Last Updated on November 22, 2022 by Anda Malescu
H-2A visa program for temporary agricultural workers
The article is a complete guide to H-2A visa program for temporary agricultural workers. The H-2A visa program allows US employers in the agricultural sector to bring temporary or seasonal workers from outside the United States.
An employer who wishes to bring foreign workers under the H-2A program must state that:
- There are not sufficient workers who are willing, able, qualified, and available.
- The employment of foreign workers will not adversely affect the wages and working conditions of similarly employed US workers.
- The employer must have initially attempted to find US workers to fill the agricultural jobs for which the H-2A visas are sought.
In addition, the employer must agree that the H-2A foreign workers as well as the US workers in the corresponding employment must be paid special rates that vary by locality. Housing and transportation from that housing to the job site must be provided if their employment requires them to be away from their residence overnight. H-2A workers must be guaranteed an offer of employment for a total number of hours that encompasses at least 75% of the work period specified in the contract.
Employment under H-2A can be either of temporary or seasonal nature. Employment is considered to be seasonal if it is tied to a certain time of year by an event or pattern, such as an annual growing cycle, and the need for labor is higher than normal during the active season. H-2A employment is considered temporary when the need for the worker will not last more than 1 year.
Who is eligible for H-2A visa?
The visas are available to nationals of the following countries: Andorra, Argentina, Australia, Austria, Barbados, Belgium, Brazil, Brunei, Bulgaria, Canada, Chile, Colombia, Costa Rica, Croatia, Czech Republic, Denmark, Dominican Republic, Ecuador, El Salvador, Estonia, Fiji, Finland, France, Germany, Greece, Grenada, Guatemala, Honduras, Hungary, Iceland, Ireland, Israel, Italy, Jamaica, Japan, Kiribati, Latvia, Liechtenstein, Lithuania, Luxembourg, North Macedonia, Madagascar, Malta, Mexico, Monaco, Montenegro, Mozambique, Nauru, The Netherlands, Nicaragua, New Zealand, Norway, Panama, Papua New Guinea, Paraguay, Peru, Poland, Portugal, Romania, San Marino, Serbia, Singapore, Slovakia, Slovenia, Solomon Islands, South Africa, South Korea, Spain, St. Vincent and the Grenadines, Sweden, Switzerland, Taiwan, Thailand, Timor-Leste, Turkey, Tuvalu, Ukraine, United Kingdom, Uruguay, Vanuatu.
How long can you stay in US with an H-2A visa?
H-2A visas are given for employment period authorized by the US Department of Labor which is maximum up to 1 year. H-2A status can be extended in 1-year increments if the employee has not completed the work assignment or if they find a new employer. The maximum period of stay in the USA in H-2A status is a total of 3 years after which the H-2A visa employee must depart the US and remain outside the country for at least 3 months before seeking readmission as an H-2A agricultural worker again.
H-2A visa process
The process to obtain H-2A visa mostly involves the employer who seeks to hire the non-US worker. The process can be started no sooner than 120 days and no later than 60 days from the date the employee is needed.
An agricultural employer who seeks to hire a foreign worker must:
- Obtain a temporary labor certification from the US Department of Labor (USDOL). The employer will have to file a job order for the position sought with local sate workforce agency and submit a copy to the USDOL. Then, the US employer must submit an application with USDOL for the temporary labor certification and then conduct recruitment to show there are no US workers that are willing, qualified, able and available to fill the position.
- Once a temporary labor certification is received, the US agricultural employer will have to file H-2A petition with US Citizenship and Immigration Services (USCIS). The employer has the option to pay extra and request expedited processing of 15 days.
- If the petition is approved, then the foreign worker can:
- Simultaneously apply for change of status to H-2A if in the United States, or
- Apply for a H-2A visa at US consulate abroad, or
- Seek admission under H-2A status if no visa is required for their country, for example if the worker is from Canada.
Family of H-2A visa holders
Immediate family members of H-2A visa workers, spouse and children under 21, can also apply for visa to accompany the worker in the United States. However, family members will not be authorized to work while in the United States.
Our immigration lawyers can assist with H-2A visa program
If you are an employer engaged in agriculture business and need to bring workers from abroad, contact us or book a consultation with our experienced immigration attorneys in Miami, Florida USA, to get started with H-2A visa program for temporary agricultural workers.
Malescu Law P.A. – Business & Immigration Lawyers
