Agricultural guest workers have been a part of the United States workforce since the early 1900s. Since that time, the way in which the U.S. permits admittance and work visas to workers from other countries has shifted. Currently, the H-2A visas offered for seasonal work are a common way for U.S. employers to legally and efficiently bolster their workforce.
While the workers benefit from being able to enter the country to earn a living, it’s the employers who are responsible for applying to the H-2A program by submitting visa applications to the various agencies, including the Department of Labor and U.S. Citizen and Immigration Services’ Employment and Training Administration. Shifting laws over the last century can make it difficult to keep up with the latest regulations.
This is where our trustworthy team of immigration experts at Farmer Law can help save your company time. We thoroughly understand the H-2A visa requirements and how the application process works. We know the difficulties that your production schedule faces with labor shortages, and our goal is to make sure you have the staff you need to complete your essential work. Understanding the H-2A visa requirements and how the application process works can help you ensure that your agricultural operation is adequately staffed during busy times.
H-2A visas allow U.S. employers in the agricultural sector to employ seasonal workers from other countries. They are accompanied by a list of specific regulations. Employer applicants must state that all of the following are true.
In addition, employers must agree to pay H-2A workers special adverse effect wage rates, which vary by locality and are set in place to ensure that domestic workers are not affected by the hiring of foreign nationals. The workers hired must be from a specific list of countries allowed to work in the United States under an H-2A visa. Employers must also provide foreign workers with housing and transportation to and from the job site if they will be required to be away from their residence overnight. The H-2A workers must also be guaranteed an offer of employment for at least 75% of the work period specified in their contract. And, importantly, the H-2A visa program requires that employers do most of the paperwork involved in securing the H-2A visas for workers.
H-2A visas are extremely beneficial to companies and seasonal agriculture operations who rely upon an influx of workers during critical parts of the year. However, because there are many steps to go through in order to receive this sort of visa, and because of the rules employers must follow once their workers are in the country, it can be beneficial to hire the legal team at Farmer Law to answer any questions and ensure federal compliance. Fines for labor violations can reach over 100,000 per worker, so it’s best practice to follow every step carefully. Our team can mitigate those worries and help you efficiently file the extensive paperwork.
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We compiled the following list of documents needed for an H-2A visa application so you can better understand what is required:
You will often need duplicates of the above forms, as well as your insurance company name and policy number on hand. Below, we go into detail about the specific steps employers need to take when submitting these forms.
U.S. Citizenship and Immigration Services (USCIS) is the federal agency responsible for processing and approving applications for H-2A visas. The process to apply for an H-2A Visa is complex and requires multiple steps and submitting to several different departments to get approval, all of which must be done in a particular order. The three main steps of the H-2A are labor certification, the H-2A application, and finally, admission into the U.S. Below is a step-by-step process, referencing the necessary forms listed above.
At this point, individual workers must then begin the process on their end, which includes consular interviews, submitting a picture and fingerprints, and being entered into the E-Verify system. To streamline the transition, companies can opt to pay their $190 visa fee, or individuals can pay it themselves. However, the role of the company is not complete and continues long after the employee has completed their part. Once the employee has submitted their application, the employer needs to:
Because of the lengthy process involved in filing and obtaining an H-2A visa, companies can track the status of pending H-2A applicants. And even after all that paperwork, the employer regulations do not end once workers have arrived in the U.S. ready to work. The H-2A visa program also requires that employers maintain detailed employment records, ensure that the information they certified remains true, and follow all laws affecting seasonal agricultural workers.
Because most of the paperwork and responsibility of an H-2A visa falls on the employer’s desk, our legal team at Farmer Law can help walk you through how to manage this specific visa and even plan your workforce needs up to two years in advance. Farmer Law PC r can:
An H-2 visa is valid for up to three years. After the original period of work is complete, an employer can fill out an I-129 form to extend the H-2A visa for up to a year until the total reaches three years. This form must be filled out correctly by employers before the employee’s visa expires. After the three years are up, the H-2A visa holder needs to leave the United States for at least three full months before reapplying for another H-2A.
While certain time under different visa classifications may count towards the H-2A visa year total, there may be “disruptions” in the three-year count if your employee travels outside the country. You’ll want to consult with a knowledgeable lawyer about the rules surrounding your specific employees and their employment statuses.
For jobs that require seasonal and agricultural work, an H-2A provides many advantages:
While there are many advantages of an H-2A visa for your employees, there are also many specific rules to follow. Keeping track of your legal obligations is essential but can quickly become extensive work if you are hiring multiple foreign workers and need to organize housing, transportation, and wages. Farmer Law attorneys can improve your experience with the process and create an immigration plan tailored to your company’s situation.
To better understand the possible future of the H-2A visa program, it’s important to understand how it came about. The first guest worker program for the agricultural sector was started in 1917 and later rebranded as the Bracero program. Its goal was to recruit Mexican nationals to fill the labor shortage caused by World War I. This agreement set the stage for future guest worker policies.
With higher-paying, less labor-intensive jobs on offer for American workers, it can still be difficult to staff agricultural operations without guest workers. Today’s H-2A visa program was created by Congress in 1986 to address that fact.
The current program aims to ensure that agricultural operations have the labor they need while also protecting opportunities for U.S. workers. It also addresses workplace safety and fairness for foreign nationals in the program. Given that only about 2.9% of these jobs typically get filled by U.S. workers, the H-2A visa program helps the U.S. keep domestic food production going and reduces the country’s need to import more expensive food.
Since 2005, as wages for U.S. workers rise, more agricultural operation owners, including farmers, have made increasing use of the program. However, since the process is so involved, H-2A visas are often a last resort for farmers and others in agriculture. That’s where a team like Farmer Law’s comes in. We can assist your operation by smoothing the way towards your hiring goals.
Our firm is dedicated to helping you fill crucial roles during critical times of the year. We understand the pressing needs you have and the seasonal nature of your work. Farmer Law is dedicated to helping you maintain production and fill your workforce in an efficient and legal manner. Work with Farmer Law because:
Our firm has a reputation for finding solutions for our clients, and we will work our hardest to ensure that you have the workforce you need. The H-2A visa program is an important source of legal, foreign labor for farmers and others in the agricultural sector. However, H-2A visa regulations can be complicated to navigate — especially with the possibility of regulatory changes on the horizon — unless you have the experience of Farmer Law’s attorneys on your side. Our team of seasoned attorneys is ready to help with not just the initial H-2A visa paperwork, but also the visa program requirements related to the pay, housing, and transportation of foreign nationals. We understand the urgency of your workforce situation and are here to help make the process as smooth as possible.
Another great reason to use an experienced legal team to walk you through the H-2A application process is that the program rules can change from year to year. The DOL announced a final rule (Temporary Agricultural Employment of H-2A Nonimmigrants in the United States [RIN 1205-AB89]) on January 15, 2021. Less than a week later, on January 20, 2021, the agency withdrew the rule from the Federal Register to further study the legality and impact of the rule, so it will not take effect unless it passes that review. This ruling is now fully in effect as of November 14, 2022. And even more recently, on September 12, 2023, the Department of Labor made a statement surrounding proposed rulemaking, Improving Protections for Workers in Temporary Agricultural Employment in the United States. It’s safe to say that with legislators taking a close look at immigration issues, the H-2A visa program could undergo new regulatory changes in the months and years to come.
Additionally, the special rates that companies are required to pay foreign workers are subject to changes throughout the years. It’s crucial to stay up-to-date with the most recent adjustments to immigration law, for the benefit of your company and your employees.
While immigration laws and visas can be difficult to navigate, our knowledgeable team is here to help your company. Contact Farmer Law today for help using the H-2A visa program to staff your agricultural business. We’re ready to answer your questions at 512-337-4451, or through our online form. We’re here to help your business run smoothly with the workforce you need.
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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.
