Meat producers are facing labor shortages, with the number of online job ads for meat processing positions increasing by 66% between 2020 and 2021 alone, a factor driving up the price of meat. The labor shortage means there aren’t always enough local candidates available and willing to fill open positions, even when companies pay above market rates for wages and offer signing bonuses.
Local workers simply don’t want to take on jobs in meat processing plants, on the range, or with livestock in most cases. Fortunately, some meat producers can work with H-2A visa consultants to find and hire foreign nationals who are available for open jobs.
What is an H-2A visa?
H-2A visas allow workers to enter the United States for temporary or seasonal jobs related to the agricultural industry for one to ten months. Extensions are also available. Once workers enter the United States with an H-2A visa, they are to continue working for the employer who sponsored them for the visa.
How is the visa used in the meat industry?
H-2A visas allow companies to hire agricultural workers where local workers are not available or not willing to do the job, which enables the U.S. to continue to produce food domestically, reducing dependence on foreign food. These non-immigrant visas have no cap and allow workers to enter the United States to work with livestock.
The related H-2B visa is also for temporary workers. Designed for non-agricultural workers, it is often used by meatpackers and meat processing plant workers.
What is the process like for getting an H-2A visa for workers?
The employer is largely responsible for filing for the H-2A visa. The H-2A visa cost and the responsibility for compliance also largely fall on the employer. This visa process involves three main steps.
- Secure labor certification. Employers need to file Form ETA-790 with their state agency and then submit an approved job order with ETA Form 9142 to the U.S. Department of Labor (DOL). They must submit a recruitment report to show they attempted to find American workers for the position and must pay all relevant fees to secure their labor certification.
- Submit an H-2A application. Once an employer has labor certification, employers need to file Form I-129 with U.S. Citizenship and Immigration Services (USCIS). Once the petition has been approved by USCIS, the employees who will be coming to the United States must start the process on their end. Workers will need to attend a consular interview, be entered into the E-Verify system, and get fingerprints and photos. They may also be asked to submit additional documentation to prove they qualify for an H-2A visa or entry into the U.S.
- Workers entering the U.S. Employers must submit Form I-94 and pay the fees for every worker entering the United States to work for them. Workers can then enter the United States no more than ten days before the job is to begin.
Even once the process is complete, employers are expected to keep employment records and follow the many laws and rules pertaining to agricultural workers. It is important to ensure all the information which was used to apply for the visa remains true and to report any changes to employment and work conditions. Employers also need to track H-2A visa payroll taxes and ensure they meet all H-2A visa housing requirements and other rules of the program.
Who qualifies, and under what conditions?
To secure workers through the H-2A visa program, companies need to prove that they will pay a wage at least equal to the local minimum wage or the prevailing wage for the meat production industry to ensure they will not negatively impact wages for local workers. A company must also show that there is a shortage of American workers able and willing to do the job.
Employers must further be able to show that they have looked for local workers for the position but were unable to find them, and employers may be required to supply workers with housing and transportation if the worker will be away from their home overnight. Moreover, the employer needs to provide employment for 75% or more of the work period in the employment contract.
The H-2A program is designed for agricultural workers, and some meat-producing companies do qualify. H-2A visas can be used to hire foreign workers for herding and production of livestock and other jobs. One challenge with the H-2A visa is that it is designed for temporary seasonal work, such as harvest season. Employees can stay in the U.S. for one to ten months, though extensions are possible. In meat processing, the need for labor is year-round, which is why calls have been made to change the program to allow for modifications that would allow meat producers to retain workers and not just hire them seasonally.
How can an immigration attorney help?
Just deciding whether your company needs to apply for an H-2A visa, H-2B visa, or another visa entirely can be complicated. If an H-2A visa is right for you, the process of securing labor certification, applying for the visa, and hiring workers is time-intensive and any errors can result in delays that impact your bottom line. While you can work with H-2A visa recruitment agencies, working with an experienced legal team who can take care of everything from the application process to compliance issues to finding the right candidates for your company is more beneficial.
In addition to the application process, keep in mind that most H-2A employers are audited by the Department of Labor Wage & Hour Division at some point. Farmer Law has experience helping companies with the audit process and we can work with you to stay compliant. If you need one-stop H-2A visa consultants dedicated to helping your company, contact Farmer Law for a consultation to find out how we can help in your specific situation.