Non-Immigrant Visas for Temporary Agricultural Workers
The H-2A temporary agricultural program allows U.S. employers or agents who meet specific regulatory requirements to bring foreign workers to the United States to fill temporary agricultural jobs. This is a non-immigrant visa. Put another way, agricultural employers who anticipate a shortage of domestic workers can bring foreign workers to the U.S. to temporarily or seasonally perform agricultural labor or services.
According to the Brookings Institution, the top crops for H-2A workers are tobacco, oranges, cotton, and onions. These workers are supposed to be covered by U.S. wage laws, workers’ compensation, and any other applicable standards. H-2A visa holders are entitled to prevailing wages as well. There is no annual cap on H-2A workers.
The first step for the employer is to apply for temporary Labor Certification from the U.S. Department of Labor (DOL). To qualify for H-2A non-immigrant classification, the petitioner must meet a number of DOL requirements, including showing that:
The job offer is of a temporary or seasonal nature;
There are not sufficient U.S. workers who are ready, willing, and qualified to do the work being offered to the foreign national;
The foreign national must have a foreign residence that he or she has no intention of abandoning; and
The employer is a sole proprietorship, a partnership, or a corporation.
There is a mandatory 45-day waiting period between application and issuance. If there is a material change in the availability of U.S. workers who can do the job, the foreign worker’s application may be denied, or an extension may be denied.
The documents required for the H-2A visa holders include an approved temporary labor certification, an application for alien employment certification, and an agricultural food processing clearance order as well as any supporting documents.
Seasonal employment is when the work is related to a certain time of year by an event or pattern, such as a short annual growing cycle, and requires labor amounts above what is needed for continuing operations. Temporary employment is when the employer’s need to fill the spot with a temporary worker will be employed in the position for no longer than one year. An H-2A certification is valid for up to 364 days. Extensions can be granted for a total of three years. If, however, the foreign citizen wishes to stay and work in the U.S. after that time, the foreign national must leave the U.S. for six consecutive months.
Dependents of H-2A workers are entitled to bring their spouses and unmarried children under the age of 21 to the U.S. on H-4 status. Dependents may not work in the U.S., although they may attend school and obtain a driver’s license. To work in the U.S., dependents need to change their status to a non-immigrant category under which employment is authorized.
Every year, a number of foreign nationals apply for H-2A visas to temporarily work in the United States. Obtaining an H-2A visa is a complicated process which is why it is best to consult an experienced and qualified U.S. immigration law attorney who can assess the merits of your specific case.