An H-2A visa is for employers to hire temporary or seasonal foreign agricultural workers. H-2A visas are managed by the Department of Labor (DOL) under guidelines established by U.S. Citizenship and Immigration Services (USCIS). The H-2A program allows farm owners to apply to the DOL to bring in laborers to the United States for agricultural work. The DOL requires that H-2A workers be paid “special rates of pay that vary by locality, must be provided housing and transportation from that housing to the job site if their employment requires them to be away from their residence overnight, and must be guaranteed an offer of employment for a total number of hours equal to at least 75% of the work period specified in the contract.”
H-2A Workers Protect America’s Food Supply
Seasonal foreign farmworkers are vital to maintaining America’s food supply, as well as crops for export. Foreign workers are critical to the food supply. Farm work is low paying, manual jobs that many Americans refuse to do: American workers accept only 1 in 20 H-2A job offers and most later quit. Often called agricultural guest worker visas, most farmworkers are employed in the Spring and Summer months, depending on whether it’s crop or animal work, and location. Guest worker H-2A visas are nonimmigrant visas, meaning they are temporary work visas that cannot lead to permanent residence in the United States. Once their work permit has expired, guest workers must return to their home country.
Temporary Restrictions Do Not Apply to H-2A Visas
Typically, it takes 60-75 days to receive approval of a farmworker visa if all documentation is submitted correctly and on time. Due to changing U.S. immigration guidelines. In 2020, USCIS ordered temporary visa COVID economic restrictions through the end of 2020; these temporary restrictions do not apply to H-2A visas. According to a press release from the U.S Department of Agriculture,
“an H-2A petitioner with a valid temporary labor certification who is concerned that workers will be unable to enter the country due to travel restrictions can start employing certain foreign workers who are currently in H-2A status in the United States immediately after United States Citizenship and Immigration Services (USCIS) receives the H-2A petition, but no earlier than the start date of employment listed on the petition. Additionally, USCIS is temporarily allowing H-2A workers to stay beyond the three-year maximum allowable period of stay in the United States.”
H-2A visas are not subject to the annual cap imposed on H-1B and other foreign worker visas.
H-2A Visa Requirements
Each year the Department of Homeland Security (DHS) publishes a list of eligible H-2A countries in the Federal Register. A farmworker cannot file for their own H-2A visa. A U.S. employer must file USCIS Form I-129 Petition for Nonimmigrant Worker with the H supplement on behalf of the foreign worker(s). The requirements for a U.S. employer to request an H-2A farmworker visa to the DOL includes:
- showing that employment is temporary or seasonal (less than 10 months per year)
- the position is agricultural as defined by the DOL
- the employer has made an effort to recruit and hire U.S. workers for the open positions
- H-2A workers will not drive down the wages of U.S. workers employed in comparable positions
Dependents of H-2A workers (spouses and unmarried children under 21 years of age) are entitled to H-4 status but are not entitled to work in the United States. H-4 visas are temporarily suspended under the 2020 COVID economic restrictions.
Despite being vital to America’s economy and food supply, H-2A visa applications have very strict requirements and must provide evidence to the government that all requirements are met. Satisfying the different requirements for each phase of the H-2A visa application process is complicated and remaining compliant with the regulations is very complex. The guest worker visa program is highly scrutinized program by the Department of Labor. Your best chance of having your farm labor jobs filled is to have your application managed and filed by a highly-skilled Visa and Immigration Attorney.
Learn More: Immigration Attorney Kyle Farmer Discusses the H-2A Visa Program
The experienced immigration attorneys at Farmer Law PC are dedicated to finding solutions to your workforce goals and helping your fill any employment gaps legally and quickly. For a consultation, please contact us.