H-2A Visas: Seasonal Foreign Agricultural Workers

An H-2A visa work permit is a type of temporary visa that is issued to eligible nonimmigrant workers who are temporarily allowed entry into the United States to fill seasonal positions in the agricultural industry. 

For example, if a farmer needs help with farm-related work, such as picking and sorting produce, loading up trucks with produce boxes for delivery purposes, or even making produce deliveries, they might consider hiring prospective H-2A workers. However, both the employer and nonimmigrant worker must be eligible for the H-2A visa program; not just anyone may apply.

In addition, the H-2A visa program is one of the only visa categories in the United States that does not place a cap on the amount of visas issued on an annual basis. Also, the recent changes made to how H-2A visas are reviewed and processed by U.S. consular officials have eliminated many of the obstacles that were decreasing the number of visas being issued each year. Thus, many more prospective H-2A workers are now being approved.

To learn more about the H-2A visa work program, you can visit the websites for some of the U.S. government agencies listed below in the article or consult a local immigration attorney for further advice. U.S. employers who are looking to hire H-2A workers should especially contact an attorney before they begin what will be a complex application process. 

What Are the Conditions for H-2A Visa Certification?

There are a number of conditions that a U.S. employer must be ready to accommodate in order to not only qualify for the H-2A visa program, but also to be deemed eligible to hire H-2A visa workers. Some of these conditions will include:

• Post a job that is considered to be of either a temporary or seasonal nature;
• Demonstrate that there is an insufficient amount of U.S. workers available that are willing, able, and qualified to perform the temporary or seasonal work;
• Prove that hiring H-2A workers will not negatively affect the wages and working conditions of U.S. workers who perform similar work; and
• Be able to submit a valid temporary labor certification along with their H-2A petition. 

As mentioned, a U.S. employer will also need to be willing to accommodate certain employment practices, such as:

• Supplying tools, equipment, and/or work supplies to workers for free;
• Paying for any work-related expenses, including transportation costs;
• Allowing workers to take time off on specific holidays (e.g., Federal holidays); 
• Providing detailed instructions about the work that is going to be performed;
• Stating job requirements, the start and end date of the position, and the corresponding hourly rate on each job post (note that the wages for each job must meet the required legal minimums or applicable going rate in the area for similar work);
Covering living expenses for every worker, such as:
• Free housing to workers who would not realistically be able to return to their house each day as well as living conditions that would meet housing standards; 
• At least three meals per day for either a reasonable price or for free and convenient cooking facilities so that workers may prepare their own meals; and
• Various other living costs that may be needed;
• Engaging in standard U.S. recruiting practices or active methods used to post jobs like newspaper listings, online posts, radios, and/or any other locations where they would expect a job seeker to look for the sort of work for which they are hiring; 
• Keeping records of the number of hours the employer offers to a worker each day and how many hours that worker actually worked each day; and
• Guaranteeing that there is enough work for the position that will cover at least seventy-five percent of the authorized period of stay (i.e., a “three-fourths guarantee.”).  If not, then the employer should be aware that they will have to pay the worker as if they had completed that amount of work for the job.

In addition, U.S. employers are required to provide unemployment insurance for all workers in case they are injured on the job. Also, all H-2A employers must hire any eligible U.S. workers for the position first until at least fifty percent of the working period has lapsed and then they may offer the position to prospective H-2A workers, so long as there are no other U.S. workers available to fill the job.

How Can an Employer Apply?

In order to apply, a U.S employer, a U.S. agent, and/or a U.S. agricultural producers association who is named as a joint employer (collectively, “petitioners”), must first determine whether they meet the regulatory requirements to qualify for the H-2A program. 

A petitioner can do this by submitting an application for a temporary labor certification for H-2A workers to the U.S. Department of Labor (“DOL”). A petitioner may not move on to the next step until the DOL has approved their request and they have received a copy of their foreign labor certification. For more information about this process, petitioners should review the materials located on the website for the DOL. 

Once a petitioner receives their certification, they must then file a Form I-129, Petition for a Nonimmigrant Worker, on behalf of a prospective candidate with the U.S. Citizenship and Immigration Services (“USCIS”) agency. The petitioner will need to file this form along with all other necessary documentation, any supporting evidence, and the temporary labor certification document that they received from the DOL. 

After the USCIS has approved the Form I-129 filing as well, they may inform prospective H-2A workers living outside of the United States to apply for an H-2A visa through the U.S. Department of State (“DOS”) at the nearest U.S. Embassy or Consulate in their country. Prospective H-2A workers can then seek admission to the United States by traveling to a U.S. port of entry and registering with the U.S. Customs and Border Protection (“CBP”).

Alternatively, if a prospective H-2A worker does not require an H-2A visa, then the worker may also directly seek admission to the United States with the CBP at a U.S. port of entry. This can happen when an H-2A visa is not required for a particular temporary or seasonal job.

Finally, it should be noted that petitioners may only file applications on behalf of prospective H-2A workers from certain countries. Petitioners can find the list of countries that are eligible to participate in the H-2A program on the website for the U.S. Department of Homeland Security (“DHS”).

Do I Need a Lawyer?

Both U.S petitioners and prospective H-2A workers may want to consider hiring a local immigration attorney for further information about the H-2A visa application process. Oftentimes, this process can be long and extremely difficult to understand without the help of a legal professional. To make matters even more complex, the requirements to apply for an H-2A visa can change on a yearly basis since U.S. immigration laws are constantly updated.

It can also be useful to consult an attorney for suggestions on what you should do if your application is denied. To prevent this situation from occurring, however, you should really hire an attorney before you apply for an H-2A visa. This way you will not need to delay the process any longer than it already is and your attorney can make sure that you comply with the guidelines before the U.S. government even begins processing your submission.