The H-2A Temporary Agricultural Worker Visa

Employment-Based Immigration

The H-2A visa program is directed at U.S. employers or agents who anticipate a shortage of domestic workers. The H-2A program allows these employers to bring agricultural workers to the United States to fill positions in the H-2A temporary agricultural program. A U.S. petitioner can gain authorization to hire H-2A workers by applying with the US Department of Labor (DOL) and the US Citizenship and Immigration Services (USCIS).

The H-2A visa program has grown increasingly popular over the years – the DOL certified five times as many H-2A visas as it did in 2005, up to over a quarter of a million in 2019. In terms of nationality, Mexican nationals represent the overwhelming majority of all H-2A visa workers.

Eligible Countries List

To qualify for the H-2A visa temporary work status, you must be a citizen of one of the nations on the Eligible Countries List maintained by the US Citizenship and Immigration Services (USCIS) of the Department of Homeland Security.

Who Can Hire H-2A Workers?

The H-2A program allows individuals, partnerships, associations, corporations, cooperatives, firms, joint-stock companies, trusts, and other organizations with legal rights to hire employees in H-2A status. An H-2A program employer must:

  • Maintain a physical establishment in the US;
  • Intend to maintain an employer/employee relationship with the H-2B beneficiary;
  • Hold a federal Employer Identification Number (EIN) issued by the IRS;

An association of agricultural producers is permitted to function as a beneficiary’s sole employer, joint employer (together with the members of the association), or an agent (for the members of the association).

How to Apply for an H-2A Visa as a US Employer

To gain authorization to hire foreign workers in H-2A status, a prospective employer must file for temporary foreign labor certification.

Step 1: Obtaining Temporary Labor Certification

Labor certification is offered by the US Department of Labor (DOL). It represents the DOL’s stamp of approval that the petitioner’s recruiting efforts will not adversely affect the wages and working conditions of U.S. workers. To obtain temporary labor certification for H-2A workers, the petitioning employer must:

  • Offer jobs with a temporary or seasonal nature;
  • Prove (through failed recruiting efforts) that the available positions cannot attract enough qualified U.S. workers who are able, willing, qualified, and available to take the job(s) offered; and
  • Prove that employing H-2A seasonal or temporary agricultural workers may not adversely affect the wages and working conditions of U.S. workers.

Only after the foregoing conditions are satisfied (along with the documentary requirements described below) will the U.S. Department of Labor issue temporary labor certification. Temporary labor certification is valid for a certain period and for a certain number of workers. The employer must submit the following forms:

  • DOL Form ETA-750A, Application for Alien Labor Certification;
  • DOL Form ETA-790, Agricultural and Food Processing Clearance Order; and
  • Supporting documentation.

There is no fee to file a labor certification application.

Step 2: Filing Form I-129

After receiving temporary labor certification, the employer/petitioner must file Form I-129, Petition for a Nonimmigrant Worker, and supporting documentation, with the USCIS. In almost every case, required supporting documentation includes the original temporary labor certification issued by the DOL. The employer (not the employee) must pay a filing fee of $460.

After filing Form I-129 and receiving approval from the USCIS, all that remains from the employer’s point of view is to provide the employee with the necessary assistance to obtain an H-2B visa (if the employee is not in the United States) and to comply with certain post-approval requirements.

How to Apply for an H-2A Visa as an Employee

To qualify for an H-2A visa, the employee must have a written job offer to come to the US to perform agricultural labor or services of a temporary or seasonal nature. The candidate must also prove that they intend to return to their home country after their H-2A period of stay expires. A mortgage on a local home would probably be sufficient for this purpose, for example, as would an attractive job offer waiting for the employee after they return to their home country.

If the employee is in the United States, they must be in legal immigration status to qualify for H-2A status. If abroad, the employer must apply for an H-2A visa at a US embassy or consulate abroad. The process works like this:

  1. Complete Form DS-160. This is an online form, and you should print out the confirmation page when it appears on your screen after you complete Form DS-160.
  2. Pay a fee of $190 (this amount is subject to change).
  3. Schedule a visa interview appointment online.
  4. Bring the following documents to your interview.
    • Form DS-160 confirmation page;
    • Copy of Form I-129;
    • Form I-797 approval notice, proving that Form I-129 was approved by the USCIS;
    • Your passport (the actual passport, not a copy);
    • One passport-sized digital photo that meets required US Department of State standards;
    • Documentary evidence that you intend to return home when your H-2A status expires.
    • H4 required documents for your spouse and children if they will accompany you.
    • Documents proving your relationship with any accompanying family members.
  5. Has your new H-2A visa stamped onto your passport?
  6. Present your passport to the immigration official at the US border. Even with an H-2A visa, the immigration officer is not required to admit you — you can still be denied entry if the officer is convinced that you are not eligible to enter the US.

Labor Protection Laws

US labor protection laws require employers to observe certain minimum standards, and these laws apply just as much to foreign workers as they do to workers with US citizenship. The U.S. Department of Labor Wage and Hour Division is diligent about auditing and inspecting H-2A employers, to make sure that they strictly observe the required standards.

Although part of the reason for this is to prevent the abuse and exploitation of foreign workers, another reason is to prevent US workers from having to accept poor treatment in order to compete with foreign workers. US labor law requires H-2A agricultural employers to pay H-2A employees’ inbound and outbound transportation, as well as housing and meals.

Frequently Asked Questions (FAQs)

How long does an H-2A visa last?

An H-2A visa lasts as long as the validity of the labor certification — typically, a period of months. If the appropriate need is shown, however, it can be renewed in increments of up to one year, for a maximum period of stay of three years. For each one-year extension, however, new labor certification is required.

Once you have used your three years of stay, you will be required to exit the United States for at least three months before you can return in H-2A visa status. Time spent in H or L status counts against your three-year limit.

What is meant by the ‘temporary or seasonal nature’ of agricultural labor?

‘Temporary or seasonal nature’, when applied to agricultural work, typically refers to work involving periodic annual demand such as planting or harvesting. Other types of temporary or seasonal needs are possible as well. A need is not generally classified as temporary or seasonal if it continues for as long as a year.

Can I travel on an H-2A visa?

Yes, you may travel freely outside of the United States during the term of your visa validity — you are not required to notify the US Citizenship and Immigration Services (USCIS) or to obtain advance parole. Keep in mind that time spent outside the United States while invalid H-2A status counts against your authorized period of stay — in other words, the clock is still ticking.

How Long Does It Take to Process an H-2A Visa?

Processing times vary for H-2A visas. The general advice, however, is to begin the application process 60 to 120 days before the anticipated start date of the H-2A employers.

Can I bring my family with me to the United States?

You can bring your spouse and your unmarried children under 21 years of age to the US under H4 visa status. They will not be admitted automatically – they must each apply for admission to the United States.

Their authorized period of stay will coincide with yours, except that they may “follow to join” you later. Your H4 family members may not work in the United States. They may study full-time or part-time, however, with no need to seek an F-1 student visa.

Can I change my status while on an H-2A visa?

Yes, you can apply for another nonimmigrant visa status while in H-2A visa status. The H-2A visa is not “portable”, however, like the H-1B is. If you are changing jobs or employers, your employer will have to file a new Form I-129 on your behalf.

Can I study on an H-2A visa?

You can study part-time on an H-2A visa. You cannot study full-time, however, and you cannot study so much, even if only part-time, that it interferes with the primary purpose of your visa, which is temporary agricultural employment.

Under what circumstances can my labor certification application be denied?

It would be impossible to briefly state every single one of the reasons why an H-2A visa application might be denied. Some of the most common reasons, however, include:

  • The application was filed too late and there was not sufficient time to establish that no qualified US worker was able, willing, and available to do the job;
  • The employer failed to complete US worker recruitment requirements, despite having sufficient time;
  • The employer took actions that adversely affected the condition of US workers after the labor condition application was submitted; or
  • The employer was adjudicated to have violated H-2A visa regulations at some point during the last two years (on behalf of a prior foreign worker).

Have there been any adjustments made to the H-2A visa program due to the COVID 19 crisis?

Yes. In order to ensure the security of food production and distribution, H-2A restrictions have been loosened up a bit. H-2A employers may, for example, change employers and start work even before the USCIS approves Form I-129 for the new employer. Although these new measures are temporary, they are expected to persist well into 2021.

Because the U.S government has prioritized the approval of H-2A visas, it expedites the process due to the fact that seasonal agricultural work is a critical part of the national food supply chain.

Employer’s Post-Approval Notification Requirements

Since the H-2A visa is an employment visa, you can lose eligibility if you are not working – in fact, you can even be deported. US immigration laws require H-2A employers to notify the USCIS under the following circumstances:

  • You are a “no show” at your job – in other words, you fail to report for work within five days of your scheduled start date as set forth in your work contract;
  • You started your job without incident, but at some later point during your work contract period of employment, you missed at least five consecutive workdays without obtaining the advance consent of your employer;
  • You are fired or laid off before completing your contemplated H-2B job order; or
  • You complete your services more than 30 days earlier than the official H-2A completion date contained in your employer’s initial I-129 petition.

H-2A employers must submit reports when any of the foregoing events occur, and they can be required to pay heavy fines for failing to do so.

Don’t Wait — Contact a Seasoned Employment Immigration Lawyer Immediately

The H-2A visa is often used as a political football, and changes to the rules can happen very quickly. Your best bet to ensure a smooth approval is to retain a seasoned immigration lawyer as early in the process as possible. Contact the Herman Legal Group today by calling 1-216-696-6170, or by filling out our online contact form to schedule a consultation with us. We look forward to hearing from you!

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