The United States has a long history of welcoming workers from abroad to support the agricultural sector. The first agricultural guest worker program — later formally called the Bracero program — was initiated in 1917 to recruit workers from Mexico to fill in the U.S. labor shortage during World War I. While this first-wave bilateral agreement was temporary, it set the stage for a number of agreements and policies that, over the years, have been amended and adjusted to ensure that fair opportunities are available for American workers, and that safe and fair working conditions are available to foreign nationals who come to the country.
The H-2A program was created by Congress in 1986 to allow foreign workers to legally work temporarily for U.S. farmers who were unable to hire qualified Americans to provide agricultural labor.
What is an H-2A visa?
This visa program allows agricultural employers who meet specific regulatory H-2A requirements to bring foreign nationals to the United States to fill temporary agricultural jobs that cannot be filled otherwise with qualified U.S. workers.
The H-2A is a nonimmigrant work program that allows U.S. employers who foresee a shortage of labor to bring in nonimmigrant workers provided that the work is either seasonal or temporary.
- Seasonal. The amount of help needed increases because of a certain time of year, such as in an annual growing cycle.
- Temporary. The employer’s need to fill the position will generally last no longer than one year.
What kind of work can H-2A workers perform?
The work performed by H-2A workers has to be agricultural in nature and seasonal or temporary in nature. While many people may have images in their mind of agricultural workers during harvest time, which is common, the type of agricultural work covered by the H-2A program can vary.
H-2A workers may be used to build agricultural facilities like hog barns, chicken barns, and greenhouses or may plant, cultivate, or harvest crops. If you want to know if your business is qualified to sponsor H-2A workers, give Farmer Law PC a call today to receive no-cost information about your unique employment needs.
Who is eligible for H-2A visas?
In order to apply for workers under the H-2A classification, petitioners must
- Offer a full-time temporary or seasonal job. Petitioners who need help planting, cultivating, or harvesting have increased labor needs. While the work is intended to last less than one year, the work offered must also be full-time.
- Be an existing U.S. employer. Employers must have a physical address in the U.S., already possess a valid employer identification number (EIN), and meet basic valid employer criteria, like having the ability to hire, fire, and pay employees.
- Obtain temporary labor certification. The Department of Labor (DOL) requires employers to undergo a substantial labor certification process to ensure that the employer meets certain qualifications and can demonstrate the lack of U.S. workers available to perform the temporary work, and that there will be no adverse impact on the wages or working conditions of U.S. workers.
Only workers from particular countries are eligible to participate in the H-2A program. A complete list of the Department of Homeland Security’s (DHS) eligible countries is provided by the United States Citizen and Immigration Services (USCIS), along with the most recent updates and their impact on existing H-2A visa holders.
What is the process for securing H -2A visas?
The process for bringing in workers under H-2A visas can be understood as happening within three main stages:
- Certification from the DOL;
- Application with USCIS; and
- Admission to the United States.
Each of these three stages involves a number of smaller steps with numerous documents and several agencies, which is in part why farmers historically have used it as a last resort. However, the number of certified H-2A jobs has increased rather steadily since 2005, in part due to faster processing times and a continued lack of available U.S. workers in spite of increased wage growth intended to attract those workers. In addition, there is no numerical limitation to the number of visas that can be issued annually under the H-2A program.
Stage 1: Labor Certification
Before filing the H-2A visa application with the DHS, employers must first obtain temporary labor certification from the DOL.
- 60–75 days before work begins: Submit Form ETA-790 to the appropriate state workforce agency (SWA): On this form, employers need to include a significant amount of information, including the specific location and description of the workers’ housing, meal provisions, the work to be performed, wages, and transportation to and from the work site for the workers. If the SWA finds deficiencies, a notice will be sent to the employer, who will then have five calendar days to make corrections and resubmit.
- 45 days before work begins: Submit ETA Form 9142 and approved job order to the Chicago National Processing Center for the DOL, which will then be reviewed. Once cleared of any deficiencies, the employer will receive a Notice of Acceptance, and the SWA will post the job order and inspect the housing.
- 30 days before work begins: During the recruitment process, the state agency will place online ads, and the employer must offer the job to any of their recently laid-off U.S. workers as well as contact U.S. workers who were employed in that occupation in the previous year. The petitioner then submits the recruitment reports and, if all jobs have not all been filled (about 2.9% of these jobs are filled by U.S. workers) they will await their certification.
The DOL issues the final determination 30 days before the start of the job. Petitioners who receive a denial or only a partial certification may appeal. Employers who have been partially certified or certified have 30 days to pay the initial fees of $100 plus $10 per worker.
Stage 2: H-2A Visa Application
Once the labor certification has been received, employers need to begin the process for filing their petition for nonimmigrant workers.
- 30 days before work begins: File an I-129 petition for nonimmigrant workers. These workers may be named or unnamed. Employers should expect to have a decision from USCIS within around two weeks (which, if you have been keeping track, will be only about two weeks before the work begins). If the USCIS finds deficiencies in the application, it will request additional evidence, and the process will continue until the petition is denied or approved.
- 10–15 days before work begins: Once the employer’s petition has been approved and specific workers have been recruited (more about that below), the worker must begin the individual process of being approved for their H-2A visa, which includes consular interviews, submission of fingerprints and a picture, and entry into the E-Verify system. Once the visa is approved, the workers will wait to begin the process of applying for their admission into the U.S.
Stage 3: Admission
Employers are responsible for submitting the application for their H-2A workers’ arrival and organizing their transport to the U.S.
- 0–10 days before work begins: Submit a DS-160 application for each worker and pay the required visa fees. Workers will be able to enter the U.S. no earlier than 10 days before the work begins, but they will not be able to begin work until the approved date. In some circumstances, the spouse and children of H-2A visa workers may be admitted as H-4 nonimmigrants for the same period of admission.
- Arrival and limitations: Employers must maintain accurate and complete records and make sure they are following all necessary laws that impact the H-2A agricultural workers as well as the information they submitted on their labor certification applications.
Overall, the standard process takes about 75 days from the application for labor certification to the arrival of workers. In some circumstances where workers are needed in fewer than 75 days, emergency or immediate need applications (for workers are needed in fewer than 44 days) may be considered. H-2A visa petitions generally are not granted, even on an emergency basis, to employers who have been affected by strikes or work stoppages.
Does bringing in workers on H-2A visas hurt American workers?
In agriculture, certain types of businesses often find it difficult — if not impossible — to have a steady, reliable domestic labor force. Because of this, they supplement their workforce with foreign labor. Often, these are the same workers who are already in the E-Verify system because of the H-2A visa program. In fact, data from the Department of Labor’s National Agricultural Workers Survey showed that only 2% of workers in the H-2A program between 2010 and 2012 were newcomers to the program.
The CATO institute reports that
- H-2A minimum wages are higher than every state’s minimum wage by an average of 57%.
- U.S. workers accept only 1 in 20 H-2A job offers — and most later quit.
In one case example, the North Carolina Growers Association sought to fill 7,008 jobs through the H-2A program in 2012, and just 143 U.S. workers applied for and reported to work. Of those, only 10 workers completed the growing season. These jobs take place in rural areas and often under extreme conditions, and many American workers prefer to find work elsewhere.
Without H-2A visas, the productivity of the U.S. agricultural industry would be severely impacted. H-2A visas are not a luxury for employers but a necessary part of the agricultural business sector in order to stay competitive.
How do employers find H-2A visa workers?
Most U.S. agricultural companies find their workers by referrals provided by current employees. However, if you need help finding workers, this is a service Farmer Law PC can provide, especially for more difficult to fill positions. In the agricultural industry, as Texas employers know all too well, that includes many positions in processing facilities:
- Meatpacking workforce
- Animal caretakers/herspersons
- Barn technicians/maintenance
- Biosecurity technicians
- Truck drivers/animal haulers
- Farm management
- Dairy milkers
- Poultry flock management
Even if you have an existing H-2A program in place, this is one of the more heavily audited programs. Compliance with the program is vital to your company’s success and ability to continue with the program. To get more information about starting your company’s H-2A visa program to hire reliable temporary labor, schedule a consultation with our experienced business immigration attorneys.