H-2A Visa: Temporary agricultural worker

The H-2A program enables U.S. employers or designated U.S. agents who satisfy certain regulatory criteria to bring foreign nationals to the United States for temporary agricultural positions. A U.S. employer, a qualified U.S. agent, or an association of U.S. agricultural producers acting as a joint employer is required to submit Form I-129, Petition for a Nonimmigrant Worker, on behalf of the intended worker.

Who May Qualify for H-2A Classification?

To be eligible for H-2A nonimmigrant classification, the petitioner must:

• Provide a job that is temporary or seasonal in nature.
• Prove that there are insufficient U.S. workers who are able, willing, qualified, and available to perform the temporary work.
• Demonstrate that hiring H-2A workers will not negatively impact the wages and working conditions of similarly employed U.S. workers.
• Generally, submit a valid temporary labor certification from the U.S. Department of Labor along with the H-2A petition.

The Process

The petitioner submits a temporary labor certification application to the U.S. Department of Labor (DOL). Before seeking H-2A classification from USCIS, the petitioner must obtain a temporary labor certification for H-2A workers from the DOL.

The petitioner files Form I-129 with USCIS. After receiving the temporary labor certification for H-2A employment from the DOL, the petitioner must submit Form I-129 to USCIS. With some exceptions, the petitioner must include the original temporary labor certification as part of the initial evidence submitted with Form I-129.

Prospective workers outside the United States apply for a visa and/or admission. Once USCIS approves Form I-129, prospective H-2A workers outside the U.S. must either:

• 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 entry to the U.S. with U.S. Customs and Border Protection (CBP) at a U.S. port of entry; or
• Directly request entry into the U.S. in H-2A classification with CBP at a U.S. port of entry if a visa is not required.

 Duration

USCIS typically grants H-2A classification for the duration specified on the temporary labor certification, with the possibility of extending it for qualifying employment in one-year increments. Each extension must include a new, valid temporary labor certification. The maximum stay under H-2A classification is three years.

After three years of H-2A status, individuals must leave the U.S. and remain outside for three consecutive months before they can apply for readmission. Time spent in other H or L classifications also counts toward the three-year limit.

Family Members

The spouse and unmarried children under 21 of an H-2A worker may apply for admission in H-4 nonimmigrant classification.

Benefits

The H-2A program provide short-term visa status for workers in the agriculture industry.

This visa program has the potential to enhance the productivity of American businesses and strengthen the overall economy, while providing fair wages, housing, and other benefits to the numerous migrants who arrive in the U.S. seeking a better life than the one they left.

This visa also offers protections for both U.S. and foreign workers. For instance, employers are required to pay workers the highest of the adverse-effect wage rates, the prevailing wage set by the Department of Labor, or the federal or state minimum wage.

Employers are responsible for covering a worker’s transportation expenses for both arrival and departure, as well as providing a daily allowance for each day of travel.

Given the high demand for H-2A visas, hiring an attorney can be beneficial for several reasons, in our Law Firm an attorney can ensure that all necessary paperwork is completed accurately and submitted on time, reducing the risk of delays or rejections, if any issues arise during the application process, having an attorney can help address and resolve them more swiftly.