H-2A Visa (Agricultural Workers)

H-2A visa is suitable for the following categories of people:

• Foreign agricultural workers with job offers from U.S. companies
• U.S. companies hiring foreign workers to perform agricultural labor or services of a temporary or seasonal nature.

The H-2A Visa is the most functional of all visa categories. An H-2A visa allows a foreign national entry into the U.S. for temporary or seasonal agricultural work. It fills a specific need for both the U.S. and for foreign nationals. The H-2A visa is elusive that’s why cultivators don’t like the limits of the visa and workers rights advocates don’t believe the laws provide enough support for workers. This visa allows foreign workers entry into the U.S. to work in agriculture, and there are several requirements of the employer in regards to this visa. The H-2A temporary agricultural program sets up a means for agricultural employers who expect a shortage of domestic workers to add nonimmigrant foreign workers to the U.S. to perform agricultural labor or services of a temporary or seasonal nature.

Currently, there is a considerable number of temporary agricultural workers in the United States working under this visa program. All of these workers are supposed to be covered by U.S. wage laws, workers’ compensation and other standards, but covered debt bondage may be present. The H-2A visa is not self-petitioned. Employers must prove that there are no U.S. workers available to perform the work to be completed. Although this is a temporary visa, it can be extended for up to three years. Workers’ spouses and unmarried children under the age of 21 are allowed to join them in the U.S. under the H-4 status. Dependents are not permitted to work unless they personally qualify for a work visa.

Employment Procedure
Employers expecting a shortage of agricultural workers and in need must implement at least 45 days before certification is necessary. An active effort to recruit U.S. workers in areas of expected labor supply includes newspaper and radio advertising. Such recruitment must be at least equivalent to that conducted by non-H-2A agricultural employers in the same or similar crops and area. The employer must agree to contribute preference and engage in active recruitment of U.S. workers. The H-2A certification is valid for up to 364 days. As temporary or seasonal agricultural employment, the work is done during certain seasons of the year or for a limited time period of less than one year when the employer can show that the need for the foreign worker is truly temporary.

Before the U.S. Citizenship and Immigration Services (USCIS) can approve an employer’s petition for such workers, the employer must file an application with the U.S. Department of Labor stating that there are not sufficient workers who are able, willing, qualified, available and that the employment of aliens will not adversely pretend the wages and working conditions of similarly employed U.S. workers. The statute and departmental regulations allow for numerous worker protections and employer requirements with respect to wages and working status that do not apply to nonagricultural programs. The Department’s Employment and Training Administration (ETA) deals the labor certification program, while the Wage and Hour Division, Employment Standards Administration (ESA) is responsible for enforcing provisions of worker contracts. In employing a worker, the employer must assure to provide each worker employment for at least three-fourths of the workdays in the term of the contract period. If the employer affords less employment, then the employer binds to pay the amount which they would have earned if they had worked the contracted period.

Qualification Criteria for H-2A

To qualify for H-2A nonimmigrant below-mentioned points must be followed:

• The petitioner must provide a job that is of a temporary or seasonal nature.
• The petitioner must show that the employment of H-2A workers will not adversely affect the wages and working conditions equivalent to employed U.S. workers.
• The petitioner must present that there are not sufficient U.S. workers who are able, willing, qualified, and available to do the temporary work.
• For H-2A petition, a single valid temporary labor certification from the U.S. Department of Labor must be submitted, (Limitation to this requirement. See: Code of Federal Regulations- 8 CFR 214.2(h)(5)(x) for specific details).

H-2A Application Steps:

• Step 1: The petitioner must go for and receive a temporary labor certification for H-2A workers with DOL because afterward petitioner submits temporary labor certification application to the U.S. Department of Labor (DOL), and prior to requesting H-2A from USCIS; See (Foreign Labor Certification, Department of Labor) for further information regarding the temporary labor certification requirements and process.
• Step 2: After receiving a temporary labor certification for H-2A employment from DOL, the employer should file Form I-129 with USCIS. The original temporary labor certification must be submitted as initial proof with Form I-129. (See Form I-129 for additional information of filing requirements)
• Step 3: Prospective workers outside the United States apply for a 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 look for admission to the United States with U.S. Customs and Border Protection (CBP) at a U.S. port of entry.
  • Immediately look for admission to the United States in H-2A classification with CBP at a U.S. interface of entry, if a worker does not require a visa.

H-2A Eligible Countries

The Department of Homeland Security publishes the list of H-2A and H-2B eligible countries annually in a Federal Register notice. The appellation of eligible countries is valid for one year from publication.
Effective January 2015, nationals from the following countries are eligible to participate in the H-2A program:

Note: If you request H-2A workers from both eligible and non-eligible countries, USCIS suggests that you file two separate petitions. Filing one petition for workers from eligible countries and a separate petition for workers from non-eligible countries may help decrease delays. (See 8 CFR 214.2(h)(2)(iii) and 8 CFR 214.2(h)(5)(i)(F)(1)(ii) for additional evidentiary requirements.)

Staying Period

USCIS may grant H-2A classification for up to the period of time authorized on the temporary labor certification. The maximum period of stay in H-2A classification is 3 years. 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.
A person who has held H-2A nonimmigrant status for a total of 3 years must leave and remain outside the United States for an uninterrupted period of 3 months before seeking readmission as an H-2A nonimmigrant. Additionally, previous time spent in other H or L classifications counts toward total H-2A time.
Other than that 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. See (Calculating Interrupted Stay for H-2 Classifications) for additional information.

How to notify USCIS

Notification should be made to the California Service Center via email or mail at the following addresses. Otherwise, email notification is strongly recommended to ensure timely notification. (OMB Control Number 1615-0107)

Source of Information: www.uscis.gov