August 23, 2021

Common H-2A Visa Questions

August 23, 2021

The U.S. agricultural sector is an economic powerhouse of the American GDP. The agricultural and food industries contributed nearly 25 million jobs in 2019, including nearly 3 million direct, on-farm jobs.

Since 2005, it has become increasingly difficult for employers to find U.S. workers, and so the use of the H-2A agricultural worker program has increased. Read on for more information about who qualifies for the H-2A visa program and how to apply.

What is the H-2A visa category?

Under the H-2A program, non-immigrant, foreign workers come to the U.S. to work on a temporary basis in the agricultural industry. The program was created in 1986, and while it dwindled in the 1990s, the increase of H-2A positions from 48,000 in 2005 to nearly 258,000 in 2019 is a strong indicator of the difficulty in filling agricultural jobs with U.S. workers — and the value of the H-2A program.

According to the Cato Institute’s 2019 annual report, the H-2A program has had a positive impact on both the U.S. and the foreign workers who participate.

H-2A minimum wages are higher than every state’s minimum wage by an average of 57%
Americans accept only 1 in 20 H-2A job offers
H-2A expansion has contributed to an overall decline in illegal immigration from Mexico
Only 0.27% of farmers per year have been barred from the H-2A program because of serious violations like immigration fraud

What are the requirements for employers to qualify for the H-2A program?

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In order to have their petition for H-2A jobs approved by the Department of Labor (DOL), agricultural employers must be able to show that

Open agricultural positions are temporary or seasonal
Efforts to recruit U.S. workers have failed
Wages will be equivalent to what U.S. workers would make
Housing will be provided for H-2A workers

What is the application process for the H-2A program?

Employers undergo a three-step process to hire workers under the H-2A program. This process involves multiple state and federal government agencies and tight deadlines.

Apply for temporary labor certification. Before the employer can petition the United States Citizenship and Immigration Service (USCIS) for H-2A classification, employers must receive a temporary labor certification. This should begin with filing a job order with the state workforce agency 60 to 75 calendar days before the start date of work.
Submit Form I-129 to USCIS. Once the employer receives a temporary labor certification from the DOL, they can apply to the H-2A program with USCIS. This should happen about 30 days before the start of the job.
Recruit foreign workers. After the H-2A classification has been approved, employers may begin recruiting workers from eligible countries, who must then apply for their visa and interview with their U.S. embassy or consular office. Recruitment of foreign workers begins about two weeks before the start of the job.

The rules employers must follow are overseen by various agencies at different points in the process and require employers to show evidence that they can follow the rules of the program. Here are some of the major rules of the program.

Eligibility: Jobs must be full-time but last less than one year.
Labor certification: The DOL will need to certify “no adverse effect” on U.S. workers.
Positive recruitment effort: Advertise the jobs and contact former employees first.
Housing: No-cost housing must be offered to workers.
Transportation: Daily transportation between job sites and housing as well as from the home country to the U.S. must be provided.
Meals: Workers must be provided three meals per day or have access to a kitchen to prepare meals.
Three-fourths guarantee: Employers must pay at least 3/4 of the contract period regardless of when work is completed.
Recordkeeping: Employers must maintain detailed, accurate records for all employees for at least three years.

What are the yearly limits on H-2A workers?

Unlike the H-2B program, the H-2A visa program has no numerical cap. However, approved participants are restricted to temporary or seasonal jobs that last less than a year.

How long can workers stay in the U.S. in the H-2A program?

Because the H-2A visa program is for temporary or seasonal work, the visa issued to workers is also temporary, and workers are limited to the duration of the job listed on the temporary labor certification.

H-2A stays may be extended for qualifying employment in temporary increments of up to 1 year each.
H-2A classification workers are limited to a maximum total stay of three years in the U.S.
People with H-2A non-immigrant status must leave the U.S. after the max stay and return to their home country for a minimum of three months.

How much does the H-2A program cost employers?

Employers interested in hiring H-2A workers are responsible for a number of fees related to the program.

$460 filing fee
$100 plus $10 per worker, up to $1,000 total for the labor certification
$190 visa fee for each worker
$6 border stamp fee for each worker
Transportation, housing, and additional benefits for each worker

The H-2A visa program requires investment into the approval and administration of the program, from ensuring the application accurately demonstrates the employers’ commitment to the program to maintaining proper documentation throughout — and after — each temporary labor certification.

If you have H-2A questions or if you are ready to work with an experienced immigration attorney to start your H-2A program process, Farmer Law is here to help. Schedule a consultation with our attorneys today.

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Common H-2A Visa Questions

What is the H-2A visa category?

What are the requirements for employers to qualify for the H-2A program?

Follow Us On

Have a Question?

More Information from Farmer Law

Immigration Law

What is the application process for the H-2A program?

What are the yearly limits on H-2A workers?

How long can workers stay in the U.S. in the H-2A program?

How much does the H-2A program cost employers?

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