H-2A Visas for Temporary Agricultural Workers

What is the H-2A category of visas?
The H-2A visa is for agricultural workers who will work on a temporary, seasonal or intermittent basis.
The H-2A visa is usually issued with a validity for one year which can be extended for up to three years.
When the H-2A visa holder has extended the visa for up to three years, the H-2A visa holder must leave
the United States, stay in his country of citizenship or residency for three months and then re-apply for
another H-2A visa.

Can the family of an H-2A visa worker accompany him or her to the US?
The dependent spouse and children of the H-2A visa holder may accompany the visa holder on an H-4
visa but they will not be eligible to work while in the United States and while holding an H-4 visa.

Who can file a petition for an H-2A visa?
The employer must file a petition (Form I-129) on behalf of the prospective worker. The employer must
be a company or an association of agricultural producers who will be named as a joint employer.

Who are qualified to be agricultural workers under an H-2A visa?
The prospective workers must be a citizen of a country that is listed as an H-2A eligible countries. The
designation of eligible countries expires one year after its publication in the Federal Register. Thus, it is
wise to check if the country of citizenship of the prospective worker is on the list before applying for an
H-2A visa.

What is required for approval of a petition for an H-2A visa?

  • The employer or joint employer must offer a job in an agricultural setting or workplace that is
    temporary or seasonal in nature.
  • The total number of hours they will work must at least be equal to 75% of the work specified in
    the job contract.
  • The employer must prove that they tried to recruit and/or hire US workers to fill the jobs first.
  • The employer must prove that there are not enough workers in the US who are willing, qualified
    or available to perform the temporary or seasonable work.
  • The employer must prove that hiring and compensating H-2A workers will not adversely affect
    the wages and employment conditions of US workers in the same employment situation.
  • The employer must disclose the rates of pay of the proposed H-2A workers.
  • The employer must prove that the prospective workers are provided with transportation and
    housing if they are to work away from their residence.
  • The employer must apply for a temporary labor certification from the US Department of Labor.
    The temporary labor certification must be submitted to the USCIS along with the Form I-129.

What must the prospective worker do?
Once the USCIS has approved the petition (Form I-129) filed by the employer, the prospective worker
must apply for an H-2A visa in his country of citizenship or residency. He must then seek admission to
the United States legally through a US port of entry.

What if the visa holder leaves the US before the one-year H-2A visa expires?
If the H-2A visa holder worked for eighteen months or less in the United States and leaves the US for at
least 45 days, then the time spent outside the United States will not count toward the three-year limit. If
the H-2A visa holder worked in the US for more than eighteen months but less than three years and they
left the United States for two months the time spent outside the United States does not count toward
the 3-year limit.
Thus, when the H-2A visa holder re-enters the US, the 3-year limit will pick up where it left off. If the H-
2A visa holder leaves and stays outside the United States for at least 3 months, the 3-year limit of the
visa restarts when the worker seeks re-admission as though he were on day one of the 3-year limit.

What if the H-2A visa holder does not finish the work or finish it early?
If an H-2A worker does not report for the start date of his employment, or, having started his
employment, fails to continue working, or is terminated from his employment, the employer must
inform the USCIS. It is the same if the H-2A worker finishes the job earlier than the date specified in the
H-2A petition.

If you are an employer desiring to hire agricultural workers for your business or enterprise, you will need
assistance to get your documents and other paper work in order. The lawyers at Lluis Law can help you
gather and prepare the documents and help you submit your petition. Speak with any of our
immigration lawyers at Lluis Law today. We’d love to help you.

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