People who want to travel and work in the United States as agricultural workers can apply for an H-2A visa. This is one of two categories of the H visa. The other one is the H-2B visa, for non-agricultural temporary workers.
Our immigration lawyers in Los Angeles are specialists in both visas. If you are looking for advice on how to petition an alien worker for your company, call us right now. We put at your service more than 40 years of experience in the area of immigration.
What is the H2-A visa?
The H-2A visa is specially designed for temporary alien agricultural workers. This non-immigrant visa is one of the most important and strategic for the country that currently exists.
That is why it receives a special preference for processing compared to other visas for the United States. To qualify for an H-2A visa, a prior petition from a US employer is required. As required by other employment visas such as the H2-B and L-1 visas, O visas, P visa and Q visa.
To qualify for an H-2A employment visa, the job must meet certain conditions: be seasonal or temporary.
Seasonal work. It means that this type of work is only carried out within a certain season, time of year or event.
Temporary job. Temporary employment means that the job only requires a certain period, less than a year to perform it.
Agricultural producers in some regions of the United States require foreign labor at certain times of the year. Especially in harvesting seasons when local labor is scarce and insufficient.
For this category of visas there is no limit number established by the government. If the country is on the authorized list for this visa, any of its citizens can apply.
What is the H-2A visa program?
The H-2A Program was created to allow US employers or employment agencies to bring in foreign workers. To do this, they must meet a series of eligibility requirements from both the employer and the agricultural worker.
Process for the H-2A foreign worker petition
The requirements for an H-2A visa must be met by the employer and the foreign worker applying for the visa.
Requirements for employers
- Job availability for seasonal agricultural workers.
- Be able to prove that you have the necessary conditions to hire foreign workers in compliance with legal regulations. That means, it does not affect the wages of American employees doing similar jobs. Nor does it affect the working conditions of local labor in the same sector.
- Prove that there is a real shortage of skilled, willing or available American workers to be employed in available positions.
- Carry out the necessary procedures to petition foreign workers and have all the required documentation. This includes completing and submitting forms, paying fees, and a USCIS approved petition.
Requirements for the H-2A alien worker
Foreign agricultural workers can qualify for an H-2A visa if they meet the following requirements:
- They received a temporary job offer for the agricultural sector from a United States employer.
- They demonstrate their intention to return to their country of origin before their visa expires.
- They are citizens of any of the countries legally authorized to offer agricultural labor. Review the following list here.
The law allows exceptions on the recruitment of labor from some countries that are not listed. If an employer needs to hire a worker from a country that is not listed, they can send a request to the Department of Homeland Security (DHS).
In your explanatory statement you must clearly indicate how the US will benefit by authorizing the hiring of that worker. In the letter you must provide the personal information of the foreign agricultural worker and the identification and citizenship documents.
When the US employer’s application is accepted, DHS adds the applicant’s country to the list.
How do I apply for the H-2A agricultural worker visa?
The process to apply for an H-2A visa is started by the employer. The procedure is divided into two phases:
Request a Temporary Work Certificate (TLC) from the Department of Labor (DOL). To process this document, employers must complete and submit the following forms:
Form ETA-790. It is the Order for Agricultural Settlement and Food Processing. The form must be sent to the Agency of the Workforce of your State with enough anticipation to the hiring of the foreign worker. At least 60 or 75 days before.
Form ETA-9142A . This is the Foreign Labor Certification.
After the employer receives responses from forms ETA-790 and ETA-9142A, they must submit them to the National Processing Center in Chicago (NPC). It is recommended that you send both forms about 45 days before the arrival of foreign workers to the US.
Requirements demanded by the Department of Labor
To process the request for the Temporary Work Certificate, the Department of Labor will verify the information entered in the forms. The main one is that the foreign worker does not take away a job source from an American worker.
In this sense, the Department of Labor verifies the following elements:
a) Employer efforts to recruit American workers
The employer must demonstrate that it made an effort to hire local labor before hiring foreign workers.
Some of those tests can be:
- Place worker request announcements in local media.
- Place similar ads on the company’s website.
- Keep a record of acceptance and / or rejection requests from US workers (letters, emails and others). If the use of local labor was denied, the reasons must be explained with evidence.
b) Payment of fair wages
The employer must pay fair wages to its foreign workers. Fair wages mean compensation similar to what a US worker would receive for doing the same job.
To verify this, the agency may request that you present evidence of payment (checks, payment receipts and others). Including the Adverse Effect Salary Rate (AEWR) or also requesting the prevailing salary in the state or region. In any case, the one that most favors the worker.
If deemed appropriate, the Department of Labor can establish guidelines on the salary that the employer should pay.
Offer accommodation to the worker
For geographic reasons, some employers must host employees on their property. To ensure that it is adequate accommodation, the Department of Labor may inspect the conditions on offer. This in order to verify that the house duly complies with the standards of the Health and Safety Administration (OSHA).
Sometimes employers also take care of the worker’s transport. After half of the employment contract has been fulfilled, the employer must reimburse the worker for transportation costs.
When employers offer accommodation to workers, they must also provide transportation to and from work. Upon termination of the contract, the employer must pay the employee the transportation costs when he returns to the place where he was recruited.
After verifying that all of these requirements are met correctly, DOL issues the Temporary Labor Certification.
After obtaining the Temporary Labor Certification, the employer can make the worker’s request to USCIS. The application to the United States Citizenship and Immigration Service (USCIS) is submitted through Form I-129.
Its cost is $ 460 and must be paid by the employer. This form must be submitted by each of the workers that requires hiring. Only after USCIS approves the Foreign Worker’s Petition (Form I-129), does the employer receive Form I-797.
This is the Notice of Action form through which employer and worker are notified by USCIS. From that moment on, the alien worker can apply for an H-2A visa.
Process to apply for an H-2A visa
The procedure for a foreign worker to apply for an H-2A visa can be quite simple if you take care of the details. You simply must meet the same basic documentation requirements for other non-immigrant visas.
The steps to apply for an H-2 temporary work visa are as follows:
1. Fill out Form DS-160. Its cost is $ 190. In this form you will find questions related to the purpose of the trip and request of personal information of the applicant. DS-160 is the same form that any visa applicant who wishes to enter the United States must fill out. To fill it out, go to the website of the local US consulate or embassy.
2. Schedule the interview. It is very important to schedule the interview with the consular officer who will be in charge of reviewing the documents and approving the visa.
3. Prepare and present the required documentation. It is extremely important for the day of the interview to have the documents in order.
- Valid passport.
- Copy of Form I-129 and Form I-797 delivered to the employer.
- Receipt of form DS-160.
- Passport photography.
- Any other document that proves you intend to return to the country of origin. Properties, family interests and more.
4. Attend the interview. During the interview at the headquarters of the US consulate or embassy you will have to answer personal questions and questions about your work. It is likely that the same day the fingerprints will be taken.
During the interview the consular officer verifies the information provided by the visa applicant. On the other hand, you will also want to verify whether the visa applicant will actually return to their country of origin at the end of the job.
How long does it take to process an H-2A visa?
The formalities and processing of the H-2A visa may vary depending on the country and the consulate. It will depend a lot on the period of the year in which the visa is requested. If it is just before the harvest season begins, it is likely to take longer. Due to the number of visa applications received.
However, employers cannot file a visa petition with USCIS well in advance. The filing of petitions cannot be more than 120 days before the worker’s trip to the United States.
The recommended time to submit the initial application is about 60 days before the arrival of the foreign worker.
How long does an H-2A visa last for?
The validity of this visa is for a maximum year. Although the law allows visa extensions to be requested in certain situations that justify it. For example, if the work has not been completed and requires extra time.
A visa extension extends the stay of the foreign worker for one more year. But you can only order it once a year for up to a maximum of three years in total. At the end of that period the worker must leave the country, because otherwise he/she begins to accumulate unlawful presence in the US.
In order to return to the United States, you must wait a minimum period of three months. Then you can reapply for a new visa upon request from the US employer.
Should I notify USCIS if the worker doesn’t show up?
Employers or petitioners of temporary workers are required to notify USCIS of any work irregularity. Some of these situations that must be reported are:
- The worker does not report to work within five days after the date stipulated in the petition.
- Absence of the worker from his workplace without prior notice or consent of the employer.
- Dismissal of the worker before finishing his period of work established in the visa.
- Completion of work before the scheduled date.
How to check the status of an H-2A visa petition?
Visa petitions that are still pending can be viewed online. USCIS offers the ability to obtain priority processing of Form I-129 for this visa category. You can do it through the Online Case Status section.
If the petition is more than 15 days old and the petitioner has not received a notification, he can contact the agency by telephone. The USCIS Contact Center number is 800-375-5283.
USCIS only provides case status information to authorized persons. That is, petitioners or licensed immigration attorneys.
Covid-19 provisional rule for H-2A workers
In light of the coronavirus pandemic, USCIS issued a provisional final rule on April 20, 2020. This rule temporarily modifies the requirements to help expedite and facilitate the hiring of foreign labor.
The decision seeks to prevent the interruption of the food supply chain to the country. As well as contributing to guarantee the necessary workers in public health services.
So all petitioners who have a FTA approved can hire foreign workers who are in the United States. Workers will be approved for the H-2A visa after the USCIS has received the petition.
Workers may also extend their stay in the US for a period greater than the stipulated maximum of three years. The ease in processing petitions and the extension of the maximum period of stay, seeks to incentivize agricultural employment.
For more information on these regulations and any other immigration matter, contact our immigration attorneys. We can assist you in preparing and managing immigrant and non-immigrant visas. For more than 40 years we have been serving the Latino community in California responsibly and efficiently.