H-2A Visas

The H-2A program was enacted to bring foreign workers to the United States to fill temporary and/or seasonal agricultural jobs that existing American workers are not qualified, willing, or able to take. Nationals from select countries are eligible for the H-2A Agricultural Worker program. Every year the Department of Homeland Security (DHS) publishes a list of eligible H-2A countries in what is known as a Federal Register notice. Designation of eligible countries is valid for a period of one year from the date of publication. Only an American employer, agent, or association of American agricultural producers can file a petition on the foreign worker’s behalf.

In order to do so, the petitioner must meet the following requirements:

• Present the foreign worker(s) with a job offer of a temporary or seasonal nature;
• Demonstrate that there is only a temporary need for the type of services or labor to be performed by the foreign worker(s);
• Demonstrate that there is an absence of U.S. workers who are able, willing, qualified, and available to perform the temporary work;
• Demonstrate that the employment of H-2A workers will not adversely affect the wages and working conditions of similarly employed American workers
• The foreign worker must have a foreign residence outside of the United States that he or she has no intention of abandoning;
• The employer may be an individual proprietorship, a partnership or a corporation;
• The employer must submit a valid temporary labor certification from the Department of Labor along with the H-2A petition;

A U.S. employer must file USCIS Form I-129 Petition for Nonimmigrant Worker with the H supplement on behalf of the foreign worker(s). An individual cannot file such a visa on their own accord. The first step for the employer is to file a temporary labor certification with the U.S. Department of Labor at least 45 days before the day of the foreign worker’s intended employment. This is required for several reasons 1) to determine the availability of U.S. workers 2) to determine if the employment of the foreign worker will adversely affect the wages and working conditions of similarly employed workers in the United States. An H-2A certification is valid for up to 364 days. Once the temporary labor certification application is approved by the Department of Labor, the second step is for the Petitioner to file USCIS Form I-129 along with the H supplement, and the original signed labor certification. If the foreign worker is in the United States in lawful status, the Petitioner should request a Change/Extension of status on USCIS Form I-129 on behalf of the Beneficiary. The Beneficiary will not be able to travel outside of the United States while the petition is pending. If the Beneficiary is outside of the United States the foreign worker must apply for the H-2A visa at a U.S. Embassy or Consulate abroad once the I-129 is approved.

As designated by the Department of Homeland Security nationals from the following countries are eligible to participate in the H-2A program effective January 18, 2015. Foreign nationals from countries in bold are eligible for the H-2A program effective January 18, 2016.

What about nationals that are absent from the list? Nationals that do not appear on the list above may only be designated as beneficiaries of an approved H-2A petition if the Secretary of Homeland Security determines that it is in the best interest of the Unites States to admit the beneficiary on the H-2A visa program.

Dependents (spouses and unmarried children under 21 years of age) of H-2A workers are entitled to H-4 status with the same restrictions as the principal foreign worker. Dependents may not be employed under the H-4 classification. To work in the United States the dependents of a principal foreign worker will need to change their status to a non-immigrant category for which employment is authorized.

Such visas are issued for a period of up to one year. Extensions of H-2A visas may be granted for two additional years, however, after the second extension is sought, the foreign worker must remain outside of the United States for an uninterrupted period of three months before applying for re-admission as an H-2A non-immigrant. There are certain instances where the foreign workers time spent outside of the United States interrupts the authorized stay of the H-2A worker and does not count toward the 3 year limit. For assistance with this issue please contact an attorney. An extension may be authorized for the validity of the labor certification or for a period of up to one year. The employer is required to seek the certification with the DOL regarding the continued unavailability of the United States workers during each extension that is sought.

An H-2A Petitioner is required to notify the California Service Center (by email or mail) within 2 workdays if the H-2A worker 1) fails to report to work within 5 work days of the start date on the H-2A petition or start date established by the employer 2) leaves their employment without providing notice and does not report to work for a period of 5 consecutive workdays without consent from the employer 3) is terminated before the completion of the H-2A labor or services 4) completes the labor or services more than 30 days earlier than the date specified on the H-2A petition.