The EB-3 Visa Lawyers Guide: Navigating Your Path to U.S. Employment
The EB-3 Visa Lawyers Guide: Navigating Your Path to U.S. Employment In the intricate world of U.S. immigration, securing…
The H-2A Visa Program is designed to address the challenges faced by American farmers in filling their employment gaps. As the demand for agricultural workers remains steady, this program enables farmers to hire skilled workers from other countries.Â
In this blog, we provide a brief overview of the H-2A Visa program and discuss implemented and proposed changes that may impact H-2A employers and workers in 2024 and beyond.Â
Faced with labor shortages and a high demand for agricultural products, American farmers often struggle to find enough workers to meet their needs. The H-2A visa program was established to provide a solution to this problem by allowing farmers to hire foreign laborers temporarily. At the same time, this program also provides employment opportunities to workers from other countries.Â
The H-2A visa program, also known as the H-2A temporary agricultural workers program, allows U.S. employers in the farming sector to hire and bring foreign, nonimmigrant workers to the country for seasonal and temporary labor. These workers are granted H-2A visas and permitted to work legally in the United States for a specific period, helping address the growing demand for agricultural labor.Â
It’s important to note that farm workers cannot apply for H-2A Visas themselves. Their prospective employers must file an application, given they meet the H-2A visa requirements set by the U.S. Citizenship and Immigration Services (USCIS). Â
Most employers who utilize the H-2A Visa program are in the crop industry, as it is seasonal and typically requires more workers during peak seasons compared with the livestock sector. Research shows that 10% of all agricultural labor used in crop production in the United States is performed by H-2A workers. However, any U.S. employer or agricultural association acting as a joint employer or U.S. agent may qualify for the program if they meet the standards set by the USCIS.
While the program requirements for the H-2A Visa remain largely the same for U.S. employers and foreign workers, there have been some recent updates and proposed changes that could impact the recruitment process, worker protections, and program accessibility.
Despite its benefits to U.S. employers and foreign workers, the H-2A visa program has faced several challenges, such as:
In November 2022, the DOL issued a final rule that made changes to the H-2A Visa program to address these and other challenges. These changes focus on:Â
Additionally, the final rule strengthens the DOL’s Wage and Hour Division’s capability to investigate and address H-2A Visa fraud and abuse. This rule will remain in effect until 2024 and beyond unless the DOL revises or repeals it, Congress passes a new law that alters the DOL’s rule, or the rule is challenged in court.Â
To that end, U.S. agricultural employers must ensure they abide by H-2A Visa program rules and meet its conditions. Advice from an immigration lawyer or law firm can help businesses navigate the complexities of the program and avoid costly mistakes.
H-2A Visas can only be given to people from countries on a list made by the Department of Homeland Security (DHS), with approval from the Department of State. There are some exceptions, but for the most part, this is the rule.
This list is updated and published in a Federal Register notice annually, and it remains in effect for one year after publication.Â
As of November 2023, nationals of the following countries may be employed as H-2A workers:
Andorra | The Kingdom of Eswatini | Madagascar | San Marino |
Argentina | Fiji | Malta | Serbia |
Australia | Finland | Mauritius | Singapore |
Austria | France | Mexico | Slovakia |
Barbados | Germany | Monaco | Slovenia |
Belgium | Greece | Montenegro | Solomon Islands |
Bolivia | Grenada | Mozambique | South Africa |
Bosnia and Herzegovina | Guatemala | Nauru | South Korea |
Brazil | Haiti | The Netherlands | Spain |
Brunei | Honduras | New Zealand | St. Vincent and the Grenadines |
Bulgaria | Hungary | Nicaragua | Sweden |
Canada | Iceland | North Macedonia | Switzerland |
Chile | Ireland | Norway | Taiwan* |
Colombia | Israel | Panama | Thailand |
Costa Rica | Italy | Papua New Guinea | Timor-Leste |
Croatia | Jamaica | Paraguay | Turkey |
Czech Republic | Japan | Peru | Tuvalu |
Denmark | Kiribati | Poland | Ukraine |
Dominican Republic | Latvia | Portugal | United Kingdom |
Ecuador | Liechtenstein | Republic of Cyprus | Uruguay |
El Salvador | Lithuania | Romania | Vanuatu |
Estonia | Luxembourg | Saint Lucia | Â |
In September 2023, the DHS proposed its own set of changes. These focus on strengthening enforcement against program violations, protecting H-2 workers’ rights, and streamlining the visa application process for employers.
H-2A workers’ right to stay in the U.S. is tied to their employment. As such, if an employer no longer needs their services, they lose their H-2A status. Currently, the USCIS gives H-2A workers a 30-day grace period after the termination of employment to look for another employer.Â
Under the proposed rule, the DHS aims to extend the grace period for H-2A workers to 60 days. This additional time allows H-2A workers to find new employment, apply for a change in immigration status, or prepare for return to their countries without accruing unlawful presence or violating their nonimmigrant status.Â
This proposed rule would also benefit employers. One fundamental change is making “H-2 portability” permanent. This means employers facing worker shortages could hire foreign workers already legally in the U.S. with H-2 visas from other employers. The new employer would still need to file an extension of stay petition for this specific worker, and the worker could work for them while the petition is being reviewed.
DHS’s rule is still under review and not yet in effect. If the DHS moves forward and issues a final rule, agricultural companies, and associations must familiarize themselves with the specifics to help ensure a smooth transition and continued compliance with H-2A program requirements.
In 2024, the H-2A visa program remains crucial in addressing the labor needs of the U.S. agricultural sector. It offers a source of employment for thousands of foreign workers while helping American farmers maintain their operations.
The H-2A Visa program will likely evolve in response to the needs of employers and workers alike. Ensure you stay abreast of updates to the program to ensure compliance with regulations and effectively manage your H-2A workforce.
If you have questions or need guidance in filling your labor shortages by leveraging the H-2A Visa program, turn to Farmer Law, P.C. We are dedicated to helping employers find solutions legally and efficiently. Contact us today to schedule a consultation.
We offer world class communication and responsiveness to all of our clients and our comprehensive approach can simplify even the most complicated of visa programs.
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The attorneys at Farmer Law PC understand the value of a diversified workforce and are adept at navigating every facet of immigration law. We offer comprehensive solutions for all of your labor shortages. Our team locates honest, accomplished workers to provide employers with exceptional talent from every corner of the globe.
