H2A Visa Attorneys
Section 218 of the Immigration and Nationality Act authorizes the lawful admission of temporary, nonimmigrant workers into the United States to perform services or labor that are temporary in nature. The H-2A Visa Program allows U.S. employers or U.S. agents who meet specific regulatory requirements to bring foreign nationals to the U.S. to fill temporary agricultural jobs.
H-2A Visa Temporary Agricultural Workers
The H-2A Visa Program is designed to help American farmers fill farmworker employment gaps by hiring workers from other countries. The program helps employers who anticipate a lack of available domestic workers to bring foreign workers to the U.S. to perform temporary or seasonal agricultural work. This work can include but is not limited to, planting, cultivating, harvesting, or other forms of agricultural labor. The program is intended to benefit farmers, plantation owners, ranchers, nursery owners, and other similar owners.
To qualify for H-2A nonimmigrant classification, the petitioner (employer) must demonstrate that there are not enough U.S. workers who are able, willing, qualified, and available to provide the temporary services or labor; that the offered job is temporary or seasonal in nature; that H-2A workers will not adversely affect the wages and the working conditions of similarly employed U.S. workers; and must submit a single valid temporary labor certification from the U.S. Department of Labor (DOL) along with the H-2A petition. If the employer has been affected by a strike, work stoppage, or layoff within 60 days of when work will start, the employer may not qualify for the program.
Who Can Apply For An H-2A Visa
Each year a list of eligible countries is published by the Department of Homeland Security through what is called a Federal Register notice. Each list is valid for a period of one year. Nationals from these countries are eligible for the H-2A Agricultural Worker Program. Please feel free to contact us if you have any questions about which countries are currently eligible.
Workers can not directly apply for an H-2A visa themselves. Instead, an American employer, agent, or association of Agricultural producers must file a petition for a nonimmigrant worker (form I-129) on behalf of the potential employee.
If the potential employee is in the United States at the time of filing the petition, they will not be able to travel outside the U.S. while it is pending. If the employee is in a foreign country at the time of filing, they will need to apply for the H-2A visa at a U.S. Embassy or Consulate once the petition is approved.
Requirements For H-2A Visa Petitioners
All of the following requirements must be met by the petitioner and potential foreign worker in order to successfully apply for an H-2A temporary visa.
- The employer must present a foreign worker with a job offer that of a temporary or seasonal nature.
- The employer must agree to pay the temporary worker a wage rate comparable to that of a U.S. worker in a similar position.
- The employer must demonstrate that there is only a temporary need for the services of a foreign worker.
- The employer must demonstrate that there is a legitimate lack of qualified U.S. workers who are able or willing to perform the needed work.
- The employer must demonstrate that the wages and working conditions of U.S. workers employed in similar positions will not be negatively impacted by hiring workers from a foreign country.
- The foreign worker must have a residence in their home country or outside of the United States that they do not have any intention of abandoning to stay in the U.S.
- Agricultural employers can be a corporation, partnership, or individual proprietor.
- The employer must submit a valid temporary labor certification from the Department of Labor with the H-2A visa petition in order to seek approval from the U.S. Citizenship and Immigration Services (USCIS).
Dependents Of H-2A Agricultural Workers
Spouses and dependents (unmarried children under 21 years of age) of H-2A visa holders are entitled to H4 status and must observe the same restrictions as the foreign worker. Those with H4 status are not allowed to work in the United States, however.
H-2A Visa Stay Duration
H-2A visas are issued for a period of up to one year. It is possible to extend H-2A visas for two additional years, however. It should be noted, though, that after seeking two extensions, the foreign worker will be required to remain outside of the United States for three consecutive months before they can apply to be admitted again through the H-2A Visa Program.
If you and your employer wish to apply for an extension to your H-2A visa, your employer will be required to renew certification with the Department of Labor regarding the lack of available qualified U.S. Workers.
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.
Under some circumstances, where foreign workers have spent time outside of the United States during their authorized stay on an H-2A visa, they may be able to apply for an extension beyond the three-year limit without waiting three months. If you need assistance with navigating this process, we’d be happy to help.
H-2A Visa Employee Compliance
Once granted entrance into the United States, H-2A temporary agricultural workers must meet requirements and work obligations or risk losing their H-2A status. Employers are required to notify the California Service Center by email or regular mail under any of the following circumstances:
- The worker fails to report to the worksite within five days of the start date specified in the work contract.
- The worker leaves employment without giving formal notice and does not report to work for a period of five consecutive working days without the employer’s consent
- The worker is terminated by the employer before the H-2A labor or services are completed.
- The H-2A labor or services are completed more than 30 days prior to the end of the contract period.
An Immigration Attorney At The Bolour / Carl Immigration Group Can Explain Your Options
Please contact us to schedule a no-obligation initial consultation to discuss your H-2A worker visa needs. Our team of knowledgeable and experienced immigration lawyers is here to answer any questions you may have about obtaining an H-2A non-immigrant worker visa. You can reach our lawyers at our Los Angeles or Palm Springs offices by calling 866-801-7202 or send an email by completing our online form.
We also speak Spanish and Persian.