The H-2A temporary agricultural program establishes a means for agricultural employers who anticipate a shortage/lack of domestic workers to bring non-immigrant foreign workers to the U.S. to perform temporary or seasonal agricultural work including, but not limited to, planting, cultivating, or harvesting Labor.
H2A VISA PROGRAM CRITERIA
The Following General Categories of Individuals or Organizations May File an Application:
- An agricultural employer who anticipates a shortage of U.S. workers needed to perform agricultural Labor or services of a temporary or seasonal nature may file an application requesting temporary foreign agricultural Labor certification. “Temporary or seasonal nature” means employment performed at certain seasons of the year, usually in relation to the production and/or harvesting of a crop, or for a limited time period of less than one year when an employer can show that the need for the foreign worker(s) is truly temporary.
- The employer may be an individual proprietorship, a partnership, or a corporation. An association of agricultural producers may file as a sole employer, a joint employer with its members, or as an agent of its members.
- An authorized agent, whether an individual (e.g., an attorney) or an entity (e.g., an association), may file an application on behalf of an employer. Associations may file master applications on behalf of their members.
Many of the benefits that must be included in a job offer and other conditions that must be satisfied will be dependent upon what prevailing practices exist in the same occupation, crop and area. Employers are advised that it is desirable to make an independent determination of factors such as prevailing wages and employer practices before filing an application.
WHO MAY QUALIFY FOR H-2A CLASSIFICATION?
To qualify for H-2A non-immigrant classification, the petitioner must:
- Offer a job that is of a temporary or seasonal nature.
- Demonstrate that there are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work.
- Show that employing H-2A workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.
- Generally, submit a single valid temporary Labor certification from the U.S. Department of Labor with the H-2A petition. (A limited exception to this requirement exists in certain “emergent circumstances.” See e.g., 8 CFR 214.2(h)(5)(x) for specific details.)
H-2A PROGRAM PROCESS
- Step 1: Petitioner submits a temporary labor certification application to the U.S. Department of Labor (DOL). Before requesting H-2A classification from USCIS, the petitioner must apply for and receive a temporary labor certification for H-2A workers from DOL. For further information regarding the temporary labor certification requirements and process.
- Step 2: Petitioner submits Form I-129 to USCIS. After receiving a temporary labor certification for H-2A employment from DOL, the petitioner must file Form I-129 with USCIS. With limited exceptions, the petitioner must submit the original temporary labor certification as initial evidence with Form I-129. (See the instructions to Form I-129 for additional filing requirements.)
- Step 3: Prospective workers outside the United States apply for the visa and/or admission. After USCIS approves Form I-129, prospective H-2A workers who are outside the United States must:
- Apply for an H-2A visa with the U.S. Department of State (DOS) at a U.S. Embassy or Consulate abroad and then seek admission to the United States with U.S. Customs and Border Protection (CBP) at a U.S. port of entry; or
- Directly seek admission to the United States in H-2A classification with CBP at a U.S. port of entry, if a worker does not require a visa in cases where an H-2A visa is not required.
H2A Visa Requirements
- Criteria for Determining Employer’s Eligibility
The following general categories of individuals or organizations may import foreign workers under the H2A visa:
- n agricultural employer who anticipates a shortage of U.S. workers needed to perform agricultural Labor or services of a temporary or seasonal nature
- The employer may be an individual proprietorship, a partnership or a corporation. An association of agricultural producers may file as a sole employer, a joint employer with its members, or as an agent of its members
- An authorized agent, whether an individual (e.g., an attorney) or an entity (e.g., an association), may file an application on behalf of an employer. Associations may file master applications on behalf of their members
- The employer must satisfy the following conditions to import foreign workers under the H2A visa:
- Recruitment: The employer must engage in the independent positive recruitment of U.S. workers. This means an active effort, including newspaper and radio advertising in areas of expected labor supply. Such recruitment must be at least equivalent to that conducted by non-H2A agricultural employers to secure U.S. workers
- Wages: The wage or rate of pay must be the same for U.S. workers and H2A workers. The rate must also be at least as high as the applicable Adverse Effect Wage Rate or the applicable prevailing wage rate, whichever is higher
- Housing: The employer must provide free and approved housing to all workers who are not able to return to their residences the same day
- Meals: The employer must provide either three meals a day to each worker or furnish free and convenient cooking and kitchen facilities for workers to prepare their own meals. If meals are provided, then the employer may charge each worker a certain amount per day for the three meals
- Transportation: The employer is responsible for the following different types of transportation of workers:
- After a worker has completed 50 percent of the work contract period, the employer must reimburse the worker for the cost of transportation and subsistence from the place of recruitment to the place of work
- The employer must provide free transportation between any required housing site and the worksite for any worker who is eligible for such housing
- Upon completion of the work contract, the employer must pay return transportation or transportation to the next job
- Workers’ Compensation Insurance: The employer must provide Workers’ Compensation or equivalent insurance for all workers. Proof of insurance
- Tools and Supplies: The employer must furnish at no cost to the seasonal agricultural workers all tools and supplies necessary to carry out the work, unless it is common practice for the workers to provide certain items
- Three-fourths Guarantee: The employer must guarantee to offer each worker employment for at least three-fourths of the workdays in the work contract period and any extensions
- Fifty per cent rule: The employer must employ any qualified U.S. worker who applies for a job until 50 per cent of the contract period has elapsed.
- Labor Dispute: The employer must assure that the job opportunity for which the employer is requesting H2A certification is not vacant due to a strike or lockout.
- Certification Fee: A fee will be charged to an employer granted temporary alien agricultural Labor certification
- Other Conditions: The employer must keep accurate records with respect to a worker’s earnings. The worker must be provided with a complete statement of hours worked and related earnings on each payday. The employer must pay the worker at least twice monthly or more frequently if it is the prevailing practice. A copy of the work contract must be provided by the employer to each worker
PERIOD OF STAY:
Generally, USCIS may grant H-2A classification for up to the period of time authorized on the temporary Labor certification. H-2A classification may be extended for qualifying employment in increments of up to 1 year each. A new, valid temporary Labor certification covering the requested time must accompany each extension request. The maximum period of stay in H-2A classification is 3 years.
A person who has held H-2A non-immigrant status for a total of 3 years must depart and remain outside the United States for an uninterrupted period of 3 months before seeking readmission as an H-2A non-immigrant. Additionally, previous time spent in other H or L classifications counts toward total H-2A time.
Exception: Certain periods of time spent outside of the United States may “interrupt” an H-2A worker’s authorized stay and not count toward the 3-year limit.
The documents required for the petition process are:
- Form I-129/I-129H (Petition for non-immigrant worker) along with the requisite fee
- A copy of the approved Temporary Labor Certificate.
- A statement detailing the number of workers required.
- An application including the workers’ names and qualifications.
The documents required for the H-2A Visa are:
- An approved temporary Labor certification.
- Application for Alien Employment Certification
- Agricultural and Food Processing Clearance Order (Form ETA 790).
- Documents that support the required forms.
Families of H-2A Workers
An H-2A worker’s spouse and unmarried children under 21 years of age may apply for a H-4 non-immigrant visa. Dependents are not permitted to work, unless they personally qualify for a work visa