H-2A Visa for Temporary Agricultural Workers – Bay Area Immigration in California
The H-2A visa is for individuals who will perform temporary or seasonal agricultural labour. This indicates that the work is limited to a particular time frame or event. Temporary indicates that the duration of the job is less than one year.
Employers with farms, farming firms, or corporations in the United States are therefore permitted to hire foreign farm workers. These farm labourers will assist employers with agricultural-related tasks for a predetermined time period.
There is no limit on the number of H-2A visas. This means that anyone who applies for the visa and is approved can travel to the United States to work. And there are no limits on the number of people who can be hired in this field.
Who is eligible for an H-2A visa?
The H-2A visa recipients include U.S. agricultural employers and foreign workers. Any American farmer in need of additional laborer’s is eligible to commence the H-2A visa process for foreign workers. They should meet the following requirements:
- Show that U.S. workers are unwilling, unqualified, or unavailable to fill these occupations.
- Demonstrate that the hiring of foreign workers will not have a negative impact on the wages and working conditions of American employees in the same sector.
- Have the required paperwork and petition permissions. Additionally, to conditions for employers, there are also conditions for employees. The eligibility requirements for an H-2A visa as an employee are as follows:
- Find an employer in the United States who offers temporary agricultural jobs.
- Demonstrate that they intend to return home after the visa expires.
- Possess a certain nationality. Not all farm workers from all nations are permitted to work in the United States. The number of nations from which H-2A workers can be hired has been established by the Department of Homeland Security (DHS).
The following countries are listed:
However, if a US company wishes to engage an agricultural worker from a nation that is not on the list. They will be required to complete the following steps:
- Send a written request to the DHS.
- Identify the foreign workers by name, birth date, place of birth, and country of citizenship.
- Submit evidence showing the United States will profit from issuing H-2A visas to the workers.
The DHS will consider the request and may update the list to include that country. If they believe that it is in the best interest of the United States to allow the worker to enter the country.
Employers in the United States who hire workers from nations on and off the list are advised to submit two petitions. This is because separating them into two groups will reduce the processing time.
What requirements must H-2A employers meet?
Employers desiring to employ foreign labourers for temporary and seasonal agricultural work must take two steps:
- Obtain approval from the Department of Labor (DOL)
- Petition submission to USCIS
- Meet DOL standards
If all of these documents are authorised by their respective agencies, the applicant or employee can begin the visa application process. If the certification and petition are denied, the employee will be unable to get an H-2A visa. And will not be permitted to enter and work in the United States.
Authentication from DOL
Obtaining certificates from the U.S. Department of Labor is the first step toward obtaining permission to hire H-2A workers for agricultural purposes. This is possible by submitting the following forms:
- Form ETA-790 – Clearance Order for Agricultural and Food Processing (job offer)
- Form ETA-9142A – Certification of Foreign Worker
- Form ETA-790 must be filed to the State Workforce Agency between 60 to 75 days prior to the employer’s demand for agricultural foreign workers. This form, along with the ETA-9142A, must be submitted to the Chicago National Processing Center (NPC) approximately 45 days before to the anticipated requirement for employment.
These forms are submitted so that the DOL can verify the motives behind the US employer’s desire to hire overseas workers. They want to know that the business was unable to recruit qualified US workers and that the pay of US workers will not be affected by the foreign workers.
The Chicago NPC processes the certification and communicates a decision to the employer 30 days before the personnel are required. The employer can proceed to the following phase if the DOL confirms the Temporary Labor Certification.
Petition submission to USCIS
The second stage is to petition the US government for permission to hire foreign workers in a US company. This is done by filing USCIS Form I-129. The form is submitted by the employer along with a $460 fee. Employers are required to file Form I-129 for each prospective employee.
USCIS reviews the I-129 form and returns a response to the employer. If USCIS approves the petition, they will issue Form I-797, which authorises the employee to apply for an H-2A visa and work in the United States.
Meet DOL standards
The Department of Labor imposes additional criteria on firms in order for them to hire foreign labour. The following must be proven by the employer:
- Efforts devoted to recruitment
- The business must demonstrate to the DOL that attempts were made to recruit American personnel. This can be accomplished through advertising job openings in newspapers, on television, and in other media. Then, they must demonstrate that they considered each US candidate and explain reasons for their rejection.
- Pay foreign employees a living wage
- Employers in the United States must pay international workers the same wage rate as domestic workers. The wage must meet either the federal or state minimum wage, the Adverse Effect Wage Rate (AEWR), or the prevailing wage, whichever is greater. Employers are recommended to contact with the DOL to determine the appropriate wage rate.
- Offer housing: If foreign employees work in a remote location that is far from their home and they cannot return the same day. It is the responsibility of the employer to provide them with housing. The housing will be inspected to ensure that it meets Occupational Safety and Health Administration (OSHA) requirements.
- Provide meals: Employers in the United States should either supply three meals per day to foreign workers or provide cooking facilities for employees to prepare their own meals. If businesses offer meals, they may charge employees for them and deduct the cost from their wages.
- In some situations, the employer must also provide transportation for the employee:
When 50 percent of the contract has been performed, the US employer must reimburse the employee for any transportation costs incurred.
If the employer provides lodging, they must also offer transportation to and from the place of employment.
If the employee is returning to their place of recruitment at the conclusion of the contract. The employer is also responsible for covering the employee’s transportation expenditures. If the employee does not return to the location of recruiting owing to having another work. The employer may not be obligated to cover these expenses.
If the business provides transportation for foreign workers. They must likewise provide the same circumstances for American employees.
What requirements must H-2A workers meet?
The employee can begin the visa application process once the employer has demonstrated. They will meet all the necessary conditions to hire foreign workers and received clearance from the DOL and USCIS. Applications are submitted at the US Embassy where the applicant resides. These are the methods:
- Online DS-160 form completion
- Pay the $190 visa application cost
- Make visa interview arrangements
- Bring the following documents to your interview:
- Form DS-160 receipt
- Forms I-129 and I-797 to demonstrate USCIS acceptance
- One digital photograph that satisfies the US Visa Digital Image Requirements
- Evidence indicating you intend to return to your home country following the expiration of your visa. Such as a deed, a lease, or a letter from an employer stating that they will hire you upon your return.
- Documentation for accompanying family members
Apply for visa stamping if your visa application is granted.
If all of these steps are completed successfully. You will obtain a US H-2A visa, allowing you to temporarily work in the United States.
How long do H-2A visas take to process?
Due to seasonality, H-2A visa processing periods fluctuate and can occasionally take longer. However, US firms are advised to submit USCIS petitions at least 60 days and no more than 120 days before they need foreign labour.
Due to the seasonal nature of agricultural labour, the U.S. government prioritises H-2A visas and expedites the application process.
How long is an H-2A visa valid?
Due to the temporary nature of H-2A visas for agricultural employment, they are valid for one year. Therefore, the employee must return to their place of origin after one year. However, the H-2A visa can be extended if they have not completed the work. And the company still needs them or if they find another employer.
Extensions are granted in one-year increments, and an H-2A visa holder can stay in the United States for a total of three years. Consequently, the H-2A visa can be extended twice.
After three years, H-2A workers must return to their home country and remain there for a continuous period of three months before reapplying for the visa.
Is it allowed to modify H-2A visa status?
You can change your status if you have found a job that does not qualify as temporary and seasonal agricultural employment and requires a different type of visa. If you have discovered a job that requires an H-1B, for instance, your employer must go through the necessary steps to obtain the H-1B visa.
Additionally, if you locate a new employer for an H-2A visa, the new employer must obtain DOL certification and submit a new Form -129 before you may begin working for them.
Many foreign employees with an H-2A visa also ask if they may apply for a Green Card. The answer is affirmative. H-2A visa holders are eligible to apply for a variety of Green Cards, including Employment and Family-based Green Cards.
In which cases the US Embassy can deny an H-2A visa application?
The majority of the reasons why the US Embassy may deny an H-2A visa are employer-related. It may occur because:
- There are sufficient American labourers to do the task.
- The business did not submit the certification and petitions on time, therefore they were unable to demonstrate the lack of US workers.
- The employer did not make sufficient recruitment attempts.
- The employer did not/could not provide compensation, meal, lodging, and transportation obligations.
- Previously, the employer has violated H-2A terms and circumstances.
Can H-2A visa holder’s family come to the US?
The H-2A Visa holder’s spouse and children under the age of 21 may join them to the United States. They must submit an application for an H-4 visa. The H-4 visa prohibits dependents from working. Under specific conditions, only dependents of H-1 visa holders are permitted to work under the H-4 EAD programme.
If the visa of the principal H-2A holder is extended, the family may also file for an H-4 visa extension. In addition, if the family obtains employment that requires H-2A visas, they may attempt to alter their status providing the company follows the proper requirements.