H-2A Visa: Temporary Agricultural Workers
H-2A Nonimmigration Visa - Temporary Agricultural Workers Description
Are you looking to expand the productivity of your farming enterprise? The H-2A program allows U.S. employers or U.S. agents who meet specific regulatory requirements to bring aliens to the U.S. to fill temporary agricultural jobs. As the prospective employer you must file Form I-129, petition for Nonimmigrant Worker, on a prospective worker’s behalf. Feel free to contact us for a Free Consultation to determine if you are eligible and begin the process of bringing in Temporary Agricultural Workers for your farming enterprise.
Who May Qualify for H-2A Classification?
To qualify for H-2A nonimmigrant classification, the petitioner must:
Offer a job that is of a temporary or seasonal nature.
Demonstrate that there are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work.
Show that employing H-2A workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.
Generally, submit a single valid temporary labor certification from the U.S. Department of Labor with the H-21 petition. (A limited exception to this requirement exists in certain “emergent circumstances”
What are H-2A Program Process Steps?
Step 1: Petitioner submits temporary labor certification application to the U.S. Department of Labor (DOL). Before requesting H-2A classification from USCIS, the petitioner must apply for and receive a Temporary Labor Certification for H-2A workers from DOL.
Step 2: Petitioner submits Form I-129 to USCIS. After receiving a temporary labor certification for H-2A employment from DOL< the petitioner must file Form I-129 with USCIS. With limited exceptions, the petitioner must submit original temporary labor certification as initial evidence with Form I-129
Step 3: Prospective workers outside the U.S. apply for visa and/or admission. After USCIS approves Form I-129, prospective H-2A workers who are outside the U.S. must:
Apply for an H-2A visa with the U.S. Department of State (DOS) at a U.S> embassy or Consulate abroad and then seek admission to the U.S. with U.S. Customs and Border Protection (CBP) at a U.S. post of entry; or
Directly seek admission to the U.S. in H-2A classification with CBP at a U.S. port of entry, if a worker does not require a visa in cases where an H-2A visa is not required.
Period of Stay
Generally, USCIS may grant H-2A classification for up to the period of time authorized on the temporary labor certification. H-2A classification may be extended for qualifying employment in increments of up to 1 year each. A new, valid temporary labor certification covering the requested time must accompany each extension request. The maximum period of stay in H-2A classification is 3 years.
A person who has held H-2A nonimmigrant status for a total of 3 years must depart and remain outside the U.S. for an uninterrupted period of 3 months before seeking readmission as an H-2A nonimmigrant. Additionally, previous time spent in other H or L classifications counts toward total H-2A time.
Exception: Certain periods of time spent outside the U.S. may “interrupt” an H-22A worker’s authorized stay and not count toward the 3-year limit.
Family of H-2A Workers
An H-2A worker’s spouse and unmarried children under 21 years of age may seek admission in H-4 nonimmigrant classification. Family members are not eligible for employment in the U.S. while in H-4 status.
What Countries on the H-2A Eligible List?
Except as noted below, H-2A petitions may only be approved for nationals of countries that the Secretary of Homeland Security (DHS) has designated, with the concurrence of the Secretary of State, as eligible to participate in the H-2A program.
The Department of Homeland Security publishes the list of H-2A and H-2B eligible countries in a Federal Register notice. Designation of eligible countries is valid for one year form publication.
As of January 19, 2019, nationals from the following countries are eligible to participate in the H-2A program:
Andorra
Argentina
Australia
Austria
Barbados
Belgium
Brazil
Brunei
Bulgaria
Canada
Chile
Colombia
Costa Rica
Croatia
Czech Republic
Denmark
Dominican Republic
Ecuador
El Salvador
Estonia
Fiji
Finland
France
Germany
Greece
Grenada
Guatemala
Honduras
Hungary
Iceland
Ireland
Israel
Italy
Jamaica
Japan
Kiribati
Latvia
Lichtenstein
Lithuania
Luxembourg
Macedonia
Madagascar
Malta
Moldova
Mexico
Monaco
Mongolia
Montenegro
Mozambique
Nauru
The Netherlands
Nicaragua
New Zealand
Norway
Panama
Papua New Guinea
Paraguay
Peru
Poland
Portugal
Romania
Samoa
San Marino
Serbia
Singapore
Slovakia
Slovenia
Solomon Islands
South Africa
South Korea
Spain
St. Vincent and the Grenadines
Sweden
Switzerland
Taiwan*
Thailand
Timor-Leste
Tonga
Turkey
Tuvalu
Ukraine
United Kingdom
Uruguay
Vanuatu
The Secretary of Homeland Security may consider adding a country to the Eligible Country List upon receiving a recommendation from DOS or a written request from an unlisted foreign government, an employer that would like to hire nationals of an unlisted country in H-2A status, or another interested party or parties. When designating countries to include on the list, the Secretary of Homeland Security, with the concurrence of the Secretary of State, will take into account factors including, but not limited to:
The country’s cooperating with issuing travel documents for citizens, subjects, nationals and residents of that country who are subject to a final order of removal;
The number of final and unexecuted (meaning completed but not yet carried out) orders of removal against citizens, subjects, nationals and residents of that country;
The number of orders of removal executed against citizens, subjects, nationals and residents of that country; and
Other factors as may serve the U.S. interest.