The H-2A visa allows farms and agricultural operations to bring in foreign-born farmworkers temporarily. Most commonly, this visa is used to hire temporary workers for harvest time or planting, though livestock producers who need help on the range can also use the H-2A process to hire workers year-round.
What is an H-2A visa?
An H-2A non-immigrant visa allows U.S. agents and farms to hire temporary farm workers from outside the United States for eligible temporary farm work for up to one year. This visa can be used only if farmers and agents cannot find American workers for these positions.
Who can qualify?
To qualify, an H-2A visa applicant needs to meet a few H-2A requirements. These include:
- Work type. The applicant needs to be offering seasonal or temporary work on a farm or in an agricultural setting.
- Labor impact. Farms or U.S. agents must demonstrate that hiring foreign-born workers through the H-2A visa program will not negatively impact U.S. workers or worker wages in the same type of employment.
In most cases, those applying for this visa also need to submit a U.S. Department of Labor valid temporary labor certification with their H-2A visa application.
What are the conditions necessary for an H-2A visa?
Applicants need to show that there are not enough U.S. workers to do the job in question because there are not enough workers who are available, willing, and able to do the work. The employment being offered must be temporary agricultural work. Workers who enter the United States through the H-2A visa program must work for the employer who has applied for the visa and may not change employers in most situations.
What’s the H-2A process like?
To apply for an H-2A visa, farmers or agents need to take a few steps. These include:
- Prove lack of workers. Farms or U.S. agents will work with the local State Workforce Agency to determine whether domestic workers are willing, able, and qualified to do the work.
- Apply for temporary labor certification for the H-2A process. If no domestic workers can fill the temporary jobs, farms will need to file a temporary labor certification application from the U.S. Department of Labor. Farms needing workers immediately should apply with their State Workforce Agency and apply for a temporary labor certification at the same time as they apply for the visa.
- Submit Form I-129. Next, applicants will submit Form I-129, Petition for a Non-immigrant Worker, to United States Citizenship and Immigration Services (USCIS), along with payment for the application, their temporary labor certification, and any other required documentation.
Once the USCIS has approved the application, the farm or agent can advertise for temporary farm work outside the United States. When foreign applicants apply for these jobs, the workers will need to then secure the visa to enter the United States. They can do this with a few steps. These are:
- Apply for the visa. Foreign workers need to apply at a U.S. Consulate or Embassy in their own country to secure an H-2A visa through the U.S. Department of State.
- Seek entry. With the H-2A visa, workers can apply for admission into the United States at a port of entry.
Once the temporary worker has entered the United States, they must proceed directly to the location of employment. If they fail to show up for work, finish their work early, abscond their employment, or are fired, the farm or U.S. agency must inform the USCIS of the change or face penalties and fines.
Are there any caps or limitations?
There is no numerical cap on the H-2A visa. There are other limits, however. The Department of Homeland Security publishes a list of countries whose nationals are eligible for H-2A and H-2B visas. This list is published in the Federal Register and is valid for one year before being updated. H2-A visa workers can only come from these countries.
There are also limitations to how long H2-A visa temporary workers can remain. Usually, these workers can remain for up to one year and with renewals of their visa, a temporary worker staying in the United States has a limit of 3 years. After three years, they must depart the United States and remain outside the country for at least three months before reapplying for a temporary worker visa again.
Families of H2-A visa workers can seek to be admitted into the United States as H-4 non-immigrant holders. Only unmarried children under the age of 21 and spouses of temporary workers qualify for an H-4 visa, and holders of the visa cannot work in the United States.
How long does it take to get this visa?
Processing times for the H-2A can depend on the service center where forms are submitted, the details of a request, and other factors. The USCIS does make expedited processing available, however. The standard H-2A process takes about 75 days, but for farms with an immediate need for workers, it’s possible to contact the Department of Labor’s Chicago National Processing Center for alternatives and faster processing.
How can Farmer Law help?
Applying for an H-2A visa can be complicated, especially for busy farmers and their agents, who are focused on the day-to-day operations of their agricultural work. Farmer Law PC offers innovative, professional solutions to help you navigate the visa process and to secure the workers you need when you need them.
Our team ensures you are compliant with all H-2A visa requirements as well as state and federal regulations and we work to ensure you can get the temporary workers you need. Contact us today to find out what we can do for you. For comprehensive H-2A visa program management, contact our sister organization, Ag Workforce.