on land owned by other farmers. The company assists with applying for certificates for both types of operations.
- In January 2025, President Trump signed into law several security and immigration-policy related executive orders; none specifically mention the H-2A program.
- In June 2025, The U.S. Department of Labor’s Wage and Hour Division suspended enforcement of the Biden Administration’s H-2A rule titled Improving Protections for Workers in Temporary Agricultural Employment in the United States (Final Rule). This provides clarity for American farmers navigating the H-2A program, The action did not change existing regulations or limit the Wage and Hour Division’s authority to enforce H-2A requirements put in place prior to the 2024 final rule.
- In March 2025, Representative Steube introduced H.R. 1891 “Moving H–2A to United States Department of Agriculture Act of 2025” which proposes to move management of the H2A program from the Department of Labor to the USDA which understands the labor demands the agricultural industry faces
- H.R. 1891 “Moving H–2A to United States Department of Agriculture Act of 2025” is in the House Committee on the Judiciary.
- The Department of Homeland Security began processing petitions in parallel with the Department of Labor (DOL) to speed application timing.
- The State Department reinstated visa interview wiavers for returning workers, speeding up the process.
- DOL issued an interim rule changing the (AEWR) calculation, changing it to be based on skill-based wages. This replaced older and higher rates and was aimed to reduce wages. DOL also proposed rescinding a requirement for detailed information on recruiters/employers.
Recent Updates
H.R. 1891 “Moving H–2A to United States Department of Agriculture Act of 2025” is in the House Committee on the Judiciary and remains pending.