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H-2A Visa for Temporary Agricultural Workers

The H-2A visa is for alien workers to do agricultural work in the U.S. Foreign workers enter into contracts with employers and then come to work in the U.S. Workers go back to their home country when the contract is over. If you are an employer and would like to sponsor H-2A workers, please contact the experienced attorneys at The Law Firm of Shihab & Associates for a consultation.

Requirements for Employer

  • An agricultural employer may file an application requesting temporary foreign agricultural labor certification after having made positive efforts to engage U.S workers;
  • Wages: The wage must be the same for U.S. workers and H-2A workers. The hourly rate must also be at least as high as the applicable Adverse Effect Wage Rate (AEWR), federal or state minimum wage, or the applicable prevailing hourly wage rate, whichever is higher;
  • Housing: The employer must provide free housing to all workers who are not reasonably able to return to their residences the same day. Such housing must be inspected and approved according to appropriate standards;
  • 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: After a worker has completed 50 percent of the work contract period, the employer must reimburse the cost of transportation and subsistence from the place of recruitment to the place of work if such costs were borne by the worker. The employer must provide free transportation between the employer's housing and the worksite for any worker who is provided housing;
  • 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, (i.e. an attorney or an association), may file an application on behalf of an employer. Associations may file master applications on behalf of their members.

Requirements for an Applicant

  • Valid job offer from a U.S. employer to perform temporary or seasonal agricultural work;
  • Proof of intent to return to home country on expiration of the visa.

Procedures

An application for an H-2A worker begins with the Department of Labor (DOL). The DOL directs recruitment efforts for H-2A positions. There are three types of possible recruitment: (1) the state employment service agency can refer candidates to the employer, (2) the employer can conduct independent recruitment, and (3) recruitment can be conducted after the DOL certifies the applications. After the recruitment period, the DOL makes a decision on certification. It will subtract the number of U.S. workers who were successfully referred from the number of H-2A workers requested and certify the remaining job openings.

If the certification is granted, an application is then filed with the USCIS. The application may be filed for multiple workers, and the workers may be unnamed on the application. The employer must provide their names as they become available. If the petition is approved, notification is forwarded to the appropriate consulate where the workers apply for visas.

Limitations of H-2A Visa

  • The job must be temporary for a period of one year or less. The employer's need cannot be continuous;
  • The employer has to establish that the need is seasonal or temporary;
  • H-2A time counts whether the worker is in the U.S. or abroad;
  • H-2A dependents are not authorized to work in the U.S.

Duration of H-2A visa

The H-2A labor certification application shall be valid for the period of employment indicated on the Application for Alien Labor Certification with a validity period of not exceeding 364 days. However, the alien worker can stay for two more years with two one- year increments. With initial one year and two one-year extensions, the total stay for an H-2A visa may be three years.

Change status while on H-2A visa

The Alien worker may apply for a change of status on an H-2A visa. If the alien worker changes jobs or employers, for example from H-2A to H-2B, then the new employer must file Form I-129, Petition for Nonimmigrant Worker to the USCIS.

List of Countries Eligible to Participate in the H-2A Visa Program

The following countries are eligible to participate in the H-2A visa program: Argentina, Australia, Belize, Brazil, Bulgaria, Canada, Chile, Costa Rica, Dominican Republic, El Salvador, Guatemala, Honduras, Indonesia, Israel, Jamaica, Japan, Mexico, Moldova, New Zealand, Peru, Philippines, Poland, Romania, South Africa, South Korea, Turkey, Ukraine, and United Kingdom.

Contact us

If you have questions about an immigration matter, and/or you need help in the process, please contact our immigration attorneys or call The Law Firm of Shihab & Associates Co., LPA at the nearest office close to you to speak with an attorney. We handle various matters including family immigration, immigrant visas, non-immigrant visas, employment visas and H1B visas, Investor Visas, PERM applications, Green Cards and Permanent Residence, and many more. Please contact us and experience how our firm can effectively achieve your objectives.

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