divorce trial research on laptop

H-2A Visa for Temporary Agricultural Workers

The H-2A Visa for Temporary Agricultural Workers: Requirements for Employers and Employees

Brandon Gillin, Immigration Lawyer at Genesis Law Firm

by Brandon Gillin, Immigration Lawyer at Genesis Law Firm

If you are an agricultural employer in the United States seeking to hire temporary foreign workers, or you are a foreign national who has been offered an agriculture-related job in the U.S., this article may be for you.

For U.S. Agricultural Employers

1. Introduction.  Although there are few more painstaking procedures employers must endure when it comes to hiring workers than attempting to hire temporary foreign agricultural workers, the necessity of the situation and the financial reward that results may make it worthwhile.

2. Requirements.  The U.S. Department of Labor (DOL) has stringent requirements for U.S. employers to hire temporary agricultural workers.  The process is laborious, tedious, and downright difficult.  That is why many U.S. agricultural companies have immigration lawyers experienced in labor matters to assist them. For an employer to even be eligible to hire foreign workers, the employer must obtain a Labor Certification from DOL. This process requires the employer to prove such things as: (a) a shortage of qualified U.S. workers to fill the positions; (b) the temporary or seasonal nature of the employment being offered.  To meet these criteria, the employer must recruit U.S. workers; that is, the employer must advertise the availability of the employment being offered to U.S. workers for a period of time so as to ensure a legitimate shortage of U.S. workers.  The employer must also demonstrate that it will pay the foreign H-2A workers the same wage as U.S. workers; that is, the wage must be at least as high as the applicable Adverse Effect Wage Rate (AEWR) or the applicable prevailing wage rate, whichever is higher.  In addition, the employer must also provide free housing, meals, and transportation to H-2A employees in certain circumstances, as well as provide the employee with the tools and supplies necessary for the employment.  The amount of work the employer must guarantee must comply with the three-fourths rule; that is, the employer must provide each worker employment for at least three-fourths of the workdays in the work contract period and any extensions.  Another requirement is that at the end of the Labor Certification application process (see below), the State Workforce Agency (SWA) must continue to refer U.S. workers to the employer, which extends through fifty percent of the period of employment (the fifty-percent rule).This discussion of requirements for the employer is not exhaustive; please check the most current requirements on DOLs web site and consult with an experienced immigration attorney.

3. Applying.  The employer is charged with the responsibility of sponsoring the H-2A applicant; the employee may not apply for H-2A status individually.  First, the employer must prepare a job offer on Form ETA-790 to be filed with DOL.  Second, the employer must obtain a Labor Certificate by filing Form ETA-9142 (and ETA-9142 Appendix A.2) with DOLs National Processing Center (NPC) in Chicago.  Be sure to check the most current deadlines for filing the above forms on DOLs web site.  Once the Labor Certificate has been approved, the employer must begin recruiting for U.S. workers to ensure a legitimate shortage of U.S. workers.  The recruitment process requires specific advertising methods, so check with DOL or a qualified U.S. immigration attorney before undertaking recruiting methods to ensure compliance.  Once recruitment has been complied with, the employer may begin, after satisfying a few various other requirements such as the fifty-percent rule discussed above, the employer may begin the application process for the H-2A foreign workers, which is done by filing Form I-129 with the United States Citizenship & Immigration Service (USCIS), along with Form I-129H.

For Foreign Nationals Who Have Been Offered a Job in the U.S. as an Agricultural Worker

1. Introduction.  The H-2A visa must be applied for by an employer; not a foreign national seeking to be a temporary agricultural worker in the U.S.The benefits of the H-2A include: (a) the ability to work in the U.S. for up to three years; (b) the ability to bring dependents to the U.S. on the H-4 visa (which enables them to study in the U.S.); (c) the ability to travel freely to and from the U.S. while current on H-2A status; (d) the ability to enjoy all benefits and wage protections as other U.S. employees; and (e) the ability to change to a different job if certain criteria are met.

2. Requirements.  An individual seeking agricultural employment with a U.S. company must obtain a valid job offer from a qualifying U.S. company, and that company must obtain a valid Labor Certificate from DOL (discussed above).

3. Applying.  An individual seeking employment with a U.S. agricultural company, if outside the U.S. when USCIS approves the employers H-2A petition, must apply for the H-2A visa at a U.S. Consulate abroad.  There, the visa applicant must present forms DS-156 and DS-157 and present the I-797C Notice of Action that the H-2A petition was approved, along with a current passport, two passport photos, and proof that s/he meets the employment requirements.

The information set forth in this article is meant to be of a general informational nature, and not exhaustive.  For a complete analysis of your H-2A questions, please see a qualified U.S. immigration lawyer.

Scroll to Top