The H-2A visa program is a vital resource for U.S. agricultural employers facing labor shortages. This temporary visa allows foreign nationals to work in seasonal agricultural jobs, such as crop harvesting and farm labor, under specific conditions. This guide will help you understand the H-2A visa process and the steps necessary for approval.
What is the H-2A Visa?
The H-2A visa is for foreign workers hired to perform agricultural labor in the U.S. Employers who need extra workers during busy farming seasons can apply for this visa. The H-2A program was set up to help meet labor needs in agriculture when there aren’t enough qualified U.S. workers available.
To apply, the employer must meet certain legal requirements and file several forms, including a temporary labor certification and Form I-129 (Petition for a Nonimmigrant Worker). The workers cannot file the petition themselves.
Costs for H-2A Workers and Employers
Here’s a breakdown of the fees involved:
- Labor Department Fees: Employers pay a $100 application fee plus $10 for each certified worker, with a maximum fee of $1,000.
- Form I-129 Filing Fee: Employers pay $1,090 to file Form I-129. Nonprofits or smaller employers pay $545.
- Nonimmigrant Visa Application: If the worker is outside the U.S., they will need to pay a $190 visa application fee.
Timeline for Processing H-2A Visa Applications
The process typically takes several weeks. The Department of Labor (DOL) takes about 23 days to process the application, and once the petition is filed with USCIS, it can take around 75 days for the worker to start their job after the initial job order submission.
Eligibility for H-2A Visa Workers
To qualify for the H-2A program, employers must meet these conditions:
- U.S. Employer or Agent: The employer must be based in the U.S. and seek to hire foreign workers for agricultural positions.
- Temporary Labor Certification: Employers must show that no qualified U.S. workers are available for the job, and the job must be seasonal or temporary in nature.
- Worker’s Nationality: The worker must be from a country eligible for the program. A list of eligible countries is updated regularly by the U.S. government.
How to Apply for the H-2A Visa
The application process can be broken down into three simple steps:
Employer Applies for Temporary Labor Certification
- The employer submits Form ETA 790/790A to the U.S. Department of Labor (DOL) between 60-75 days before the job starts.
- Once approved, the employer receives instructions on how to proceed with the application.
Employer Files Form I-129 with USCIS
- The employer files Form I-129 (Petition for a Nonimmigrant Worker) with the U.S. Citizenship and Immigration Services (USCIS).
- This form requires proof that the worker meets job qualifications and that hiring the worker will not negatively impact U.S. workers.
Worker Applies for the H-2A Visa
- If the worker is outside the U.S., they need to apply for a visa at a U.S. consulate in their country. This involves submitting Form DS-160 (Visa Application), attending an interview, and providing the required documents, including a valid passport and proof of the approved Form I-129.
Steps to Obtain Temporary Labor Certification
To start the process, the employer must submit a job order to the State Workforce Agency (SWA) using the DOL’s FLAG system. This is done between 60 and 75 days before the work begins. The employer must also follow recruitment steps and document the process, showing that they’ve tried to hire U.S. workers before seeking foreign help.
Once the employer receives a temporary labor certification, they can file Form I-129 with USCIS. The process also involves submitting documents like Form ETA-9142A and any other materials requested by the Labor Department.
Key Points About the Application Process
- The employer must provide evidence that hiring foreign workers will not negatively affect U.S. workers’ wages or conditions.
- The worker must be from a country on the list of eligible countries, although exceptions can be made with additional proof.
- Employers can apply for workers who are already in the U.S. or workers from other countries, but they will need to provide extra documentation.
FAQs
What is an “emergent circumstance”?
An emergent circumstance allows employers to bypass the temporary labor certification process in specific cases. This can happen if a worker has already been employed by the employer, continues to perform the same duties, and stays for no more than 2 weeks beyond their original job date.
What is a “U.S. agent”?
A U.S. agent acts on behalf of the employer or worker in cases where the worker is self-employed or there are multiple employers involved. The agent can help with contracts and the H-2A petition process.
How does an employer prove that hiring a worker from an ineligible country is in the U.S. national interest?
Employers must prove that hiring a worker from a non-eligible country is in the national interest by showing that workers from eligible countries are unavailable and that hiring this worker will not harm U.S. workers or the H-2A program.
How does employment portability work for H-2A workers
Employment portability for H-2A workers allows them to change employers while maintaining their visa status, enhancing flexibility in the U.S. labor market. Here’s how it works:
Immediate Work Authorization:
H-2A workers can begin new employment with a different employer as soon as the new employer properly files a non-frivolous petition (Form I-129) for an extension or amendment of stay. This means they do not have to wait for USCIS approval before starting work with the new employer.
Grace Periods:
H-2A workers are granted a 10-day grace period before their employment starts and up to 30 days after employment ends to seek new employment or prepare for departure without violating their status. Additionally, there is a 60-day grace period following the cessation of employment, allowing workers to maintain their status while seeking new qualifying employment.
Maintaining Nonimmigrant Status:
During the period when a new petition is pending, H-2A workers are considered to be in a period of authorized stay, meaning they will not accrue unlawful presence even if the petition is subsequently withdrawn or denied.
No E-Verify Requirement:
The previous requirement that H-2A workers could only port to employers enrolled in E-Verify has been removed. Now, H-2A workers can change employers regardless of whether the new employer participates in E-Verify.
Responsibilities of Employers:
Employers are generally responsible for covering the costs associated with transportation from the original job to the new job, ensuring that workers do not incur these expenses themselves.
How Law and Visas Can Help?
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