The second U.S work visa amongst non-immigrant visas is the H-2 visa. The H-2 visa is designed for two types of workers:
- Temporary agricultural workers with the H-2A visa
- Temporary non-agricultural workers with the H-2B visa
The H-2A visa is directed to those who will work on temporary or seasonal agricultural work. By seasonal, this means that the work is within a specified period of time or event. By temporary, it means that the work does not take more than 1 year to complete.
Based on this, employers in the U.S who have farms, farming companies or corporations, are allowed to hire farm hands from foreign countries. These farm hands will help the employers with agricultural related jobs for a specified period of time.
There is no cap for the H-2A visas. This means that anyone who applies for the visa and gets approved can come into the U.S to work and there are not restrictions on how many people can be employed in this work.
Who can apply for an H-2A visa?
The H-2A visa beneficiaries are U.S farm employers and foreign employees. Any U.S farm owner who needs extra workers qualifies to initiate the H-2A visa process for foreign workers. They should fulfill the following criteria:
- The job positions that they offer should be temporary and seasonal agricultural work
- Show that U.S workers are not willing, qualified, able, or available to work in those positions
- Show that by hiring foreign workers they will not negatively affect wages and work conditions of U.S employees in the same sector
- Have the necessary documents and petition approvals
In addition to the employers, there are conditions for employees too. The conditions to qualify for an H-2A visa as an employee are:
- Find a job from a U.S employer who is offering temporary agricultural work
- Prove that they intend to return to their home country after the visa expires
- Be of a certain nationality. Not all farm workers from all countries can come to the U.S to work. The Department of Homeland Security (DHS) has determined a number of countries from which H-2A workers can be hired.These countries are listed below:
- Belize (removed)
- Costa Rica
- Czech Republic
- Dominican Republic
- El Salvador
- Haiti (removed)
- The Netherlands
- New Zealand
- Papua New Guinea
- The Philippines
- Samoa (removed)
- San Marino
- Solomon Islands
- South Africa
- South Korea
- St. Vincent and the Grenadines
However, if a U.S employer wants to hire an agricultural worker from a country that is not on the list, they will have to go through some procedures, such as:
- Send a request in writing to the DHS
- Identify the foreign workers by name, date of birth, country of birth, and country of citizenship
- Submit proof that the U.S benefits from giving an H-2A visa to the workers
The DHS will take into account the request and might update the list to include that country if they determine that it is in the interest of the U.S to have that worker in the country.
U.S employers who are hiring workers from countries on the list and off the list are recommended to submit two petitions. This is because it will take less time to process them if they are separated into two groups.
What are the requirements for H-2A employers?
Employers who want to hire foreign workers for temporary and seasonal agricultural work have to follow two steps:
- Get certification from the Department of Labor (DOL)
- Submit petition to USCIS
- Meet DOL requirements
If all of these are approved from their respective agencies, the applicant or employee can start the visa application. Otherwise, if the certification and petition are denied, the employee cannot get the H-2A visa and will not be allowed to enter and work in the U.S.
Certification from DOL
The first step to getting permission to hire H-2A workers for agricultural purposes is to get certifications from the U.S Department of Labor. This can be done by filing the following forms:
- Form ETA-790 – Agricultural and Food Processing Clearance Order (job offer)
- Form ETA-9142A – Foreign Labor Certification
Form ETA-790 should be submitted to the State Workforce Agency where the work will be performed 60 to 75 days before the employer needs the agricultural foreign workers. This form together with the ETA-9142A should be filed to the Chicago National Processing Center (NPC) about 45 days before there is a need for the employees.
These forms are filed so that the DOL can verify the reasons that the U.S employer wants to hire foreign employees. They want to know that the employer was unable to find workers from the U.S who could do the work and that the workers will not affect the wages of U.S employees.
The certification is processed by the Chicago NPC and a decision is communicated to the employer 30 days before the employees are needed. If the DOL approves the Temporary Labor Certification, the employer can then move on to the next step.
Submit petition to USCIS
The second step is to petition for the U.S government to allow foreign workers to be hired in a U.S company. This is done by filing Form I-129 to USCIS. The form is filed by the employer and a fee if $460 is paid for it. Employers should file Form I-129 for each employee that they intend to hire.
The I-129 is reviewed from USCIS and a response is returned to the employer. If USCIS approved the petition, they will give a Form I-797 which means that the employee can start applying for the H-2A visa and is allowed to work in the U.S.
Meet DOL requirements
The Department of Labor has more requirements for employers in order for them to be allowed to hire foreign workers. The employer has to prove the following:
Efforts for recruitment
The employer has to demonstrate to the DOL that they made efforts to recruit U.S workers. This can be done by advertising the job positions in newspapers, TV, radio, or other media. Then they have to prove that they took into consideration each U.S applicant and provide reasons as to why they were rejected.
Pay foreign workers fair wages
U.S employers must pay the same wage rate for foreign workers as they would U.S workers. The wage should comply either with the federal or state minimum wage, the Adverse Effect Wage Rate (AEWR), or the prevailing wage, whichever one is the highest. Employers are encouraged to consult with the DOL about what wage rate to use.
If foreign employees work in a remote place that is far from their residence, and they cannot return to it in the same day, the employer is responsible to provide them with housing. The housing will be inspected and should comply with the Occupational Safety and Health Administration (OSHA) standards.
U.S employers should either provide three meals to foreign workers or have cooking facilities in the workplace where employees can cook their own meals. If employers provide the meals, they are allowed to charge workers for them and deduct it from their wage.
The employer must also provide transportation to the employee in these cases:
- When 50% of the contract has been completed, the U.S employer has to reimburse the transportation expenses of the employee if they were incurred
- If the employer provides housing, they are also responsible to provide transportation from the housing to the place of work
- If the employee is returning to their place of recruitment at the end of the contract, the employer is also responsible to pay the economic costs of the transportation to return there. The employer may not be responsible to pay for such costs if the employee is not returning to the place of recruitment due to having another job.
- In case the employer is providing transportation to foreign workers, they should also provide the same conditions for U.S workers too.
What are the requirements for H-2A employees?
After the employer has proven that they will meet all the necessary conditions to hire foreign workers and get approvals from DOL and USCIS, the employee can start their visa application. Applications are done at the U.S Embassy where the employee is applying from. These are the procedures:
- Fill in the DS-160 form online
- Pay the visa application fee of $190
- Set up a visa interview appointment
- Show up to the interview with these documents:
- Form DS-160 receipt
- Forms I-129 and I-797 to show USCIS approval
- Your passport
- One photo which meets the Digital Image Requirements
- Documents which prove that you intend to return to your home country after your visa expires such as a deed of a property, a lease of an apartment, or letter from an employer who states that they will hire you when you return.
- Documents for your family members if they are accompanying you
- If your visa application is approved, apply for visa stamping
- In case all of these procedures go well, at the end you will have a U.S H-2A visa through which you can go to the U.S to work temporarily.
How long does it take to process H-2A visas?
Processing times vary for H-2A visas since there is seasonality and sometimes it might take longer. However, it is recommended for U.S employers to file USCIS petitions at least 60 days, but no more than 120 days before they need the foreign workers.
The U.S government takes priority in H-2A visas so they expedite the process due to the fact that agricultural work is seasonal.
How long is a H-2A visa valid?
Since H-2A visas are temporary for agricultural work, they are valid for 1 year. So after a year, the employee has to return to their country of origin. However, in case they have not completed the work and the employer needs them, or they find another employer, the H-2A visa can be extended.
Extensions are done in one-year increments, and the total amount of time that a H-2A visa holder can stay in the U.S is three years. This means that the H-2A visa can be extended two times. After these three years, the H-2A workers must return to their home country and stay there for an uninterrupted time of 3 months before they are eligible to apply for the visa again
Is it possible to change status on an H-2A visa?
If you have found a job which does not qualify as temporary and seasonal agricultural work, but requires a different type of visa, you can change your status. For example, if you have found a job which requires an H-1B, then your employer needs to undergo the procedures to getting the H-1B visa.
In addition, if you find a new employer for an H-2A visa, the employer needs to get the DOL certification and file a new Form -129, then you can start working for them.
Many foreign workers also wonder whether they can apply for a Green Card when they have an H-2A visa. The answer is that they can. H-2A visa holders can apply for different types of Green Cards, whether they are Employment or Family based Green Cards.
Why would the U.S Embassy deny my H-2A visa?
The reasons as to why the U.S Embassy might deny an H-2A visa are mostly employer related. It can happen because:
- There are enough U.S workers who can complete the job
- The employer did not file the certification and petitions in time, so they could not prove the unavailability of U.S workers
- The employer did not conduct enough recruiting efforts
- The employer did not/cannot meet the requirements of compensation, meals, housing, and transportation
- The employer has previously violated H-2A terms and conditions
Can my family join me when on an H-2A visa?
The spouse of the H-2A visa holder and children under 21 years old can accompany them to the U.S. They will have to apply for an H-4 visa. Under the H-4 visa, dependents are not allowed to work. Only dependents of H-1 visas are allowed to work under the H-4 EAD program in certain circumstances.
If the visa of the primary H-2A holder is extended, the family can also apply for an extension of their H-4 visa. In addition, if the family finds jobs which require H-2A visas, they can try to change their status if employers go through the necessary procedures.