H-2A visa

In this article, you will learn in detail about the H-2A nonimmigrant visa for temporary agricultural workers who wish to travel and work in the United States.

The H-2A visa is exclusively for agricultural workers, while the H-2B visa is for non-agricultural workers.

Our immigration lawyers in Los Angeles are specialists in both visas. If you are looking for advice on this type of visa, do not hesitate to contact us. Our firm has over 40 years of experience on immigration law related matters. Call us right now and take a professional consultation.

What is the H-2A visa?

This visa is issued to alien workers to fill a temporary employment position in agriculture that is not available to a US worker.

This visa can be granted to workers with or without experience to perform agricultural work. However, the employer of the alien worker must have prior authorization from the Department of Labor (DOL).

What is the difference between the H-2A and H-2B visa?

The main difference is that under the H-2 visa program, applicants will only be able to legally and temporarily work in the US in agricultural jobs, while the H-2B visa is for temporary or seasonal non-agricultural jobs.

What do I need for the H-2A visa?

In order for a US employer to qualify as an H-2A visa petitioner and petition to bring an alien worker, they must meet the following requirements:

• Offer seasonal or temporary employment;
• Demonstrate that the hiring of the alien worker will not affect the working conditions or wages of US workers in similar jobs; 
• Demonstrate that there are not enough US workers available, qualified, able, or willing to perform the temporary work;
• Submit a single DOL-approved temporary labor certification with the H-2A visa application (In exceptional circumstances, there may be a limited exception to this requirement).

On the other hand, the alien worker must meet the following requirements:

• Have received a job offer from the US employer for temporary agricultural work;
• Intend to leave the US and return to their home country once the visa expires. 
• Be a citizen of one of the countries designated by the secretary of the Department of Homeland Security.

How do I apply for the H-2 visa?

To apply for the H-2 visa, the following steps must be followed:

1. The US employer must file a temporary labor certification application with the DOL.
2. After receiving the temporary labor certification from the DOL, the US employer must file Form I-129, Petition for a Nonimmigrant Worker, with USCIS.
   1. They will also need to submit the original temporary labor certification as part of the initial evidence for Form I-129.
3. Once USCIS approves Form I-129, prospective alien workers can apply for the H-2A visa while abroad. To do so, they must:
   1. Submit the H-2A visa application at DOS, located at the US consulate or embassy in their home country. Subsequently, apply for admission to the US with CBP, or;
   2. Apply for admission to the US under the H-2A category directly with CBP at the US port of entry, if an H-2A visa is not required in their case. 

Alien worker application process

The foreign worker must apply for the H-2A visa through the following steps:

1. Complete Form DS-160 .
2. Upload a photo following the photo requirements.
3. Pay the application fee.
4. Schedule the interview with the US embassy or consulate.
5. Prepare their documents to submit at the interview.
6. Attend the interview.

Required documents

The alien worker must have the following documents to apply for the H-2A visa:

• Valid passport with at least 6 months validity;
• Confirmation page of the DS-160 form printed;
• Receipt of form DS-160;
• Form I-129 and Form I-797;
• Photograph that meets the visa requirements;
• Some proof that they will return to their home country once the period of their employment ends.

Which countries can apply for the H-2A visa in 2024?

The H-2A visa will only be granted to alien agricultural workers who are citizens of the following countries:

You can learn more about this list at the following link.

After receiving a recommendation from DOS or a formal request letter from a foreign government that is not on the list, the Secretary of Homeland Security may consider adding a country to the list of eligible countries for the H-2A visa. For this, the following will be taken into account:

• Number of deportations ordered and completed against its citizens and residents; 
• The number of final orders and unspecified removal orders against its citizens and residents;
• The country’s assistance in granting visa documents to its citizens or residents facing deportation;
• Other factors of interest to the US government.

Considerations

• The Taiwan Relations Act of 1979 states that when US laws relate to or refer to foreign countries or governments, they must include and apply to Taiwan. 
• If you want DHS to consider adding a country to the list of eligible countries, submit a request in writing to the DOS consulate or embassy, ​​or to the DHS policy office.
• The country lists are valid for one year and DHS may add a country to the list at any time, as long as the country is determined to be eligible.
• USCIS suggests filing two separate applications if you want to apply for H-2A nonimmigrant workers from both ineligible and eligible countries. This will help reduce delays in processing your application.

Requirements demanded by the Department of Labor

To process the request for the Temporary Work Certificate, the Department of Labor will verify the information contained in the forms. The main one is that the alien worker does not take away a source of work from an American worker.

In this sense, the Department of Labor verifies the following elements:

1. Efforts to recruit US workers: The employer must show that it made an effort to recruit local workers rather than foreigners.
2. Fair wages: The employer must pay fair wages to their foreign workers. “Fair wage” means compensation similar to what an American worker would receive for performing the same task.
3. Accommodation for the worker: For geographic reasons, some employers must accommodate employees on their property. To ensure that it is suitable accommodation, the Department of Labor may inspect the conditions on offer. This in order to verify that the dwelling duly complies with the standards of the Occupational Safety and Health Administration (OSHA).
4. Transport: Sometimes employers also take care of transporting workers. After half of the employment contract has been fulfilled, the employer must reimburse the worker for transportation expenses.

After verifying that all these requirements are met correctly, the DOL issues the Temporary Work Certification.

H-2A visa period of stay

Generally, USCIS may grant a period of stay for the H-2A visa up to the maximum period authorized on the temporary labor certification. 

• H-2A classification may be extended in increments of one year at a time. Applications for extensions of stay must be submitted along with a new temporary work certificate that covers the period for which the extension is requested. 
• The maximum period of stay in the US with the H-2A visa is 3 years. Individuals who have had H-2A status for 3 years must leave the US and remain outside the US for a continuous period of 3 months before applying for readmission under this category. 

The elapsed period of time of the L-1 visa and/or the H classification also counts towards the total period of the H-2A visa.

How long does H-2A visa processing take?

The H-2A visa processing period varies, but the process from start to finish to hire an alien worker under this visa can take around 75 days.

Employers cannot file a petition for this visa with USCIS too far in advance. Filing of petitions cannot be more than 120 days before the worker’s travel to the United States.

The recommended time to file the initial application is about 60 days before the arrival of the alien worker.

Can family members of the H-2A visa holder accompany them?

Spouses and unmarried children under 21 years of age may accompany the holder under the H-4 visa. These relatives with H-4 status will not be able to work in the US. 

Notifications to USCIS about an employment matter

H-2A temporary worker petitioners must notify USCIS within 2 business days if any of the following occur:

• Dismissal: The alien worker with the H-2A visa is dismissed before completing the service or job for which he was hired;
• Failure to appear: The alien worker with the H-2A visa does not report to work within 5 days from:
  • The start date of employment designated on the H-2A petition, or;
  • The start date designated by the employer.
• Early termination: The worker under the H-2A visa ends the job or service for which they were hired before the 30 days of the established period;
• Absence: The H-2A visa worker is absent without prior notification or does not report to work for consecutive periods of 5 business days without the consent of their employer.

Information the employer must include

• The USCIS receipt number of the accepted H-2A application;
• The reason that explains if the employee did not show up for work, was absent, was fired and others;
• The reason for the late notification, together with evidence of justification;
• Petitioner Information: Name, address, employer identification number (EIN), and telephone number.
• Employer information (if different from the petitioner), this includes: Name, phone number, and address.
• Data of the alien worker, including:
  • Date of birth;
  • Full name;
  • Most recent address and phone number;
  • Place of birth.

If available, you must submit the following for each worker:

• Social Security number.
• Visa number.

Considerations

If the petitioner fails to comply with these employment notification requirements or fails to show a good reason for late notification, the petitioner may be required to pay a $10 penalty for each failure to comply.

USCIS defines “business day” in terms of the DOL. This means that according to the Fair Labor Standards Act (FLSA), it is the period that elapses on any particular day from when the worker begins his main tasks until they are finished. 

To notify USCIS, send your notification by email or mail to the California Service Center at the following addresses:

Post mail: 

California Service Center

Attn: BCU Section

PO Box 30050

Laguna Niguel, CA 92607–3004

Email: [email protected] 

How to check the status of an H-2A visa petition?

Petitions currently in process can be viewed online. You also have priority processing of Form I-129 for this visa category.

If the request has been made for more than 15 days and you have not received a response, you can contact USCIS by phone at 800-375-5283 or talk to our firm.  

Can a Green Card be obtained with an H-2A visa?

It is not possible to obtain the Green Card of residence through the H-2A visa since it is a temporary visa. That is, once you finish your work, you must leave the United States. 

How much does the H-2A visa cost in 2024?

The filing fee for Form I-129 is priced at $460 and is generally paid by the US employer.

On the other hand, the DS-160 form has a $190 application fee that the worker will likely have to pay out of their own pocket.

For more information about this visa and any other immigration matter, contact our immigration attorneys. We can help you in the preparation and management of immigrant and non-immigrant visas. For over 40 years we have been serving responsibly and efficiently with special dedication to the Latino community in Los Angeles and the rest of California.