H-2A Visa (Temporary Agricultural Worker Visa)

Overview

The H-2A visa program allows U.S. employers to hire foreign nationals for temporary or seasonal agricultural work when there are not enough U.S. workers who are able, willing, qualified, and available to perform the labor.

Eligibility Criteria

For Employers:

• • Temporary or Seasonal Need: The job must be of a temporary or seasonal nature.
  • Recruitment Efforts: Employers must demonstrate that they have made efforts to recruit U.S. workers and that hiring foreign workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.
  • Labor Certification: Obtain a valid temporary labor certification from the U.S. Department of Labor (DOL) before filing a petition with USCIS.

For Workers:

• • Job Qualifications: Must possess the necessary skills and experience required for the agricultural job offered.
  • Country of Origin: As of January 17, 2025, USCIS has removed the requirement that H-2A petitions can only be approved for nationals of countries designated as eligible to participate in the H-2A program.

Application Process

1. 1. Temporary Labor Certification: Employer applies for and obtains a temporary labor certification from the DOL.
   2. Petition Filing: Employer files Form I-129, Petition for a Nonimmigrant Worker, with USCIS, including the approved labor certification
   3. Visa Application: Once the petition is approved, the foreign worker applies for the H-2A visa at a U.S. embassy or consulate.

Employment Conditions

• • Full-Time Work: Positions must be full-time, typically requiring at least 35 hours per week.
  • Job Duration: Employment is tied to a specific period, often aligned with agricultural seasons or cycles.
  • Wages: Workers must be paid at least the highest of the Adverse Effect Wage Rate (AEWR), the prevailing wage, or the federal or state minimum wage.
  • Housing and Meals: Employers must provide free housing that meets safety standards and either provide meals or access to cooking facilities.
  • Transportation: Employers are responsible for the cost of inbound and outbound transportation between the worker's home and the place of employment.

Duration of Stay

• • Initial Period: The H-2A visa is typically granted for the duration of the labor certification, usually up to one year.
  • Extensions: Extensions may be granted in increments of up to one year, with a maximum continuous stay of three years.
  • Mandatory Departure: After three years, workers must leave the U.S. and remain outside the country for at least three months before reapplying for H-2A status.

Recent Regulatory Updates (Effective January 17, 2025)

• • Prohibited Fees: Employers are prohibited from collecting any fees from H-2A workers related to recruitment or employment. Violations can lead to petition denial or revocation.
  • Grounds for Denial: USCIS may deny H-2A petitions if the employer has committed certain labor law violations or misused the H-2A program.
  • Portability: Eligible H-2A workers can begin employment with a new employer as soon as the new employer properly files a petition, without waiting for approval.
  • Grace Periods: H-2A workers are granted a 10-day grace period before the start and a 30-day grace period after the end of their authorized employment period.