Immigration Lawyers Los Angeles: Non-Immigrant Visas: H-2A Visa

TEMPORARY AGRICULTURAL WORKERS H-2A VISA

Agricultural Workers H-2A Visa

Overview of Agricultural Workers H-2A Visa

H-2A visa is designed to accommodate temporary needs for employers to fill seasonal agricultural jobs where U.S. workers are not available. This program allows employers to temporarily bring foreign nationals into the United States. An H2A visa is valid up to one year, and may be renewed annually up to a maximum of three years. An agricultural worker who has held an H-2A nonimmigrant status for three years is required to leave the United States, and remain outside for three consecutive months prior to seeking readmission in the United States under H-2A. In order to sponsor an immigrant to work in the United States under H-2A, an employer must demonstrate that:
  • The job offered is of temporary nature,
  • There aren't enough U.S. workers who are available, qualified, willing, or able to do the job
  • The job offered to an immigrant will not adversely affect the wages and working conditions other U.S. workers in a similar field.

Steps to apply for an H2A Visa application

There are two steps an employer must take before a worker can file for an H2A Visa:
  • The employer must submit a petition for labor certification with the Department of Labor (DOL). The employer must prove to the DOL that a reasonable effort has been made to ensure there aren't enough U.S. workers who are available, qualified, willing, or able to do the job. This includes an active effort to recruit U.S. workers through newspapers or radio advertising in areas where work is expected to be performed. For more information on steps an employers must take to obtain a labor certification for H-2A, please visit the Office of Foreign Labor Certification Web site.
    (Note: The petition for labor certification must be filed by the employer, not the worker.)
  • Once a labor certification is granted by the DOL, the employer must file Form I-129 with the USCIS. The DOL approved temporary labor certification must be submitted with Form I-129.
    (Note: The Form I-129 must be submitted by the employer, not the worker.)

Once form I-129 has been approved by the USCIS, prospective workers who are outside the United States may apply at the U.S. embassy or consulate abroad for an H-2A visa.

It is important to note that the United States has established a list of eligible countries list, and workers from these eligible countries may apply for an H2A visa. The list of eligible countries is published in a notice in the Federal Register by the Department of Homeland Security on a rolling basis. Designation of countries on list is updated annually. Anyone from countries outside of this list may only be approved for an H-2A petition if the Secretary of Homeland Security determines that it is in the interest of the United States for that immigrant to be the beneficiary of such a petition.

Spouses and children of H2A Visa holders

Spouses and unmarried children (under the age of 21 years) of H2A agricultural workers may live in the United States with an H-4 visa.
  • They may not work in the U.S. If they want to work, they will need to change their visa from H-4 to another visa type for which employment is authorized.
  • They may pursue education under H-4 without applying for an F1 Visa.

Employers' responsibility after an H-2A visa has been issues

Employers are required to notify the USCIS when:
  • The worker fails to report to work within 5 work days of the employment start date as indicated on the H-2A petition or 5 work days established by the employer, whichever is later.
  • The worker stops showing up for work for 5 consecutive days without the consent of the employer.
  • The worker is terminated prior to the completion of the work for which he or she was hired for.
  • The worker completes the work 30 days prior to the completion dates specified in the H-2A visa petition.
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