Positive Recruitment of U.S. Workers for H2A Explained
Positive recruitment of U.S. workers for H2A is the active search for American workers that an employer must run before and during the H2A season. Under the U.S. Department of Labor regulations at 20 CFR Part 655 Subpart B (eCFR current text, accessed 2026), positive recruitment means the employer works under the direction of the Office of Foreign Labor Certification to recruit and interview people in the area of employment, and in any other state the Secretary names as a labor supply state. In plain terms, follow the recruitment activities in your Notice of Acceptance, invite eligible former U.S. workers back, consider qualified U.S. applicants, and document the required recruitment efforts in a report.
Why Must H2A Employers Recruit U.S. Workers First?
Employers must recruit U.S. workers first because the H2A program is built on a test of the domestic labor market. DOL's Wage and Hour Division Fact Sheet #26A, accessed 2026, explains that the Immigration and Nationality Act allows H2A workers only when the employer shows there are not enough workers who are able, willing, qualified and available, and that hiring foreign workers will not hurt the wages and working conditions of similar U.S. workers. Recruitment is how you show that. For the full filing sequence around this step, see the H2A process overview.
This is not a formality you clear once and forget. The eCFR text of Subpart B states that the employer must keep cooperating with the state workforce agency by accepting referrals of all eligible U.S. workers who apply, and must independently conduct positive recruitment until the date the H2A workers depart for the place of employment. A Georgia vegetable grower and a Michigan apple orchard carry the same duty, even though their seasons start months apart.
Which Recruitment Steps Are Required?
The required steps come from your job order and from the Notice of Acceptance that the DOL Certifying Officer issues. The eCFR text of 20 CFR Part 655 Subpart B, accessed 2026, says the Notice of Acceptance directs the employer to conduct positive recruitment under sections 655.153 and 655.154 and to submit a recruitment report meeting the requirements of section 655.156. Read that notice closely. It tells you what your specific case needs.
Building Your Recruitment Sequence
First, file the job order so the state workforce agency can circulate it. Second, wait for the Notice of Acceptance and read the recruitment instructions it contains. Third, complete the recruitment activities required for your case. Fourth, log each U.S. applicant as they come in. Fifth, prepare and submit the recruitment report as required for your filing.
Labor Supply States and Where You Recruit
Your recruitment is not limited to your own county. The 2019 Federal Register rule on modernizing H2A recruitment requirements explains that when a job opportunity is served by traditional or expected labor supply states, the Certifying Officer will designate no more than three states where the employer must perform positive recruitment for each area of intended employment, and that the Notice of Acceptance describes those additional steps. So a Texas ranch may be told to recruit in states beyond Texas. The notice, not guesswork, sets that list.
Must You Contact Former Workers?
Yes. DOL Fact Sheet #26A, accessed 2026, states that the employer must invite U.S. workers employed during the previous year in the same occupation and at the same place of employment to return to their jobs. The fact sheet notes two exceptions: workers whose jobs were terminated for cause and workers who abandoned the worksite. Contact may be made by mail or other effective means.
Timing matters here. The same fact sheet says this contact must happen while the job order is being circulated by the state workforce agency, which is generally up to the 50 percent point of the contract period. Keep proof of what you sent and when. A dated letter, a delivery record or a call log is easier to produce later than a memory of a conversation in the packing shed. Our H2A compliance checklist for agricultural employers covers the wider recordkeeping habits that support this.
What Goes in the Recruitment Report?
The recruitment report is your written record of your positive recruitment efforts. The eCFR text of Subpart B, accessed 2026, requires a report of those efforts meeting the requirements of section 655.156. Confirm the exact report content and deadline for your filing against your Notice of Acceptance and section 655.156 before you sign anything.
The practical habit is simple. Build the file while the season runs, rather than reconstructing it afterward. Keep applications, dated records of former worker contact and your recruitment materials together in one place, so the report reflects what actually happened and when.
What If a U.S. Worker Applies Late?
You may still have to consider and hire that person. The eCFR text of Subpart B, accessed 2026, says the employer must accept referrals of all eligible U.S. workers who apply until the end of the period set in the regulation. Continue accepting eligible U.S. worker referrals for the period required by the applicable regulation and the instructions in your case.
Plan for it rather than being surprised by it. Write down the date each applicant came forward and the outcome, while the details are fresh. For case specific decisions about a late applicant, a refusal or a termination, talk to an immigration attorney. Nothing here is legal advice.
Frequently Asked Questions
The phrases are often used informally for related H2A hiring obligations. Positive recruitment is the regulatory term in 20 CFR Part 655 Subpart B for active recruiting and interviewing in the area of employment and in any labor supply state the Secretary designates.
The Certifying Officer does, through the Notice of Acceptance. The 2019 Federal Register recruitment rule explains that the officer designates no more than three traditional or expected labor supply states per area of intended employment, and the notice describes the additional recruitment you must perform there.
No. DOL Fact Sheet #26A excludes workers whose jobs were terminated for cause, and workers who abandoned the worksite, from the invitation requirement. Document the reason for the earlier separation at the time it happens. For a disputed case, ask an immigration attorney.
Keep the recruitment report and related records for the period required for your filing. Confirm the current retention rule in DOL guidance or with counsel, and store applications, former worker contact records and hiring decisions together.
Yes. Required recruitment is one of the services Head Honchos provides as an H2A agency, alongside job order, certification and petition support. Review your Notice of Acceptance carefully, and seek legal advice for case specific hiring decisions.
Incomplete documentation makes it harder to show what recruitment steps were actually taken. Build the file as the season runs, so each recruitment step, former worker contact and applicant decision already carries a date and a recorded outcome.
Positive Recruitment of U.S. Workers for H2A During Your Season
Positive recruitment runs from the job order through the required recruitment period, not just at filing time. Follow your Notice of Acceptance, contact eligible former workers on time, consider qualified U.S. applicants, and document each decision as you make it. See our H2A compliance support for how these obligations continue after workers arrive.
Head Honchos is a family owned H2A agency that handles paperwork from the job order through arrival. For help with positive recruitment of U.S. workers for H2A, request a free consultation or call (210) 695 1648, then learn more at headhonchosllc.com.
