H-2A visas allow U.S. employers in the agricultural sector to employ seasonal workers from other countries. 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.
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.
Employer applicants must state that all of the following are true.
- There aren’t enough U.S. workers who are “able, willing, qualified, and available” to carry out the needed work.
- Employing the non-U.S. residents will not adversely affect the wages or working conditions of similarly-employed U.S. workers.
- They initially attempted to find U.S. workers to fill the empty jobs.
In addition, employers must agree to pay H-2A workers special rates, which vary by locality. They must provide the 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.
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U.S. Citizenship and Immigration Services (USCIS) is the federal agency responsible for processing and approving applications for H-2A visas. Before USCIS approves an employer’s petition, that employer must first file an application with the Department of Employment and Training Administration.
The process for employers has three main steps:
- Labor certification. Employers must get a temporary labor certification from the U.S. Department of Labor (DOL) before filing with the USCIS. Form ETA-790 should be submitted 60 to 75 days prior to work beginning to the appropriate stage agency. Then, at least 45 days before work begins, they must submit ETA Form 9142 with an approved job order to the DOL’s National Processing Center. Finally, at least 30 days before the job starts, employers must submit a recruitment report stating that they have been unable to fill the open positions with U.S. workers. From that point, certified employers have to pay the initial $100 + $10/worker fee per needed worker.
- H-2A application. This is a multi-step process too. With DOL certification in hand, employers can then file an I-129 petition for nonimmigrant workers. An initial review typically happens within two weeks. Upon review and approval of those petitions, 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. If USCIS finds deficiencies in the application, it will request additional evidence, and the process will continue until the petition is denied or approved. Upon visa approval, workers must wait until employers complete the third step of the process on their end.
- Admission into the U.S. This step in the process involves employers submitting applications to allow the foreign nationals entry into the U.S. Around 10 days before the work is to begin, they must submit an I-94 application for each H-2A worker and pay the associated fees. Those workers may then enter the U.S., as long as it’s no earlier than 10 days before the work is to start.
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.
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Agricultural Guest Workers — Then and Now
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.
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. However, 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.
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.
Contact Farmer Law today for help using the H-2A visa program to staff your agricultural business.
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